He Poutama [2023] NZLCSP 24; He Poutama [2023] NZLCSP 24

Last Updated: 21 September 2023

Mahuru | September 2023 Te Whanganui-a-Tara, Aotearoa Wellington, New Zealand

Pūrongo Rangahau | Study Paper 24

He Poutama

Te Aka Matua o te Ture | Law Commission is an independent, publicly funded, central advisory body established by statute to undertake the systematic review, reform and development of the law of Aotearoa New Zealand. Its purpose is to help achieve law that is just, principled and accessible and that reflects the values and aspirations of the people of Aotearoa New Zealand.

Te Aka Matua in the Commission’s Māori name refers to the parent vine that Tāwhaki used to climb up to the heavens. At the foot of the ascent, he and his brother Karihi find their grandmother Whaitiri, who guards the vines that form the pathway into the sky.

Karihi tries to climb the vines first but makes the error of climbing up the aka taepa or hanging vine. He is blown violently around by the winds of heaven and falls to his death. Following Whaitiri’s advice, Tāwhaki climbs the aka matua or parent vine, reaches the heavens and receives the three baskets of knowledge.

Kia whanake ngā ture o Aotearoa mā te arotake motuhake

Better law for Aotearoa New Zealand through independent review

The Commissioners who approved this Study Paper are:

Amokura Kawharu – Tumu Whakarae | President Claudia Geiringer – Kaikōmihana | Commissioner

Geof Shirtcliffe – Tumu Whakarae Tuarua | Deputy President The Hon Justice Christian Whata – Kaikōmihana | Commissioner

Kei te pātengi raraunga o Te Puna Mātauranga o Aotearoa te whakarārangi o tēnei pukapuka.

A catalogue record for this title is available from the National Library of New Zealand. ISBN 978-1-99-115994-6 (Print)

ISBN 978-1-99-115995-3 (Online)

ISSN 1174-9776 (Print)

ISSN 1177-7125 (Online)

This title may be cited as NZLC SP24. This title is available on the internet at the website of Te Aka Matua o te Ture | Law Commission: www.lawcom.govt.nz

Graphic illustrations used in this Study Paper have been provided by The Fount.

Copyright © 2023 Te Aka Matua o te Ture | Law Commission.

This work is licensed under the Creative Commons Attribution 4.0 International licence. In essence, you are free to copy, distribute and adapt the work, as long as you attribute the work to Te Aka Matua o te Ture | Law Commission and abide by other licence terms. To view a copy of this licence, visit https://creativecommons.org/licenses/by/4.0

TE AKA MATUA O TE TURE | LAW COMMISSION HE MIHI iii

He mihi

Rukutia, rukutia!

Rukutia ngā kākaho o tēnei whare hei rerenga tikanga kia ū, kia mau! Rukutia ngā kaho o tēnei whare hei papa mō te ture kia ū, kia mau!

Rukutia ngā pīngao hei tuitui, hei whakahono, hei whakakotahi kia ū, kia mau! Rukutia e Tāne kia ū, kia mau! Kei taea koe e hau nui, e hau roa, e hau pūkerikeri, E ngā hau āwhiowhio, e ngā ua māturuturu, e ngā whiunga o te wā.

Rukutia tēnei whakaruruhau kia ū, kia mau, itaita mau tonu!

Ko tō manawa e Tāne, ko tōku manawa e Tāne ka whakairihia Whano, whano, hara mai te toki! Haumi e! Hui e! Tāiki e!

Whāia te ara tapuwae o Tāne ki a Ranginui e tū nei. Waewae takamiria ngā huarahi i runga i a Papatūānuku e takoto nei. He ara pū, he ara weu, he ara rito, he ara take, he ara pūkenga, he ara wānanga, he ara taunuku, he ara taurangi, he ara whakaputa i te ira tangata, e Rangi, e Papa, e te ira atua, ki te whaiao, ki te ao mārama.

E koutou, e te tini whāioio, e te mano tuauriuri, e ngā whakapakokotanga kei ngā whare whakairo, tēnei mātau ko ā koutou nei uri e tuohu tonu ana ki tā koutou i waiho mai hei arataki i a mātau. Tāpiri hoki ki a koutou e te hunga kua riro ki te pō nōna tata nei, mai i te raki ki te tonga, mai i te rāwhiti ki te uru. Haruru tonu nei ō koutou kupu, haruru tonu nei ō koutou tapuwae i muri nei. Taiahaha! Taiahaha!

Ko te akaaka o te rangi ki a rātau, ko te akaaka o te whenua ki a tātau, e te hunga ora, e takatū nei i te mata o te whenua. Mauriora ki a tātau e hika mā.

Mokori anō kia rere a mihi ki ngā ruānuku, ki ngā ruahine, ki ngā pūkenga, ki ngā mātanga, ki ngā ngaio, ki a koutou katoa i taunaki mai i te kaupapa nei o He Poutama.

Mataatua waka, Mataatua ihi, Mataatua wehi! Ka wana katoa tēnei kaupapa i te ninihitanga o te moana o whakaaro i rukuhia e koutou. E kore e mutu ngā mihi ki a Tā Hirini Moko Mead koutou ko Tā Pou Temara, ko Taiarahia Black, ko Turuhira Hare, ko Hiria Hape, ko Waitangi Black, ko Mera Penehira, ko Puhi Iopata, ko Haturini McGarvey, ko Kaiwhakawā Layne Harvey, ko Wiremu Doherty, ko ngā ringaringa me ngā waewae hoki o Te Whare Wānanga o Awanuiārangi - mei kore koutou i tiki ai ngā kete mātauranga i ngā pakitara o ngā pātaka iringa kupu, iringa kōrero. Āe, he tipua, he taniwha!

Tēnā koutou e ngā tūī o te wao tapu nui, e tuitui nei i te reo, i ngā tikanga, i ngā whakaaro hōhonu. Ko Ruakere Hond koutou ko Rikirangi Gage, ko Tihi Puanaki, ko Hone Sadler, ko Ken Kennedy, ko Hauata Palmer. Nā koutou i tuitui i runga, i raro, i roto, i waho. Tuituiā!

E te hunga matatau ki te ao o te ture, kei te hira rawa atu te mihi ki a koutou, ki a Horiana Irwin- Easthope koutou ko Natalie Coates, ko Whāia Legal, ko Kāhui Legal hoki. Ka mihi hoki ki a Nicole Roughan koutou ko Claire Charters, ko Max Harris, ko Kingi Snelgar, ko Sebastian Hartley. Tēnā hoki koutou e ngā mema o te rōpū tohutohu ā-roto o Te Aka Matua o Te Ture, arā, ko David V Williams koutou ko Māmari Stephens, ko Carwyn Jones, ko Tai Ahu. He manu tāiko, he kanohi hōmiromiro koutou.

E ngā whatukura, e ngā māreikura hoki o te rōpū tohutohu mātanga, me mihi rawa ka tika ki a koutou, ki a Tā Edward Taihakurei Durie koutou ko Robert Joseph, ko Annette Sykes, ko Jacinta Ruru, ko Paora Tapihana, ko Kerensa Johnston, ko Tania Hopmans hoki. Nō mātau te hōnore nui mō tā koutou i tautoko mai ai.

Tēnā koutou e te puna mātauranga o te kōmiti takawaenga Māori, ko Kaiwhakawā Mātāmua Joseph Williams koutou ko Kaiwhakawā Caren Fox, ko Te Ripowai Higgins, ko Jason Ake, ko Kaiwhakawā Denise Clark, ko Liz Mellish, ko Kaiwhakawā Damian Stone, ko Baden Vertongen hoki. Ko tā te rangatira kai he kōrero; ko tā te rangatira mahi he akiaki.

E ngā iwi huri noa i te motu, mai i Te Tairāwhiti ki te Taihauāuru, mai i Te Taitokerau ki Te Pane o Te Motu, whakawhiti atu i Moana Raukawakawa ki Te Waipounamu, toro atu rā ki Rēkohu- Wharekauri, tēnā tahuri mai ki tēnei pūrongo me ngā kōrero kei roto kia noho hei whakaarotanga, hei kōrerotanga, hei mea wānanga hoki mā koutou, mā tātau.

E rua pea ngā kōrero ka noho hei tūāpapa mō te pūrongo nei o He Poutama, hei tōna pānuitanga. Tuatahi atu, ka tīkina i ngā wānanga tawhito o mua tēnei whakataukī, arā, nā te hinengaro te whakaaro, nā te whakaaro te kōrero, nā te kōrero te wānanga, nā te wānanga ka poua he tikanga. He tikanga ārahi, he tikanga arataki hoki i ngā matapakinga mō tēnei taniwha ko te ture.

Ko te tuarua o ngā kōrero e hāngai ana ki te kaupapa o tēnei pūrongo, ‘mā te ture anō te ture e patu’. Heoi anō, mā te rapu i ngā ōritenga, i ngā hononga, i ngā rerekētanga o te tikanga me te ture e whai māramatanga ai tātau ki te noho tahi, aha rānei, o ēnei mea whakahirahira i roto i ngā mahi o ia rā o ngāi tāua te tangata.

Nō reira, tūramatia ngākau o tama i te ao mārama, pūtake runga, pūtake raro, pūtake ira pou tangata whakaputa atu ki te whaiao, ki te ao mārama. Haumi e! Hui e! Tāiki e!

TE AKA MATUA O TE TURE | LAW COMMISSION FOREWORD v

Foreword

In 2001, Te Aka Matua o te Ture | Law Commission published its Study Paper Māori Custom and Values in New Zealand Law to examine the impact of tikanga on state law and consider ideas for future state law reform projects that might give effect to tikanga. The Study Paper has had an enduring influence on the consideration of tikanga in both legal and policy contexts and remains one of our most frequently cited publications.

As we note in the Introduction, since 2001 there have been many developments in the ways that tikanga and state law intersect. Tikanga is increasingly being woven into statute and the common law while, at the same time, gaining wider recognition within state law as being an independent source of rights and obligations. Yet tikanga is not well understood outside of Māori communities. The breadth and depth of tikanga is often overlooked and misunderstood. This has potential implications both for the integrity of tikanga and the coherent development of state law.

In October 2021 the Minister of Justice asked the Commission to review the role of tikanga concepts in state law. We identified two main goals. One was to provide an account of what tikanga is. The second was to address how tikanga and state law might best engage.

In approaching the first goal, we have been acutely conscious of the immense significance of tikanga to Māori. We sought the assistance of pūkenga (experts) to guide us. Their directive was clear — any account of tikanga must occur from “the inside”, grounded in mātauranga (Māori knowledge). Early in the project, we also identified that mainstream consideration of the legal dimensions of tikanga was sparse. This paper attempts to fill this gap.

In approaching the second goal, we outline the evolution of state law as it relates to tikanga. This then sets the scene for the final part of our paper, in which we provide guidance on how state actors might engage with tikanga in a way that maintains the integrity of both tikanga and state law.

While much work is still to be done, we are hopeful the paper will provide a sound basis for future interaction between tikanga and state law.

In our opening mihi we express our deep gratitude to the many people from outside of the Commission who have contributed their expertise to this project. I also acknowledge Justice Christian Whata’s leadership of the project and thank his team of advisers and clerks who have worked on this paper at different times during the project’s lifetime. I wish to thank, in particular, Tāneora Fraser, Morgan Dalton-Mill, Briar Peat, Claire Browning and Caitlin Hollings. I finally wish to acknowledge Dame Joan Metge for her enduring support of our work in this area. Dame Joan contributed to our 2001 Study Paper, and, for this one too, has been an invaluable sounding board.

Amokura Kawharu

Tumu Whakarae | President

Contents

APPENDIX 1: TIKANGA

APPENDIX 2: KEI RARO I NGĀ TARUTARU, KO NGĀ TUHINGA O NGĀ TUPUNA | BENEATH THE HERBS AND PLANTS ARE THE WRITINGS OF THE ANCESTORS

APPENDIX 3: INTERLEGALITY, INTERDEPENDENCE AND INDEPENDENCE: FRAMING RELATIONS OF TIKANGA AND STATE LAW IN AOTEAROA NEW ZEALAND

APPENDIX 4: TIMELINE OF STATUTORY AND COMMON LAW ENGAGEMENT WITH TIKANGA

CHAPTER 1

Introduction

• 1.1 In 2001, Te Aka Matua o te Ture | Law Commission (the Commission) published Māori Custom and Values in New Zealand Law, a study paper focused on tikanga. The Study Paper reflected on how Māori custom and values can influence the law and discussed ideas for future law reform to “give effect to Māori values in the laws of New Zealand”. 1 As the Commission said:2

If society is truly to give effect to the promise of the Treaty of Waitangi to provide a secure place for Māori values within New Zealand society, then the commitment must be total. It must involve a real endeavour to understand what tikanga Māori is, how it is practised and applied, and how integral it is to the social, economic, cultural and political development of Māori, still encapsulated within a dominant culture in New Zealand society.

However, it is critical that Māori also develop proposals which not only identify the differences between tikanga and the existing legal system, but also seek to find some common ground so that Māori development is not isolated from the rest of society.

The differences do not need to be seen as overwhelming. Māori and the courts each have a love of law, precedent and forebears, and these are commonalities that can be built upon.

• 1.2 Since then, there have been many developments in the way that tikanga is addressed by state law.3 Tikanga concepts are prevalent in legislation. Tikanga “has been and will continue to be recognised” in the development of Aotearoa New Zealand’s common law in cases where it is relevant.4 Tikanga has been judicially described as the first law of

¹ Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 1.

² Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 95–96.

3. See generally: Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1; Arnu Turvey “Te ao Māori in a ‘sympathetic’ legal regime: the use of Māori concepts in legislation (2009) 40 Victoria University of Wellington Law Review 531; Tai Ahu “Te reo Māori as a language of New Zealand law: the attainment of civic status” (LLM Dissertation, Victoria University of Wellington, 2012); Natalie Coates “The recognition of tikanga in the common law of New Zealand” [2015] 1 New Zealand Law Review 1;

Christian Whata “Biculturalism and the law: the i, the kua and the ka” [2018] WkoLawRw 3; (2018) 26 Waikato Law Review 24. For critical analyses of the treatment of tikanga in Aotearoa New Zealand law see: Annette Sykes “The myth of tikanga in the Pākehā law” (2021) 8 Te Tai Haruru Journal of Māori and Indigenous Issues 7; Mihiata Pirini and Anna High “Dignity and mana in the ‘third law’ of Aotearoa New Zealand” (2021) 29 New Zealand Universities Law Review 623; Natalie Coates “The rise of tikanga Māori and te Tiriti o Waitangi jurisprudence” (forthcoming); Sarah Down and David V Williams “Building the foundations of tikanga jurisprudence” [2022] CanterLawRw 2; (2022) 29 Canterbury Law Review 27.

4. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [19]; and see generally Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142; Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801; Proprietors of Wakatu v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423; Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116; Ngāi Tai ki Tāmaki Tribal Trust v Minister of Conservation [2018] NZSC 122, [2019] 1 NZLR 368; Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733; Paki v Attorney-General [2012] NZSC 50, [2012] 3 NZLR 277; Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA).

Aotearoa New Zealand,5 a “free-standing legal framework”,6 and a “third source of law”.7 The largest cohort of courts, Te Kōti ā Rohe | District Court, has begun a process of incorporating tikanga into the fabric of its operation.8

• 1.3 In consequence, demands have become pressing for legal and policy practitioners to engage more authentically with tikanga. Tikanga is still not well understood outside of the Māori communities where it is practised and lived, raising many questions. What is tikanga? Where do we find it? To whom does tikanga apply? As state law and tikanga engage, how and where are proper boundaries set — and by whom? How will risks and challenges be managed, enabling these systems to interact well? Our work has been done in a context where engagement between tikanga and state law is actively occurring, heightening the urgency.
• 1.4 Given these pressures, paths forward are needed to guide those approaching tikanga and assure all concerned that state law and tikanga are able to engage with one another with integrity. These two systems are already interacting. In this Study Paper, we have taken the view that there is little utility in the Commission readdressing whether or why state law and tikanga should engage. Instead, we have focused primarily on identifying ways in which they may properly do so, that are respectful of both systems’ parameters. The Study Paper’s purpose is to offer guiding frameworks that will enable the coherence and integrity of both tikanga and state law to be maintained. To legitimately address tikanga, an authentic understanding of it is also needed. The Study Paper aims to build understanding of tikanga that is both grounded in mātauranga (Māori knowledge) and connected with the law.

TIKANGA: OUR STARTING POINT

• 1.5 As Tā Edward Taihakurei Durie says, tikanga “is the set of values, principles, understandings, practices, norms and mechanisms from which a person or community can determine the correct action in te ao Māori”.9 Tikanga has long been recognised as having “the character and authority of law” and continues to shape and regulate the lives of Māori as it always has.10 Some aspects of tikanga are already a part of state law as a

⁵ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [22].

⁶ Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [355].

⁷ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [111].

⁸ District Court of New Zealand “Transformative Te Ao Mārama model announced for District Court” (11 November 2020)

<www.districtcourts.govt.nz>.

9. E T Durie “Will the settlers settle? Cultural conciliation and law” [1996] OtaLawRw 1; (1996) 8 Otago Law Review 449 at 452. For academic writing on the definition of tikanga see Te Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao Māori in Relation to Reform of the Law of Succession (NZLC MP6, 1996); Moana Jackson “Where does sovereignty lie?” in Colin James (ed) Building the Constitution (Institute of Policy Studies, Wellington, 2000) at 196; Ani Mikaere “The Treaty of Waitangi and recognition of tikanga Māori” in Michael Belgrave, Merata Kawharu and David V Williams (eds) Waitangi Revisited: Perspectives on the Treaty of Waitangi (Oxford University Press, Auckland, 2005) 330; Robert Joseph “Recreating legal space for the first law of Aotearoa-New Zealand” [2009] WkoLawRw 5; (2009) 17 Waikato Law Review 74.
10. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [22]; and see Dispatch from Lord John Russell to Governor Hobson, 9 December 1840 in “Correspondence respecting the colonization of New Zealand” Great Britain Parliamentary Papers relating to New Zealand, No 17 at 27.

result of being incorporated, as described above, by courts through the common law and by Parliament in legislation.11

• 1.6 At the same time, tikanga scholars acknowledge the “immense” ambit of tikanga, encompassing philosophical, ethical and social frameworks, processes and norms.12 As Dr Carwyn Jones for instance considers, tikanga has aspects of ritual and custom and spiritual and socio-political dimensions that go far beyond the legal domain, as well as being Māori legal knowledge and Māori legal tradition.13 Distinguished Professor Hirini Moko Mead describes the importance of precedent and procedure, saying that tikanga provides “procedures to be followed in conducting the affairs of a group or an individual” that are “established by precedents through time ... validated by usually more than one generation”. He also says that:14

Tikanga are tools of thought and understanding. They are packages of ideas which help to organise behaviour and provide some predictability in how certain activities are carried out. They provide templates and frameworks to guide our actions and help steer us through some huge gatherings of people and some tense moments in our ceremonial life. They help us to differentiate between right and wrong with built-in ethical rules that must be observed. Sometimes tikanga help us survive.

• 1.7 When addressing tikanga in this Study Paper, we accordingly have preferred to use the word “tikanga” over other choices such as “Māori law”.15 The label “law” is unduly narrow, even while tikanga without doubt has legal quality. Reference to “Māori” in the phrase “Māori law” also tends to mask the reality of localised and variable expressions of tikanga among iwi, hapū, marae, whānau and other hapori Māori (“hapori” meaning section of a kinship group, society or community). For similar reasons, we do not use the terms “Māori custom law” or “custom law” — although, as will be explained in Parts Two and Three,

¹¹ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [19].

12. Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 1; E T Durie “Will the settlers settle? Cultural conciliation and law” [1996] OtaLawRw 1; (1996) 8 Otago Law Review 449 at 452; Joseph Williams “He aha te tikanga Maori” (unpublished paper for Te Aka Matua o te Ture | Law Commission, 1998) at 2: “[t]ikanga Maori is essentially the Maori way of doing things — from the very mundane to the most sacred or important fields of human endeavour”; David V Williams “He aha te tikanga Maori” (unpublished revised draft of Joseph Williams’ paper of the same name, dated 10 November 1998 with minor update 2020) at 8; Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand and Māori Law (UBC Press, Vancouver, 2016) at 23.
13. Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand and Māori Law (UBC Press, Vancouver, 2016) at 23.
14. Hirini Moko Mead “The nature of tikanga” (paper presented to Mai i te Ata Hāpara conference, Te Wānanga o Raukawa, Ōtaki, 11–13 August 2000) at 3–4; see Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 16; and see generally Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016).
15. See for example usage of “Māori law” to denote tikanga by Jacinta Ruru and others Inspiring National Indigenous Legal Education for Aotearoa New Zealand’s Bachelor of Laws Degree: Phase One — Strengthening the Ability for Māori Law to Become a Firm Foundational Component of a Legal Education in Aotearoa New Zealand (Ngā Pae o te Māramatanga, supported by the Michael and Suzanne Borrin Foundation, August 2020) at 7, also describing “Māori law” as the first law of Aotearoa; Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 32; and see originally E T Durie “Custom law: address to the New Zealand Society for Legal and Social Philosophy” (1994) 24 Victoria University of Wellington Law Review 325 at 326; E T Durie “Will the settlers settle? Cultural conciliation and law” [1996] OtaLawRw 1; (1996) 8 Otago Law Review 449 at 451.

custom law is a phrase accurately used to describe one common law category of tikanga recognition.16 In this Study Paper, we simply call tikanga: tikanga.

TIKANGA AND MĀORI SOCIETY

• 1.8 Tikanga is lived and practised every day on the more than 700 marae spanning the length and breadth of Aotearoa New Zealand. Tikanga is also well established in other places: in iwi and hapū corporate entities, in Māori incorporations and trusts, in urban Māori authorities, in homes and businesses, in public agencies and institutions such as local authorities, schools and hospitals, and now in the courts. Some understanding of the Māori communities that tikanga serves contributes to understanding tikanga. Although tikanga is widely found today, it remains particularly important to appreciate the extent to which the roots of tikanga hold fast to their marae, hapū and whakapapa-connected origins, even as the outward forms of Māori society change.
• 1.9 The Commission in its 2001 Study Paper explained the principal traditional units of Māori society, focusing on whānau, hapū, iwi and waka:17

(a) Whānau, the basic social unit of Māori society, refers to both extended family and birth.18

(b) Hapū, a group bound by their descent from a common ancestor for whom the groups are named, are summarised by Durie as “groups large enough to be effective for such purposes as war, gift exchange, hosting and harvesting resources”.19 Political power was located primarily at the hapū level in pre-contact Māori society.20

(c) Iwi, a term also meaning “bones”, identifies the wider district or sometimes regionally based kin group. During the nineteenth century, “iwi” became more regularly used to mean the several ancestrally connected hapū of a region.21

16. Compare Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 1–2 and 15. See particularly: custom law may be used both “to describe the body of rules developed by indigenous societies to govern themselves” and “in a legalistic and narrow manner to refer to ... indigenous or aboriginal laws and customs that have met particular legal tests and thus are enforceable in the courts” (at 1) and “tikanga” is the closest Māori equivalent to concepts of both “law” and “custom” (at 15).

¹⁷ Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 41–44.

18. Joan Metge New Growth from Old: The Whanau in the Modern World (Victoria University Press, Wellington, 1995) at 291.
19. E T Durie “Will the settlers settle? Cultural conciliation and law” [1996] OtaLawRw 1; (1996) 8 Otago Law Review 449 at 450; E T Durie “Custom law: address to the New Zealand Society for Legal and Social Philosophy” (1994) 24 Victoria University of Wellington Law Review 325 at 327–328; Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 41–44.
20. E T Durie “Will the settlers settle? Cultural conciliation and law” [1996] OtaLawRw 1; (1996) 8 Otago Law Review 449 at 450; E T Durie “Custom law: address to the New Zealand Society for Legal and Social Philosophy” (1994) 24 Victoria University of Wellington Law Review 325 at 327–328; Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 41–44; Natalie Coates and Horiana Irwin-Easthope “Kei raro i ngā tarutaru, ko ngā tuhinga o ngā tupuna | Beneath the herbs and plants are the writings of the ancestors: tikanga as expressed in evidence presented in legal proceedings” (paper prepared for Te Aka Matua o Te Ture | Law Commission, 2023) from [6.21]. Coates and Irwin-Easthope’s paper is published in Appendix 2 and subsequent references to it in this chapter are abbreviated: Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2.
21. Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 from [6.21]. As Durie considers, “iwi” may also be a term extending to unrelated hapū or individuals when several hapū embarked on a common venture: see Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [6.44].

(d) Waka, the Māori word for canoe, refers to the descendants of one of the migration canoes, usually a collection of iwi and hapū claiming descent from the captain or crew of the waka.22

• 1.10 Some have viewed such descriptions of Māori society as “simplistic and incomplete” and find them mistaken in suggesting that “the social units in Māori society were static, that the tribal polities were immutable and that kinship was the ‘only’ basis for association”.23 However, the Reverend Māori Marsden summarised the importance of these groups, each deriving from kinship and blood relations:24

Each individual was conditioned to regard his social grouping to which he belonged as an organism rather than organisation. In other words, he was a member of an organ with a body sharing a common life. That was the basic thesis on which the Māori social structures were founded.

• 1.11 As Durie further says, the sense of kinship embraced all life forms:25

... Maori saw themselves not as masters of the environment but as members of it. The environment owed its origins to the union of Rangi, the sky, and Papatuanuku, the earth mother, and the activities of their descendant deities who control all natural resources and phenomena. The Maori forebears are siblings to these deities. Maori thus relate by whakapapa (genealogy) to all life forms and natural resources.

• 1.12 Māori society and life were also characterised by dynamic change and pragmatism, as they continue to be.26 Kāinga or village communities would form for reasons less concerned with whakapapa (genealogical connection) than mutual advantage and survival.27 Hapū would frequently form and reform as social and political circumstances required.28 Alliances were entered into and dissolved just as quickly.29 Māori society was therefore never static, and this natural capacity to evolve was vital during the contact period of the nineteenth century given the grave impacts of warfare, disease and land loss. It is a period characterised by the increased prominence of larger hapū aggregations

²² Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 42.

23. Ranginui Walker First affidavit, 28 January 1998 at [4.1a], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [6.64].
24. Māori Marsden Statement of evidence, #F25 at 3, as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [6.1].
25. E T Durie “Custom law: address to the New Zealand Society for Legal and Social Philosophy” (1994) 24 Victoria University of Wellington Law Review 325 at 328.

²⁶ Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [6.23]–[6.36] and [6.61].

27. Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 43; Mason Durie “Letter to the Law Commission commenting on the draft ‘Māori Custom and Values in New Zealand Law’” (19 February 2001) at 2.
28. Joseph Williams “He aha te tikanga Maori” (unpublished paper for Te Aka Matua o te Ture | Law Commission, 1998) at 17; E T Durie “Custom law: address to the New Zealand Society for Legal and Social Philosophy” (1994) 24 Victoria University of Wellington Law Review 325 at 327; E T Durie “Will the settlers settle? Cultural conciliation and law” [1996] OtaLawRw 1; (1996) 8 Otago Law Review 449 at 450; Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 43; Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [6.62]–[6.63] and [6.72].
29. Māori Marsden Statement of evidence, #F25 at 3, as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [6.70].

at iwi or waka level as well as the emergence of pan-Māori collectives, including the Kīngitanga.30

• 1.13 This evolution continued in the post-colonial period as Māori underwent a major urban migration.31 Pan-Māori collectives of a different kind emerged, including Māori communities within large urban centres who (while not directly whakapapa-connected) were unified through their Māori identity and shared kaupapa (values and purposes).32 As Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal has for example discussed in respect of the West Auckland urban Māori collective Te Whānau o Waipareira Trust, these new communities adopted many of the values of traditional groupings.33
• 1.14 Marae have been a constant throughout this evolution in Māori society, identified by Tā Pou Temara as “the central aspect of the base of hapū decision making structures”. 34 Marae remain the place where tikanga is actively practised and mana (authority) is expressed and maintained. Marae are, as Tā Pita Sharples has said, “the focal point in the social, cultural, political and spiritual development and wellbeing of the Māori people”.35
• 1.15 The values underpinning tikanga are another constant. Tikanga values sustain the identity of Māori communities and support their survival. Māori collectives maintain their mana, their independence and responsibility for their own tikanga. At the same time, they uphold tikanga values of interdependence and inter-relationship, which in turn are driven by underlying tikanga of whakapapa and whanaungatanga (kinship). Many of these values reflect practical considerations. For example, in communities that were traditionally both small and autonomous, helping others and allying with others was important.36 This closeness gives rise to tikanga such as reciprocity to those who have helped in the past and generosity (manaakitanga). It has been said that, in Māori communities, “[p]ower flowed from the people up and not from the top down” and that “[c]ontrol from a centralised or super-ordinate authority was antithetical to the Maori system”.37 The independent identity of Māori groups and their control of their own tikanga are expressions of such a preference for localised autonomy over centralised authority. These are fundamental features of Māori society that continue to shape and define tikanga. Such underlying tikanga values remain essential to understanding tikanga today.

30. Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 44; Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [6.73]–[6.74].
31. Campbell Gibson “Urbanization in New Zealand: a comparative analysis (1973) 10 Demography 71 at 82, as cited in Karyn Paringatai “Kua riro ki wīwī, ki wāwā: the causes and effects of Māori migration to Southland” (PhD Thesis, Te Whare Wānanga o Ōtākou | University of Otago, 2013) at 42.
32. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Te Whanau o Waipareira Report (Wai 414, 1998) at 37– 38.
33. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Te Whanau o Waipareira Report (Wai 414, 1998) at 39– 40 and 76.
34. Pou Temara Affidavit, 24 January 2022 at [12], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [6.54].
35. Pita Sharples Affidavit, 28 January 1998 at [43], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [6.15].

³⁶ Edward Taihakurei Durie (wānanga held at Wellington, May 2023).

37. E T Durie “Will the settlers settle? Cultural conciliation and law” [1996] OtaLawRw 1; (1996) 8 Otago Law Review 449 at 449–450; Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [6.33] and [6.36].

THE MODERN REALITY AND VITALITY OF TIKANGA

• 1.16 Tikanga has always been pragmatic and responsive to the needs of the communities that it serves.38 As the situation demands, tikanga will change to meet it. In 2001, the Commission referred to “a continuing review of fundamental principles in a dialogue between the past and the present”.39 As it said:40

... judges and decision-makers invited to give recognition to tikanga Māori should bear in mind that the vitality of custom law is being continuously replenished within the fora of te ao Māori.

• 1.17 Accordingly, judges and decision makers engaging with tikanga today will find variations. They should also be aware that tikanga is rebuilding after a time of massive disruption affecting both tikanga itself and Māori society. Dame Joan Metge, who has written on tikanga throughout her career, notes for example that the word “tikanga” as a concept did not itself reassume prominence until the 1980s.41
• 1.18 Examples are readily found of tikanga actively adapting in answer to modern realities. However, such change will be "effected with adherence to fundamental principles and beliefs".42 Even while there can be major changes in response to altered circumstances, tikanga remains grounded in stable underlying values and principles that have always been and continue to be shared.43
• 1.19 Later in the Study Paper, we give more attention to the implications for those engaging with tikanga in a modern and secular context of its connection with the non-ordinary realms that some may term “magico-religious”, or others “tapu”. In the end, though, while tikanga touches upon “the most sacred or important matters” it also addresses “the very mundane” concerns of everyday life.44 Tikanga responds, as Mead says, to the need to simply help people survive.45 The right way of navigating any situation will be actively debated, particularly situations that are new. All of these features of tikanga are relevant as we navigate this Study Paper. They will arise for anyone engaging with tikanga. We mention them because being mindful of them will assist in understanding tikanga when engaging with it on an everyday level.

³⁸ Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 10.

39. Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 3, citing Michael Belgrave “Māori customary law: from extinguishment to enduring recognition” (unpublished paper for the Law Commission, 1996) at 51.
40. Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 5; see generally at 2–5.

⁴¹ Joan Metge (personal communication, kōrero February and March 2023).

⁴² Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 10 and 104–105.

43. Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [2.3]–[2.21]; Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 2–5.
44. Joseph Williams “He aha te tikanga Maori” (unpublished paper for Te Aka Matua o te Ture | Law Commission, 1998) at 2.
45. Hirini Moko Mead “The nature of tikanga” (paper presented to Mai i te Ata Hāpara conference, Te Wānanga o Raukawa, Ōtaki, 11–13 August 2000) at 3–4; see Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 16.

TIKANGA AND STATE LAW

• 1.20 Tikanga and state law now co-exist in Aotearoa New Zealand’s legal landscape.46 Within the category of state law, we include legislation, other regulation, judge-made common law and state-based institutions, conventions and norms that underpin state law.47 As such, our scope includes laws developed by the public agencies and local authorities empowered to regulate our lives. It is not confined to the work of courts.
• 1.21 Tikanga is influencing state law. Reflecting the ongoing interaction of state law with tikanga, Figure 1 (which follows) identifies three spaces: tikanga, state law, and a space within the state law circle where tikanga and the state are interacting, producing a body of laws that reference tikanga. Our Study Paper considers how they can do so with integrity, so that the resulting body of laws is sound.
• 1.22 Alongside these developments, tikanga continues to function and to retain its separate identity. The separate circle, tikanga, in our figure has aspects termed “Māori” and “ā- iwi”.48 “Ā-iwi” (language adopted in our figure for brevity) refers to the localised expressions and application of tikanga by any Māori kinship group. For instance, referring to the groupings earlier introduced of waka, iwi, hapū, whānau and marae: in addition to tikanga ā-iwi, there may be tikanga ā-waka, tikanga ā-marae, tikanga ā-hapū or tikanga ā-whānau.49
• 1.23 The ways in which state law might influence expressions of tikanga are not the focus of this Study Paper. However, the separate circle, tikanga, does imply one important way in which the state can acknowledge tikanga — aside from recognising its potential relevance for state law. That is by simply acknowledging the independent legitimacy of tikanga and supporting its ongoing function within Māori communities.
• 1.24 Overall, Figure 1 reflects the three parts of this Study Paper. As the paper proceeds, we discuss in turn:

(a) tikanga;

(b) how, to date, state law has interacted with tikanga; and

(c) the processes for their future engagement.

• 1.25 For reasons we now turn to explain, the space representing the nascent process of tikanga-state law engagement in our figure shows a tukutuku pattern.

46. Compare Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 32: “the first law of Aotearoa, the second law of New Zealand”.
47. For a “constitutional sketch”, see Matthew S R Palmer and Dean R Knight The Constitution of New Zealand: A Contextual Analysis (Hart Publishing, Oxford, 2022) at 5–9.
48. See generally Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at Section One.
49. See particularly Hirini Moko Mead Affidavit, 25 February 1998 at [101], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [6.21]: “In my opinion, the concept of iwi cannot be fully appreciated or understood without considering the units which underpin iwi, namely the whānau and the hapū and their critical importance to the entire structure.”

Figure 1: Aotearoa New Zealand law — tikanga, state and an interactive space

A METAPHOR FOR FUTURE ENGAGEMENT: TUKUTUKU

• 1.26 The specific tukutuku design, poutama, that is shown in Figure 1 and on our front cover represents steps towards knowledge. As Adele Holland and Mary Silvester explain, poutama is:50

... a metaphor for the time spent consolidating new knowledge, represented by the plateau at each step; and for the period of engaging strenuously with the new knowledge, represented by the vertical step. These lead to continuing progress as people journey upwards together.

• 1.27 More generally, tukutuku involves a process of two people working together that we consider to be an appropriate metaphorical way of considering the future engagement between tikanga and state law.
• 1.28 Tukutuku are latticework panels, formed of vertical stakes (kākaho) and horizontal rods (kaho) stitched with traditional patterns. They were historically part of the wall construction of the meeting houses, wharenui. Although in modern times tukutuku are largely decorative, their symbolism remains undiminished.51 Their makers, originally known as “tuitui workers” (“tuitui” meaning to lash or bind), work in pairs. One person stands in front of the panel and another behind, threading fibre through spaces in the lattice to each other and binding the stakes and rods together.52 Puhanga Patricia Tupaea (Ngāti

50. Adele Holland and Mary Silvester “The poutama tukutuku metaphor and how it adds value to the tertiary learning journey” (paper presented to Annual International Conference of the Association of Tertiary Learning Advisors of Aotearoa/New Zealand (ATLAANZ), Wellington, November–December 2011) 16 at 18, citing Arapera Royal Tangaere. See also John C Moorfield Te Aka Māori-English English-Māori Dictionary and Index <maoridictionary.co.nz>; Kahutoi Te Kanawa “Te raranga me te whatu — tāniko and tukutuku” (22 October 2014) Te Ara — The Encyclopedia of New Zealand <teara.govt.nz>.
51. Christchurch City Libraries | Ngā Kete Wānanga-o-Ōtautahi “Pūawaitanga o te ringa | Fruits of our busy hands: the tradition of tukutuku” (booklet compiled by Christchurch City Libraries | Ngā Kete Wānanga-o-Ōtautahi, Christchurch, 2003, accessed at <christchurchcitylibraries.com>).

⁵² Makereti Papakura The Old-Time Maori (Victor Gollancz, London, 1938) at 305–306. See also Erenora Puketapu-Hetet

Maori Weaving (Longman, Auckland, 1999) at 29–30.

Koata) describes giving and receiving back the thread, away from oneself and towards oneself: “tuku atu, tuku mai”.53 Tukutuku thus implies values of reciprocity and connection.54 As wharenui were constructed in the past, the tukutuku work to complete their walls would involve a tohunga (Māori knowledge expert) and another assistant outside.55 Within the house, the tohunga was responsible for the pattern.

• 1.29 Metaphorically, if tikanga were considered as the vertical stakes (kākaho) of a tukutuku, state law might be considered as the horizontal rods (or kaho). Tukutuku then represents a metaphorical process of connecting and binding together the kākaho of tikanga and the kaho of state law. The participants, Māori and state, might be considered as the people working on each side of the panel.
• 1.30 Tukutuku has synergy with the way in which the Commission’s earlier reports have reflected on the intersection of tikanga with state law. Rather than merely incorporating tikanga into a pre-existing legal model written around dominant norms, laws developed by the state should seek to:56

... weave new law that reflects tikanga Māori ... We think this is a deeply important approach to law-making in Aotearoa New Zealand to support a nation that is grounded in the commitments of te Tiriti, to the benefit of all New Zealanders.

• 1.31 Tukutuku conveys other associated values. Tukutuku, connecting two people, expresses an ideal of balance. Importantly, those who explain the meaning of a “tuku” have considered that while it is a process of giving (and in return receiving), it does not involve “letting go” or a relinquishment of mana or rangatiratanga.57 Instead, tuku are described as creating obligations,58 as an aspect of utu (reciprocally responding),59 and as an invitation “to share ... life and community”.60 As the tukutuku metaphor may help to understand, the thread is passed anticipating that either it will be returned to its giver to continue the pattern or that the person behind can be entrusted to make the proper customary tie.

53. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Te Tau Ihu o te Waka a Maui: Report on Northern South Island Claims (Wai 785, 2008, vol 1) at 37.
54. Wiremu Doherty, in wānanga with Te Aka Matua o te Ture | Law Commission (9 February 2023); Wiremu Doherty, peer review comments to Te Aka Matua o te Ture | Law Commission (14–15 February 2023).
55. Te Rangi Hiroa (P H Buck) “Maori, decorative art: no 1, house-panels (arapaki, tuitui, or tukutuku)” (1921) 53 Transactions and Proceedings of the Royal Society of New Zealand 452 at 455. Tohunga were often men — their assistant in likelihood a woman, not allowed to enter the wharenui herself until tapu was lifted on the completed house. This implies a gender balance in tukutuku making, as do the materials of a tukutuku panel (involving both wood work and weaving). However, some also refer to wāhine as tohunga: see Te Riaki Amoamo Affidavit, 21 February 2022 at [29], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [6.111].
56. Te Aka Matua o te Ture | Law Commission He arotake i te āheinga ki ngā rawa a te tangata ka mate ana | Review of succession law: rights to a person’s property on death (NZLC R145, 2021) at 80.

⁵⁷ See Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.222].

58. Vivian Tāmati Kruger Statement of evidence, 2 June 2020 at [121]–[124] and [126], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.217]; Merata Kawharu “Kaitiakitanga: a Maori anthropological perspective of the Maori socio-environmental ethic of resource management” (2000) 109 The Journal of the Polynesian Society 349 at 361.
59. Margaret Anne Kawharu Statement of evidence, 2 June 2020 at [30]–[33] and [35], as cited in Coates and Irwin- Easthope “Beneath the herbs and plants”, Appendix 2 at [4.276].
60. Rima Eruera Statement of evidence, #F23 at 9, as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.222].

• 1.32 At the present time, interactions between tikanga and state law do not fully realise such values. They occur in forums where there is unequal power, where state actors assert authority and decide what is authoritative according to orthodox rules. As Dr David V Williams (now Professor Emeritus) has put it:61

Once ‘rules’ of custom are incorporated into the mainstream of the state legal system as precedents they may then be treated in the same way as all other legal norms. They can be modified, distinguished or even over-ruled.

• 1.33 As Williams suggests, the story of the shark and the kahawai is apt:62

... when the shark met the kahawai, the shark suggested that they should join together and be as one. Perceiving that this would occur by the shark swallowing the kahawai, the kahawai demurred — preferring a continuing existence as a kahawai rather than ‘assimilation’ into unity with the larger fish.

• 1.34 We therefore remain mindful that a “delicate balance and a sense of wariness” is required.63 Those who are wary of the realities of tikanga-state interaction and who see hazards in the engagement between tikanga and state law have historical evidence to draw on. As the Commission explained in its 2001 Study Paper:64

... the systems of introduced laws and settler policies were geared towards the eclipse of Māori custom law ... A process of denial, suppression, assimilation and co-option put Māori customs, values and practices under great stress.

• 1.35 Even today, encounters between tikanga and state law have tended to favour the dominant system of legal norms.65
• 1.36 There is, however, another perspective. That is that tukutuku anticipates a continuing process — of statute by statute, case by case, making tikanga connections and incorporating aspects of tikanga. Given time, as this continues, the smaller circle enlarges within state law. As Justice Joseph Williams (writing extra-judicially) has considered, in time we may find that an emergent third law of Aotearoa New Zealand “has come to change both the nature and culture of the second [state-imposed] law” by perpetuating the first law of tikanga.66 Such a re-emergence contrasts with the “eclipse” that the Commission’s 2001 Study Paper observed.67
• 1.37 In our view, tukutuku represents essential tikanga values or ideals that, now and into the future, can guide those working at the interface of tikanga with state law. The metaphor, tukutuku, is important because its tikanga-associated meanings are reminders of the

61. David V Williams “He aha te tikanga Maori” (unpublished revised draft of Joseph Williams’ paper of the same name for Te Aka Matua o te Ture | Law Commission, 1998, dated 10 November 1998 with minor update 2020) at 4.
62. David V Williams “He aha te tikanga Maori” (unpublished revised draft of Joseph Williams’ paper of the same name for Te Aka Matua o te Ture | Law Commission, 1998, dated 10 November 1998 with minor update 2020) at 4–5.
63. David V Williams “He aha te tikanga Maori” (unpublished revised draft of Joseph Williams’ paper of the same name for Te Aka Matua o te Ture | Law Commission, 1998, dated 10 November 1998 with minor update 2020) at 4–5.

⁶⁴ Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 22.

65. See for example Takamore v Clarke [2012] NZSC 116, [2013] NZLR 733 at [169]; Natalie Coates “What does Takamore mean for tikanga?” [February 2013] Māori Law Review 14; and see also Te Aka Matua o te Ture | Law Commission Te Aka Matua o te Ture | Law Commission He arotake i te āheinga ki ngā rawa a te tangata ka mate ana | Review of succession law: rights to a person’s property on death (NZLC R145, 2021) at [2.128].
66. Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 12.

⁶⁷ Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 22.

correct values as tikanga and state law engage. Its underlying expectations — such as reciprocity, balance, holding a matter on trust and correctly repeating the pattern, an awareness that mana is reinforced and strengthened, not given away by tuku — ought always to be at the forefront of state actors’ minds as they seek to engage with tikanga. Such values are one way of supplying tikanga-given guardrails for the interaction of tikanga with state law.

OUR APPROACH

• 1.38 This project has presented some significant challenges. Tikanga, like state law, is vast and complex. While anchored in broadly shared values, those values are expressed and performed in a multiplicity of ways. Another source of complexity for us has been the diversity of audiences we are addressing. We want the Study Paper to be accessible to people without significant prior knowledge of tikanga, or even of state law. But it has also been a significant concern for us to communicate our account of tikanga in an authentic way that maintains the integrity of tikanga.
• 1.39 Against this backdrop, we commenced our task by seeking the assistance of renowned pūkenga tikanga (tikanga experts) and legal professionals who specialise in the study of tikanga or are actively engaged in tikanga-related legal practice. This has enabled us to properly ground our account of tikanga, to draw on a broader range of expertise than is currently available within a small organisation such as the Commission, and to undertake an ambitious task within the tightly confined timeframes of the project.

Externally commissioned work

• 1.40 We commissioned three external research papers that have each substantially contributed to shaping the Study Paper. They have assisted us with how to approach tikanga, with how to ground our explanations of tikanga in mātauranga Māori, and with conceptualising, on a more philosophical level, the nature of tikanga and its interaction with state systems.
• 1.41 “Tikanga”, a paper prepared for us by Professors Wiremu Doherty, Tā Hirini Moko Mead and Tā Pou Temara of Te Whare Wānanga o Awanuiārangi, is published in Appendix 1. 68 We have worked collaboratively with the Awanuiārangi pūkenga throughout our project. Their paper has helped to ensure our own approach is tikanga-consistent. It orients tikanga within what the Awanuiārangi pūkenga identify as systems of Māori knowledge and provides an account of tikanga including discussion of the symbolic importance of wharenui and an overview of tikanga concepts. The Awanuiārangi paper has closely supported the development of Part One of this Study Paper.
• 1.42 A challenge we encountered in this project was the inability, given limited time and resources, to engage directly with hapū and iwi about their tikanga perspectives. Mindful of that limitation we engaged two law firms that specialise in tikanga-related legal practice, Kāhui Legal and Whāia Legal, to review tikanga evidence given in Waitangi Tribunal and court hearings. The resulting paper prepared by Natalie Coates and Horiana Irwin-Easthope and published in Appendix 2 reviews more than 800 briefs of tikanga

68. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023).

evidence providing hapū and iwi perspectives from throughout Aotearoa New Zealand.69 The paper synthesises themes which the evidence suggests are important to hapū and iwi. We have drawn on this paper throughout our work and use the expressions of tikanga that it documents particularly in Chapter 3.

• 1.43 Finally, to inform our thinking on a potential new framework for engagement between tikanga and state law, we commissioned Associate Professor Nicole Roughan of the University of Auckland Law Faculty to examine approaches to engagement between indigenous and state legal systems. Roughan’s paper, “Interlegality, interdependence and independence: framing relations of tikanga and state law in Aotearoa New Zealand”, is published in Appendix 3. It envisages a domain of independent tikanga operation and a domain of interdependent operation of tikanga with state law.70 This paper may particularly appeal to those who are interested in a more philosophical perspective. In addition, we had the benefit of two research notes produced by Dr Max Harris and Professor Claire Charters of the University of Auckland.71 Their research gave further theoretical grounding to the approach taken in Part Three of the Study Paper.
• 1.44 We have ourselves found all of these papers helpful and stimulating. We expect others will share our view. That said, in each case, they represent their authors’ views and not necessarily those of the Commission. Some qualifications should also be noted:

(a) The “Tikanga” paper provides the perspective of the Awanuiārangi pūkenga and strongly reflects “Tūhoetanga” or a “Mataatua waka” perspective. While it provides rich tikanga Māori information, it should not be assumed that others, whose own accounts differ, will endorse its explanations. Others may have differing perspectives on tikanga. It is important to understand this diversity of approach.

(b) The tikanga explanations given in the paper by Coates and Irwin-Easthope are largely drawn from post-1980s legal materials and will have been influenced by their recency and legal context. Given this, it may be beneficial to read this paper alongside other publications that reference older sources.72 That caveat aside, this study by Coates and Irwin-Easthope brings to light iwi and hapū explanations that we think will greatly benefit future research and aid understanding of tikanga.

Review processes

• 1.45 Consistent with our regular processes, we have been guided by:

(a) An Expert Advisory Group appointed specifically for the project with the following membership: Tā Edward Taihakurei Durie (Ngāti Raukawa, Ngāti Kauwhata), Robert Joseph (Tainui, Tūwharetoa, Ngāti Kahungunu and Ngāi Tahu), Annette Sykes (Ngāti

69. Natalie Coates and Horiana Irwin-Easthope “Kei raro i ngā tarutaru, ko ngā tuhinga o ngā tupuna | Beneath the herbs and plants are the writings of the ancestors: tikanga as expressed in evidence presented in legal proceedings” (paper prepared for Te Aka Matua o Te Ture | Law Commission, 2023).
70. Nicole Roughan “Interlegality, interdependence and independence: framing relations of tikanga and state law in Aotearoa New Zealand” (paper presented to Te Aka Matua o te Ture | Law Commission, 2023).
71. Max Harris "Pacific insights: approaches to indigenous legal systems and other bodies of law in Pacific jurisdictions" (research note, 2023); Max Harris "The common law method, tikanga Māori, and the law of Aotearoa New Zealand: a discussion note" (research note, 2023).
72. For example Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013); The Legal Māori Resource Hub <www.legalmaori.net>.

Pikiao, Ngāti Makino), Jacinta Ruru (Ngāti Raukawa, Ngāti Ranginui), Paora Tapsell (Te Arawa, Ngāti Raukawa), Kerensa Johnston (Ngāti Tama, Ngaruahine, Te Atiawa, Ngāti Whawhakia) and Tania Hopmans (Ngāti Kahungunu, Ngāti Marangatūhetaua).

(b) The Māori Liaison Committee, a standing committee established to assist the Commission to take into account te ao Māori when making its recommendations for reform and development of the law.73

• 1.46 We also considered that this project would benefit from having an Internal Advisory Group to assist with the scope and direction of the Study Paper and to provide feedback on early drafts. We appointed Tai Ahu (Waikato-Tainui, Ngāti Kahu), Carwyn Jones (Ngāti Kahungunu, Te Aitanga-a-Māhaki), Māmari Stephens (Te Rarawa) and David V Williams for this purpose. The Internal Advisory Group also reviewed and provided feedback on the papers in Appendices 1 and 2.
• 1.47 The Awanuiārangi pūkenga reviewed and were consulted extensively on the chapters in Part One: Tikanga. The authors of the papers in Appendices 2 and 3 likewise reviewed drafts of the chapters that draw upon their research. We have further benefited from comments provided on drafts by members of the judiciary, including members of the senior courts and the Māori Land Court.

HOW THE STUDY PAPER IS ORGANISED

• 1.48 This Study Paper is divided into three parts, which respectively consider tikanga, the history of interaction between tikanga and state law, and their future engagement.

Part One: Tikanga

• 1.49 Part One is concerned with understanding tikanga from within mātauranga Māori:

(a) Chapter 2 begins by describing some steps towards understanding tikanga. It connects tikanga with mātauranga and explains the Māori creation narratives called pūrākau, identifying them as sources of tikanga. This chapter then suggests that the marae meeting houses, wharenui, represent a useful starting point for tikanga exploration.

(b) Chapter 3 introduces core tikanga concepts. The explanation developed in this chapter provides a bridge to understanding tikanga concepts as a unified system of norms, drawing upon explanations by mātauranga experts.

(c) Based upon the framework of tikanga concepts that Chapter 3 has outlined, Chapter 4 gives a guide for tikanga engagement, illustrated with six hypothetical case studies.

Part Two: Interaction between tikanga and state law

• 1.50 Part Two provides a thematic overview of the interactions since 1840 between tikanga and state law:

(a) Chapter 5 reviews how the common law has engaged with tikanga.

(b) Chapter 6 examines the evolving approach taken by the state to recognition of tikanga in legislation.

⁷³ For terms of reference generally for the Māori Liaison Committee, see Māori Liaison Committee <www.lawcom.govt.nz>.

(c) Chapter 7 considers the way specific areas of the law in the modern legal landscape interact with tikanga, including family law, ture whenua Māori (Māori land law), environment law and criminal law.

Part Three: Future engagement

• 1.51 Part Three looks to the future and considers pathways to appropriate engagement between tikanga and state law:

(a) Chapter 8 proposes principles for proper engagement with tikanga by the courts consistent with the “common law method”.

(b) Chapter 9 discusses ways in which government agencies could approach engagement with tikanga when developing policy and legislation.

(c) Chapter 10 completes the Study Paper. It briefly reflects on the key contributions made, acknowledges perspectives that have been beyond our scope and notes that other future pathways for tikanga recognition remain open.

REO MĀORI TERMS

• 1.52 We are endeavouring to strike a balance in the Study Paper between Māori readers highly fluent in the Māori language and in tikanga, and other readers who may have no knowledge of either of these. In Aotearoa New Zealand today some common Māori terms (such as whānau, marae and tangihanga) are very widely used and have meanings that are sufficiently understood. We therefore have not defined all Māori words that are used in the Study Paper. However, we endeavour to provide simple explanations for the majority of Māori terms. Where Māori words are less well known, we have used simple in- text definitions or explained the meaning in the surrounding text to assist readers with understanding the meaning of the word in the relevant context.
• 1.53 These simplified definitions are given the first time that a word appears in each chapter. While they are intended to improve the accessibility of the Study Paper for those with limited knowledge of the Māori language, importantly they may not necessarily reflect the depth and breadth of the Māori meaning of these words. At the back of the Study Paper, an index of tikanga concepts is provided, indicating where important concepts in the Study Paper have been discussed and defined. In addition, we invite readers to use the online Māori language dictionary: Te Aka Māori Dictionary to assist their comprehension.74

74. Te Aka Māori Dictionary <maoridictionary.co.nz>; see also John C Moorfield Te Aka Māori-English, English-Māori Dictionary and Index (3rd edition, Longman/Pearson Education New Zealand, 2011), the text on which the online version of Te Aka Māori Dictionary is based.

Part One

Tikanga

24 STUDY PAPER 24 – HE POUTAMA TE AKA MATUA O TE TURE | LAW COMMISSION

It is not possible, or appropriate, to outline the depths of the philosophies which governed Maori life. However, their beliefs and the rules of behaviour which flowed from them can be compared to the parts of a sheltering whare. They were the foundations which supported the society, the walls which enveloped its members in security, and the roof which protected them from disorder and imbalance.

Moana Jackson1

1. Moana Jackson The Maori and the Criminal Justice System: A New Perspective | He Whaipaanga Hou (Department of Justice, Study Series 18, 1987–1988, part 2) at 43.

CHAPTER 2

Te wharenui |

the meeting house

Fundamental to any discussion of tikanga is the necessity to appreciate its placement and functioning within te ao Māori. Understanding tikanga requires a journey through the Māori world, one that outlines the knowledge systems, values and beliefs, and that locates tikanga into its natural environment. To try and build an understanding of tikanga outside of that framework runs the risk of it becoming de-contextualised and abstract, and where its authentic meaning becomes distorted.

Professor Wiremu Doherty, Tā Hirini Moko Mead and Tā Pou Temara1

INTRODUCTION

• 2.1 It is important for those wishing to build their understanding of tikanga and to engage authentically with it to consider tikanga within a Māori world view.2 Exploring aspects of te ao Māori (the Māori world) and the Māori knowledge systems underpinning tikanga provides a basis for better understanding.3 In this chapter, we explain what we mean by Māori knowledge systems and describe how they influence the distinction between tikanga Māori and tikanga ā-iwi. We then use Māori narratives and the concept of te wharenui (the meeting house) to lay further foundations.
• 2.2 The analysis in this chapter has been guided by explanations from Te Whare Wānanga o Awanuiārangi pūkenga (experts), Professors Wiremu Doherty, Tā Hirini Moko Mead and Tā Pou Temara (Awanuiārangi pūkenga), which we attach in full as Appendix 1.4 The Awanuiārangi pūkenga explain the importance of orienting tikanga within mātauranga (Māori knowledge) and use creation narratives to illustrate the origins of tikanga. They also describe the importance of wharenui as places of knowledge and as portals to a Māori world view. The wharenui reveals a connected world and enables us to begin to learn about tikanga principles.5

1. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [1.2]. Subsequent references to this paper in this chapter are abbreviated as follows: Doherty, Mead and Temara “Tikanga”, Appendix 1.

² Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.3].

³ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.60].

⁴ Doherty, Mead and Temara “Tikanga”, Appendix 1.

⁵ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.7].

THE METAPHOR OF THE WHARENUI

• 2.3 The metaphor of the wharenui in this chapter offers a way to invite readers into a mātauranga-immersed space. In te ao Māori the use of metaphor is common. The wharenui, in particular, is a widely chosen metaphor. According to the Awanuiārangi pūkenga, wharenui represent the first striving for knowledge. In this respect, our use of the wharenui metaphor is one way of positioning the reader within a Māori world view for the purpose of explaining mātauranga and tikanga. We wish to emphasise that our use of the wharenui is as an explanatory tool that can aid understanding of an ao Māori perspective and frame engagement with tikanga, rather than to explain wharenui. There are many sources available to assist readers who are interested in researching wharenui further.6 Importantly, these will include the specialised and unique accounts of iwi and hapū in regard to their own marae (both published and unpublished).7
• 2.4 Adopting a technique from whaikōrero (formal speech) and karanga (a ceremonial welcome call), the structure of the wharenui frames our discussion. The chapter is divided into four sections, each represented in our account by a part of the wharenui. Each of the first three sections represent one of three central posts or pillars called pou. As the pou are said to do, each holds a kete or basket of knowledge.8 The three pou hold up the sheltering roof of the wharenui. They are connected by the ridge pole, te tāhuhu.
• 2.5 Te poutuaroro is the pou in the middle of the front wall of the wharenui.9 In this first section of the chapter, we outline two Māori knowledge systems, each providing the basis for tikanga. We do so drawing upon explanation from the Awanuiārangi pūkenga, who differentiate mātauranga from what they call “generic” or non-Māori knowledge.
• 2.6 Te poutokomanawa is the pou at the centre of the wharenui.10 In this second section of the chapter, we provide a further entry point to tikanga through the Māori narratives called pūrākau, which describe Māori existence and creation. Pūrākau are sources of knowledge of core tikanga Māori concepts and Māori histories.11 Tikanga is found in them, as we explain.
• 2.7 Te poutuarongo is the pou that is part of the rear wall. In this third section of the chapter, we describe some physical aspects of a wharenui and marae ātea, showing how they represent a Māori world view and help to visualise the wharenui as a portal between the present day and other te ao Māori realms. These ways in which traditional designs of wharenui encode Māori narratives provide another insight into where mātauranga and tikanga may be found.
• 2.8 Te tāhuhu, the ridge pole, is the section that completes the chapter. Metaphorically beginning in times preceding us, te tāhuhu symbolises continuation to times that will come

6. We recommend for example Muru Walters, Robin Walters and Sam Walters Marae — Te Tatau Pounamu: A Journey Around New Zealand's Meeting Houses (RHNZ Godwit, Auckland, 2021).
7. See for instance Hirini Moko Mead, Layne Harvey, Pouroto Ngaropo and Te Onehou Phillis Mātaatua Wharenui: Te Whare i Hoki Mai (Huia Publishers, Wellington, 2017).

⁸ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.20].

⁹ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.28].

¹⁰ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.28].

11. As Māori Marsden says in Te Ahukaramū Charles Royal (ed) The Woven Universe: Selected Writings of Rev. Māori Marsden (Estate of Rev Māori Marsden, Ōtaki, 2003) at 56: these are not mere “fireside stories”, they encapsulate knowledge. See also Doherty, Mead and Temara “Tikanga”, Appendix 1 at [3.93] and [4.10].

after.12 In this last section of the chapter, we focus more directly on the tikanga values that the wharenui represents, and reflect on why imaginatively positioning oneself within the wharenui is a helpful standpoint from which to engage with tikanga. We draw together the prior three pou and establish an aho or genealogical line of connection to Chapter 3, which draws further on the wharenui when discussing tikanga concepts.

TE POUTUARORO: MĀORI KNOWLEDGE SYSTEMS

• 2.9 It is not possible to engage authentically with tikanga without some appreciation of the nature of the Māori knowledge systems that underpin it. Advice from the Awanuiārangi pūkenga regarding the importance of orienting tikanga within a Māori world view has been influential in our account of tikanga and the way in which we propose it can be engaged with authentically. We therefore begin by considering their outline of two knowledge systems before considering what we mean when we speak about Māori knowledge.13
• 2.10 The Awanuiārangi pūkenga describe two interconnected knowledge systems.14 The first is mātauranga Māori, which is the knowledge broadly shared by all Māori. The second is mātauranga ā-iwi, which is localised knowledge based on Māori kinship groups’ own experience and whakapapa (in this context, meaning connections). As a first step towards considering tikanga, the Awanuiārangi pūkenga suggest that knowledge of these two systems is helpful — particularly for those much more accustomed to a third system comprising knowledge that does not originate from Māori, which they term generic knowledge.15
• 2.11 Tikanga also reflects this way of classifying Māori knowledge. It can similarly be divided into the following two categories:

(a) Tikanga Māori, which covers the core beliefs, values and principles broadly shared among Māori and is informed by mātauranga Māori.

(b) Tikanga ā-iwi, which refers to the localised expressions of tikanga that are shaped by different Māori groups’ knowledge and experience. Tikanga varies between different Māori groups. Their own knowledge (or mātauranga ā-iwi) explains such variation.

• 2.12 When engaging with tikanga, the Awanuiārangi pūkenga consider that it is essential to bear in mind and maintain the distinctions between these three systems. Rather than simply applying the generic knowledge with which they will be most familiar, it is important that people who are not knowledgeable about tikanga locate it within the context of the Māori world view and the relevant mātauranga.16 It is also important that tikanga Māori and tikanga ā-iwi are not conflated. Observing the boundaries of these different systems is fundamental to safeguarding the integrity of tikanga.
• 2.13 This advice from the Awanuiārangi pūkenga has shaped our own perspectives on how to structure this Study Paper. Consistent with their advice, we are opening our own account

¹² Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.68].

¹³ See generally Doherty, Mead and Temara “Tikanga”, Appendix 1 at Section One.

¹⁴ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [1.18]–[1.19] and [1.36]–[1.39].

¹⁵ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [1.12] and [1.54]–[1.55].

16. Doherty, Mead and Temara “Tikanga”, Appendix 1 at [1.31]; and see too Linda Tuhiwai Smith Decolonizing Methodologies: Research and Indigenous Peoples (2nd ed, Zed Books, London, 2012) at 201.

by orienting it within mātauranga. We have chosen to do so by using the wharenui metaphor as one way into a Māori world view.

• 2.14 Because of the extent to which both te ao Māori and mātauranga are heavily influenced by metaphysics and spirituality, some further explanation is required. Although it is not necessary to ascribe to this symbolism to understand tikanga, it is necessary to engage with it. We have ourselves found an explanation from Te Ahukaramū Charles Royal particularly helpful. Royal follows Reverend Māori Marsden, who explained:17

Cultures pattern perceptions of reality into conceptualisations of what they perceive reality to be; of what is to be regarded as actual, probable, possible or impossible. These conceptualisations form what is termed the ‘worldview’ of a culture. The worldview is the central systematisation of conceptions of reality to which members of its culture assent and from which stems their value system.

• 2.15 Referring to āronga (a concept used by him to stand for world view), Royal points out the way in which a people’s values or principles (kaupapa) arise from their ways of seeing their world.18 Values and principles in turn will give rise to the things we understand to be correct and actually do.19
• 2.16 In other words, the way people understand their world shapes their values and in turn their perspective on how to regulate and conduct their society. This is our starting point for consideration of tikanga in a legal context. When we are talking about knowledge, we mean, like Royal, world view. Metaphysics and spirituality are intrinsic to an ao Māori perspective. An understanding and genuine appreciation of this world view will pave a path towards a clearer understanding of tikanga.

TE POUTOKOMANAWA: MĀORI CREATION AND EXISTENCE

• 2.17 In this section we make connections between tikanga and a Māori view of creation and existence. Pūrākau, traditional forms of Māori narrative that recount creation, contain tikanga.20 Passed down from generation to generation through oral tradition, these accounts hold philosophical thought, constructs relating to knowledge, cultural codes and

17. Te Ahukaramū Charles Royal (ed) The Woven Universe: Selected Writings of Rev Māori Marsden (Estate of Rev Māori Marsden, Ōtaki, 2003) at 56; Te Ahukaramū Charles Royal “An organic arising: an interpretation of tikanga based upon the Māori creation traditions” in Ngā Pae o te Māramatanga Tikanga Rangahau Mātauranga Tuku Iho | Traditional Knowledge and Research Ethics Conference Proceedings 2004 (Ngā Pae o te Māramatanga, Auckland, 2005) 206 at 223.
18. Te Ahukaramū Charles Royal “An organic arising: an interpretation of tikanga based upon the Māori creation traditions” in Ngā Pae o te Māramatanga Tikanga Rangahau Mātauranga Tuku Iho | Traditional Knowledge and Research Ethics Conference Proceedings 2004 (Ngā Pae o te Māramatanga, Auckland, 2005) 206 at 223–225. As Royal explains, āronga is “a term not often used in common parlance”, less widely understood than the concepts with which he connects it: kaupapa and tikanga.
19. Te Ahukaramū Charles Royal “An organic arising: an interpretation of tikanga based upon the Māori creation traditions” in Ngā Pae o te Māramatanga Tikanga Rangahau Mātauranga Tuku Iho | Traditional Knowledge and Research Ethics Conference Proceedings 2004 (Ngā Pae o te Māramatanga, Auckland, 2005) 206 at 223–224.
20. Doherty, Mead and Temara “Tikanga”, Appendix 1 at [3.93] and [4.10]; Māori Marsden in Te Ahukaramū Charles Royal (ed) The Woven Universe: Selected Writings of Rev. Māori Marsden (Estate of Rev Māori Marsden, Ōtaki, 2003) at 66. Pūrākau may also be called “pakiwaitara”: see Doherty, Mead and Temara “Tikanga”, Appendix 1; Edmond Carrucan “Ko tikanga te mātāmua: ngā pūrākau, ngā pakiwaitara, me mihi, ka tika” (LLM Thesis, Te Whare Wānanga o Waikato | University of Waikato, 2021).

world views fundamental to identity.21 They are an example of the important concept within mātauranga Māori of looking to the past to inform the present.22 The kupu (word) itself — “pūrākau” — holds clues to their importance. “Te pū” refers to the base of a tree from which the growth cycle starts. “Rākau” refers to the growth and development of the upper tree. “Pūrākau” therefore alludes to the beginning and growth of all things.23

• 2.18 A brief account of Māori creation according to these narratives reveals both the inception of tikanga concepts and the significance of the wharenui. In the account which follows, we have been been guided by what the Awanuiārangi pūkenga have told us and recount the version of pūrākau that they shared.24 We emphasise that the narratives repeated here are only one version. Other iwi and hapū have different understandings of aspects of the pūrākau. It is not possible for one account to capture this diversity. Even so, although some details may vary, core elements of the pūrākau tend to be constant.25 We group the narratives as follows, discussing only selected aspects:

(a) The phases of creation: Te Kore, Te Pō and Te Ao Mārama.

(b) The journey to knowledge, provided in three baskets: ngā kete mātauranga.

(c) The decision by Hinenuitepō to live in the afterworld.

(d) Māui.

21. See Jenny Lee “Decolonising Māori narratives: pūrākau as a method” (2009) 2 MAI Review. For in-depth discussion of the significance of pūrākau, see Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand and Māori Law (UBC Press, Vancouver, 2016); Edmond Carrucan “Ko tikanga te mātāmua: ngā pūrākau, ngā pakiwaitara, me mihi, ka tika” (LLM Thesis, Te Whare Wānanga o Waikato | University of Waikato, 2021) at 12–17 and from 66.

²² Doherty, Mead and Temara “Tikanga”, Appendix 1 at [4.4].

²³ Wiremu Doherty, peer review comment to Te Aka Matua o te Ture | Law Commission (25 November 2022).

²⁴ Doherty, Mead and Temara “Tikanga”, Appendix 1.

25. Mason Durie Statement of evidence, #K14 at [2.4], as cited in Natalie Coates and Horiana Irwin-Easthope “Kei raro i ngā tarutaru, ko ngā tuhinga o ngā tupuna | Beneath the herbs and plants are the writings of the ancestors: tikanga as expressed in evidence presented in legal proceedings” (paper prepared for Te Aka Matua o Te Ture | Law Commission, 2023) at [2.14]. According to Durie, there are “common denominators that surpass the tribal and dialectical differences” to provide a generalised view of how te ao Māori began.

Te Kore, Te Pō, Te Ao Mārama

Figure 2: The phases of creation and emergence of Te Ao Mārama,

the world in which we live

• 2.19 In te ao Māori, Te Kore, Te Pō and Te Ao Mārama describe three co-existing, continuous phases of the creation of all things. Te Kore is the time of nothingness as well as a time of unlimited potential. Te Pō refers to a period of darkness and ignorance — yet it is also the period that marks the emergence of the atua Māori (ancestor-gods) Ranginui, Papatūānuku and their children. Te Ao Mārama is the time of enlightenment and acquisition of knowledge and refers to the present-day world.26
• 2.20 In the time of Te Pō, Ranginui and Papatūānuku lay in a close embrace. While in this embrace, they imbued the world with mauri or life essence, beginning with their children.27 Their children, all atua, are responsible for and creators of various domains of the natural world. Prominent among the atua are Tangaroa (atua of the sea), Tāne (atua of the forests), Tāwhirimātea (atua of the elements), Rongomatāne (atua of kūmara), Tūmatauenga (atua of man), Haumia (atua of fern root), Rūaumoko (atua of volcanoes and earthquakes) and Whiro (atua of evil, disease and pestilence). 28 In each domain, all elements and life forms descend directly from the atua.

26. Other names for Te Ao Mārama include Te Aotūroa, the world of standing tall: compare Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.10].
27. Cleve Barlow Tikanga Whakaaro: Key Concepts in Maori Culture (Oxford University Press, Auckland, 1991) at 83. Barlow refers to Io as the source of mauri within the universe.
28. See Cleve Barlow Tikanga Whakaaro: Key Concepts in Maori Culture (Oxford University Press, Auckland, 1991) at 11–12 for this account of the atua.

• 2.21 Already, this brief beginning illustrates the close connection in tikanga Māori between relationships and responsibilities. Implicitly, core tikanga concepts of whakapapa, whanaungatanga, mana, kaitiakitanga and tapu are present. These are the first of a core group of concepts around which we will continue to shape our explanation of tikanga in later chapters. The responsibility of each of the atua to care for their respective domains is an expression of their whakapapa (genealogical connection), mana (authority and responsibility) and kaitiakitanga (guardianship). The identification of elements and life forms as children of each atua highlights their inherent tapu or sacredness, together with the value of whanaungatanga (kinship) connecting all.
• 2.22 Within the embrace of Ranginui and Papatūānuku conditions were cramped and miserable for their children. Tāwhirimātea excepted, they resolved to separate their parents. The task was no easy feat. Only Tāne managed to achieve it by placing his back on Papatūānuku and his feet under Ranginui and thrusting upwards. He completed the task using poles to keep his parents apart.29 The separation that followed was cataclysmic. It ushered in the time of Te Aotūroa (the world of standing tall) but also a time of great conflict.30 Tāwhirimātea was furious with his siblings for their hara (wrongdoing). Harnessing the elements, he exacted a heavy price for what they had done to his parents in an onslaught that reshaped the world. Only Tūmatauenga withstood the destruction. However, he was also angered by his siblings and their failure to acknowledge Tāwhirimātea’s wrath. He too took a heavy toll, including consuming some of his siblings’ children.
• 2.23 This part of the narrative illustrates concepts of utu, mana, tapu and noa, and ea.31 Separating Ranginui and Papatūānuku was a violation of their mana and tapu. This violation demanded utu (reciprocation) to restore ea (resolution or balance), as did the siblings’ failure to withstand Tāwhirimātea’s assault. For Tūmatauenga, utu involved nullifying the tapu of his siblings’ children. By eating them, Tūmatauenga made them noa (ordinary, or free from tapu) and thus available for future human consumption.
• 2.24 While peace was restored among the siblings (at least for a time), Papatūānuku and Ranginui remained inconsolable.32 Ranginui showered Papatūānuku with tears of rain, and she sent mists skyward. In desperation, Tāne turned Papatūānuku over so that she was unable to see her husband, but in her sadness she began to die. Tāne resolved then to restore his parents’ views of each other at a place in Te Ao Tukupū (the universe) called Mataaho. It has since been known as Te Hurihanga-nui-i-Mataaho, or the Great Turning Over at Mataaho. This pūrākau manifests the core value of love or concern, aroha — ka aro te hā o Papa ki a Rangi, ka aro te hā o Rangi ki a Papa, ka whānau ko te aroha.33

²⁹ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.10]; Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal

The Report on the Management of the Petroleum Resource (Wai 796, 2011) at 24.

³⁰ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.10].

³¹ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 13.

32. For this pūrākau, we draw on the account in Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Report on the Management of the Petroleum Resource (Wai 796, 2011) at 25. We understand that this recounting was authored primarily by Pou Temara.
33. The breath of Papa drifted upwards towards Rangi and his breath descended down towards Papa and it is from this act that aroha was born: Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Report on the Management of the Petroleum Resource (Wai 796, 2011) at 25, citing Chris Winitana.

• 2.25 These pūrākau regarding the separation of Ranginui and Papatūānuku provide an example of how pūrākau reveal founding tikanga concepts and values still living and practised today.

Ngā kete mātauranga

• 2.26 Following their parents’ separation, Tāne and his older brother Whiro each set about securing knowledge. The knowledge system, mātauranga, was packaged into three kete (baskets) and two stones, accessed from the creators of our known universe.34
• 2.27 Tāne’s journey to seek the kete and the stones of knowledge involved moving between levels of consciousness, often referred to as heavens.35 Tāne, with the assistance of his brothers, passed through each level of consciousness by accessing the wharenui located at each level and exiting through a hole in the roof intended for smoke. This hole is called the pūmotomoto. In this way, Tāne succeeded in climbing between successive heavenly wharenui and reaching the requisite level of consciousness, Te Toi-o-ngā-Rangi, while his brother Whiro fell short.36 There, Tāne received the three kete of knowledge (named kete uruuru-matua, kete uruuru-rangi or tipua, kete uruuru-tau or tawhito) and two stones (Hukātai and Rehutai).37
• 2.28 After completing proper rituals or kawa, Tāne returned to the present-day world, climbing again through each of the pūmotomoto on his descent. He placed the kete and stones in a wharenui called Whare-Kura, which had been designed for this purpose.38 The kete were housed within the three main pou that stand in the centre of the building: te poutuaroro (immediately to your right as you enter the house), te poutokomanawa (standing in the centre of the wharenui) and te poutuarongo (located in the centre of the rear wall).39 The kete uruuru-matua, containing all the knowledge relating to good, lies within te poutuarongo, at the rear. The kete uruuru-rangi, holding knowledge of rituals and associated practices, is located at the door. The last kete, kete uruuru-tau, holds malevolent elements.40 It is kept within te poutokomanawa, located at the heart of the wharenui.

34. Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.11]–[2.12]. While (reflecting the account given by Awanuiārangi pūkenga) the protagonist here is Tāne, this pūrākau offers an important example of iwi histories’ variation. According to some iwi narratives (including that adopted by Te Aka Matua o te Ture | Law Commission, reflected in our ingoa Māori and its meaning as explained in the inside front cover of our published papers), the baskets containing knowledge were obtained by Tāwhaki. Some accounts, furthermore, refer to Tāwhaki and his brother’s attempted ascent to the heavens by way of two vines — Tāwhaki choosing, correctly, Te Aka Matua, the deeply established parent vine.

³⁵ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.11].

36. For a powerful alternative pūrākau about Whiro’s journey, who (as retold by Edmond Carrucan) also received a kete, see: Edmond Carrucan “Ko tikanga te mātāmua: ngā pūrākau, ngā pakiwaitara, me mihi, ka tika” (LLM Thesis, Te Whare Wānanga o Waikato | University of Waikato, 2021) at 116–119.
37. Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.14]. The kete are also commonly referred to as te kete tuauri, te kete tuatea and te kete aronui: see for example “kete o te wānanga” in John C Moorfield Te Aka Māori-English, English-Māori Dictionary and Index <maoridictionary.co.nz>.

³⁸ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.14]–[2.15].

39. Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.15]–[2.20]. Other names such as “pouāniwaniwa” or “pou te āniwaniwa” for te poutuarongo or “pou tāhū” (a name for the post supporting the ridge pole in the front wall) may be used: see John C Moorfield Te Aka Māori-English, English-Māori Dictionary and Index <maoridictionary.co.nz>.

⁴⁰ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.17].

• 2.29 This pūrākau locates wharenui as the structures that house knowledge and helps us to understand the metaphor of the wharenui as a place to engage with mātauranga. Just as the kete are housed, one within each pou, our knowledge sharing in this chapter echoes the same approach: each pou framing another aspect of understanding.

Hineahuone, Hinetītama, Hinenuitepō

• 2.30 Pūrākau relating to Hinenuitepō (daughter of the first union of Tāne and Hineahuone, lover of Tāne and now guardian of the afterworld) are among the narratives most widely known and shared. Following his parents’ separation and his success in acquiring the kete containing knowledge, Tāne turned his attention to the creation of human life. Using onetapu, the sacred clay from Papatūānuku, Tāne moulded the first female form.41 He breathed life into her nostrils, and Hineahuone was created.42
• 2.31 The union of Tāne and Hineahuone produced a daughter, Hinetītama.43 Later, Tāne took Hinetītama as his wife and continued humankind’s procreation. However, Hinetītama did not know that Tāne was also her father. She inquired often of Tāne who her pāpā was. Eventually, Tāne told her to look to the walls of the wharenui where she would see her father.44 When Hinetītama realised that this meant her father was her lover, in her shame, she said:45

I will leave this realm of Te Aotūroa and relocate to Rarohenga and there await our offspring to ensure they safely make passage when they pass from this world into the next. There I will take the name Hine-nui-te-pō.

• 2.32 Hinenuitepō fled from Te Aotūroa to Rarohenga, gateway to the underworld of Hawaiki. There she resides, awaiting her descendants’ passing, to ensure that all who have died are guided safely from this world into the next and come to Rarohenga as their final resting place.46 Her question to Tāne and his response are further reminders that wharenui (in this pūrākau, the walls of the house) hold knowledge.

Māui

• 2.33 Numerous pūrākau recount subsequent key events, continuing to show pūrākau as the inspiration for core tikanga norms and values. For example, several of the pūrākau about the achievements and final transgression of Māui (who is an important figure in Māori oral history) illuminate the importance of proper process or kawa and of the ritual prayers karakia.

41. Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 14. See also Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity — Te Taumata Tuarua (Wai 262, 2011, vol 1) at 17.
42. An alternate spelling is Hine-ahu-one. See Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 14. See too Doherty, Mead and Temara “Tikanga”, Appendix 1 at [3.38], expanding on the derivation of the names Tāne and Hine (meaning male and female in reo Māori). “Nehu” is pollen, “tā” is to insert and “hī” is to pick up. Thus Tāne(hu) implies to implant ne(hu), Hi to receive ne(hu). Combining Ta and Hi, tahi (meaning one) implicitly reminds of this first union. It also suggests one is not complete without the other.

⁴³ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 14.

⁴⁴ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.25].

⁴⁵ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.25].

⁴⁶ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 14.

• 2.34 The successful and essential snaring of Tamanuiterā (the Sun) by Māui is preceded by a powerful karakia.47 Following his discovery of Te Ika a Māui (the fish of Māui, a name for the North Island of Aotearoa New Zealand), his brothers violated tapu by carving up Te Ika a Māui before proper karakia procedures were completed. According to some iwi histories, this resulted in the brothers being turned to stone.48 Perhaps the most significant pūrākau relating to exploits by Māui commemorates his fatal attempt to secure immortality for humankind by entering the vagina of Hinenuitepō to retrieve her heart. His failure to do so is linked back to a mistake made by his father when reciting the sacred tohi rite (a karakia made at birth).49 Before crushing him to death, Hinenuitepō cursed Māui, saying: “ka mate a ao ne koe”, which translates as “as a result of your actions you will from here ever after be born and perish — you will continue to die from here evermore”.50

Summary: creation narratives’ significance

• 2.35 Tikanga principles of founding importance are therefore sourced in these creation narratives. The pūrākau we have touched on allude to the sacred importance of kawa as a process for navigating states of tapu and noa, respecting mana and mediating between spiritual and physical dimensions. Earlier in this chapter, we identified references in creation pūrākau to the whakapapa and whanaungatanga of all things commencing with Ranginui and Papatūānuku. These pūrākau explain the inherent mauri and tapu of the elements and living things, by observing their connections with the atua. They identify the responsibility that atua were given to tiaki and manaaki (safeguard and care for) their kin. They refer to the requirement of utu for hara or wrongdoing, to restore ea — a settled state. The pūrākau have explained the part played by wharenui in both acquiring and safekeeping knowledge. According to the Awanuiārangi pūkenga, the very creation of wharenui “is attributed to Tāne as a result of the activities performed in accessing the kete and kōhatu from Te Toi-o-ngā-Rangi and bringing them back to Te Aotūroa [our present world]”.51 In Chapter 3, we return to each of the concepts which have been identified above in bold to consider their meaning more fully.

⁴⁷ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 24.

48. Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 25– 26.

⁴⁹ Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Report on the Management of the Petroleum Resource

(Wai 796, 2011) at 26.

⁵⁰ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [3.81].

⁵¹ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.18].

TE POUTUARONGO: EXPLAINING THE SIGNIFICANCE OF THE WHARENUI AND MARAE ĀTEA

• 2.36 In this section, our discussion explains how the physical design of the wharenui wraps those within its walls in mātauranga, helps them to understand relationships and connects them with a Māori world view.52 As the pūrākau have helped to show, wharenui are constructions that house knowledge and are connected to finding knowledge. Traditional forms of wharenui do this in physical ways such as through architecture and whakairo (carving). Just as we have shown how pūrākau encode tikanga, wharenui teach and share tikanga architecturally and visually. This demonstrates tikanga Māori ways of encoding mātauranga and tikanga beyond the written word.
• 2.37 Before we begin our discussion of the physical features of wharenui, it is important to recognise that neither the wharenui nor the marae where the building stands are defined by specific physical attributes. Certain physical features are widely found. However, it remains important to be aware of variation and that, above all, marae are meeting spaces with a function of managing those interactions.53 Our discussion of the physical aspects of wharenui again draws closely on the account developed by the Awanuiārangi pūkenga. While they provide an essential account of the traditional elements of wharenui and their widely shared meaning, necessarily their explanation generalises and is illustrated by referring to the wharenui on one marae: Te Whaiatemotu at Ruatāhuna.54 Their generalised explanation and depictions of their own marae may not be representative of all others.
• 2.38 For a range of historical and cultural reasons, the features of other wharenui vary. Location, people’s diverse choices on how to decorate or represent their own perspective, a lack of money or carvers, or the development of new designs and materials all contribute to variation. For example, not all wharenui feature pou whakairo, the intricately carved pou and tāhuhu described by the Awanuiārangi pūkenga. We have been told, in particular, that wharenui in northern regions generally do not. In some wharenui, photographs are placed on and around the ancestral poupou (posts in the walls) instead of embellishing the poupou with carving. Iwi and hapū will have their own unique accounts of the important local relationships embodied by their own wharenui. In respect of these, the reader must be guided by the knowledge held by iwi and hapū.
• 2.39 However, while there is always what the Awanuiārangi pūkenga term “performative” diversity in how people choose to represent their own perspective, basic common components are largely consistent and have meaning that is widely understood and

52. Compare Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.34]: “all tikanga must be underpinned by Iho Atua ... as is represented in the creation of whare”.
53. To illustrate broader perspectives on the way marae may be conceived non-physically, see for example: Paul Tapsell “Taonga, marae, whenua — negotiating custodianship: a Māori tribal response to Te Papa: The Museum of New Zealand” in Annie E Coombes (ed) Rethinking Settler Colonialism: History and Memory in Australia, Canada, Aotearoa New Zealand and South Africa (Manchester University Press, Manchester, 2006) 86 at 91; I H Kawharu “Sovereignty vs rangatiratanga: the Treaty of Waitangi 1840 and the New Zealand Māori Council’s Kaupapa 1983” in Andrew Pawley (ed) Man and a Half: Essays in Pacific Anthropology and Ethnobiology in Honour of Ralph Bulmer (Polynesian Society, Auckland, 1991) 573. As Kawharu, for instance, writes at 577: “[f]or political purposes, at least, any piece of ground would suffice as a marae”. Tapsell at 91 exemplifies the way in which marae may be evoked metaphorically and their protocols then followed, to support tikanga.

⁵⁴ See Doherty, Mead and Temara “Tikanga”, Appendix 1, Section Two from [2.21] and Figures 1–6.

shared.55 For example, those inside the wharenui stand between the pou, in a way that is reminiscent of the world revealed as Ranginui and Papatūānuku were forced apart:56

... with Tāne placing poles between them to keep the two separated. Having achieved this, it was the first time the siblings were able to stand tall, as is reflected in the name Te Aotūroa, commonly now used to describe the world we live in now, ‘the world of standing tall’.

• 2.40 Through features such as these, wharenui can be seen as structures connected with other realms, reminding those within their walls that they are at the interface between two worlds. To show this, we focus next on the significance of five key physical features of the wharenui:

(a) The open area in front of the wharenui, called the marae ātea.

(b) Exterior features visible facing the wharenui (kōruru, maihi, amo and raparapa).

(c) Porch, window and doorway features (mahau, matapihi, tatau, whakawae and pare).

(d) Interior structural features (tāhuhu, heke, pou and poupou).

(e) Wall panel designs (tukutuku).

Ātea, an open area in front of the wharenui

Figure 3: The ātea

55. Doherty, Mead and Temara “Tikanga”, Appendix 1 at [1.3]–[1.4] and [1.94]; Tai Ahu (wānanga with Te Aka Matua o te Ture Internal Advisory Group, Wellington, 26 February 2023).

⁵⁶ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.10].

• 2.41 The ātea is the open space in front of the wharenui where formal ceremonies are held, such as to welcome manuhiri (visitors) or farewell those who have passed on. This space, joined to the wharenui, represents the realm of Tūmatauenga (the atua representing human unpredictability and public dispute). It contrasts with the domain of Rongo (the atua responsible for peace) inside the house.57
• 2.42 The ātea is understood to be a three-dimensional space, reaching from ground to the heavens. It links the wharenui with a sense of the wairua or spirituality that is integral to the Māori world view, involving being surrounded by another world. Since mistakes made on the ātea affect a spiritual space, ceremonies occurring there have deep meaning and significance. These kawa (protocols) are described by the Awanuiārangi pūkenga as “tikanga wrapped in tapu” and “a set of rules that are bound by sacred conditions”.58
• 2.43 Pōwhiri (welcome ceremonies) comprising detailed rules addressing all aspects of welcoming people to a marae are one example of kawa that occur on the marae ātea. Pōwhiri include karanga (a ceremonial call) to call visitors onto the ātea, whaikōrero (formal speeches) to acknowledge whanaungatanga among other matters, hongi (sharing breath by pressing noses) and kai (sharing food). These protocols facilitate removal of tapu from the visitors.59 Those issuing the karanga call forward those who have passed as well as those physically present.60 While these procedures may appear simple, they are designed to manage complex relationships and great care must be taken to ensure that they are properly observed.
• 2.44 The connection between the physical structure of the wharenui, which is joined to the ātea, and the spiritual realm that the ātea represents is indicative of how wharenui bring people into proximity with other spaces with deep meaning in Māori terms. The wharenui signifies stepping into a place having passed through a space that navigates transition and manages tensions (the ātea).

⁵⁷ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.32] and [3.62].

58. Pou Temara (wānanga held at Te Whare Wānanga o Awanuiārangi, 30 June 2022); Doherty, Mead and Temara “Tikanga”, Appendix 1 at [3.104].

⁵⁹ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [3.8].

60. Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.35]. See too Siena Yates in interview with Te Raina Ferris, explaining the karanga cry and its connection with creation narratives, pūrākau: “Karanga is the voice that resides in your womb” (12 March 2023) E-Tangata <e-tangata.co.nz>. “[Karanga is] the voice that resides not in our throat but in our womb ... it’s a powerful voice because your womb is connected to your mother’s womb which is connected to her mother’s womb and right back to Papatūānuku ... the Māori karanga sound is designed to activate the sorrow that you hold inside yourself. It opens the cavern inside yourself and lets it come out in tears.”

Exterior front-facing features — kōruru, maihi, amo and raparapa

Figure 4: The kōruru, maihi, amo and raparapa

• 2.45 When facing the wharenui, a prominent kōruru (carved figure) can be seen at the apex. This is an ancestor and a sentry, which stands watch for the people within.61 Barge boards, called maihi, descend either side of the kōruru to meet the vertical amo, a concept connected with kaiamo (pallbearers). According to the Awanuiārangi pūkenga, the amo signify carrying the ancestors, who are represented for instance in the carvings or the name of the wharenui. This further illustrates the close connection between the living and the dead in the Māori world view.62 The parts of the barge boards that extend beyond the amo are the raparapa. In combination, these features of the wharenui are said to resemble a person with outstretched arms, with kōruru being the face, maihi the arms, amo the feet and raparapa the fingers.63 The symbolism suggests both the importance of manaakitanga (extending generosity and care for others) and the identity of the wharenui as a revered ancestor. Traditionally, before the arrival of nails and modern fastening, the amo of the house would be built leaning in. In this way, the amo were critical in holding the house up and together.64

61. Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.22]; and see Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity — Te Taumata Tuarua (Wai 262, 2011, vol 1) at 35: “Almost everything about a whare tupuna was ancestral. It would be named after an ancestor, and the image of that ancestor would be placed at the apex and most forward point of the gabled roof.”

⁶² Wiremu Doherty, peer review comment to Te Aka Mata o te Ture | Law Commission (25 November 2022).

⁶³ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.22].

64. Wiremu Doherty, peer review comment to Te Aka Mata o te Ture | Law Commission (25 November 2022). Although this is less often seen in wharenui today, some do continue this practice.

Porch, window and doorway features — mahau, matapihi, tatau, whakawae and pare

Figure 5: Mahau, matapihi, tatau, whakawae and pare

• 2.46 Those moving onto the wharenui veranda enter the mahau: the porch space beneath the matapihi (window) of the house, where special attention is again given to the relationship with those who have passed on. At some marae, tūpāpaku (deceased) may lie there in state during the tangihanga. The casket of a deceased may be passed through the matapihi, being the passageway for those who have left this world.65 The tatau (door) to the wharenui is the passageway for the living. Carved pou surrounding the tatau are known as whakawae, and above them is the pare (the doorway lintel). Figures carved into the whakawae represent the intergenerational network of people and leaders, past, present and future.66 Commonly there will be a figure at the centre of the pare with a thread from between its legs ending in the mouth of figures located at the edge of the pare. The figure is a reference to Māui’s fatal attempt at immortality.67 It signifies the presence of Hinenuitepō, signalling that those passing beyond the doorway are entering an ancestral realm and “another world, a world that connects us to our gods and ancestors”.68 Poupou (a word that can be used to mean “old folk” in addition to pillars or posts) standing in the wharenui walls provide a further example of ancestors’ presence. The mouths of these figures are cut off or obstructed from view, suggesting that these figures are looking into our world through portals.69

⁶⁵ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.23].

⁶⁶ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.24].

⁶⁷ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.24].

⁶⁸ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.26] and Figure 3.

⁶⁹ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.26].

Interior structural features — tāhuhu, heke, pou and poupou

Figure 6: Tāhuhu, heke, pou and poupou

• 2.47 Proceeding through the wharenui doorway, those entering see before them a line of central pou, each joined to the ridge pole called tāhuhu. The tāhuhu begins outside, above the mahau, and is commonly carved with two figures representing Ranginui and Papatūānuku.70 Within the wharenui, adornment of the tāhuhu with repetitive koru designs that disappear out the back end of the wharenui remind those present that there was a time before them and there will be a time after.71 The heke or rafters falling from the tāhuhu represent the children of Ranginui and Papatūānuku. The heke land on poupou, each representing key ancestors and connected to the ground and the living.72 Wharenui therefore structurally reiterate the connections between the known world and Ranginui and Papatūānuku, through ancestors and the atua.73 The Awanuiārangi pūkenga explain that, within the wharenui:74

Symbolically, we are located at the feet of our ancestors — the ancient ones will be represented in carvings, and the more recent will have pictures hung between the poupou.

⁷⁰ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.29].

⁷¹ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.29].

⁷² Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.30].

⁷³ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [3.2].

⁷⁴ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.33].

• 2.48 The design of wharenui suggests that those within them are accountable to their ancestors and responsible for ensuring the practice and performance of mātauranga are correct. As the Awanuiārangi pūkenga write, “having the authors of the known world present changes the accountabilities”.75

Wall panel designs — tukutuku

Figure 7: Tukutuku

• 2.49 As Chapter 1 explains, tukutuku panels are a traditional feature of wharenui interior walls. While tukutuku may not be present in all wharenui, when present these decorative panels are positioned between the poupou. Standing vertically, tukutuku also symbolically ascend from the ground towards celestial realms. In this way, the location of tukutuku within the wharenui makes links both to atua and to the ancestors. Tukutuku are made of latticework, lashed together with stitched patterns by two workers passing strands through the open spaces of the lattice that divides them. The tukutuku surrounding people in the wharenui therefore wrap them in ideals and imagery of connection and co- operation.76 As Wiremu Doherty, one of the Awanuiārangi pūkenga, considers, “the tukutuku connect us”.77 In te ao Māori, tukutuku signify connection with ancestors and other realities.

⁷⁵ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [3.3].

76. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Te Tau Ihu o te Waka a Maui: Report on Northern South Island Claims (Wai 785, 2008) at 37; Erenora Puketapu-Hetet Maori Weaving (Longman, Auckland, 1999) at 29–30.

⁷⁷ Wiremu Doherty, peer review comments to Te Aka Mata o te Ture | Law Commission (14–15 February 2023).

TE TĀHUHU: HOW WHARENUI CONNECT WITH THE KAUPAPA OF THIS STUDY PAPER

• 2.50 Te tāhuhu is the ridgepole of the wharenui. In this final section, we consider how the wharenui expresses tikanga Māori values connected with the kaupapa (purpose) of this Study Paper. As Jackson considered, tikanga itself may be likened to the wharenui.78 They are both structures protecting people from disorder and imbalance.
• 2.51 Our review of the features of wharenui has shown how they embody a space between past and present, this world and that of the ancestor-gods, atua. Symbolically, those positioned inside the wharenui therefore stand at the threshold of a portal to other realms. The Awanuiārangi pūkenga have described the significance of the wharenui as an in- between space, through which “[u]pon entering the whare, we are entering the portal that connects us to worlds, and levels of consciousness”.79 As they emphasise, an orientation such as this surrounded by mātauranga and immersed in te ao Māori is a first move towards building understanding of tikanga. In the context of this Study Paper, the wharenui can serve as a reminder for those engaging with tikanga that (even if only metaphorically) they too are in such a space, touching te ao Māori and surrounded by watchful guardians.
• 2.52 More immediately, wharenui, which “hold the ancestral memory of the tribe”, are physical structures that implicitly link people’s present-day practice and decision making to the ancestors.80 Their imagery reminds those within of their everyday obligation “to maintain the appropriate practices and relevant knowledge drawn from the walls of the house”:81

The house is not only symbolic in that it is given by the gods, but it also contains the knowledge from them on how we should live our lives. This requires that great care must be taken to protect and maintain this knowledge and those who choose to access it. It was understood knowledge was power and care needed to be taken to ensure those that accessed it and use it were appropriately instructed on the duty of care required.

• 2.53 In this way, wharenui reflect a responsibility to ensure that mātauranga and tikanga are respected. They guide people’s conduct by underlining the care to be taken in relation to that knowledge.
• 2.54 To reiterate a point made earlier, acceptance of a Māori world view is not required to make sense of these responsibilities. Instead (provided their connection to a Māori world view is understood), they might be grasped at the level of a general principle of conducting oneself with both respect and caution whenever engaging with tikanga. Implicitly, positioning oneself within the wharenui also alludes to where the wharenui stands — that is, upon the marae where “[t]he entire system ... is governed by tikanga”.82

78. Moana Jackson The Maori and the Criminal Justice System: A New Perspective | He Whaipaanga Hou (Department of Justice, Study Series 18, 1987–1988, part 2) at 43.

⁷⁹ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.26] and illustration at Figure 5.

⁸⁰ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.60].

⁸¹ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.34], [3.3] and [3.47].

⁸² Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.38].

• 2.55 The physical construction of wharenui also expresses tikanga. Tikanga concepts represented in the physical design of the wharenui include whakapapa,83 whanaungatanga,84 and kotahitanga (unity).85
• 2.56 The familial connections that, according to Māori, formed the world, are represented with the tāhuhu standing for Ranginui and the heke (rafters) representing his children. The ancestral poupou, or posts, in the walls touch whenua (the ground, placenta) and their mother, Papatūānuku. In this way, wharenui physically conceptualise whakapapa. Whakapapa is “[t]he rationale that defines what parts of the house fit together”.86
• 2.57 Temara explains that wharenui design can also be seen as an expression of the concept of collective unity, kotahitanga:87

... the whare has a single room — there are no elevated sections or separate rooms. It is open and on the same level where everyone can see each other to support the singular collective of ‘kotahitanga’ (unity). This notion of kotahitanga is a fundamental component of te ao Māori — it speaks to the collective being united and being one.

• 2.58 Everyone from the collective, Temara emphasises, “can enter and be in the presence of the atua and ancestors that performed the historically important deeds for the collective

... all are welcome and have access”.88

• 2.59 Again, these are further ways in which the wharenui points to values that can guide behaviour. It expresses the “notion of things being connected”.89 A widely sung waiata composed by Dr Hirini Melbourne illustrates the structural significance of wharenui and the critical work that the house does to connect people:90

Ko Ranginui e tū ake nei, hei tuanui Ranginui stands above us, a roof Ko Papatūānuku e takoto nei hei whāriki Papatūānuku lies beneath us, a mat

Ko te reo me ngā tikanga hei tāhuhu Language and tikanga forming the ridgepole Ko te iwi hei poutokomanawa And the people the main support

Ko te whare whakahirahira o te iwi e This is the most important house of the people Hei whakairi i ngā tūmanako Is for hanging the hopes

I ngā wawata i ngā moemoeā The aspirations and the dreams

Ko tēnei te wā o te wao nui tūtakitahi This is a time of the forest to meet as one Ko tēnei ko koe ko Tānewhakapiripiri This is you, Tānewhakapiripiri

⁸³ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [3.17].

⁸⁴ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [3.7].

⁸⁵ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.36] and [3.76]–[3.77].

⁸⁶ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [3.17].

⁸⁷ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.36].

⁸⁸ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [3.76].

⁸⁹ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [3.7].

90. Doherty, Mead and Temara “Tikanga”, Appendix 1 at [3.70]. We extend our gratitude to Dr Melbourne’s whānau for allowing us to share this waiata.

• 2.60 This chapter has described how, according to Māori narratives, wharenui are “created by the gods ... as anchor points for us”.91 We have focused primarily on connections that wharenui make in a metaphysical sense with an ao Māori world view — with wairua, creation stories, and the realms of the ancestors and the atua. However, as the waiata above suggests, wharenui embody relatedness in other ways, including expressing connections with the whole of the natural world by making the heavens (Ranginui) and the whenua (Papatūānuku) parts of their architecture. The wooden ancestral posts holding up the roof and rafters of the house remind people of being one with Tāne, as are the forests and all things of the forest. The heke, symbolising Tāne’s siblings, are implicit reminders of familial links to all other parts of the natural world and forces that shaped the world, such as the sea (Tangaroa), seismic events (Rūaumoko) and environmental winds and storms (Tāwhirimātea).92 In these multiple ways, the physical designs of wharenui stand as reminders about principles such as unity, ancestral connection and being as one with the natural world, relevant to managing relationships and understanding tikanga today.

CONCLUSION

• 2.61 While we have lent heavily in this chapter on the allegorical and symbolic relevance of wharenui, they are also places of important practical relevance. Wharenui remain today a customary place for wānanga (knowledge sharing) where important relationships are explained and past knowledge is available to draw on when contentious issues arise. Challenges are taken to the marae to resolve, where the thoughts and influence of past decision makers help inform the decisions that must be made for today.93 For readers of this Study Paper, introducing themselves to the ideas held within the wharenui represents a step towards knowledge sharing and a Māori-centred shift. In summary, in this chapter we have shown three ways in which the metaphor of the wharenui can serve as an entry point into a fuller and more authentic understanding of tikanga.
• 2.62 First, the wharenui is, according to pūrākau, the place through which knowledge is gained and where it is housed. It is a purpose-built portal between two systems: the ground (Papa) and Ranginui’s many heavens. Therefore, it reaches to ancestral times and spaces.
• 2.63 Second, the wharenui shows how mātauranga and tikanga Māori might be expressed (for instance, visually or allegorically). Therefore, it holds knowledge for us now.
• 2.64 Third, the wharenui expresses tikanga principles capable of taking us onwards to the continuing work that this Study Paper aims to support of understanding tikanga and tying it into a legal context. Consistent with this, we rely upon the wharenui framework again in Chapter 3, where it continues to be an overarching frame around which to build knowledge as we turn to address tikanga concepts.

⁹¹ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.60].

⁹² Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.63].

⁹³ Doherty, Mead and Temara “Tikanga”, Appendix 1 at [2.39].

CHAPTER 3

Tikanga as a system of norms

[Tikanga Maori] 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 decision-makers capable of properly appreciating and applying those principles.

Associate Professor Nin Tomas1

INTRODUCTION

• 3.1 In this chapter, we explain some important and common tikanga concepts, showing how they function as a coherent, integrated system of norms not a mere “grab bag” of principles or values.2 We also explain how tikanga operates in Māori life in jural ways. By this, we mean that it relates to powers, rights, duties, liabilities and other interests or restrictions that govern relationships. By seeing tikanga as a system and by providing a jural analysis of the important purposes of tikanga concepts and how they may be grouped, our approach to tikanga in the chapter differs from most explanations. We have adopted this approach because, as Associate Professor Nin Tomas suggested, articulating a “structured framework within which tikanga principles can be applied” gives a foundation for engagement between tikanga and state law.3
• 3.2 We begin the chapter by explaining why recognising tikanga as a coherent system is important and using jural language is appropriate. We discuss the importance of beginning in Māori reality when considering tikanga and reiterate the significance of

1. Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 33. Whereas Tomas uses “tikanga Maori” and “Maori custom law” interchangeably in her thesis, we are, as identified in Chapter 1, preferring “tikanga” and “tikanga Māori”.
2. Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 33.
3. Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 33.

inviting readers to ground themselves within the wharenui to orient their thinking in a Māori world view. Then, comprising most of the chapter, we introduce some main tikanga concepts that are also in active legal use, describing them as categories of norms.

• 3.3 When explaining tikanga concepts, our priority has been to ensure that the explanations reflect mātauranga. We have used several methods for doing so.
• 3.4 First, as we outline the meaning of each concept, we draw on tikanga expertise from throughout Aotearoa New Zealand utilising sources that go beyond formal scholarship. Following a brief general explanation, we set out what we have termed “expressions” of each concept. These “expressions” sections are compiled from the review by Natalie Coates and Horiana Irwin-Easthope of tikanga expert evidence presented in court and Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal (Waitangi Tribunal) proceedings, published in Appendix 2.4 Their research brings to light iwi and hapū perspectives that enrich our explanations of each concept. They also confirm the shared nature of these tikanga concepts, revealing a widely held and consistent understanding.
• 3.5 Second, as we explore the jural aspect of each tikanga concept, we rely on the ways in which Māori jurists and other eminent tikanga scholars describe the rights, powers, authority or obligations that are connected with the concept. Their explanations show the parts these tikanga concepts play in a system of norms.
• 3.6 Third, tikanga is ultimately concerned with the practicalities of how to provide order and justice in a complex, ever-changing landscape. Therefore, to ground the theoretical explanation of tikanga, we also provide examples of tikanga in action. These serve as illustrations of how the concepts can be practically understood.
• 3.7 Finally, the chapter reconnects with the wharenui, discussing how whakapapa (genealogical connection) sets boundaries around tikanga concepts. Implicitly, the wharenui structurally symbolises or embodies whakapapa, reinforcing its importance to an understanding of tikanga.

UNDERSTANDING TIKANGA AS A SYSTEM

• 3.8 It is important to understand that tikanga is a complete system of principles for “the right or correct way of doing things”.5 These principles order Māori affairs and so regularly influence behaviour that they have been referred to as Māori custom.6 Tā Edward Taihakurei Durie refers to tikanga principles as conceptual regulators.7 Reverend Māori

4. Natalie Coates and Horiana Irwin-Easthope “Kei raro i ngā tarutaru, ko ngā tuhinga o ngā tupuna | Beneath the herbs and plants are the writings of the ancestors: tikanga as expressed in evidence presented in legal proceedings” (paper prepared for Te Aka Matua o Te Ture | Law Commission, 2023). Subsequent references to this paper in this chapter are abbreviated as follows: Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2.
5. See: Bishop Manuhuia Bennett quoted in Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 16; see also Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013) at 421, citing seminar with Bishop Manuhuia Bennett, Bishop Whakahuihui Vercoe and Te Ariki Morehu (23 March 2000, unpublished transcript Te Pū Wānanga Transcript No 2, Te Mātāhauariki Research Institute).
6. Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 3–4; David V Williams “He aha te tikanga Maori” (unpublished revised draft of Joseph Williams’ paper of the same name, dated 10 November 1998 with minor update 2020) at 8.

⁷ Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 4–5.

Marsden considered them “first principles”.8 Te Ahukaramū Charles Royal refers to “kaupapa”, a term he identifies as representing “movement of a base of values into one’s understanding and perception of the world”.9 As Professors Tā Hirini Moko Mead and Tā Pou Temara have said:10

... when a new matter or issue arises for resolution, recourse is always had to the fundamental principles that underlie tikanga as well as drawing on historical precedent and how tikanga has been recognised in similar situations.

• 3.9 We agree with Tomas that “there is a need for a better understanding of how [tikanga] fits together as a coherent, principle-based system of law”.11 In this Study Paper, we are deliberately setting out a framework for understanding tikanga principles that reaches beyond the common description of tikanga as values-based and context-dependent.12 Tikanga is sensitive to context and evolves according to circumstance. However, more can be said about how its concepts work together to govern and guide behaviour. Showing how core concepts are connected both explains tikanga as a normative system and safeguards tikanga by recognising that it functions as an integrated, comprehensive whole.13 As Te Aka Matua o te Ture | Law Commission (the Commission) noted in 2001:14

As always in tikanga Māori, the values are closely interwoven. None stands alone. They do not represent a hierarchy of ethics, but rather a koru, or a spiral, of ethics. They are all part of a continuum yet contain an identifiable core.

• 3.10 Perceiving the component parts of tikanga as integrated can safeguard tikanga by ensuring that it is not treated as simply a “grab bag” from which to extract isolated values.15 Those engaging with legal or legislative directives to consider individual tikanga

⁸ Māori Marsden in Te Ahukaramū Charles Royal (ed) The Woven Universe: Selected Writings of Rev Māori Marsden

(Estate of Rev Māori Marsden, Ōtaki, 2003) at 66.

9. Te Ahukaramū Charles Royal “An organic arising: an interpretation of tikanga based upon the Māori creation traditions” in Ngā Pae o te Māramatanga Tikanga Rangahau Mātauranga Tuku Iho | Traditional Knowledge and Research Ethics Conference Proceedings 2004 (Ngā Pae o te Māramatanga, Auckland, 2005) 206 at 221.
10. Hirini Moko Mead and Pou Temara Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006, 31 January 2020 at [33], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [2.37]; see also David V Williams “He aha te tikanga Maori” (unpublished revised draft of Joseph Williams’ paper of the same name, dated 10 November 1998 with minor update 2020) at 9.
11. Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 34.
12. David V Williams “He aha te tikanga Maori” (unpublished revised draft of Joseph Williams’ paper of the same name, dated 10 November 1998 with minor update 2020) at 9; Joan Metge “Commentary on Judge Durie’s ‘Custom law’” (paper presented to Te Aka Matua o te Ture | Law Commission, 1996, with errata 2020); Vivian Tāmati Kruger Statement of evidence, 2 June 2020 at [38], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [1.6]. See also Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142 at [74] where the majority noted: “[i]t is dangerous to apply tikanga principles, even important ones, as if they are rules that exclude regard to context”;

Doney v Adlam [2023] NZHC 363 per Harvey J at [103]: “tikanga will always be suspicious of unbending rules”.

13. See generally Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006); Caren Fox “Ko te mana te utu: narratives of sovereignty, law and tribal citizenship in the Pōtikirua ki Te Toka-a-Taiau district” (PhD Thesis, Te Whare Wānanga o Awanuiārangi, 2023); Māmari Stephens “‘Kei a koe, Chair!’: the norms of tikanga and the role of hui as a Māori constitutional tradition” (2022) 53 Victoria University of Wellington Law Review 463 (describing five legal norms of tikanga Māori and their interaction).

¹⁴ Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 29.

15. Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 33.

principles will benefit from engaging with tikanga holistically and understanding the work that tikanga concepts do within the overall structure of norms.

• 3.11 An appreciation of the analytical coherence and consistency of tikanga also helps to dispel continuing doubts about the legitimacy and efficacy of tikanga as a source of regulation and of identifiable rights and obligations.16 Tikanga has the coherence and consistency that are vital for any legitimate regulatory system. We agree with Tomas that this emphasis on tikanga as an integrated system is not inconsistent with the proposition that tikanga is also evolutionary and pragmatic. Perceiving tikanga as a framework does not alter its inbuilt flexibility:17

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.

USING JURAL LANGUAGE

• 3.12 In this Study Paper, we adopt the language of norms to describe tikanga. This is consistent with the approach of Associate Professor Māmari Stephens who argues:18

Māori processes and self-definition are perhaps better respected on their own terms by the word “norm” or “legal norm” (rather than “law”, “lore”, and “custom”) to describe behaviours in dynamic Māori communities.

• 3.13 We also explain how tikanga can be considered in orthodox jural terms. By “jural”, we mean that tikanga involves powers, rights, duties, liabilities and other interests or restrictions that govern relationships. There is nothing unusual about using jural language and concepts to describe tikanga. On the contrary, tikanga experts, authoritative texts and jurists often do so. Mana, for example, is commonly referred to as “authority”, “power” or “right”.19 There are frequent references to the “law” of tapu (prohibition,

16. See Anthony Willy “The Peter Ellis decision — and whether Maori customs have any place in the common law” (1 November 2022) New Zealand Centre for Political Research <www.nzcpr.com>; John Robinson “Tikanga in law: what does it mean?” (20 June 2021) New Zealand Centre for Political Research <www.nzcpr.com>; Graham Taylor “We need to talk about tikanga” (10 March 2023) Capital Letter <www.capitalletter.co.nz>.
17. Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 33.
18. Māmari Stephens “‘Kei a koe, Chair!’: the norms of tikanga and the role of hui as a Māori constitutional tradition” (2022) 53 Victoria University of Wellington Law Review 463 at 470.
19. See for example Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013) at 178–182; Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand and Māori Law (UBC Press, Vancouver, 2016) at 69; David V Williams “He aha te tikanga Maori” (unpublished revised draft of Joseph Williams’ paper of the same name, dated 10 November 1998 with minor update 2020) at 11.

restriction).20 Moana Jackson applied the concept of “tipuna title” to explain iwi and hapū relationships to whenua (land):21

Tipuna title may be described as the physical and spiritual interests that collectively vested in Iwi or Hapū as part of their mana or rangatiratanga in regard to whenua. It is title that exists within what may be termed “relational interests” that is the interests that inhered in the relationships of a particular whakapapa and the willingness of our people to develop existing or potential relationships with others.

• 3.14 That said, casual or careless use of jural language to describe tikanga can also be misleading.22 This is because terms such as “power”, “right” or “title” have different connotations in a Māori context. It is important not to simply presume that tikanga translates into norms exactly equivalent to those of non-Māori law. Tikanga is closely influenced by a Māori world view in which assumptions resting on notions such as the importance of individual rights or private ownership of whenua do not hold true. For example, as Jackson explained, individual alienable land ownership does not correspond with the tikanga-based relational interests in respect of whenua:23

The relational rights that flow from tipuna title are not the same as Pakeha property rights. Those rights are predicated on an individual exclusivity. Relational rights presuppose individual entitlements within a collective exclusivity.

• 3.15 Accordingly, we caution against wrongly transplanting tikanga concepts directly into established common law categories to make sense of them. Tikanga concepts are grounded in norms that differ from dominant non-Māori norms. They may have broader relational, ethical, moral and spiritual elements. It is important to understand this complexity when seeking to engage with tikanga.

TIKANGA CONCEPTS — OUR APPROACH

• 3.16 In the sections below, we consider a core group of concepts that are central to tikanga as a system, grouping them in five categories:24

(a) Concepts of connection: whakapapa and whanaungatanga, which we describe as

structural norms. All of te ao Māori (the Māori world) is shaped by reference to these

20. See for example Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013) at 404; Te Ahukaramū Charles Royal (ed) The Woven Universe: Selected Writings of Rev Māori Marsden (Estate of Rev Māori Marsden, Ōtaki, 2003) at 5 and 174; Ani Mikaere The Balance Destroyed (Revised ed, Te Wānanga o Raukawa, Ōtaki, 2017) at 38; Makereti Papakura The Old-Time Maori (Victor Gollancz, London, 1938) at 25.
21. Moana Jackson “Tipuna title as a tikanga construct re the foreshore and seabed” (March 2010) <www.converge.org.nz>; see also Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand and Māori Law (UBC Press, Vancouver, 2016) at 40–41.
22. Arnu Turvey “Te ao Māori in a ‘sympathetic’ legal regime: the use of Māori concepts in legislation” (2009) 40 Victoria University of Wellington Law Review 531. See also Catherine J Iorns Magallanes “The use of tangata whenua and mana whenua in New Zealand legislation: attempts at cultural recognition” (2011) 42 Victoria University of Wellington Law Review 259; Mihiata Pirini and Anna High “Dignity and mana in the ‘third law’ of Aotearoa New Zealand” (2021) 29 New Zealand Universities Law Review 623.

²³ Moana Jackson “Tipuna title as a tikanga construct re the foreshore and seabed” (March 2010) <www.converge.org.nz>.

24. Given the depth in which each of these concepts is explained later in the chapter and also our wish to build a nuanced understanding of them in this chapter, we depart here from the Study Paper’s general approach of providing simple definitions for all of the concepts named. For each, a full explanation follows.

concepts, and the relationships that they describe establish an underlying normative frame.

(b) Concepts of equilibrium or balance: mauri, utu and ea. In Māori society, these concepts function as prescriptive norms, which must be maintained.

(c) Concepts relating to the status of an entity: mana, tapu and noa. These order Māori society and are significant in sustaining and protecting mauri (which refers to life force, or the essential quality and vitality of all things). We consider mana, tapu and noa are relational norms that achieve regulative purposes. Relationships are organised and interactions defined by reference to these concepts.

(d) Concepts of responsibility, which can be identified as associated norms: kaitiakitanga, manaakitanga, aroha and atawhai. These are closely connected with the concepts of mana and whanaungatanga.

(e) Processes and procedures, or kawa. These are significant in upholding all of the norms we refer to above. They administer tikanga as a system and are means of regulating mauri, mana, tapu and noa. We give four examples: pōwhiri (a welcome), rāhui (a restriction), muru (a ritual of claiming compensation) and karakia (ritual prayer).

• 3.17 This list of concepts is not intended to be exhaustive. We have needed to select a group of concepts on which to focus.25 In the 2001 Study Paper Māori Custom and Values in New Zealand Law, the Commission explained five important values underpinning tikanga: whanaungatanga, mana, tapu, utu and kaitiakitanga.26 In selecting the present list of concepts, we have been guided by a central set of tikanga concepts identified by Professors Wiremu Doherty, Tā Hirini Moko Mead and Tā Pou Temara of Te Whare Wānanga o Awanuiārangi (the Awanuiārangi pūkenga),27 and the extensive review of expert tikanga evidence given in Waitangi Tribunal and court proceedings undertaken by Coates and Irwin-Easthope.28 In particular, the latter has served to check that the concepts on which we focus below are broadly shared, widely present and in active use in modern proceedings.

TE WHARENUI AND AWARENESS OF WAIRUA

• 3.18 Before we turn to explore the tikanga concepts, we again ask the reader to make the mental shift to a mātauranga-immersed space. As Chapter 2 proposes, the wharenui provides a useful anchor point for those seeking to engage with Māori knowledge and understand tikanga. We have reviewed how, according to Māori perspectives, wharenui connect with other parts of Māori existence, surpassing the physical world. They reflect in multiple ways the notion of a multi-layered reality (wairua) which is intrinsic to te ao Māori and vitally important to understand. As Tomas puts it, “[t]he Maori worldview

²⁵ Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001).

²⁶ Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 28–40.

27. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023), Section Three. See Appendix 1.

²⁸ See Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2.

stresses the importance of te Ao Wairua (the spiritual realm) as being the source of all things”.29

• 3.19 In Chapter 2, we stress that it is not necessary to adopt this symbolism to engage with it. Nevertheless, for those engaging with tikanga, awareness that in a Māori world view “there is no rigid distinction between the physical and the spiritual realms” is needed.30 Marsden explains that:31

... the Māori does not, and never has accepted the mechanistic view of the universe which regards it as a closed system into which nothing can impinge from without. The Māori 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 Mārama.

• 3.20 For readers who are new to tikanga, imaginatively orienting themselves within the wharenui serves as a reminder to be aware of these other aspects of a Māori world view. Wairua — the constant sense of multiple, spiritually-imbued dimensions — is the context in which tikanga lives. Aspects of tikanga are concerned with sustaining wairua and the connections that it represents. To illustrate how this can have practical implications for those engaging with tikanga concepts in a legal context, in resource management proceedings the meaning of environmental “effects” from a Māori standpoint may include effects that arise in other dimensions.
• 3.21 Later in the chapter, we will also suggest that the whakapapa that wharenui symbolise is important to hold in mind, because it sets parameters when interpreting and applying tikanga concepts.

STRUCTURAL CONCEPTS OF CONNECTION: WHAKAPAPA AND WHANAUNGATANGA

• 3.22 The closely related concepts of whakapapa and whanaungatanga, describing relationships, frame Māori existence. Each of these concepts reflects the importance in te ao Māori of all things being connected.32 By establishing connections, whakapapa and whanaungatanga define identity, status and the terms of relationships. They prescribe standards and behaviours designed to maintain relationships. We consider them to be structural norms of foundational importance to tikanga. They provide the underlying normative frame.

29. Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 66 and 60 (“Wairua is Maori existence writ large”), and generally 53–60. For others’ consideration of the importance and meanings of wairua within te ao Māori, see further: Cleve Barlow Tikanga Whakaaro: Key Concepts in Māori Culture (Oxford University Press, Auckland, 1994) at 152; Māori Marsden in Te Ahukaramū Charles Royal (ed) The Woven Universe: Selected Writings of Rev Māori Marsden (Estate of Rev Māori Marsden, Ōtaki, 2003) at 47; Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 8; Rima Eruera Statement of evidence, #F23 at [112], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.70]; Khylee Quince s 27 report, 18 September 2018 at [9], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [2.58]; Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 10–11.

³⁰ Ani Mikaere Colonising Myths — Māori Realities: He Rukuruku Whakaaro (Huia Publishers, Wellington, 2011) at 318.

31. Te Ahukaramū Charles Royal (ed) The Woven Universe: Selected Writings of Rev Māori Marsden (Estate of Rev Māori Marsden, Ōtaki, 2003) at 20.
32. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.7].

Whakapapa

• 3.23 In broad terms, whakapapa can be understood as a way of mapping knowledge. It connects all life, and is central to Māori society and to governing relationships in Māori society.33 The most well-known aspect of whakapapa is that it records genealogical layers and notes connections to place and community, in ways that may reach beyond human ancestors. However, reflecting the fact that in addition to “genealogy” whakapapa may also mean to “recite in proper order”,34 whakapapa is also a means of making other links between events and ideas and in this way providing explanations. For example:35

When we map and track the exploits of our ancestors’ whakapapa it helps establish a chronology of events and practices that are critical to mapping the knowledge systems of the iwi. Here, whakapapa maps the epistemology of the collective. It maps when a particular practice occurred, where it occurred, and who were the pivotal participants.

• 3.24 Through this chronology, whakapapa “links the people and the practices of the people to the landscape” — for example, by noting significant sites where incidents occurred.36 It is a means of mapping how significant events have been “wrapped into the knowledge system for the collective iwi”.37 As Professor Tā Mason Durie considers, whakapapa is the fundamental basis of the Māori knowledge system.38

Māori connection with all things starts with the whakapapa (genealogy) of creation.39

The world and everyone in it is part of a huge interlocking family tree.40

EXPRESSIONS OF WHAKAPAPA

³³ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 27.

³⁴ Te Aka Māori Dictionary <maoridictionary.co.nz>.

35. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [2.37].
36. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.66].
37. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.66]; see too Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity — Te Taumata Tuarua (Wai 262, 2011, vol 1) at 237–239 and Te Taumata Tuatahi (Wai 262, 2011) at 127.
38. Mason Durie Statement of evidence, #K14 at [2.2], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.4].
39. Tamati Waaka Statement of evidence, 4 January 2017 at [20], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.4].

⁴⁰ Hirini Moko Mead and Pou Temara Statement of tikanga, 31 January 2020 at [91], as cited in Ellis v R (Continuance)

[2022] NZSC 114, [2022] 1 NZLR 239.

Whakapapa connects us spiritually to our past and defines the present.41

Whakapapa necessitates a focus on relationships: between people and their non-human relatives; between past, present and future generations. It reminds us that relationships must be carefully managed because everything in our world is interconnected.42

Whakapapa, the cultural template through which we understand our descent and ancestral relationships, refers to a process of placing in layers, which reminds us that relationships between and amongst us individuals and social groupings, are layered upon each other and extend as wide as our whānau and intergenerational connections reach ...43

Everything from weather events, the stars, planets and clouds, fish, birds, trees and flowers, stones and volcanic events, wellbeing, life, illness and death can be explained as a result of the creation narrative interlinking all of these components in a web of whakapapa.44

... we use the concept of whakapapa both to analyse into separate parts and to bind the parts together as a whole entity of creation, of which we see ourselves are also a part ... our cultural concept in the land begins in Papatuanuku and her resources seen as a whole ... but we go on to categorise the parts of the whole in respect to their uses and functions. But when we go out to make use of the resources of nature, we do not forget the whakapapa binding all together, at the same time as we distinguish the resources of land and sea.45

Whakapapa is the common thread that weaves the hapū together to form the iwi.46

Reliance on a whakapapa framework to make sense of our existence requires us to value every person as part of an endlessly expanding whole. This is not to be confused with some feel-good notion of equality or sameness; rather, it recognises that the particular qualities of every person contribute to the vitality of the whakapapa network in its entirety.47

41. Moe Milne Statement of evidence, #A62 at [131], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.4].
42. Ani Mikaere Statement of evidence, #A17 at [45], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.4].
43. Leonie Pihama Statement of evidence, #A19 at [18], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.2].
44. Tahu Potiki Statement of evidence, 23 December 2016 at [4.6], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.11].
45. Henare Rakiihia Tau Affidavit, 24 November 1989 at [74], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.11].
46. Tipene O’Regan Statement of evidence, #B9 at [4]–[5], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.29].
47. Ani Mikaere Statement of evidence, #A17 at [44], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.41].

Whakapapa: a jural perspective

• 3.25 Ani Mikaere describes the importance of whakapapa in two ways. Whakapapa is a way of making sense of the world. It is also a behavioural guide:48

... whakapapa embodies a comprehensive conceptual framework that enables us to make sense of the world. It allows us to explain where we have come from and to envisage where we are going. It provides us with guidance on how we should behave towards one another and it helps us to understand how we fit into the world around us. It shapes the way we think about ourselves and about the issues that confront us from one day to the next.

• 3.26 According to Tomas, whakapapa has three primary functions:49

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.

• 3.27 Explaining the normative significance of whakapapa, Mikaere says:50

Whakapapa necessitates a focus on relationships: between people; between people and their non-human relatives; between past, present and future generations. It reminds us that relationships must be carefully managed because everything in our world is connected. Failing to nurture key relationships will result in imbalance which will ultimately be to the detriment of all.

• 3.28 As Jackson argued:51

The ties of whakapapa which bound the collective together provided the precedents and jurisprudential framework that rationalised the rules for individual and collective behaviour as well as the various sanctions used to ensure compliance ... Whakapapa also provided precedents for the exercise of political power which was essential to the law’s effective functioning.

• 3.29 Jackson also connected whakapapa to relational interests or “rights”:52

Our law is a way of maintaining relationships, where processes and entitlements are based upon kinds of obligations associated with the receipt of any gift. We sometimes define these entitlements as “rights”, however these do not stem from the grant of a political body but from the rites of our birth and the whakapapa that makes us unique. They began at the moment of birth, as the first act in every child’s life was the burying of his or her whenua ... a means of proclaiming their right to stand on their land and proclaiming the reciprocal relationships they would have within their whānau, Hapū and Iwi.

⁴⁸ Ani Mikaere Colonising Myths — Māori Realities: He Rukuruku Whakaaro (Huia Publishers, Wellington, 2011) at 285–286.

49. Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 69.
50. Ani Mikaere Statement of evidence, #A17 at [45], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.5].
51. Moana Jackson Brief of evidence, 10 January 2005 at [93]–[94], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.6].
52. Moana Jackson Statement of evidence, 24 April 2012 at [19], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.6]. The usage of inverted commas above in respect of “rights” reflects Jackson’s own.

• 3.30 Mead, speaking in the context of competing claims to fisheries Treaty settlement assets, gives examples of whakapapa-based birth rights:53

(a) The right to be a Māori and the attributes of being Māori.

(b) The right to an identity and whakapapa as a member of the whānau, the hapū, the iwi and the waka.

(c) The right to share in the tribal estate, including rights to succeed to interests of the parents.

(d) The right to use marae.

(e) The right to be buried in the urupā.

(f) The right to be listed on the hapū and iwi beneficiary roll.

(g) The right to share in the benefits of any settlement to the hapū or iwi.

• 3.31 While Mead’s list of whakapapa-based rights is not complete, it illustrates both the practical and jural importance of whakapapa. Whakapapa confirms a person’s membership within the kin group from which that person’s mana and tapu is derived.54 Whakapapa may also determine a person’s standing to perform certain roles.55
• 3.32 Consequently, whakapapa has direct implications for how people should behave and are entitled to behave — in other words, for people’s rights and duties. Whakapapa confers an entitlement to belong and identifies those who do not.56 As Professor Tamati Muturangi Reedy stated:57

... in Māori terms, one is defined by one’s ancestors. To translate a common Māori phrase

— “Ko tātou ngā kanohi me ngā waha kōrero o rātou ma kua ngaro ki te pō — we are but seeing eyes and speaking mouths of those who have passed on”. The reverence for the bones and indeed the memory of the ancestors is directly reflected in the centrality of whakapapa or genealogy to all structures within Māori society.

• 3.33 However, importantly, whakapapa can also be flexible. As Durie says:58

Whakapapa were not used to constrain individual or group status but to enlarge it, and did not limit future direction but expanded on the possibilities.

53. Hirini Moko Mead Brief of evidence, 25 February 1998 at [22], in Te Runganui o te Upoko o Te Ika Association (Inc) & Ors v The Treaty of Waitangi Fisheries Commission & Others CP 122/95.
54. Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 27– 28; Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 111–120.
55. See Te Riaki Amoamo Affidavit, 25 January 2022 at [9], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.4]: Amoamo (Te Whakatōhea) refers to tikanga being “the law in our area [which is] underpinned by whakapapa, because without whakapapa you have no right to claim, speak for or take care of the whenua or its resources”. See too McCully Matiu and Margaret Mutu Te Whānau Moana: ngā Kaupapa me ngā Tikanga Customs and Protocols (Reed Books, Auckland, 2003) at 164.
56. McCully Matiu and Margaret Mutu Te Whānau Moana: ngā Kaupapa me ngā Tikanga Customs and Protocols (Reed Books, Auckland, 2003) at 164.
57. Tamati Muturangi Reedy Brief of evidence, 25 February 1998 at [37(b)], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.34].

⁵⁸ Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 5.

• 3.34 Dr David V Williams and Joseph Williams consider:59

The most notable orators are always able to emphasise commonality of whakapapa and interconnectedness, thus playing down the separateness between groups.

• 3.35 Professor Ranginui Walker also explained that “Māori society was simply too dynamic to sustain rigid hapu collectives”.60 Whakapapa therefore can expand or contract to deal with changing circumstances. In these ways, whakapapa illustrates the dynamic qualities of tikanga.

Whanaungatanga

• 3.36 Whanaungatanga, meaning kinship or a sense of familial connection and relationships, is a value reflecting “the intent of ensuring all things within te ao Māori are connected and understood” and that “maintaining the relational components with our environment is ... equally important as maintaining [them] with each other and our ancestors”.61
• 3.37 Whanaungatanga is closely linked with whakapapa, so that it can be difficult to distinguish between them. However, one explanation is that whakapapa maps lineal connections and layers of connection, while whanaungatanga demands that we maintain them. Whanaungatanga also makes and maintains connections beyond the genealogical descent lines of whakapapa. Tikanga scholars emphasise that the essence of whanaungatanga is its inter-relational breadth and inclusiveness. For example, Williams maintains that “the boundary between one hapu and the next or one iwi and the next is always broad and grey rather than black and white”.62 Connections which must be maintained extend to the living and non-living, to past and present, and beyond human to ecological domains. Clarifying the differences of whakapapa and whanaungatanga, Tomas considered that:63

... 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.

• 3.38 She also noted the egalitarian nature of whanaungatanga, considering that it “highlights ‘belonging’ and ‘inclusiveness’ amongst members of a kin group, irrespective of authority

59. David V Williams “He aha te tikanga Maori” (unpublished revised draft of Joseph Williams’ paper of the same name, dated 10 November 1998 with minor update 2020) at 14.
60. Ranginui Walker Brief of evidence, 25 February 1998 at [4.1(b)], in Te Runganui o te Upoko o Te Ika Association (Inc) & Ors v The Treaty of Waitangi Fisheries Commission & Others CP 122/95.
61. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.11].
62. Joseph Williams “He aha te tikanga Maori” (unpublished paper presented to Te Aka Matua o te Ture | Law Commission, 1998) at 11.
63. Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 78; see also Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand and Māori Law (UBC Press, Vancouver, 2016) at 68; Margaret Anne Kawharu Statement of evidence, 2 June 2020 at 13–14, in Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601.

or ranking”.64 Dr Carwyn Jones likewise notes the tendency and capacity of whanaungatanga to embrace new relationships and new contexts:65

The concept of whanaungatanga may be grounded in genealogical connections, but today the term is applied to other types of relationships where reciprocal obligations apply. Eminent anthropologist Dame Joan Metge has described how the root concept of whānau (extended family) has acquired new meaning over the course of the twentieth century: it is now widely applied to various types of communities and groups and no longer only to those with actual blood ties.

EXPRESSIONS OF WHANAUNGATANGA

Whanaungatanga is “the way we bring our whakapapa to life” and “the way we relate to our kin”.66

... the defining principle is whanaungatanga, or kinship. In te ao Māori, all of the myriad elements of creation — the living and the dead, the animate and inanimate — are seen as alive and inter- related.67

Whanaungatanga is focused on “the maintenance of relationships”.68

The more inclusive kinship ethic of whanaungatanga offsets the more exclusive linear factional loyalties derived from the descent lines of whakapapa.69

... [t]he whanaungatanga principle goes beyond just whakapapa and includes non-kin persons who become like kin through shared experiences.70

Through the tikanga of whanaungatanga, iwi and hapū support each other and held reciprocal obligations to assist each other in maintaining their mana.71

64. Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 78.
65. Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand and Māori Law (UBC Press, Vancouver, 2016) at 68.
66. Chris Winitana Statement of evidence, 4 June 2017 at [72], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.51].
67. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity — Te Taumata Tuatahi (Wai 262, 2011) at 23.
68. Walter (Wati) Ngakoma Ngamane Statement of evidence, 13 October 2020 at [21], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.51].
69. Margaret Anne Kawharu Statement of evidence, 4 December 2020 at [6], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.50].
70. Hirini Moko Mead and Pou Temara Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006, 31 January 2020 at [97], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.58].
71. Tamati Waaka Statement of evidence, 4 January 2017 at [69]–[81], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.57].

Within Māori whānau, social control is modelled through the concept and practice of whanaungatanga — kinship or familial obligations. Boundaries and behavioural expectations are set and enforced by the collective, with particular roles and responsibilities for guidance and leadership vesting in parents, aunts and uncles and grandparents.72

Whanaungatanga is “the glue that holds the Māori world together”.73 Whanaungatanga is an essential principle of the Māori world.74 Whanaungatanga is the idea that makes the whole system make sense.75

Whanaungatanga: a jural perspective

• 3.39 As Jones explains, whanaungatanga encapsulates the centrality of relationships to Māori life and to Māori legal traditions:76

Grounded in genealogical connections, whanaungatanga is central to individual and community identity and the rights and obligations associated with that identity.

• 3.40 Durie expresses the jural character of whanaungatanga in this way:77

Whanaungatanga (kinship) was demonstrative of:

• the primacy of kinship bonds as determiners of action;
• the primacy of whakapapa (genealogical tables) in social reckoning and rights formulation;
• the right of individuals to determine, develop and validate their individual identity and status within the chosen group;
• the basis for hapu allegiance; and
• the interconnectedness of the Māori people.

72. Khylee Quince s 27 report, 18 September 2018 at [8], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.62].
73. Hirini Moko Mead and Pou Temara Statement of tikanga, 31 January 2020 at [96], as cited in Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239; see also Te Rua Rakuraku and Donald Kurei Joint affidavit, 21 January 2022 at [11], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.64] where Pou Temara says whanaungatanga is ”the glue that holds the Māori world together and sets the parameters of the relationships between and amongst all things”.
74. Walter (Wati) Ngakoma Ngamane Statement of evidence, 13 October 2020 at [21], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.63].
75. Te Rua Rakuraku and Donald Kurei Joint affidavit, 21 January 2022 at [11], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.64].
76. Carwyn Jones New Treaty New Tradition: Reconciling New Zealand and Māori Law (UBC Press, Vancouver, 2016) at 66–68; see also David V Williams “He aha te tikanga Maori” (unpublished revised draft of Joseph Williams’ paper of the same name, dated 10 November 1998 with minor update 2020) at 11 and 13.

⁷⁷ Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 5.

• 3.41 According to Tomas, the responsibilities associated with whanaungatanga are at the heart of its meaning.78 Harry Mikaere also emphasises whanaungatanga-based responsibilities:79

Whanaungatanga is the essence of being Māori, and connections between people and widespread relationships with the spiritual and natural worlds are linked through whakapapa. The relationships with the natural world (land, water, coastal marine area, air, plants, animals etc) are bound together by mutual responsibilities.

• 3.42 Whanaungatanga responsibilities drive tikanga behaviours, expressed in norms that we discuss later in this chapter such as kaitiakitanga (guardianship) and manaakitanga (generosity). Joseph Williams and David V Williams point out that individual and collective rights and standing are conditional on fulfilling one’s responsibilities:80

... tikanga Māori emphasised the responsibility owed by the individual to the collective. No rights enured if the mutuality and reciprocity were not understood and fulfilled.

• 3.43 The Awanuiārangi pūkenga give another example of the responsibilities that whanaungatanga creates between people, explaining that whanaungatanga involves collective responsibility for individual wrongdoing. According to Mead and Temara:81

... when a hara (wrong) is committed it not only impacts the individuals involved, both offenders(s) and victim(s), but the broader collectives of these individuals including whānau, hapū and iwi ... a community is always responsible for their wrongdoers because they are kin. It also means that a community is impacted as victims when offending occurs.

• 3.44 Their paper (found at Appendix 1) gives further examples of this principle, relating to responsibilities for fraud and responsibilities to intervene and redress domestic violence. 82

Whakapapa and whanaungatanga in action

• 3.45 The centrality of whakapapa and whanaungatanga to all Māori relationships is echoed in the way that these concepts can be seen at work every day on the marae. For example, identifying whakapapa connections and building whanaungatanga between manuhiri (visitors) and the haukāinga (the people of the marae) are important purposes of pōwhiri (welcoming) protocols.
• 3.46 To illustrate the significance of whakapapa and whanaungatanga, Temara shared with us an account relating to the Mātaatua marae in Rotorua, a Tūhoe marae built within the rohe (area) of Ngāti Whakaue (a Te Arawa group). It shows how the iwi of Te Arawa and Tūhoe are drawn together through whakapapa both in its narrow genealogical sense and in the events of their shared history. Events which had occurred between these two tribal

78. Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 78.
79. Harry Mikaere Brief of evidence, 13 October 2020 at 27, in Ngāti Whātua Ōrākei Trust v Attorney-General [2023] NZHC 74.
80. David V Williams “He aha te tikanga Maori” (unpublished revised draft of Joseph Williams’ paper of the same name, dated 10 November 1998 with minor update 2020) at 12. See also Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 40.
81. Hirini Moko Mead and Pou Temara Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006, 31 January 2020 at [98]–[99], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.61].
82. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [5.2]–[5.6].

groups moved Ngāti Whakaue to gift land to Tūhoe as a place for them to build a marae in Rotorua:83

Mātaatua is a Tūhoe marae in Rotorua. The land that it stands on is a gift from Ngāti Whakaue to Tūhoe. This happened in the early years of last century. During that time, the people of Tūhoe used to go to Rotorua Hospital for medical attention. They would arrive with nowhere to live while being treated, or waiting for treatment. Those admitted to hospital had whānau camped nearby the hospital so that they could visit their sick relations. Ko te pō kau anake. They were a sorry sight. They brought food, but cooking was a problem because of the health regulations of the Rotorua Council. The rangatira of Ngāti Whakaue saw their plight and discussed how they might mitigate the predicament of Tūhoe.

In coming to a decision about gifting some land to Tūhoe, the Ngāti Whakaue leaders recalled the whakapapa connections between Tūhoe and Ngāti Whakaue. They remembered the celebrated family of Te Tokotoru a Kōkāmutu, the Triumvirate of Kokamutu. They were Tamahore, Te Purewa and Tumatawhero. These three brothers were the great leaders of Tūhoe at that period. They led many successful battles against their foe to the east, to Taupo, and against their Te Arawa relatives at Pukekaikaahu in Rerewhakaitu. At that battle the brothers decided that the best course of settling differences was not through full scale war with their mother’s people that would involve hundreds of warriors on both sides. They preferred to settle scores through a tūmatatahi, a duel of toa [warriors]. Te Purewa volunteered to fight for Tūhoe. He had such a reputation as a warrior that both his people and enemy alike regarded him as Te Pakihiwi Kaha or the strong shoulder. Te Arawa also had such a warrior called Te Wahakaikapua. However, the duel did not eventuate. The insults exchanged were too much to bear and they closed in battle ... Many warrior leaders of Rangitihi and supporting hapū were killed in that fight including Te Rangikatukua and others. They were decapitated and the heads were preserved and carried back to Ruatāhuna. It was a victory for Tūhoe and achieved in no small measure by the leadership of the sons of Kōkāmutu of Te Arawa.

In time Te Arawa practised for a return bout and then marched with an intimidating force to Ruatāhuna to avenge the defeat at Pukekaikāhu. They arrived at the pā of Te Aihurangi at Ruatāhuna and camped at the foot of that pā. Inside were the gathered hapū of Tūhoe. Other hapū were also on the march to join them against Te Arawa. Hineiturama, a woman of noble birth stood at the head of the force and cried out to the defenders to bring out the heads of the Arawa chiefs so that they may tangi over them. The heads were brought out and stuck on stakes on the ground. Te Arawa stood there before the heads in mournful tangi which moved the observing defenders. Then Hineiturama began a kaioraora, a free form haka of derision aimed at Tūhoe who were behind the parapets of their pā.

[haka omitted]

Such was the ferocity of the kaioraora that it attracted the admiration and respect of Tūhoe. They immortalised that kaioraora and the expertise of Te Arawa in that art form with the terse words Whatitiri ki te rangi, ko Te Arawa ki te whenua (Thunder in the heavens, Te Arawa on the land). That pepeha coined by Tūhoe has defined Te Arawa as great speakers, great haka people and great at karanga and waiata.

Meanwhile, Tūhoe who had left the safety of their pā and were outside watching and admiring the performance, approached the Arawa force with outstretched arms to show that there were no weapons. In the tradition of the tangi, they wept together and later set up a tatau pounamu [a metaphor for lasting peace]. All the preserved heads were returned to Te Arawa and the tatau pounamu was consummated with the exchange of gifts.

⁸³ Abridged from an account shared with us by Pou Temara (May 2023).

Having stayed awhile to enjoy the hospitality of the hosts, Te Arawa left to return to Rotorua. They had not long departed when the virulent and warlike Tamakaimoana of Maungapōhatu appeared ready to make war with Te Arawa. When told that a tatau pounamu had been made with Te Arawa, Tamakaimoana refused to recognise it and set off in pursuit. The Tūhoe leaders in the pā then did something that can only happen in Māori culture. They sent a swift runner called Te Rehe by a short cut to warn the retreating Arawa that Tamakaimoana were in pursuit of them. This act is called pūrahorua. At a place called Te Whatu o Mawake Te Arawa ambushed Tamakaimoana and defeated his force. Many leaders were lost in that fight. That defeat of Tamakaimoana could be viewed as the interest that Tūhoe paid Te Arawa, on top of the gifts of taonga of the tatau pounamu. Te Arawa did not forget.

...

These events of their shared history, drawing Te Arawa and Tūhoe together through whakapapa, are the reason that moved Ngāti Whakaue to gift the land to Tūhoe as a place for them to build a marae where they may stay when in Rotorua. Today, at the marae, Tūhoe maintain a continuing relationship with Ngāti Whakaue. At major hui Ngāti Whakaue and our Arawa uncles and aunties are always part of our paepae ... we regard them as part of us. We from Mātaatua are also invited by Ngāti Whakaue to be part of their paepae at their major hui on their marae. Tūhoe perform and keep alive that kaioraora composed by Hineiturama of Te Arawa even though it is a derogative haka aimed at Tūhoe ... Conversely, Te Arawa keep alive and perform the Tūhoe haka that challenged Te Arawa before the battle of Pukekaikāhu.

[haka omitted]

• 3.47 Illustrating the significance of whakapapa and whanaungatanga in a jural context, an excerpt below from an 1893 Native Land Court proceeding shows how whakapapa and whanaungatanga were relevant to determining entitlements to land:84

Q. Why is it the list you are upholding have equal rights?

1. Because there are two claims, ancestry and conquest, the rights over the conquered land that is the eastern and southern parts are equal. The descendants of the ancestors who came here in the Mataatua canoe occupied from Tikirau (Cape Runway) to Ngā Kuri a Whārei at Tauranga — all are descended from Toroa and Awanuiārangi and derive their name from the latter. Ngāti Awa who are not descendant from Māhu whose ancestors took no part in the conquest are the persons to whom we have allowed an 1/8th share. Those who are descendant from Māhu and whose ancestors also took part in the conquest we have allowed 20 shares. All the persons who have no claim to the land accept being called Ngāti Awa were put in by Penetito. When he gave his evidence at this Court he was unable to bring out these people in his genealogy — therefore I say all these people should be swept out of this land. The conclusion arrived at by Ngāti Awa committee was that all those who were not descendant from the ancestor and whose ancestor took no part in the conquest should each receive an 1/8th share also those of Hāmua and Warahoe who were put in by Rangitūkehu should receive the same proportion.

Those of Warahoe and Hāmua who married into Ngāti Awa let it be for Ngāti Awa to say. Penetito has said that the conquest of this land has been made by his hapū. I deny that emphatically. I say it was made by the hapū of Ngāti Awa i.e. by Te Pahipoto, Te Tāwera, Ngāti Tūwharetoa, Ngāi Tamaoki, Ngā Maihi, Ngāti Ahi and by certain persons of Ngāti Pukeko, two or three I think — Ngāi Te Rangihōuhiri, Ngāi Taiwhakaea, Ngāti Ikapuku, Ngāti Hinanoa, Ngāti Hokopū, Te Patuai and small

⁸⁴ 36 Judge Scannell MB 100–101.

hapū and the hapū called Ngāti Awa. Apanui was the principal man — another hapū of Apanui was called Ngāti Matewaru. They took part in the conquest. That was Te Putarera’s hapū also Te Patutātahi, Ngāi Tāpiki. These are all.

Q. All of these are entitled to the conquered lands?

A. Yes.

Q. In equal shares?

A. Yes, in equal shares.

17. Are there three classes in the owners? (1) Those entitled to a share in the whole block. (2) Those entitled to a share in the conquered land. (3) Those who have no claim at all except through “aroha”.
1. Yes. The people of Warahoe, Hāmua and those who cannot claim from the ancestor or by conquest are the third.

Summary: whakapapa and whanaungatanga

• 3.48 Whakapapa and whanaungatanga ensure that the order of things is properly understood and that connections to the natural world, place and people are acknowledged, maintained and nurtured. In these ways, whakapapa and whanaungatanga function as underlying structural norms within tikanga. We see this as their primary normative and jural significance. The connections understood and upheld through whakapapa and whanaungatanga establish the framework and basis for interests in Māori society, including powers, rights and duties.

PRESCRIPTIVE CONCEPTS THAT MAINTAIN BALANCE: MAURI, UTU AND EA

• 3.49 In this section, we discuss the concepts of mauri, utu and ea. These are concepts that relate to equilibrium or balance and play a key role in Māori life. Mauri refers to the vitality and wellbeing of an entity. It is prescriptive to the extent that tikanga makes demands to protect and maintain this essence or wellbeing. Similarly, utu also demands action or behaviours to constantly restore and maintain balance. Utu may enable the settled state of ea to be achieved.

Mauri

• 3.50 Mauri has been variously explained as life essence,85 “life force connection”,86 and “the distinctive nature all things have”.87 As Makereti Papakura explained:88

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

85. Cleve Barlow Tikanga Whakaaro: Key Concepts in Maori Culture (Oxford University Press, Auckland, 1994) at 83; Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013) at 239 and 241.
86. Tahu Potiki Statement of evidence, 23 December 2016 at [8.1]–[8.10], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.326].
87. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.23]; and see Cleve Barlow Tikanga Whakaaro: Key Concepts in Maori Culture (Oxford University Press, Auckland, 1994) at 83.
88. Makereti Papakura The Old-Time Maori (Victor Gollancz, London, 1938) at 181; see also Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 86.

the mauri of the forest were violated, the trees and plants would not be able to produce in abundance, but fruits would be scarce, and there would be few birds. With the mauri ora of man, if this is violated in any way, the thought is that with the loss of spiritual mauri, he is left without protection.

• 3.51 The Awanuiārangi pūkenga consider that mauri reminds us “to look to the connections that bind us”.89 If the connection that must be sustained is lost, mauri will be dormant or diminished, diminishing or altering one’s existential being.90 Mauri can be given to objects. For instance, even today, Māori may still place a stone embodying mauri beneath a wharenui or other new building to reflect its kaupapa or purpose.91 In another example we will discuss below, rāhui pou (a post marking a restricted area) may be imbued with mauri.

EXPRESSIONS OF MAURI

All beings in this realm possess a mauri, or a life force, they have something to say and something to share, the sea, the fish, the shellfish, the crabs, the shells, the pebbles and gravel, the rocks and boulders, the sand and earth, the trees, the birds, and the winds. They speak to each other just as we communicate daily.92

Mauri is the actual life force connection between the gods and earthly matter. It is stated that all things have a mauri including inanimate objects so it can be found in people, animals, fauna, fish, waterways, rocks, mountains. The mauri is ... also the generator of the health of a person or place.93

[Mauri embodies] familiar notions of wellness, health, levels of vitality, energy, spirituality, awareness, identity, integrity and alertness and engagement beyond the self.94

A flourishing mauri is evidenced by vitality, spiritual enlightenment, enthusiasm, emotional strength, a capacity to engage — all experienced within social and physical environments that align with human resilience.

A languishing mauri has the opposite associations: low energy, despondency, uncertainty, shame, a reluctance to engage, and environments that aggravate personal bleakness.95

89. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [1.86].
90. Makereti Papakura The Old-Time Maori (Victor Gollancz, London, 1938) at 180–181; Tahu Potiki Statement of evidence, 23 December 2016 at [8.1]–[8.10], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.327].
91. Nathan Kennedy and Richard Jefferies Kaupapa Māori Framework and Literature Review of Key Principles (2nd ed, International Global Change Institute, Hamilton, 2009) at 57–58.
92. Te Ringahuia Hata Affidavit, 29 January 2020 at [65], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.328].
93. Tahu Potiki Statement of evidence, 23 December 2016 at [8.1]–[8.10], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.326].
94. Mason Durie Statement of evidence, 23 December 2016 at [22]–[24], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.327].
95. Mason Durie Statement of evidence, 23 December 2016 at [22]–[24], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.327].

Mauri is also a metaphysical value that can be managed by karakia conducted by experienced tohunga.96

... the significant habitats of our flora and fauna house the mauri and spiritual essence of our ancestors.97

Hypothetically, the mauri of water could be negatively affected through human involvement. For example, by diverting water or extracting it so much that it is depleted.98

... tikanga are in place to focus on the caring for the mauri (life force) of the waahi mataitai kai and to ensure various kaitiaki and descendants of the owners of the food gathering areas are alerted to any dangers.99

Mauri: a jural perspective

• 3.52 Mauri is a complex concept to explain jurally. It is rarely referred to in statutes outside of Treaty settlement legislation.100 However, it arises in the resource management context through association with the concept of kaitiakitanga as the foremost obligation of kaitiaki (guardians).101 Kaitiaki “have an intrinsic duty to safeguard the mauri of the environment”.102 Their responsibility is to “ensure that the mauri of ... taonga remains healthy and our ability to do that through generations reflects directly on our mana”.103 If “mauri is diminished, or gone, the kaitiaki are not fulfilling their responsibility”.104
• 3.53 Mauri therefore gives rise to obligation or responsibility, including the requirement to maintain a physical connection to whenua.105 If the connection is not maintained through regular presence and resources are not drawn from the whenua, the mauri of the place

96. Desmond Tatana Kahotea Statement of evidence, 28 October 2016 at [9.6], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.327].
97. Haami Piripi Brief of evidence, #P3 at [36], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.327].
98. Hemana Eruera Manuera Statement of evidence, 29 March 2019 at [46], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.328].
99. Te Kou Rikirangi Gage Affidavit, 21 February 2020 at [123], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [2.28].

¹⁰⁰ But compare the Natural and Built Environment Bill 2022 (186–1), cl 5 (system outcomes).

¹⁰¹ Resource Management Act 1991, ss 7(a), 2.

102. David Topia Rameka Statement of evidence, 4 June 2017 at [21] as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.331].
103. Agnes Te Haara Clarke Statement of evidence, August 2001 at [4], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.339].
104. Hohepa Joseph Mason and Te Kei (O Te Waka) Wirihana Merito Brief of evidence, 29 April 2019 at [67]–[68], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.341].
105. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.24].

will die.106 Emphasising the way in which the mauri of (in this example) water and people are connected, “[the] mauri of the people remains as strong as the mauri of the wai”.107 The responsibility to maintain mauri renders it a normative force. The Awanuiārangi pūkenga suggest the normative force of mauri when they explain that, when objects embodying mauri such as rāhui pou have been given a particular purpose, “that [purpose] must be honoured by all”.108 They also describe the responsibility of Te Urewera descendants:109

... to maintain a physical presence and be seen to draw resources from Te Urewera. If they do not, the mauri of Te Urewera will die. It will think it is no longer of value or importance to its people and therefore of no importance. There is an obligation being referred to here. While mauri describes the distinctive character of all things, it also notes the importance of what we are required to do to enhance and support the mauri of all things. That is, we must be present and be seen to be engaging in all manner of practice and processes of te ao Māori.

Mauri in action

• 3.54 To illustrate that mauri can be prescriptive in a practical way, the following three examples show how neglecting mauri was seen to result in doom, dire consequence or punishment.
• 3.55 Explaining that abuse of mauri creates imbalance and “would spell doom”, Marsden wrote:110

Allow me to conclude with a special reference to the ‘Mauri’ of the toheroa [a type of shellfish] ... I remember at a special meeting of Ngāitakoto where the elders expressed misgivings about the Mauri of the Toheroa being made ‘noa’ and being depleted in the near future because they were being [sic] commercialised, a grave ‘hara’ or sin against the Atua for a freely bestowed gift. They predicted that in less than 20 years the toheroa would disappear because the Mauri would remove itself, and the removal of Mauri or life-force, would spell doom to the toheora. For them, it was not so much the use or even over-use of the resource but rather the abuse and misuse of the mauri and its tapu. It would create an imbalance in the fragile network of the eco-systems of the Oneroa-a-Toohe and even the abundance of Schnapper and other seafoods would be seriously depleted.

• 3.56 Hemana Manuera describes how an ancestor named Kahungunu was punished for disrespecting mauri. Kahungunu faced immediate retribution, followed by ongoing consequences for his son:111

Kahungunu, while fishing whakaaronui, disrespected tikanga by failing to throw the first catch back to Tangaroa by way of koha [an offering]. Kahungunu was slapped with a tāmure (snapper) by his brother. To resolve this misdeed, Kahungunu named his son

106. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.24].
107. Hohepa Joseph Mason and Te Kei (O Te Waka) Wirihana Merito Brief of evidence, 29 April 2019 at [40], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [5.46].
108. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.29].
109. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.24].
110. Māori Marsden Brief of evidence, #C17 at 8, as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.328].
111. Hemana Eruera Manuera Statement of evidence, 29 March 2019 at [22], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [2.64].

Tūtāmure which means ‘pricked on the face by snapper fins’. Hemana uses this as an example of Kahungunu addressing his disrespect of the mauri of Tangaroa by the naming of Tūtāmure as perpetual living evidence of his misdeed and disrespect.

• 3.57 Implicitly, the consequences of the misdeed may be understood to pass on to following generations.
• 3.58 Bevan Taylor speaking from the perspective of Maungaharuru-Tangitū hapū says:112

The gathering of kai and resources has a reciprocal obligation on the Hapū as kaitiaki (guardians). Tangitū has a mauri (life force), so if we do not look after or respect Tangitū in accordance with our kawa and tikanga, its mauri will be detrimentally affected and there will be dire consequences for our Hapū.

• 3.59 As each of the above examples show, lapses in respect for mauri are “hara” or wrongs. They are understood to be followed by continuing consequences affecting people’s mana (authority, esteem) and their wellbeing.

Utu and ea

• 3.60 Utu is “the action undertaken for reciprocity”.113 Utu maintains harmony and balance and “conveys the ethic of striving to achieve balance in all things”.114 The action taken can either be positive or may take the form of retribution. Tāmati Kruger explains utu as: 115

... a virtue that considers how one should respond, solve or acknowledge. At the heart of utu is the idea that balance must be achieved by reciprocity, whether by compensation or by revenge. Utu is usually proportionate to the action that has caused a particular state to be unbalanced, and is always directed at repairing and enhancing whanaungatanga.

• 3.61 According to the authors of He Hīnātore ki te ao Māori:116

The manifestation of utu through gift exchange established and maintained social bonds and obligations. However, if social relations were disturbed, utu would be a means of restoring balance.

• 3.62 Utu thus plays a role in maintaining relationships and nurturing social cycles, which as Durie writes were “as critical to survival as the maintenance of the cycles of nature”.117 Utu is also linked to mana. To show and reciprocate generosity enhances mana and strengthens relationships. Conversely, “the failure to give or receive utu diminished the mana of both parties and placed the relationship in jeopardy”.118

112. Bevan Maihi Taylor Affidavit, 11 August 2020 at [34], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.331].
113. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.85].
114. Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 43; David V Williams “He aha te tikanga Maori” (unpublished revised draft of Joseph Williams’ paper of the same name, dated 10 November 1998 with minor update 2020) at 18.
115. Vivian Tāmati Kruger Statement of evidence, 2 June 2020 at [7]–[8], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.278].
116. Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 74; see also Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013) at 467–468.

¹¹⁷ Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 6–7.

¹¹⁸ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 68.

• 3.63 The concept of ea refers to a resolved or settled state.119 Utu may contribute to facilitating ea. The authors of Te Mātāpunenga note the social and legal significance of ea as a state that arises once a process or series of transactions has been completed.120 Mead, tying the concept to relationships, says that it is “a state of satisfaction where a sequence has been successfully closed, relationships have been restored, or peaceful interrelationships have been secured”.121
• 3.64 The Awanuiārangi pūkenga link ea principally to acceptance that certain issues have been resolved (more so than any actions taken). Illustrating this, a story was shared with us in wānanga showing the power of ea. One of those present recounted a childhood event in which a returned commander of the 28th Māori Battalion visited the narrator’s grandmother. Her sons had been among those who died under his command. The commander lowered himself to his knees and apologised to the kuia who had lost her sons. After a time, she said “Kua ea — it is settled”.122 As Mead writes, “it is important to be able to say: ‘Kua ea’”.123

The principle of reciprocity and the fulfilment of obligation underpins all Māori social interaction and exchange. The concept of utu encompasses both positive and negative reciprocity within a single holistic system in Māori thinking and a fundamental driver of Māori life. Emphasis is placed on maintaining relations.124

For everything given and taken, a reciprocity and return of some kind is required. Those who give, gain mana, those who receive must restore the balance ... If the balance is not restored then compensation must be taken.125

EXPRESSIONS OF UTU

119. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.78].
120. Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013) at 58.

¹²¹ Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 374.

122. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.79].

¹²³ Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 32.

124. Margaret Anne Kawharu Statement of evidence, 4 December 2020 at [30]–[33], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.276].
125. Margaret Anne Kawharu Statement of evidence, 4 December 2020 at [30]–[33], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.276].

In tikaka [tikanga], the process of utu, in the sense of reciprocal balance, is not finished until a solution is reached.

... all the parties have to work together to find a solution that can be digested by everyone who belongs at the table.

All those who are affected must be part of the process and ultimately accept the solution.

Negotiations must continue until all parties accept the process has concluded.126

[Utu] invokes notions of payment, reciprocity, and balance in particular.127

... sometimes to achieve that balance, it requires a greater response than what was the actual loss too ... it’s a relative term ... the balance isn’t just a ‘one for one’ balance, sometimes the balance, the restoration of balance, required more than the original hara to fix the scales in the proper place as it were.128

• [T] he cornerstones of a healthy Māori identity [are] the need for balance in the constituent elements of Te Taha Tinana (the physical aspect), Te Taha Wairua (the spiritual aspect), Te Taha Whanau (the family aspect) and Te Taha Hinengaro (the psychological aspect).129

EXPRESSIONS OF EA

... who determines ea ... those who have suffered determine when kua ea.130

In tikanga, a state of ea could not be reached unless all affected parties ... were involved in the process of resolution — this would otherwise be inconsistent with the principles of whanaungatanga and mana. In our opinion, a state of ea could not be reached where whenua is involved unless tangata whenua were involved and respected in the process.131

... reconciliation should never imply subordination of one by another... It was to recognise the place of both and seek a way to rebuild the relationships and so in that sense a specific hara, a specific wrong is part of that much wider context of the need for relationship building.132

126. Tipene Gerard O’Regan Affirmation, 17 September 2020 at [49]–[52], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.277].
127. Peter Adds and Paul Meredith Notes of evidence, undated at [21]–[22], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.280].
128. Peter Adds and Paul Meredith Notes of evidence, undated at [23], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.281].
129. Khylee Quince s 27 report, 18 September 2018 at [7], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.287].
130. Peter Adds and Paul Meredith Notes of evidence, undated at [69], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.285].
131. Jacinta Arianna Ruru and Mihiata Rose Pirini Joint affirmation, 14 September 2020 at [81], [83] and [85], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.291].
132. Moana Jackson Notes of evidence, 3 May 2012 at [12], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.269].

The concept of “hara” at a simplified level means: the transgression of tapu; the commission of a wrong; and the violation of tikanga resulting in an imbalance. This requires a restoration of balance or the achieving of a state of “ea”.133

Where a hara has been committed there is an intergenerational need for a state of ea.134

Utu involves a process which seeks to find a way to restore equilibrium or balance. In tikanga, this process must continue until ea is reached. Ea may not result in all affected parties feeling happy with the outcome but there is an acceptance of the process and its outcome.135

The ultimate point is to get to ‘ka ea’. If the utu does not meet the hara, and the mana has not been repaid, then whakamā will ensue.136

Utu and ea: a jural perspective

• 3.65 Dame Joan Metge has explained that “[u]tu was one of the most important ordering principles in traditional Māori society”.137 Explaining the normative significance of utu, Durie says that:138

Utu concerned the maintenance of harmony and balance. It was fundamental to most Māori tikanga and thinking, governing social relationships, the creation and maintenance of reciprocal obligations, the conceptual avenging of death, the appeasement of killings, the punishment of wrongdoing, the maintenance of the cycles of nature, gift exchange, the formation of controls, the maintenance of alliances, the performance of fiduciary obligations and the like. Utu underpinned the essential ‘give and take’ nature of the Māori social and legal order.

• 3.66 Utu therefore demands action or behaviours to constantly restore and maintain balance:139

Reciprocity protocols were formulated for commerce, social intercourse, behavioural controls, and peace-making, all encapsulated in utu. The weighting to reciprocity disclosed

¹³³ Hirini Moko Mead and Pou Temara Statement of tikanga, 31 January 2020 at [60]–[61], as cited in Ellis v R (Continuance)

[2022] NZSC 114, [2022] 1 NZLR 239.

¹³⁴ Hirini Moko Mead and Pou Temara Statement of tikanga, 31 January 2020 at [68], as cited in Ellis v R (Continuance)

[2022] NZSC 114, [2022] 1 NZLR 239.

135. Jacinta Arianna Ruru and Mihiata Rose Pirini Joint affirmation, 14 September 2020 at [81]–[82], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.275].
136. Maanu Paul Cultural advisor report, 5 July 2012 at [20], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.288].
137. Joan Metge Tuamaka: The Challenge of Difference in Aotearoa New Zealand (Auckland University Press, Auckland, 2013) at 19.

¹³⁸ Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 6.

¹³⁹ Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 6–7.

the Māori worldview that life’s basic needs and survival depended on co-operation and interaction between persons and peoples.

• 3.67 Mead helpfully outlines a three-stage framework for engaging with utu and ea — take- utu-ea.140 A take (pronounced ta-ke) is a reason for action. Utu determines what action is necessary to achieve balance and maintain the relationships involved. Once the appropriate action is completed and balance is achieved, there will be a state of resolution or ea.141
• 3.68 What is needed to satisfy utu will vary, although there are well-known valid responses to particular take.142 It is important that an appropriate utu is chosen for the nature of the take. Choosing the wrong pathway to resolution could be deemed inappropriate and thus fall short of the desired outcome.143

Utu and ea in action

• 3.69 Mead and Temara use a story from Tūhoe to explain and illustrate the steps taken to compensate for a hara (wrong) that had occurred and restore balance or settlement (ea) between the parties, achieving successful resolution:144

One day a kuia (elderly woman) went and visited a family.

When the kuia got to the home, the dog of the family that she was visiting attacked her. The dog drew blood from her leg and tore her flesh.

The owners of the dog rushed outside, took the dog away and then tended to the injuries of the kuia.

It was a hara on behalf of the dog owners for the dog to have attacked the kuia. The shedding of blood is significant as it meant there was a transgression of tapu (as blood is sacred). The offence also resulted in mana became [sic] imbalanced.

The owners of the dog knew that they had committed a hara and that there had been a breach of tikanga.

In response, they went to their waka huia (treasure box) and brought out a pounamu (greenstone) that had significant value. They gave this to the kuia as compensation for the hara.

The kuia had every right to impose a muru (ritual plundering and restorative justice process that entails the redistribution of wealth). However, she accepted the pounamu as payment for the wrong that had been committed.

This meant that the issue became ea (satisfied, settled, mana rebalanced).

140. Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 31; see also Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand and Māori Law (UBC Press, Vancouver, 2016) at 75.

¹⁴¹ Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 35–36.

142. Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 35. See also Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.85]: Doherty gives examples of he hohou te rongo, muru, and pākuha as known examples of utu being taken.

¹⁴³ Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 35.

144. Hirini Moko Mead and Pou Temara Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006, 31 January 2020 at [60], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.271].

Summary: mauri, utu and ea

• 3.70 Mauri, utu and ea are each powerful prescriptive norms. They demand action or behaviours to sustain mauri (vitality and wellbeing), to maintain utu (reciprocity) and to achieve ea (a settled state). Together, they strive for equilibrium or balance in all things.

RELATIONAL CONCEPTS CONNECTED WITH STATUS: MANA, TAPU, NOA

• 3.71 In this section, we discuss three relational concepts that are concerned with status: mana, tapu and noa. These concepts identify the status of an entity and signal the ways in which others may engage with that entity. We use the term “entity” because mana and tapu are not confined to living humans.145
• 3.72 Mana, tapu and noa are fundamental in managing and regulating Māori society.146 We consider that they are important relational norms. In other words, they are norms that generate a type of jural status and a corresponding jural relationship. As the authors of He Hīnātore ki te ao Māori state: “[i]n the Māori world virtually every activity, ceremonial or otherwise, has a link with the maintenance of and enhancement of mana and tapu”.147

Mana

• 3.73 Mana is a broad concept “combining notions of psychic and spiritual force and vitality, recognised authority, influence and prestige, and ... power and ability to control people and events”.148 Mana has also been described as the force of the ancestors at work in everyday matters.149 It remains such a force in contemporary Māori society, connected “to every form of activity within Māori society and generated through collective relationships”.150 The Awanuiārangi pūkenga note that mana includes authority given by the collective to individuals to maintain order for iwi, hapū and whānau. Those who have the people’s support and are recognised as having skills to maintain the integrity of the knowledge and processes of the people have mana.151 As others emphasise, mana is connected to whakapapa.152

145. Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 51–52 and 57. See also Peter Adds and Paul Meredith Notes of evidence, undated at [25], as cited in Coates and Irwin- Easthope “Beneath the herbs and plants”, Appendix 2 at [4.161].

¹⁴⁶ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 1.

¹⁴⁷ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 55.

148. Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013) at 154. See also H W Williams A Dictionary of the Maori Language (GP Publications, Wellington, 1992) at 172; Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 36.
149. Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 1 and 58.
150. Leonie Pihama Statement of evidence, #A19 at [13]–[14], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.156].
151. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.32].
152. For accounts of mana placing principal significance on whakapapa: Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 52–53; Annette Sykes “The myth of tikanga in the Pākehā law” (2021) 8 Te Tai Haruru Journal of Māori and Indigenous Issues 7; compare also Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 306–311: mana whenua is a process of

• 3.74 There are different forms or aspects of mana.153 For example, Cleve Barlow identifies the following four aspects:154

(a) Mana atua — mana of the various atua Māori (ancestor-gods), passed on to all whom they created.

(b) Mana tupuna — sourced from ancestry.

(c) Mana whenua — acknowledging the power and authority sourced in whenua (meaning both placenta and land). Today, mana whenua is used to describe hapū authority over a place. Barlow refers to another meaning: the ability or power of Papatūānuku through whenua to produce bountiful life.155

(d) Mana tangata — a person’s mana.

• 3.75 This is not a complete list. For example, another form of mana is mana wāhine (mana of women).156 Koroua (elder) McCully Matiu and Professor Margaret Mutu describe the essence of mana as “the power to sustain life”.157
• 3.76 As explained by Royal, mana is also more nuanced than simple power and can arise from different sources, including “through acts of generosity and wisdom ... harmonising of life and the community”.158 We discuss below how mana is linked to responsibilities and how it is conditional on responsibilities being fulfilled.

establishing one’s connections; Te Ahukaramū Charles Royal “A modern view of mana” in Raymond Nairn and others (eds) Ka Tū, Ka Oho: Visions of a Bicultural Partnership in Psychology: invited keynotes: revisiting the past to reset the future (New Zealand Psychological Society, Wellington, 2012) 195.

153. Cleve Barlow Tikanga Whakaaro: Key Concepts in Maori Culture (Oxford University Press, Auckland, 1994) at 60–61. See further Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.162]–[4.170]; see also Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 90– 95; McCully Matiu and Margaret Mutu Te Whānau Moana: ngā Kaupapa me ngā Tikanga Customs and Protocols (Reed Books, Auckland, 2003) at 157–158.
154. Cleve Barlow Tikanga Whakaaro: Key Concepts in Maori Culture (Oxford University Press, Auckland, 1994) at 60–61; Joseph Williams “He aha te tikanga Maori” (unpublished paper for Te Aka Matua o te Ture | Law Commission, 1998) at 11–12.
155. Compare particularly Cleve Barlow Tikanga Whakaaro: Key Concepts in Maori Culture (Oxford University Press, Auckland, 1994) at 61–62 with regard to the nexus of mana with life-giving capability; see also McCully Matiu and Margaret Mutu Te Whānau Moana: ngā Kaupapa me ngā Tikanga Customs and Protocols (Reed Books, Auckland, 2003) at 167: “[t]here are many forms and aspects of mana, of which one is the power to sustain life”.
156. See generally Ani Mikaere “Cultural invasion continued: the ongoing colonisation of tikanga Māori” (2005) 8(2) Yearbook of New Zealand Jurisprudence 134 and see too the ongoing Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal inquiry: Mana Wāhine Kaupapa (Wai 2700, commenced December 2018).
157. McCully Matiu and Margaret Mutu Te Whānau Moana: ngā Kaupapa me ngā Tikanga Customs and Protocols (Reed Books, Auckland, 2003) at 167.
158. Te Ahukaramū Charles Royal “A modern view of mana” in Raymond Nairn, Phillipa Pehi, Roseanne Black and Waikaremoana Waitoki (eds) Ka Tū, Ka Oho: Visions of a Bicultural Partnership in Psychology: invited keynotes: revisiting the past to reset the future (New Zealand Psychological Society, Wellington, 2012) 195 at 202–203: “People of mana usually have insight, they can see possibilities and understandings that others might not. People of mana are also harmonisers.”

EXPRESSIONS OF MANA

Mana is multi-dimensional and requires an understanding of wider tikanga Māori and the relationships within which we locate ourselves. Mana is connected to every form of activity within Māori society and generated through collective relationships.159

Mana is both inherent to our being as Māori and can be enhanced or diminished through the ways in which we enact ourselves within the collectives that we affiliate to and with. Mana is therefore connected to both spiritual and earthly sources.160

Mana as a concept is beyond translation from the Māori language. Its meaning is multi-form and includes psychic influence, control, prestige, power, vested and acquired authority and influence, being influential or binding over others, and that quality of the person that others know she or he has! The most important mana however is mana atua — divine right from Io Matua. Every person has mana atua — no more, no less. This form of mana recognises the absolute uniqueness of the individual. Everything across the universe has mana atua, in that everything was created by Io Matua within the ancient teachings of Hawaiki, a leaf, a blade of grass, a spider, a bird, a fish, a crustacean, all have the same divine right as a person. The challenge is to feel for what this really means.161

[Mana] ... is about speaking and behaving with integrity or looking after people and taonga with integrity. Mana is also something you earn and not something you demand.162

... to Māori, mana is the most valued quality. Mana is the basis of personal and collective authority and is central to hapū and iwi identity and relationships to their rohe and each other.163

In my opinion you cannot divorce responsibility from mana. When I go and reach for my trusty Williams Dictionary mana is straight away translated as power, authority and influence, which is true, but rather those things are the outcome of fulfilling your responsibilities. So I think they’ve gone straight to the end result of mana.164

159. Leonie Pihama Statement of evidence, #A19 referring to Marsden at [13]–[14], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.156].
160. Leonie Pihama Statement of evidence, #A19 at [13]–[14], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.156].
161. Leonie Pihama quoting Rangimarie Rose Pere Statement of evidence, #A19 at [13]–[14], in Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Mana Wāhine Kaupapa Inquiry (Wai 2700), as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.156].
162. See David Wilson Brief of evidence, 13 October 2020 at [56], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.157].
163. Tamati Waaka Statement of evidence, 4 January 2017 at [32], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.157].
164. Tāmati Kruger Notes of evidence, undated at 1901, as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.160].

Some people and some things have more mana than other people and other things depending on context and depending on the deeds ... of that particular person.165

Mana wāhine in its simplest definition, refers to the inherent uniqueness, strength, power, influence and authority that is derived not only through whakapapa but to our potentiality.166

It should be noted that the very term “mana wahine” is a product of the “patrifying” of Māori thought and practice. Our tūpuna are most unlikely to have felt the need to refer to “mana wahine” because it was simply the case that all people, female and male, had mana. It is only because the colonists regarded “mana” as an exclusively male characteristic — and because of the enthusiasm with which some Māori men embraced that belief — that it has become necessary to identify “mana wahine” as a phenomenon.167

Seas do not belong to a people, they are entirely their own entity. People cannot claim an oceans mana, it is the oceans in its entirety. Who am I to make myself godlike and to cause the flow and ebb of the oceans? Who am I, a mere mortal, to espouse that my mana is greater than the mana of the guardian of the oceans?168

Mana: a jural perspective

• 3.77 Some consider that the primary or basic meaning of mana is “spiritual authority and power”.169 Mana is commonly referred to in jural terms as authority,170 power,171

165. Peter Adds and Paul Meredith Notes of evidence, undated at [25], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.161].
166. Paula Ormsby Brief of evidence, #A55 at [12], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.178].
167. Ani Mikaere Statement of evidence, #A17 at [56], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.178].
168. Tama Te Waiwhakaruku Hata Affidavit, 14 February 2020 at [44], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.196].
169. Te Ahukaramū Charles Royal (ed) The Woven Universe: Selected Writings of Rev Māori Marsden (Estate of Rev Māori Marsden, Ōtaki, 2003) at 4; see also Joan Metge In and Out of Touch: Whakamaa in Cross-Cultural Context (Victoria University Press, Wellington, 1986) at 63.
170. Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013) at 154, 155, 161, 162 and 166.
171. Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013) at 154, 156 and 158; Annette Sykes “The myth of tikanga in the Pākehā law” (2021) 8 Te Tai Haruru Journal of Māori and Indigenous Issues 7 at 8–9.

jurisdiction,172 and right,173 but these descriptions of mana reflect only one aspect of the concept. As Kruger explains, the power, authority and influence often given as meanings of mana are the end result of fulfilling responsibilities:174

The concept of mana is often interpreted as involving ‘authority’, ‘influence’ and/or ‘power’. As a general proposition, I agree that is the case. However it is important to stress that mana must always have a source (whether in gods, ancestors, people or land), and that source must be established and maintained by discharging certain responsibilities to the source of that mana. In that way, mana is not something held or possessed by someone over their gods, ancestors or their land, rather that mana comes from the source and is preserved and fulfilled by living and practicing tikanga Māori.

• 3.78 Mana will rise or diminish depending on the extent to which the associated responsibilities are assumed and discharged. It may also be affected by external factors diminishing mana. Metge, drawing on the advice of numerous tikanga experts, describes the dynamic quality of mana in this way:175

The individual store of mana is never fixed but as with water in a lake its level continually rises and falls. It rises as a result of the acquisition of new forms of mana, conscientious observance of the rules governing its use, successful completion of tasks attempted, and the recognition and respect given by others. It falls as a result of misuse of the delegated power, failure to complete the tasks successfully, and insults and injuries inflicted by others.

• 3.79 It is beyond this Study Paper’s scope to address each of the types of mana in depth. However, the following observations have general application. While precise categorisation of the sources of mana varies among tikanga jurists,176 the four types named by Barlow (mana atua, mana tupuna, mana whenua and mana tangata) appear to be widely supported and to capture the primary sources and forms. Metge notes that:177

These various forms of mana are not clearly distinguishable from one another. To a large extent they are all forms of mana tupuna, since rights to land, leadership capacity, artistic gifts and even direct access to the spiritual dimension are regarded as handed down ancestral lines. Nor are they mutually exclusive. Groups and most individuals typically hold several at once.

• 3.80 The common denominator among these categories is whakapapa and whanaungatanga: to atua, to tūpuna, to whenua and to people. As Jackson explained the connection of mana with whakapapa:178

172. Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013) at 159 and 162.
173. Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013) at 164.
174. Vivian Tāmati Kruger Statement of evidence, 2 June 2020 at [42]–[43], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.158] and see further at [4.160].
175. See also Joan Metge In and Out of Touch: Whakamaa in Cross-Cultural Context (Victoria University Press, Wellington, 1986) at 68–69.

¹⁷⁶ For example, see discussion in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.157]–[4.161].

177. Joan Metge In and Out of Touch: Whakamaa in Cross-Cultural Context (Victoria University Press, Wellington, 1986) at 68.
178. Moana Jackson Affidavit, 24 April 2012 at [29], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.168].

The whakapapa which ultimately links all Iwi and Hapū together provides the papa upon which mana is based because any mana which humans might exercise as a political power could only be legitimised in concert with mana whenua, mana moana, and mana atua.

• 3.81 Illustrating how responsibilities are as important as “genealogical seniority” in determining mana, Mutu explains the role of rangatira (Māori leaders) as follows:179

The role of tribal leaders was, very basically, to ensure the well-being of the tribe. Leadership was passed from one generation to the next with the extent of a chief’s mana determined not only by genealogical seniority but also by his or her own personal qualities and abilities to maintain the support and confidence of his/her people.

• 3.82 Ngahihi o Te Ra Bidois puts it this way: mana lies “not so much in the deeds of the hero” but in collective community wellbeing.180 Responsibilities tied to mana include “mauri ora (survival)”.181 Mana is said to be “as much about responsibility, the responsibility to maintain mauri ora or the healthy state of natural resources, as ... about rights of use”.182
• 3.83 Kruger, too, expresses what is now often called “mana whenua” in the terms of different responsibilities that arise:183

While the connection between Māori and the land at a spiritual level is enduring, the reality is there are different ways in which the relationship with particular areas come about. These are referred to as take, which means ‘the basis of’. There are five different take which allow for a closer analysis of the justification of a particular group’s responsibilities vis-à-vis the land: ...

Take kitea: responsibilities on the basis of discovering of the land; Take tupuna: responsibilities on the basis of heritage or whakapapa; Take raupatu: responsibilities on the basis of conquest or war;

Take tuku iho: responsibilities on the basis of gift, including through marriage; and

Take hoko: responsibilities arising from an exchange, though not a purchase in a Pākehā sense.

• 3.84 The maintenance of mana is a matter of great importance in te ao Māori. Showing manaakitanga to visitors and exercising kaitiakitanga in relation to natural resources are common examples of mana-associated responsibilities.
• 3.85 A person’s failure to discharge their responsibilities could significantly diminish mana and lead to whakamā. While this is often translated as shame, this is only partly accurate. Marsden described whakamā as “the outward expression of inward disintegration”.184 This

179. Margaret Mutu, Joan Metge and Maurice Alemann Brief of evidence, #F12 at [8], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.172].
180. Ngahihi o Te Ra Bidois Statement of evidence, 19 November 2007 at [5.2], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.173].
181. Mita Michael Ririnui Evidence, 6 July 2020 at [20], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.175].
182. Awhina Evelyn Waaka Affidavit, 21 November 2013 at [5], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.188].
183. Vivian Tāmati Kruger Statement of evidence, 2 June 2020 at [97]–[98], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.200]. Compare the way in which Mead approaches issues of mana whenua and operative facts that must be shown to establish a claim to mana whenua: Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 305–308.
184. Joan Metge In and Out of Touch: Whakamaa in Cross-Cultural Context (Victoria University Press, Wellington, 1986) at 77.

is not simply a matter of emotional harm. As Metge explains, loss of mana and consequent whakamā has multiple dimensions:185

(a) As mana is a spiritual force or has spiritual implications, whakamā cannot be viewed as simply a psychological problem. It is an illness with a spiritual dimension, affecting the whole person.

(b) Because individuals derive so much of their mana from shared ancestors and from membership in descent groups and because mana empowers people for social action, whakamā cannot be seen as an individual matter.

(c) Consequently, the effective treatment of whakamā must deal with the spiritual as well as the psychological aspect of a person and with the person in the context of social relations, not in isolation.

(d) Even people whose mana is high will feel whakamā deeply when they suffer loss of mana. Others have a responsibility to bring a person out of whakamā.

(e) Care must be taken not to unwittingly diminish mana, although there are times when that will be necessary to protect others’ wellbeing.

• 3.86 In summary, while mana is often assumed to refer in broad terms to power and authority in respect of a place or people, it can be expressed in many forms. At its core, the power or authority to which mana may refer are conditional upon the discharge of accompanying responsibilities associated with the source of that power and the specific take or reason for it. For example, to the extent that mana may refer to chiefly mana in respect of the whenua or of people, it reflects both responsibilities and abilities to sustain the mauri or wellbeing of the whenua and of the people. Mana may increase or diminish depending on the success or failure to discharge associated responsibilities. Any impact on mana, either positive or negative, will impact not only the individual but also the collective to which the individual belongs. Loss of mana can cause great whakamā. Violation of mana without proper reason, including failure to respect it, must be remedied in order to restore that mana and therefore achieve ea.

Tapu

• 3.87 Tapu is closely allied with concepts of mana and mauri. It works to regulate, protect and preserve mana and mauri by imposing behavioural restrictions or requiring that certain actions or processes be followed.186 Mikaere identifies tapu as having two major aspects: first, recognition of the inherent value of each individual and the sacredness of each life (sometimes called intrinsic tapu), and second, spiritual prohibition or protection to safeguard people, property and sacred sites and maintain social discipline.187

185. Joan Metge In and Out of Touch: Whakamaa in Cross-Cultural Context (Victoria University Press, Wellington, 1986) at 78–79.
186. Pou Temara Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006, 31 January 2020 at [37], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.72].
187. Ani Mikaere “Cultural invasion continued: the ongoing colonisation of tikanga Māori” (2005) 8(2) Yearbook of New Zealand Jurisprudence 134 at 137–138.

• 3.88 All things in te ao Māori have tapu,188 termed by Jackson “the major cohesive force in Maori life”.189 As Mead says:190

Tapu is pervasive and touches all attributes. It is like a personal force field that can be felt and sensed by others. It is the sacred life force which supports the mauri (spark of life), another important attribute of a person. It reflects the state of the whole person. In fact, life can be viewed as protecting one’s personal tapu and in so doing one is looking after one’s physical, social, psychological and spiritual wellbeing.

• 3.89 While, in its second sense, tapu represents sacrosanct or untouchable matters, there are processes that enable engagement with things or people that are tapu and that remove tapu safely or suspend it for a particular purpose.191

Though ‘tapu’ is commonly translated as sacred, it is more accurate to think of tapu as being a restriction for spiritual purposes. ‘Tapu’ must be understood alongside the concept of ‘noa’. Noa is when tapu is removed or cleared through the proper karakia ritual, removing the spiritual restriction.192

The purpose of tapu [is]:

to caution and warn of danger (kia wehi, kia tūpato i te tangata); to instil faith, values and belief of traditions (kia ū te whakapono); to guide, nurture and protect people (hei araki i te tangata);

to honour the relationship between humankind, the physical realm and Atua (whakahōnore whakapapa);

to instil mana (whakaū mana);

to protect the mauri (whakaū mauri); and

to restrict, impose a ban on an area for a short period of time (rāhui).193

EXPRESSIONS OF TAPU

188. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.48].
189. Moana Jackson The Maori and the Criminal Justice System: A New Perspective | He Whaipaanga Hou (Department of Justice, Study Series 18, 1987–1988, part 2) at 41; see too Ani Mikaere “Cultural invasion continued: the ongoing colonisation of tikanga Māori” (2005) 8(2) Yearbook of New Zealand Jurisprudence 134 at 138.

¹⁹⁰ Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 51.

191. Cleve Barlow Tikanga Whakaaro: Key Concepts in Maori Culture (Oxford University Press, Auckland, 1994) at 128–129; Makereti Papakura The Old-Time Maori (Victor Gollancz, London, 1938) at 219–220 and 226.
192. Te Riaki Amoamo Affidavit, 25 January 2022 at [14], as cited in Re Edwards (Te Whakatōhea No 2) [2021] NZHC 1025, [2022] 2 NZLR 772.
193. Pou Temara Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006, 31 January 2020 at [37], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.73].

... the Māori world was a world of wairua, and Māori life was spiritually driven. Everything that was done was accompanied by karakia and rules of tapu.194

When you enter the realm of Tapu the atua are always at the forefront of your mind ... When we enter the realm of Tapu, we enter where the atua reside, their rivers, their mountains, their waters, their forests, their domains, their territories, all of which fall under the spiritual protection of Tapu. ... Tapu comes directly from the atua.195

... everything is intrinsically tapu because everything in the Māori world has whakapapa that goes back to ancestors and then eventually back to the Atua.196

There are degrees of tapu. Some things are intrinsically more tapu than others because of their association with the hierarchy of gods.197

... everyone also falls under the spiritual protection of tapu. Rangi is tapu and Papa is tapu. All their children and descendants are tapu, the mountains, the waters, the forests, they are all supreme beings superior to humankind. People are tapu as well from their head to their toes, the most tapu person all during a tangihanga [sic], are women. That is why only women can sit beside the tūpāpaku the entire duration of a tangi to mourn and lament, whilst men sit opposite or separate to the tūpāpaku.198

The residual impact of mana is tapu. Where there is mana, which is god power, the influence creates an effect that is holy or tapu — the residue of gods. Important ancestors were not only tapu as a result of their descent but also their other works that required them to be a vessel or channel for godly activities such as controlling weather, volcanic activity and the seas. Where they ventured, places they named or built would become tapu thanks to the power of their mana.199

I understand wāhi tapu to be a sacred or tapu place, a place where tapu exists whether it is in a traditional or spiritual sense. To Māori, the physical, spiritual and natural world are all linked and wāhi tapu are often sacred because they are sites which keep open our connection to our tīpuna, our atua Māori and our histories.200

Wāhi tapu areas were traditionally kept very separate from areas where fishing, kaimoana collection and other daily activities were performed because such activities are noa (common or ordinary), and never exercised in the same area as a wāhi tapu (sacred place). This is why you will rarely find wāhi

194. Rima Eruera Statement of evidence, #F23 at [8], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.70].
195. Pou Temara Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006, 31 January 2020 at [37], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.72].
196. Peter Adds Brief of evidence, #4.11 at 36, as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.76].
197. Peter Adds Brief of evidence, #4.11 at 36, as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.76].
198. Pou Temara Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006, 31 January 2020 at [39], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.79].
199. Tahu Potiki Cultural values assessment and analysis, August 2016 at [7.3], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.83].
200. Hetaraka Biddle Affidavit, undated at [6], [7] and [10]–[12], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.87].

tapu in coastal areas where there is lots of movement of people for fishing or transport, such as

river mouths. If there are wāhi tapu present in such areas, they will have clearly defined boundaries so that people can avoid them and continue to use the kai gathering or travel routes that were essential to the everyday functioning of traditional Māori life.201

... [the] consequence of breaking tapu results in misfortune, sickness or death. Therefore tapu was taken very seriously and even today, if there is sickness or death in a whanau or hapū we generally reflect on whether any tapu has been broken so we understand how to deal with it and remedy the situation.202

Tapu: a jural perspective

• 3.90 The meaning of tapu is complex. According to Tomas:

... 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.

• 3.91 Marsden considered that tapu:203

... has both religious and legal connotations ... The person or object is ... 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.

• 3.92 The authors of He Hīnātore ki te ao Māori observe that tapu acted as a protective mechanism,204 and as a corrective power within Māori society.205 They consider that tapu “acted in the same way as a legal system operated with prohibitory controls”.206 Making something or someone tapu could “either protect the environment against interference from people or protect people from possible dangers they may encounter”.207
• 3.93 As these authorities illustrate, tapu is often described as a form of restriction. As such, tapu is said to regulate. According to Matiu and Mutu: “[i]t is the laws of tapu which play

201. Louis Agassiz Schenker Rapihana Affidavit, 31 March 2022 at [4.3], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.91].

²⁰² Te Riaki Amoamo Affidavit, 25 January 2022 at [13], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.137].

²⁰³ Te Ahukaramū Charles Royal (ed) The Woven Universe: Selected Writings of Rev Māori Marsden (Estate of Rev Māori Marsden, Ōtaki, 2003) at 174. Adopting Marsden see too McCully Matiu and Margaret Mutu Te Whānau Moana: ngā Kaupapa me ngā Tikanga Customs and Protocols (Reed Books, Auckland, 2003) at 158.

²⁰⁴ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 65.

²⁰⁵ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 1.

²⁰⁶ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 1.

²⁰⁷ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 65.

the most influential role in regulating Māori society”.208 According to the Awanuiārangi pūkenga: “tapu is the regulator of the actions in maintaining the connections”.209 However, perceiving tapu as merely a “restriction” is insufficiently nuanced. It is more accurate to see tapu as involving varying degrees of restriction. As the Commission observed in its 2001 Study Paper: “[t]here was ... a dynamic flow associated with tapu, so that its influence could spread by contact, or decline when needs changed”.210

• 3.94 The tapu of a person, object or place can denote either their special significance that is worth protecting or a condition from which people must be protected, arising from the potential of the person, object or place to cause harm. One way in which tapu has jural significance is that it points to the corresponding signficance of any violation. Improper interference with tapu demands utu.211 An intentional violation of tapu is a hara or wrongdoing for which there must be consequences.
• 3.95 In jural terms, therefore, tapu denotes a complex combination of immunity for tapu entities from interference, duties to maintain that which is tapu and liability proscribing engagement with tapu entities. For example, urupā (burial grounds) are considered particularly tapu. They are a place connected to the spiritual realm and therefore both sacred and a place where visitors may be at risk of potential harm. The tapu proscribes people from undertaking certain activities within urupā, recognising the need to respect them and maintain their sacredness.
• 3.96 Examples of kawa or protocols enforced to maintain tapu or to properly manage engagement with that which is tapu include for instance cleansing with water when leaving an urupā to return to a state of noa or ordinary life. Rāhui are another example. These restricted areas are often associated with the tapu of a place, for example, where a death has occurred, acknowledging both the sacrality of that place and the potential for harm. They are also associated with more mundane or practical objectives, for example, to avoid spread of disease or for sustainable management purposes. In this way, tapu can assist with the protection of mauri. Emphasising how tapu serves such practical purposes, Durie explains:212

... a more utilitarian view of the purpose of tapu was discussed by Te Rangi Hiroa. He drew a connection between the use of tapu and the prevention of accidents or calamities, implying that a dangerous activity or location would be declared tapu in order to prevent misfortune. More than a divine message from the gods, or the recognition of status, the conferment of tapu was linked to healthy practices.

• 3.97 Durie describes tapu as a type of public health regulation basically concerned with avoiding risk and promoting good health. In contrast, noa (discussed in the next section)

208. McCully Matiu and Margaret Mutu Te Whānau Moana: ngā Kaupapa me ngā Tikanga Customs and Protocols (Reed Books, Auckland, 2003) at 159.
209. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.48].

²¹⁰ Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 37.

²¹¹ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 61.

212. Mason Durie “The application of tapu and noa to risk, safety, and health” (presentation to Challenges, Choices and Strategies, Mental Health Conference 2000, Wellington, 16 November 2000) at 3–4, as cited in Te Aka Matua o te Ture

| Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 37–38.

was a term used to denote safety. Harm was less likely to come to those entering a noa location, eating food rendered noa by cooking or touching a noa object.213

• 3.98 As we explained above, mana and tapu are closely related. Mana is associated with tapu

— the higher the mana of a person, the greater the tapu. A tohunga (Māori knowledge expert), for instance, is likely to be considered particularly tapu and to have significant mana.214 Accordingly, a violation of their mana is likely to transgress tapu and vice versa, with potentially significant consequences for the transgressor.215

• 3.99 The tapu of a person, object or place can be reduced or removed if certain processes called whakanoa (meaning to remove tapu) are followed. As Mikaere says:216

Just as vital as the ability to impose restrictions through the use of tapu was the ability to remove such restrictions. For the majority of people, the roles and tasks of daily life led them backwards and forwards across the boundaries of tapu and noa. ... The whare mate [a whare where a body lies during mourning] could not remain so indefinitely: they had to be repatriated back into the fold of the living. A new whare tupuna [marae meeting house] could not stand completed and empty: the tapu had to be lifted so that it could be used. This was the power of noa: the undoing of the restrictions imposed by tapu.

• 3.100 Mikaere thus rightly emphasises the fluidity of tapu. However, to make something noa without performing the appropriate process is a wrongdoing for which tikanga requires a consequence. We discuss noa next.

Noa

• 3.101 Noa refers to a state where strict processes are not required. Noa, which indicates some degree of freedom, is important because it is too difficult to always live in a tapu state. 217 However, the relationship between tapu and noa is complex, and the concepts are not opposites. Rather, tapu and noa work in tandem, each needing to be maintained at appropriate levels for Māori society to function in different situations.
• 3.102 Within hapū and iwi, certain actions can only be undertaken if there is a state of noa. Pōwhiri processes show the significance of noa. When visiting marae, manuhiri are only free to engage with their hosts after having achieved noa, which is facilitated by the pōwhiri.218 At the beginning of the pōwhiri process, its participants are tapu.219 Subsequently, visitors are allowed to consume food, enter the wharenui and freely

213. Mason Durie The Application of Tapu and Noa to Risk, Safety, and Health (presentation to Challenges, Choices and Strategies, Mental Health Conference 2000, Wellington, 16 November 2000) at 3–4, cited in Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 37–38.

²¹⁴ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 1 and

53. Metge describes tapu as a state of being that results from mana: Joan Metge In and Out of Touch: Whakamaa in Cross-Cultural Context (Victoria University Press, Wellington, 1986) at 66.

²¹⁵ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 54.

216. Ani Mikaere “Cultural invasion continued: the ongoing colonisation of tikanga Māori” (2005) 8(2) Yearbook of New Zealand Jurisprudence 134 at 138.
217. Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 217; Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013) at 266.

²¹⁸ Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 127.

219. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.59].

interact with the host group. As visitors transition from the ātea (the domain of Tūmatauenga, the atua known for his unpredictability) to the whare (the domain of Rongomatāne, the atua responsible for peace), they must first be in a state of noa.

EXPRESSIONS OF NOA

While noa and peace are not the same, they go hand in hand. There are also processes for returning the collective to a state of noa after a transgression has occurred. In this context, noa is linked to the concept of ea or balance.

[Noa is] the spiritual state and physical ability to allow a person to be free from the restrictions of tapu. The people or place is no longer tapu for a permanent or short period of time so that people can access it without fear of spiritual harm to them or their whānau. Noa allows people to survive and live.220

... noa is not the opposite to tapu. The opposite to tapu are other forms of tapu.221

Women are especially powerful in making things and activities noa. Women have a particularly important task in ensuring that the extension of tapu on buildings does not apply to the users. They therefore make buildings safe for use or habitation. This is the mana and tapu of women, in that they have the ability to free areas, things and people from restrictions imposed by tapu. Women are not noa, as is often thought, but they are agents to whakanoa — to make noa.222

Noa: a jural perspective

• 3.104 Noa is a relatively undernourished concept in tikanga discussions and academic writing. However, the freedoms that it connotes play a vital role in Māori social order. As Pihama explains:223

The influence and power of noa is very significant to the physical well-being of people by freeing them from any quality or condition that make them subject to spiritual and/or ceremonial restriction and influences. The concept of noa is usually associated with warm, benevolent, life-giving, constructive influences including ceremonial purification.

220. Pou Temara Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006, 31 January 2020 at [57], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.143].
221. Peter Adds Brief of evidence, #4.11 at 39, as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.145].
222. Leonie Pihama Statement of evidence, #A19 at [79], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.147].
223. Leonie Pihama quoting Rangimarie Rose Pere Statement of evidence, #A19 at [80], as cited in Coates and Irwin- Easthope “Beneath the herbs and plants”, Appendix 2 at [4.144].

• 3.105 Jurally, noa can be associated with freedom and powers, including the power to affect tapu through the process of whakanoa. An example of how noa provides comparative freedom is that karakia may be used to make a person’s body (or a part of their body) noa for the purpose of a medical procedure. By doing so, their body or body part is rendered immune from their tapu being interfered with. Correspondingly, the person conducting the procedure is freed from liability from interfering with the tapu of the person. There are nuances, as Mikaere shows, discussing removal of tapu from wharenui:224

For example, the lifting of the particular tapu imposed on a whare whilst it was being built did not then make the whare completely unrestricted. It simply meant that the particular restriction against anyone but those who were working on it entering the building was lifted. The iwi were now free to enter and to use the whare. However, the whare itself remained a tapu place in the sense that it represented a revered tupuna, and there remained many restrictions on conduct within it.

• 3.106 By analogy, this example might be extended to bodily integrity in the context of a medical procedure.
• 3.107 Because a perpetrator would be liable for improperly making something noa or reducing levels of tapu too much, the power to whakanoa must be carefully managed through appropriate processes, or kawa.225

Mana, tapu and noa in action

• 3.108 The overland journey of Kohinemataroa, as told by Tomas, provides an historical illustration of establishing mana and whakapapa:226

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 her claim by working on the land and establishing kumara plantations. While she was working there she lived at Waihou and Whakarapa.

• 3.109 As Tomas also wrote, subsequent lack of contest for the lands claimed by Kohinemataroa was due to two factors. The mana of her senior lineage was respected by local

²²⁴ Ani Mikaere “Cultural invasion continued: the ongoing colonisation of tikanga Māori” (2005) 8(2) Yearbook of New Zealand Jurisprudence 134 at 138–139.

²²⁵ For discussion particularly of the role of wāhine Māori in whakanoa, and correspondingly whakatapu (that is, the transitions from tapu to noa and vice versa) see Ani Mikaere “Cultural invasion continued: the ongoing colonisation of tikanga Māori” (2005) 8(2) Yearbook of New Zealand Jurisprudence 134 at 139–141.

²²⁶ Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 127–128.

communities. Pragmatically, she also had mana in action, in the form of the power to exercise her authority through the backing of a powerful military force.227

• 3.110 This narrative further shows how whakapapa or connection to whenua, exemplified through place naming, may substantiate a tikanga based claim to a place. As the Awanuiārangi pūkenga explain, the connection the collective has to the land is reinforced by naming sites, rivers, ridgelines, hills and mountains. The names will narrate who was involved, what occurred and why.228
• 3.111 The rāhui placed in response to the eruption of Whakaari | White Island on 9 December 2019 is an example of a contemporary exercise of mana and the operation of tapu. Following the eruption, which caused 21 deaths, a number of iwi initially placed a total ban on all maritime activities in the ocean, including swimming. This was later changed to a ban only on fishing and gathering of seafood. The rāhui was widely respected despite the negative commercial and fiscal impact that the rāhui had on businesses in a beach and ocean-based community and the effect of it on Christmas and holiday ocean activities.229
• 3.112 The Awanuiārangi pūkenga provide a further historical example of tapu and mana in action, in the rāhui of Mihi-ki-te-kapua. In the early 1800s, a Tūhoe rangatira named Mihi- ki-te-kapua placed a rāhui over a coastline where her son had passed away. In response to the rāhui, people moved away from the area. As time passed, some longed to return and did so. However, for Mihi-ki-te-kapua, who was still grieving for her son, the site remained tapu. She said — do not return yet, you may unwittingly eat the remains of my son: “Taihoa e hoki koi kai koutou i ngā para o taku tamaiti”. Because of her mana and the hara consequent on the breach of tapu, she was able to assemble a taua or war party to enforce the rāhui at the cost of the lives of many of the returning hapū. The famous Tūhoe waiata Taku Rākau E records this event.230
• 3.113 To offer a final simple illustration of how tapu and noa interact:231

... the whenua (placenta) of a newborn baby is returned to be buried in the tribal lands as a way of physically connecting them to their significant space and place. Where the whenua is buried, a hāngī stone [used for cooking food, and therefore noa] is placed directly on top of it and is also buried. As the whenua is part of the human body, it is considered tapu, and therefore where it is buried becomes tapu. The hāngī stone is placed on top of the whenua to nullify the tapu, thereby making the place noa.

Summary: mana, tapu and noa

• 3.114 In summary, mana, tapu and noa are significant in establishing correct relationships and regulating relationships. By establishing the standing of a person or entity, they clarify

²²⁷ Nin Tomas “Key concepts of tikanga Māori (Māori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 114–115.

²²⁸ Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.35]; and see Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 309–311.

²²⁹ Hirini Moko Mead and Pou Temara Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006, 31 January 2020 at [46]–[47], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.109].

²³⁰ Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [2.57].

231. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.60].

how others should relate to that person or entity and thereby regulate behaviour. Relational norms established by mana, tapu and noa are among the most fundamental norms governing Māori society. They stand alongside the structural norms of whakapapa and whanaungatanga and prescriptive norms of mauri, utu and ea. In a sense mana, tapu and noa might be termed the tikanga “engine room” because of the essential regulative role that they play. Below, the significance of kawa is noted in administering these concepts.

CONCEPTS OF RESPONSIBILITY

• 3.115 We have already explained that tikanga concepts of whanaungatanga and mana are closely associated with norms of responsibility. To illustrate this further, we next discuss four key responsibilities — kaitiakitanga, manaakitanga, aroha and atawhai. Each of these are inherent in mana and linked with whanaungatanga. Given these concepts’ jural similarities, we introduce each concept first and then discuss their jural aspects together. This differs slightly from the sequence followed in the chapter up to this point. These four responsibilities are only examples. In different factual situations further responsibilities such as kotahitanga (unity) may arise, as seen in Chapter 4 which follows.

Kaitiaki and kaitiakitanga

• 3.116 The word kaitiaki is sometimes defined as a guardian. A kaitiaki can be a person, creature, object or metaphysical being (such as taniwha), whose role involves protective duties towards place, people and, broadly, the kinship group.232 Many duties of a kaitiaki concern whenua and the management of other natural resources. In modern times, kaitiakitanga is most often applied to the obligation of whānau, hapū and iwi to protect the spiritual and physical wellbeing of environmental resources in their care.233 However, kaitiakitanga also involves social responsibilities. In the Report on the Crown’s Foreshore and Seabed Policy, the Waitangi Tribunal identified that kaitiakitanga is different to a notion of environmental conservation.234 The Tribunal said that kaitiakitanga “best explains the mutual nurturing and protection of people and their natural world”.235

232. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.96]. See also Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity — Te Taumata Tuarua (Wai 262, 2011, vol 1) at 17; Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013) at 105.
233. Te Aka Matua o te Ture | Law Commission Maori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 40, citing Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Whanganui River Report (Wai 167, 1999) at 265–283.

²³⁴ Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Report on the Crown’s Foreshore and Seabed Policy (Wai 1071, 2004) at 8.

²³⁵ Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Report on the Crown’s Foreshore and Seabed Policy (Wai 1071, 2004) at 8; and see generally Merata Kawharu “Kaitiakitanga: a Maori anthropological perspective of the Maori socio-environmental ethic of resource management” (2000) 109 The Journal of the Polynesian Society 349.

• 3.117 Others emphasise that, in an older understanding, creatures were the kaitiaki and the role of humankind was to observe them.236 As Marsden pointed out, the atua Māori were kaitiaki of their domains.237 Matiu and Mutu explain that:238

Traditionally, kaitiaki are the many spiritual assistants of the gods, including the spirits of deceased ancestors, who were the spiritual minders of the elements of the natural world ... These spiritual assistants often manifest themselves in physical forms such as fish, animals, trees or reptiles ... Each kaitiaki is imbued with mana. ... There are many forms and aspects of mana, of which one is the power to sustain life.

• 3.118 As they continue:239

Māoridom is very careful to preserve the many forms of mana it holds, and in particular is very careful to ensure that the mana of kaitiaki is preserved. In this respect Māori become one and the same as kaitiaki (who are, after all, their relations).

• 3.119 Professor Merata Kawharu identifies that, for the kinship group, rangatira serve as kaitiaki. In this way, like Matiu and Mutu, Kawharu implicitly associates this function with mana.240

[Kaitiakitanga incorporates] one universe, where all living things are connected. This includes animals, fish, plants, forests, sea and humans. Kaitiaki are manifested in tangible and intangible forms and are not always human.241

EXPRESSIONS OF KAITIAKI AND KAITIAKITANGA

²³⁶ Mere Roberts and others “Kaitiakitanga: Maori perspectives on conservation” (1995) 2 Pacific Conservation Biology 7 at 14; Edward Taihakurei Durie and others “Ngā wai o te Māori: ngā tikanga me ngā ture roia | The waters of the Māori: Māori law and State law” (paper prepared for the New Zealand Māori Council, 2017) at 30.

²³⁷ Te Ahukaramū Charles Royal (ed) The Woven Universe: Selected Writings of Rev Māori Marsden (Estate of Rev Māori Marsden, Ōtaki, 2003) at 67; see also Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013) at 105.

²³⁸ McCully Matiu and Margaret Mutu Te Whānau Moana: ngā Kaupapa me ngā Tikanga Customs and Protocols (Reed Books, Auckland, 2003) at 167.

²³⁹ McCully Matiu and Margaret Mutu Te Whānau Moana: ngā Kaupapa me ngā Tikanga Customs and Protocols (Reed Books, Auckland, 2003) at 167.

²⁴⁰ Merata Kawharu “Kaitiakitanga: a Maori anthropological perspective of the Maori socio-environmental ethic of resource management” (2000) 109 The Journal of the Polynesian Society 349 at 359.

241. Kura Paul-Burke Statement of evidence, 22 December 2016 at [3.3], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.329].

Our hapū are obliged to actively protect our area for future generations through the practice of kaitiakitanga no matter what the cost. It is our responsibility to keep and guard hapū interests and taonga. It is us (Tainui o Tainui ki Whaingaroa) who are responsible for the preservation and guardianship of Whaingaroa Harbour. It is we who are obligated to nourish and control the relationship between our peoples and our natural world.242

Kaitiaki “have an intrinsic duty to safeguard the mauri of the environment, including to ensure the physical and spiritual health of the environment is maintained, protected and enhanced”.243

The fundamental component of kaitiakitanga is whakapapa. It is whakapapa that links individual kin to each other, to a specific location, resources, ngā Atua, as well as the dearly departed.244

[Kaitiakitanga is] essentially the responsibility aspect of mana. It recognises the responsibility of iwi and hapū to protect and look after the whenua, moana and taonga within their rohe. It also reflects the fact that iwi and hapū do not see themselves as owning the whenua, or moana, in the sense that we understand ownership today.245

When you are a kaitiaki you are the guardian of the resource for everybody. That doesn’t necessary [sic] mean you have the sole mana over the resource; kaitiaki need to exercise their guardianship for the benefit of the eco-system as a whole. The guardianship is over all living things and is not just restricted to human sustenance. If all living things are sustained then the people are sustained.246

Most importantly I have visited most of the sites I talk about in this evidence, and continue to visit them on a regular basis. I frequently wānanga (meet and discuss) at these sites with whānau, iwi members, students as part of a walking lecture and for anyone who is interested in learning more about these sites. I consider this as an active expression of my obligations as a kaitiaki for these kōrero and these sites our tūpuna lived and loved.247

... [a] person or iwi may be kaitiaki over land or water, but that is not ownership as once we leave this world someone else will take over as kaitiaki or guardian.248

242. Angeline Greensill Statement of evidence, undated at [24], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.331].
243. David Topia Rameka Statement of evidence, 4 June 2017 at [21], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.331].
244. Gregory Lloyd White Statement of evidence (cultural), 14 June 2019 at [69]–[77], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.332].
245. Tamati Waaka Statement of evidence, 4 January 2017 at [55], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.338].
246. Hohepa Joseph Mason and Te Kei (O Te Waka) Wirihana Merito Brief of evidence, 29 April 2019 at [56], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.340].
247. Ngarimu Alan Huiroa Blair Statement of evidence, 2 June 2020 at [11], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.344].
248. Hemana Eruera Manuera Statement of evidence, 29 March 2019 at [54], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.347].

Tangitū manifested herself as a whale and is an important kaitiaki for the Hapū. According to tradition, if tikanga or kawa were not properly observed when gathering kaimoana or other resources, Tangitū the kaitiaki would appear. The Hapū believe that, as a kaitiaki, Tangitū has the power to protect her people, particularly in the event of natural disasters. She has been known to use her tail to unblock the mouth of Te Ngarue and Pākuratahi Streams, or lie across the mouth as protection in the event of high seas. There are other kaitiaki who live in Tangitū, including Uwha, at Arapawanui, who takes the form of an eel or octopus, and Moremore, the son of Pania (of the reef), who swims the coastline in the form of a mako.249

The seer or tohunga had a kaitiaki role. His role was to interpret any unnatural phenomena or occurrence like an unusual sighting, such as a log floating upstream against the current. That sighting would be deemed a taniwha. In summary a taniwha was regarded as the manifestation of an unnatural occurrence. Taniwha were used to support the decision making of a tohunga.250

Manaakitanga

• 3.120 Manaakitanga speaks to the duty of care people have to each other, the environment, mātauranga Māori, the past, the atua and to all things.251 Manaakitanga, literally translated, means to care for mana.252 As Coates and Irwin-Easthope find: “[a] number of people refer to the importance of manaakitanga to uphold both the mana of others and one’s own mana”.253 Durie describes manaakitanga as “an aspect of mana on which Māori placed special store. It amounted to generosity, caring for others and compassion.”254 According to the authors of He Hīnātore ki te ao Māori:255

Manaakitanga means to care for a person’s well being in a holistic sense — that is physically, mentally and psychologically. It is a concept that extends beyond the bounds of the family and involves all people. It is one of the main factors in judging a person’s status as a leader or one possessing mana, and that is by their generosity in taking care of others.

249. Tania Marama Petrus Hopmans Affidavit, 3 April 2017 at [84], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.368].
250. Waiohau (Ben) Te Haara Evidence in reply, undated at [15]–[16], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.366].
251. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.87].

²⁵² Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 166.

²⁵³ Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.256].

²⁵⁴ Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 6.

²⁵⁵ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 166.

EXPRESSIONS OF MANAAKITANGA

... manaakitanga is the process of giving to others, but it is about “te mana āki” or enhancing the mana of others, and in doing so upholding your own mana.256

... [manaakitanga] can be described as generosity, care-giving, or compassion and is an expression of one’s mana, one’s status and authority, through acts of kindness and caring. To manaaki or give generously and provide hospitality is a mana-enhancing activity. It also creates an obligation on the visitor to reciprocate in the future. Thus mana, manaaki and tuku are closely related concepts in Te Ao Māori.257

There might be someone at a tangi (funeral) that wants to mihi (greet) the whānau on the paepae (orator’s bench) but they can’t kōrero Māori. Even though it is not tika (right) it might be decided to allow them to kōrero. This is consistent with the idea of manaakitanga and allowing for the exercise of whanaungatanga and connections to be made between people.258

There are different levels of manaakitanga accorded a person. It depends on the level of whanaungatanga, whether a close blood whānau member or a whanaunga. Sometimes the whanaunga relationship is stronger than the whanaungatanga to a blood relative this may be due to close association through work, sports and friendship. These types of relationships and as well as their strengths will determine what level of manaakitanga is given.259

Our customary areas are not as rigid as Western boundaries ... Other Whakatōhea hapū can come into our sector, for instance, we wouldn’t stop Ngāti Patu coming to fish in our area. The tikanga is that we share the kai because our hapū of Whakatōhea are related to each other by whakapapa, and it is part of our collective responsibility to care for our whanaunga, as they do for us (this is known as manaakitanga). However, [there is a] distinction between permitting access to our sea territory as a matter of manaakitanga and having the customary authority to act as the kaitiaki.260

256. Moe Milne Statement of evidence, #A62 at [122], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.256].
257. Margaret Anne Kawharu Statement of evidence, 2 June 2020 at [35], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.257].
258. David Wilson Brief of evidence, 13 October 2020 at [52], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [3.4].
259. Te Kahautu Maxwell Affidavit, 7 August 2020 at [99], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.258].
260. Te Riaki Amoamo Affidavit, 3 August 2020 at [6.5] and [6.6], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.259].

Aroha and atawhai

• 3.121 Aroha is often understood as a literal translation of love. However, the meaning is broader, having a “wide range of meaning from compassion and love to concern and sorrow”.261 Barlow observes that “[a] person who has aroha for another expresses genuine concern towards them and acts with their welfare in mind”.262 According to the authors of He Hīnātore ki te ao Māori:263

Aroha is an expression of love, care, respect and affection in its widest sense. It is the essential element in interpersonal relationships. It begins from birth and continues till death. Aroha encompasses respect, friendship, concern, hospitality, and the process of giving. Thus every person is concerned for and respects the rights of others. In short, it is valuing another person.

• 3.122 As we observed in relation to kaitiakitanga and manaakitanga, aroha and its similar concept, atawhai, are linked with mana. Similar to aroha, atawhai relates to nurturing, caring and kindness and “extends to embracing and supporting others in its broadest sense”.264 Tamati Waaka has discussed atawhai in connection with the responsibilities of rangatira. Waaka emphasises the important role that a rangatira has as someone who “possesses the skills necessary to maintain mana and was regarded as the repository for the mana of the collective”. He notes that their responsibilities include knowledge of how to look after people: “He atawhai tangata”.265

In te ao Māori, there are tikanga values that guide our relationship to the takutai moana [coastal area]. They are built on mana motuhake, mana whakahaere, mana taketake and notions of kaitiakitanga, aroha, and manaakitanga.266

The healthy harakeke [flax] is stabilised by a root system representing values and practices of aroha (love/compassion), manaakitanga (care/responsibility for others), wairuatanga (nurture of the spirit) and whanaungatanga (kinship obligations).267

EXPRESSIONS OF AROHA

261. Te Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao Maori in Relation to Reform of the Law of Succession (NZLC MP6, 1996) at 19.

²⁶² Cleve Barlow Tikanga Whakaaro: Key Concepts in Maori Culture (Oxford University Press, Auckland, 1994) at 8.

²⁶³ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 151.

²⁶⁴ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 152; H W Williams Dictionary of the Māori Language (GP Publications Ltd, Wellington, 1992) at 19.

²⁶⁵ Tamati Waaka Statement of evidence, 4 January 2017 at [38]–[41], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [6.101].

²⁶⁶ Te Rua Rakuraku and Donald Kurei Joint affidavit, 21 January 2022 at [20], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.336].

²⁶⁷ Khylee Quince s 27 report, 18 September 2018 at [9], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [2.58], drawing on the metaphor of “te pā harakeke” to explain the relationship between a child and their whānau.

I believe that [aroha] is the pivotal value around which Māori society was organised and it reflects a set of privileges and obligations that each folk has with the rest of his community.268

Aroha was the most important thing. If that aroha was abused, the abuser put the tuku at risk.269

A jural perspective: kaitiakitanga, manaakitanga, aroha and atawhai

• 3.123 Kaitiakitanga, manaakitanga, aroha and atawhai each describe norms of care and responsibility. They are each closely associated with whanaungatanga connections and with maintaining mana. Meeting responsibilities arising from whanaungatanga and consistent with mana will often require the exercise of kaitiakitanga or expressions of manaakitanga or aroha. Te Rua Rakuraku and Donald Kurei, for example, identify practices of kaitiakitanga, aroha and manaakitanga “embedded into the notions of authority”.270
• 3.124 Exercising kaitiakitanga for the kinship group or in relation to natural resources is strongly linked to whanaungatanga. Kaitiakitanga has been described by the Waitangi Tribunal as: “the obligation, arising from the kin relationship to nurture or care for a person or thing”.271 While manaakitanga and aroha express broader responsibilities that are not unique to the kinship group, each similarly underpin the strengthening of relationships and interrelationships. For instance, as one Waitangi Tribunal report explains, “[m]anaaki was given especially to those who would live or align with the tribal group”.272
• 3.125 Kaitiakitanga has procedural implications. For instance, Marsden noted that although humans could harvest resources, they were “duty bound” to thank and appease the kaitiaki of those resources.273 In the flagship report Ko Aotearoa Tēnei, the Waitangi Tribunal considered that mana and kaitiakitanga go together and those who have mana “must exercise it in accordance with the values of kaitiakitanga — to act unselfishly, with right mind and heart, and with proper procedure”.274
• 3.126 Each of these responsibilities may also aid the satisfaction of utu. In some circumstances, kaitiakitanga, manaakitanga or aroha might be required for utu to be discharged.

²⁶⁸ Pita Sharples Notes of evidence at 129, as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.264].

²⁶⁹ Ross Gregory Brief of evidence, #F28 at 5, as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.220], discussing tuku: an offer to share, or being presented with the opportunity to share, or bestowing a gift on someone.

²⁷⁰ Te Rua Rakuraku and Donald Kurei Joint affidavit, 21 January 2022 at [20], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [2.8].

271. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity — Te Taumata Tuatahi (Wai 262, 2011) at 23.

²⁷² Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Muriwhenua Land Report (Wai 45, 1997) at 26.

²⁷³ Te Ahukaramū Charles Royal (ed) The Woven Universe: Selected Writings of Rev Māori Marsden (Estate of Rev Māori Marsden, Ōtaki, 2003) at 67; see also Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013) at 105.

²⁷⁴ Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity — Te Taumata Tuarua (Wai 262, 2011, vol 1) at 17.

Summary: responsibilities as associated norms

• 3.127 We have termed kaitiakitanga, manaakitanga, aroha and atawhai “associated norms”. They each reflect obligations that are associated with and intrinsic to concepts earlier described in the chapter, including whanaungatanga and mana. Fulfilling these responsibilities works towards or maintains a desired situation such as mana, whanaungatanga, utu or ea. Such responsibilities are fundamental to upholding tikanga as a structured system. They are facilitated by the processes and procedures called kawa that likewise work to maintain and express the primary structural, prescriptive and relational concepts we have discussed.

PROCESSES AND PROCEDURES (KAWA)

• 3.128 The meaning of kawa appears to vary between hapū and iwi and is not a universal term. However, the simplest and most widely accepted meaning is that kawa means process or procedure.275 As Te Riaki Amoamo considers, “[k]awa are etiquette and protocols. They are the protocols that keep things operating smoothly.”276 Royal writes:277

A key feature of kawa is that it orders behaviours in a certain pattern. That is, a kawa tells us that certain tikanga should take place at a certain time and in a certain order ... a kawa arranges tikanga into a particular order or pattern.

• 3.129 To distinguish between tikanga and kawa, Durie for instance describes tikanga as “Māori law” and kawa as “ritual and procedure”.278 Kruger explains:279

The practice or practical expression of tikanga is sometimes distinguished from the guiding principles of tikanga itself. These protocols are referred to as kawa, and are always grounded in the principles of tikanga.

• 3.130 Kruger explains that “[k]awa ... are first and foremost coercive and normative in nature”.280 Temara considers kawa to be “tikanga wrapped in tapu”.281 The tapu nature of kawa can lead to some rigidity that may make kawa less susceptible to change than tikanga — it has been said that “tikanga can be interchangeable where kawa is rigid like the rising and setting of the sun”.282 However, kawa can also vary according to context. For example, different karakia may be required to lift or reduce tapu depending on its nature.283 Kawa

²⁷⁵ Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 3. While not every iwi or hapū adopts the term kawa, all will have processes and procedures with consistent purposes.

²⁷⁶ Te Riaki Amoamo Second affidavit, 21 February 2022 at [8], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [3.3].

²⁷⁷ Te Ahukaramū Charles Royal “An organic arising: an interpretation of tikanga based upon the Māori creation traditions” in Ngā Pae o te Māramatanga Tikanga Rangahau Mātauranga Tuku Iho | Traditional Knowledge and Research Ethics Conference Proceedings 2004 (Ngā Pae o te Māramatanga, Auckland, 2005) 206 at 227.

²⁷⁸ Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 4.

279. Vivian Tāmati Kruger Statement of evidence, 2 June 2020 at [39], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [3.2].
280. Vivian Tāmati Kruger Statement of evidence, 2 June 2020 at [39], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [3.2].

²⁸¹ Pou Temara (wānanga held at Rotorua, 25 May 2022).

282. Korohere Crossley Bishop Lloyd Ngāpō Statement of evidence (English translation), 13 October 2020 at [9], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [3.6].
283. See for example Hirini Moko Mead Tikanga Māori: Living by Māori Values (2nd ed, Huia Publishers, Wellington, 2016) at 77.

may change over time to reflect changing circumstances or what the occasion requires.284

Because of the tapu nature of kawa, transgressing kawa may mean punishment.285

• 3.131 We discuss four examples of kawa below: pōwhiri, rāhui, muru and karakia. Each of these processes and procedures illustrates how kawa support Māori society to function. The discussion also shows how kawa work to sustain the basic norms of tikanga in ways that give them a jural dimension. Kawa are techniques and methods connected with the other concepts explained above and used to maintain relationships and mediate disputes. One function of kawa is to mediate between mana, tapu and noa so that they are maintained at appropriate levels. Another is to express whanaungatanga.

Pōwhiri

• 3.132 Pōwhiri processes, through which visitors are welcomed and hosted on a marae, are steeped in kawa. Pōwhiri reflect responsibilities related to mana and whanaungatanga. They manage mana, tapu and noa.
• 3.133 Pōwhiri centre whanaungatanga. In pōwhiri, the exchange of karanga (a ceremonial call), whaikōrero (formal speeches) and the giving and receiving of koha (contributions) acknowledge the responsibilities of both hosts and guests that are associated with whanaungatanga. For example, koha are a tangible way of expressing norms of aroha and atawhai. When groups meet, processes such as mihimihi (introductions) and pōwhiri ensure whakawhanaungatanga (making connections) is a focus. Pōwhiri acknowledge relationships that must be referenced, drawing connections between manuhiri and the host group and links with those who have passed.286 A primary function of pōwhiri is to ensure that relevant connections are made. When manuhiri arrive and are welcomed onto the marae, the first connections made through the karanga are ancestral connections. The host group are calling their own ancestors forward to meet and welcome deceased loved ones that accompany the visiting manuhiri.287
• 3.134 The pōwhiri process expresses manaakitanga and ultimately reflects on the mana of both groups.288 Russell Bishop explains how acknowledgements of both groups’ mana are reflected in pōwhiri protocols.289
• 3.135 Pōwhiri regulate tapu and noa. Pōwhiri processes are an example of detailed and carefully orchestrated steps that are taken to achieve noa. Manuhiri enter the marae ātea (the ground in front of the wharenui) in a state of tapu with their mate (dead). They are not free to engage with their hosts or consume food until noa has been achieved.

²⁸⁴ Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 8–9.

285. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.104].
286. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [4.14].
287. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [4.14].
288. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.87]–[3.89].
289. Russell Bishop “Collaborative research stories: whakawhanaungatanga” (PhD Thesis, University of Otago, 1995) at 130– 139 and 159.

Rāhui

• 3.136 Rāhui restore balance. In this way, rāhui have links with the concepts earlier identified as prescriptive: mauri, utu and ea. A rāhui involves restricting the use of a natural resource or an area by implementing a state of tapu to protect it.290 Publicly notifying this status, a rāhui pou (a post) imbued with mauri may be set in the ground to mark a restricted area. This is a purpose that must be honoured by all.291
• 3.137 A place or natural resource subject to a rāhui will have a right to protection and an immunity from interference. People have a duty to respect the rāhui and cannot access the place or natural resource. Therefore, a rāhui is a good example of a process for managing the powers and responsibilities associated with tapu, and of how tapu (by setting in place a prohibition) facilitates utu and ea.
• 3.138 Rāhui relate to responsibilities. They have connections to whanaungatanga, mana and the norms of responsibility arising from each of these concepts. Placing a restriction on an area will almost always be done to fulfil the responsibilities of whanaungatanga and related to mana. Like pōwhiri, rāhui have the role of regulating tapu and noa. When a rāhui is lifted, noa will be engaged using the protocols of whakanoa.

Muru

• 3.139 Muru is another procedure concerned with balance. Muru is one way to achieve utu and, ultimately, ea. It has been described as a form of restorative justice.292 It has a set protocol. The process of muru includes kōrero, which allows an accusation to be discussed and investigated. The outcome of a muru process will involve a judgement and compensation for both intentional and unintentional harm.293 The muru process enables denunciation of wrongdoing and is most effective when acknowledged by the associated communities. However, it is mana-enhancing for both transgressor and victim — it restores the mana of both.294
• 3.140 Muru may be mediated by associated responsibilities. Waaka explains that the customary “plundering” or restorative justice exacted from an individual, whānau, hapū or iwi by muru is also an act that is done with aroha.295 Manaakitanga obligations are also noted in connection with muru. Mead considers that even during the ritual practice of muru, manaakitanga was shown to the manuhiri who had come to take away the livelihood of those responsible for a transgression.296

²⁹⁰ Cleve Barlow Tikanga Whakaaro: Key Concepts in Maori Culture (Oxford University Press, Auckland, 1994) at 105.

291. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.29].

²⁹² Hirini Moko Mead and Pou Temara Statement of tikanga, 31 January 2020 at [60]–[61], as cited in Ellis v R (Continuance)

[2022] NZSC 114, [2022] 1 NZLR 239.

²⁹³ Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 166–176.

²⁹⁴ Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 77– 79; see also Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 167–168.

²⁹⁵ Tamati Waaka Statement of evidence, 4 January 2017 at [101]–[104], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.292].

²⁹⁶ Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 33.

Karakia

• 3.141 Many tikanga practices require karakia to ensure positive outcomes, safeguarding protection and wellness for all.297 According to Barlow, karakia are:298

... pleas, prayers, and incantations addressed to the gods who reside in the spirit world. Karakia are offered so that the gods may intercede in the affairs of mortal men by providing comfort, guidance, direction, and blessings for them in their various activities and pursuits.

• 3.142 Karakia is a procedure that permeates Māori society, reflecting the belief that it is not a closed system but rather “interpenetrated” by the spiritual world.299 Barlow explains the “repertoire” and different functions of karakia:300

There are many types of karakia, and in ancient times all people used some form of prayer in daily life and on special occasions. Some prayers have special ritual functions, while others are used for protection, purification, ordination, and cleansing. In traditional Māori society, people of all classes, from children to adults and priestly experts, possessed a repertoire of karakia for use in all kinds of situations.

• 3.143 A key function of karakia is to connect to the surrounding wairua (other realities). For this reason, karakia can be a tapu practice and care is required to ensure that they are conducted correctly.301 Karakia draw connections to atua Māori and tūpuna and may request their guidance, protection or help.302 Karakia facilitate whanaungatanga by sustaining connections to atua Māori and those who have passed away.303 Karakia are used to implement a state of tapu, to reduce tapu, or to render something noa. Overall, karakia play a vital role in administering tikanga.

Summary: significance of kawa in normative and jural terms

• 3.144 Pōwhiri, rāhui, muru and karakia are examples of kawa concerned with giving effect to the normative tikanga framework we have discussed in this chapter. These kawa are concerned with recognising relationships, ensuring balance, administering tapu and acknowledging mana. Kawa can be seen as having a jural dimension in that they are procedural mechanisms. Kawa play a significant role in managing tikanga in daily life. Their significance in normative and jural terms should not be underestimated.
• 3.145 While we have noted the tendency of kawa to be relatively inflexible, the following accounts (each anonymised to maintain the privacy of affected hapū) also show how a search for what is tika or correct in the circumstances will prevail over strict adherence to these protocols.

297. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.107].

²⁹⁸ Cleve Barlow Tikanga Whakaaro: Key Concepts in Maori Culture (Oxford University Press, Auckland, 1994) at 37.

299. Te Ahukaramū Charles Royal (ed) The Woven Universe: Selected Writings of Rev Māori Marsden (Estate of Rev Māori Marsden, Ōtaki, 2003) at 20.

³⁰⁰ Cleve Barlow Tikanga Whakaaro: Key Concepts in Maori Culture (Oxford University Press, Auckland, 1994) at 37.

301. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.106].
302. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.107].
303. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.12].

• 3.146 A travelling group of senior kaumātua (male elders) made a stop within the lands of a hapū with only very distant whakapapa connections. While there, one of the kaumātua passed away. The group sought permission to allow the tūpāpaku (deceased) to remain at a local marae while they completed their journey, promising to return to collect him. According to the kawa of that marae, any tūpāpaku lying on the marae for more than three days had to be buried locally. The travelling group did not return within this time. When they did return and realised that kawa would require the tūpāpaku to remain, they spoke of the sorrow and whakamā that would be caused if they returned home without the tūpāpaku and asked permission to cut his nails so that they might at least return with this part of him. The locals were so affected by this kōrero that, although it would involve a breach of their kawa, the tika or correct response was to allow them to return to their home with the tūpāpaku.304
• 3.147 In another example, a young man left his home to live within the whenua of a related hapū. When he died many years later, even though he did not belong to the local hapū, he was taken to the local marae for his tangihanga. When they heard of his passing, a whānau group from his homeland travelled to the marae to claim him. The local koroua who held the speaking rights noticed that the visiting group only had female speakers. This was problematic because the strict kawa of that marae was that only men could speak on the paepae (an expression meaning in this context that only men would be allowed to speak). However, they set aside their kawa after resolving that they could not deprive the visiting whānau of the right to claim their tūpāpaku. The generosity impressed the visiting whānau. They in turn resolved that the tūpāpaku should not be removed to his former home. To the whānau, the local hapū had shown that they would properly discharge their responsibility to care for him.305

NORMS BOUNDED BY WHAKAPAPA

• 3.148 In this concluding section, we return to the concept of whakapapa, reflecting on its place as a regulator and a decision-making guide. Whakapapa underlies all of the tikanga norms we have discussed. Tikanga concepts are bounded by reference to it. We consider that whakapapa is integral to understanding tikanga concepts such as whanaungatanga and mana, to keeping tikanga concepts within their proper bounds and to engaging with the concepts of responsibility.
• 3.149 Both whakapapa and whanaungatanga are expansive concepts and have the capacity to embrace new collectives. Neither one is fixed or static or confined to traditional tribal collectives. On the contrary, whakapapa and whanaungatanga are mechanisms for identifying connection and can evolve to embrace new relationships and new contexts.306 However, their primary normative and jural significance lies in ensuring that the order of things is properly layered, the connection to kāwai tupuna (line of descent, lineage) is acknowledged, relationships to the natural world, place and people are nurtured, associated responsibilities are discharged, and the processes for engagement that have

³⁰⁴ This account was provided to us by Pou Temara (May 2023).

³⁰⁵ This account was provided to us by Joan Metge (July 2023).

³⁰⁶ Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994) at 5.

been carefully laid down over generations are followed. Importantly, other concepts are never divorced from this foundation.307 For example, as we earlier reflected:

(a) Mana arises from the atua Māori and other whakapapa-based connections.308

(b) Kaitiakitanga (associated with mana) connects back to whakapapa. It is applied “within kin group social organisation”.309 It “is a direct result of that genealogical relationship”.310

(c) Whanaungatanga is a broad understanding of kinship that makes lateral connections, in ways which can overlap with whakapapa.

• 3.150 Tikanga concepts may have the capacity to expand into untried contexts, but from time to time this will risk unduly straining their meaning. Whakapapa provides one way to set a boundary around such expansion. It is for this reason that we began our discussion of tikanga concepts from within the wharenui — which is an embodiment of whakapapa. It represents a space safeguarding the integrity of tikanga, and within which tikanga concepts can be more genuinely understood.

CONCLUSION

• 3.151 In this chapter, we have outlined how tikanga concepts can be understood as a complete, coherent and connected system of norms and as having jural qualities. We have shown how tikanga concepts give rise to powers, rights, duties, liabilities and other interests or restrictions that govern relationships. The functions that tikanga concepts perform in Māori society are readily expressed in jural ways. They are widely and consistently understood by Māori in these ways. To appropriately engage with tikanga, it is important to conceive of tikanga as an entire system with concepts connected to one another and working together as we have described.

³⁰⁷ Moana Jackson Statement of evidence, 3 May 2012 at [93]–[94], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.6]; Nin Tomas “Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present” (PhD Thesis, Waipapa Taumata Rau | University of Auckland, 2006) at 69: a “process within which other ideas and concepts can be structured into a coherent format”.

³⁰⁸ Cleve Barlow Tikanga Whakaaro: Key Concepts in Maori Culture (Oxford University Press, Auckland, 1994) at 60–61; Joseph Williams “He aha te tikanga Maori” (unpublished paper for Te Aka Matua o te Ture | Law Commission, 1998) at 11–12.

³⁰⁹ See particularly: Merata Kawharu “Kaitiakitanga: a Maori anthropological perspective of the Maori socio-environmental ethic of resource management” (2000) 109 The Journal of the Polynesian Society 349 at 349–350 (“applied within kin group social organisation”); see too Joseph Williams “He aha te tikanga Maori” (unpublished paper for Te Aka Matua o te Ture | Law Commission, 1998) at 14.

310. Joseph Williams “He aha te tikanga Maori” (unpublished paper for Te Aka Matua o te Ture | Law Commission, 1998) at 10.

CHAPTER 4

A guide for engaging with tikanga

INTRODUCTION

• 4.1 In this chapter, we set out a guide for engaging with tikanga and apply it to six hypothetical case studies. Our approach continues to build upon Chapter 3, which analysed tikanga as a system of norms with legal implications. The step-by-step approach that we now set out in the form of a guide broadly reflects the way we have grouped and described tikanga concepts in Chapter 3. The guide and case studies are intended to assist people working in a legal or policy context to build their understanding of how these tikanga concepts may interact and be applied in different factual situations.
• 4.2 Tikanga concepts and their application and interaction are often implicit, making it difficult for those who are not familiar with tikanga to understand them. Those less familiar with tikanga may find value in working through the sequence of questions set out in the guide to clarify their thinking and lay groundwork for their own analysis of different factual situations. However, when developing the guide we have also been cautious because there are limits to how much assistance a guide can give when it comes to engaging with tikanga. Of the several considerations we ask future users of the guide to bear in mind, above all it will be important for them to read the guide alongside Part Three where (in both Chapters 8 and 9) we emphasise the need to develop processes that involve those with tikanga expertise. The guide is suggested as just one aid to clearer understanding. By itself, it will not equip users to competently undertake tikanga analysis. When applying the guide, it will be proper and necessary in many situations to seek guidance from pūkenga tikanga (tikanga experts). The guide may help to inform these conversations.
• 4.3 The six case studies supporting the guide have been developed mainly to illustrate the guide’s application. However, they also help to show some of the ways in which tikanga works, including nuances that can arise in relation to different tikanga concepts. In this way, the case study analysis should bring readers from our theory of tikanga as a normative system to a more applied understanding of tikanga. That is why this chapter completes Part One of this Study Paper.

USING THIS GUIDE

• 4.4 For future users, there are several things to be aware of when using this guide.
• 4.5 First, consistent with the mātauranga (Māori knowledge) grounded approach that Part One of the Study Paper has taken, the guide intentionally focuses solely on tikanga rather than on the interaction between tikanga and state law. This is because we think it is preferable to first understand how tikanga concepts might be engaged in a factual situation before moving to the state law processes that we address in Part Three. For those who use the guide in a legal or policy context, the guide is therefore best viewed as an initial analytical or information-gathering step, and as one way of clarifying operative tikanga-focused facts.
• 4.6 Second, the guide focuses on tikanga concepts we identify as important and common. However, it is also open-ended to enable consideration of other relevant tikanga as well as iwi, hapū and whānau expressions of tikanga. This should help future users of the guide to accommodate all factual situations and facilitate analysis that accurately and appropriately engages with tikanga. In particular, this may arise when considering tikanga responsibilities and when identifying any relevant kōrero tuku iho (oral traditions), because the guide names only some common examples of responsibilities and kōrero tuku iho. For instance, whereas Chapter 3 focused on responsibilities of kaitiakitanga (guardianship), manaakitanga (giving to others) and aroha (love, concern), some of our case studies also identify kotahitanga (unity) as a further responsibility arising from the factual situations described.1 Examples of kōrero tuku iho suggested below include whakataukī and whakatauākī (proverbs), waiata (song) and mōteatea (a chant or lament).
• 4.7 Third, the guide proposes a systematic analysis of tikanga rather than an approach that goes directly to obviously applicable individual tikanga concepts. A systematic approach is consistent with viewing tikanga as an integrated system of norms. It also helps to avoid the risk of placing undue focus on a particular concept (especially intuitively powerful and important concepts such as mana) and overlooking the application and interaction of other relevant tikanga. That said, the guide will still help to determine what tikanga concepts are primarily engaged, and whether particular concepts warrant consideration.
• 4.8 Fourth, as we said above, users of the guide may find it beneficial to consult with pūkenga to obtain guidance on appropriate sources of information or to test preliminary analysis. However, we would not suggest asking pūkenga to work through the guide and supply the analysis themselves. Pūkenga do not need a guide, nor will they necessarily be able to work within the parameters of a guide. For pūkenga, implicit tikanga concepts will be obvious. Instead, we would suggest asking pūkenga which tikanga concepts they consider are relevant in a factual situation and reflecting their responses in the analysis. It may be helpful to begin by asking them, for example, whether and how whakapapa is engaged — in other words, inviting them to describe any relevant genealogical and historical connections that explain how the parties to the case and any lands and waters are connected. In this way, the guide can act as a bridge between those steeped in tikanga and those who need to understand its application and interaction for the purposes of legal and policy work.
• 4.9 Fifth, it is important to understand that precedent in tikanga is not applied in the same way as the common law principle of stare decisis.2 Tikanga outcomes (even in very similar

¹ Kotahitanga, meaning unity, was discussed in Chapter 2 as a central principle of the wharenui.

2. Stare decisis means “to stand by things decided” in Latin. It is a common law principle that directs courts to adhere to previous judgments of the same or higher courts when resolving a case with allegedly comparable facts.

situations) can be broad ranging. What is important is that the outcomes are responsive to the context and are consistent with the underlying tikanga concepts. Similarly, when kōrero tuku iho such as pūrākau (legendary narratives) are shared, as we do in the case studies which follow, their primary purpose is to build understanding of the meaning of the relevant tikanga rather than as a source of precedent. They are not intended to be analysed in the same ways as we might be accustomed to do with case law. However, they may influence thinking about a problem and can help to build understanding of the significance of the tikanga and its context.

• 4.10 Lastly, in some ways such a structured guide runs counter to the flexible nature of tikanga. However, on balance we think this is outweighed by potential benefits in the legal and policy context. We acknowledge that tikanga operates within Māori communities every day without the need for any written guide. The purpose of this guide is to support proper engagement with tikanga in the context of state law. It may also support iwi, hapū and whānau when from time to time they seek assistance from state law. What we offer is merely one method that encourages future users to recognise tikanga as an integrated system and engage with it in a way that we think promotes and protects the integrity of tikanga. Future users will need to exercise their own judgement carefully when deciding when and how rigorously to apply the guide.

HOW WE DEVELOPED THIS GUIDE AND THE CASE STUDIES

• 4.11 The guide and case studies were developed in consultation with pūkenga from Te Whare Wānanga o Awanuiārangi. We consider that the guide can apply in any factual context where tikanga concepts are or may be in application or interaction. It has three overall steps, each expanded on below. The steps are to:

(a) Identify tikanga as it relates to the factual situation.

(b) Identify relevant kōrero tuku iho and related mātauranga.

(c) Identify other similar situations.

• 4.12 The case studies which then follow are informed by both kōrero shared with us by the Awanuiārangi pūkenga and our own understanding of tikanga and state law. Each case study has been developed to outline a realistic, contemporary scenario that also generates (or may generate) an interface between tikanga and state law. Together, the case studies work to capture a range of tikanga concepts in application and interaction.
• 4.13 The case studies are hypothetical, with fictional names for people and generic names for hapū assigned using a reo Māori numbering format. Two of the case studies draw on work by Te Aka Matua o te Ture | Law Commission relating to surrogacy and succession law. Where we articulate the tikanga of iwi, hapū and whānau and identify similar situations in the case studies, this is at a high level in a way where the tikanga described might be generally accepted by iwi, hapū and whānau as one realistic way of doing things.
• 4.14 For each case study, we first set out the factual situation and then work through the steps in the guide.

A GUIDE FOR ENGAGING WITH TIKANGA

STEP 1: IDENTIFY THE TIKANGA

Identify the concepts of tikanga Māori that are engaged by the factual situation, including associated responsibilities and relevant tikanga processes and procedures. Where tikanga is engaged at an iwi, hapū or whānau level, identify how the concepts, including the associated responsibilities and processes or procedures, are expressed by those iwi, hapū or whānau. Consider the following: (a) The structural concepts of whakapapa and whanaungatanga. (b) The relational concepts of mana, tapu and noa arising from the status of an entity and: (i) to the extent mana is engaged, its source; and (ii) to the extent mana and tapu are engaged, the relevance of that to the protection of mauri. (c) Responsibilities associated with the structural and relational concepts, including, for example, kaitiakitanga, manaakitanga and aroha. (d) The take in the context, and the prescriptive concepts of utu and ea for maintaining balance. (e) Any other concepts of tikanga Māori that are engaged. (f) Any tikanga processes or procedures that have been, are, or could be engaged.

STEP 2: IDENTIFY RELEVANT KŌRERO TUKU IHO AND RELATED MĀTAURANGA, INCLUDING, FOR EXAMPLE, WHAKATAUKĪ, WHAKATAUĀKĪ, WAIATA AND MŌTEATEA

Identify any relevant kōrero tuku iho and related mātauranga such as whakataukī, whakatauākī and mōteatea to build understanding of the tikanga engaged and their application in context. Where tikanga is engaged at an iwi or hapū level, identify how kōrero tuku iho and related mātauranga are expressed by those iwi and hapū.

STEP 3: IDENTIFY OTHER SIMILAR SITUATIONS

(a) Where tikanga is being engaged at an iwi, hapū or whānau level, identify any similar situations that have occurred within the iwi, hapū and whānau. (b) Where it is difficult to identify similar situations within the whānau, hapū and iwi, consider similar situations in other iwi of the same waka before identifying similar situations in any iwi, hapū or whānau. (c) Alternatively, where tikanga is not being engaged at an iwi, hapū or whānau level, identify any similar situations that have occurred in any iwi, hapū or whānau.

CASE STUDY 1: A TONO FOR A TŪPĀPAKU

The facts

When Ngārimu passes away, he is taken by one of his hapū, Ngāti Tuarua, to their marae. Ngārimu has whakapapa (connections) to Ngāti Tuarua through his maternal grandmother Aroha. He has lived near the marae for most of his life and was very close to Aroha when he was a child. Ngārimu served on the committee of the marae for 20 years before he died and was considered by Ngāti Tuarua to be a hapū leader with authority to speak on the marae. A large tangihanga is organised by Ngāti Tuarua and plans are made for the burial to take place at the urupā (cemetery) next to the marae.

At the first pōwhiri (welcome) for the tangihanga, a large group from another hapū, Ngāti Tuatahi, comes onto the marae. During whaikōrero (formal speeches), Ngāti Tuatahi makes a tono (request) for the tūpāpaku (deceased), claiming that Ngārimu should be buried at the urupā next to the marae in their rohe (region). In the tangihanga context, a tono is a tikanga process through which a group makes a request to another group to take possession of the tūpāpaku. For example, this may be to spend a night at a different marae or for a burial elsewhere. In this case, the tono is based on the tikanga of Ngāti Tuatahi around whakapapa. Ngārimu has whakapapa to Ngāti Tuatahi through his paternal grandfather Rangi, and according to Ngāti Tuatahi tikanga, he needs to be buried with his paternal whakapapa just as Ngārimu’s father was. Ngāti Tuatahi also says Ngāti Tuarua needs to defer to Ngāti Tuatahi tikanga because their tupuna (ancestor) Tuatahi was the tuakana (elder sibling) of Tuarua.

The whānau pani (bereaved family), the immediate whānau of Ngārimu, are visibly upset. His children want him to be buried at the urupā next to the marae of Ngāti Tuarua, the hapū to which they feel the strongest connection. A kuia (older woman) of Ngāti Tuarua suddenly stands behind the paepae (meaning, in this context, the assembled speakers) and says, “Kei ngā tamariki ngā kupu tuatahi e pā ana ki tēnei tono” (the children will be the first to speak regarding this tono).

The pōwhiri stops, and the whānau pani and leaders of both Ngāti Tuarua and Ngāti Tuatahi go into the wharekai (dining hall). In the wharekai, the whānau pani express their preference for the burial of Ngārimu to take place at the urupā next to the marae of Ngāti Tuarua.

After the whānau pani have expressed their views, discussions recommence on the marae ātea (space in front of the wharenui), with Ngāti Tuarua and Ngāti Tuatahi going back and forth. The discussion is long and tense. Eventually, the hapū agree that Ngāti Tuatahi does have a greater claim in tikanga to the tūpāpaku than Ngāti Tuarua. The hapū therefore agree that Ngārimu will stay at the marae of Ngāti Tuarua for two nights before being moved to the marae of Ngāti Tuatahi for the third night, with the burial to take place at the urupā of the marae of Ngāti Tuatahi the following day.

As agreed between the hapū, the tūpāpaku is moved to the marae of Ngāti Tuatahi for the third night. While everyone is in the wharekai having dinner, the whānau pani, who are sitting with the tūpāpaku, take the tūpāpaku and go back to the rohe of Ngāti Tuarua. Before they can be stopped, the whānau pani bury the tūpāpaku at the urupā next to the marae of Ngāti Tuarua.

Figure 8: The relationships and positions of the hapū, Ngārimu and the whānau pani

Applying the guide to case study 1

Identify the concepts of tikanga Māori that are engaged by the factual situation, including associated responsibilities and relevant tikanga processes and procedures. Where tikanga is engaged at an iwi, hapū or whānau level, identify how the concepts, including the associated responsibilities and processes or procedures, are expressed by those iwi, hapū or whānau. Consider the following:

(a) The structural concepts of whakapapa and whanaungatanga.

STEP 1: IDENTIFY THE TIKANGA

• 4.15 Ngārimu and the whānau pani whakapapa to both Ngāti Tuarua and Ngāti Tuatahi. The whakapapa of Ngārimu to Ngāti Tuatahi through his paternal grandfather Rangi is the primary reason for the request being made by Ngāti Tuatahi. Ngāti Tuarua and Ngāti Tuatahi also whakapapa to each other. This is because the ancestor named Tuatahi of Ngāti Tuatahi was the tuakana of the ancestor named Tuarua of Ngāti Tuarua.
• 4.16 Whanaungatanga is engaged between Ngāti Tuarua and Ngāti Tuatahi through their whakapapa to each other. Whanaungatanga is also engaged between the whānau pani and the two hapū as a result of the whakapapa of the whānau pani to the hapū. This whanaungatanga generates responsibilities, which are introduced below.

(b) The relational concepts of mana, tapu and noa arising from the status of an entity and:

(i) to the extent mana is engaged, its source; and

(ii) to the extent mana and tapu are engaged, the relevance of that to the protection of mauri.

(ii)

• 4.17 Mana is strongly engaged. The hapū, the whānau pani and Ngārimu each have mana. The source of the mana of the hapū is mana tupuna (ancestral mana). The sources of the mana of the whānau pani and Ngārimu are mana tangata (a person’s mana) and mana tupuna. The mana of the hapū, the whānau pani and Ngārimu will be diminished,

maintained or enhanced depending on how they fulfil responsibilities consistent with their mana. In this factual situation, these responsibilities are the same as those arising from whanaungatanga.

• 4.18 Tapu is engaged in this context because tūpāpaku are very tapu. The whānau pani are also in a state of tapu due to their close whakapapa to Ngārimu. Noa is not strongly engaged, but it is notable that whānau pani are generally not considered noa until after the burial, when a hākari (feast) takes place. The hākari would normally operate to whakanoa (reduce or remove tapu) the tapu of the whānau pani. In this instance, to enable the whānau pani to express their views in the wharekai, which is a noa space, the tapu of the whānau pani was briefly lifted. The whānau pani returned to their tapu state when discussions recommenced on the marae ātea.
• 4.19 Mauri is not strongly engaged. When Ngārimu died his mauri was extinguished.

(c) Responsibilities associated with the structural and relational concepts, including, for example, kaitiakitanga, manaakitanga and aroha.

• 4.20 Responsibilities arising from whanaungatanga and connected with mana include manaakitanga and aroha. In this factual situation, the whanaungatanga that exists between Ngāti Tuarua and Ngāti Tuatahi as a result of their whakapapa to each other includes the responsibility of showing manaakitanga and aroha towards each other and in relation to Ngārimu.
• 4.21 In this factual situation, a further responsibility of kotahitanga (unity) is applicable. The whanaungatanga between the whānau pani and the two hapū that exists as a result of the whakapapa of the whānau pani generates a responsibility by the whānau pani to act in accordance with the principle of kotahitanga. In turn, Ngāti Tuarua and Ngāti Tuatahi have responsibilities to show aroha and manaakitanga to the whānau pani.
• 4.22 Consistent with these responsibilities:

(a) Ngāti Tuarua and Ngāti Tuatahi fulfilled their responsibilities to show aroha and manaakitanga to each other and in relation to Ngārimu during the pōwhiri, where they agreed to what would happen with the tūpāpaku. Their actions enhanced the mana of both the hapū and Ngārimu. The hapū will need to continue showing aroha and manaakitanga to each other as the take (issue) is addressed.

(b) The hapū also had responsibilities to show aroha and manaakitanga to the whānau pani. The hapū fulfilled these responsibilities to the whānau pani by allowing the tapu to be lifted so that the whānau pani could express their views in the wharekai. It is worth noting that these are ongoing responsibilities, which means aroha and manaakitanga need to continue to be shown by the hapū to the whānau pani.

(c) The whānau pani had responsibilities to act in accordance with kotahitanga. The whānau pani needed to do what was agreed between the hapū. This responsibility was not fulfilled.

(d) The take in the context, and the prescriptive concepts of utu and ea for maintaining balance.

• 4.23 The take in this factual situation is that the whānau pani have not fulfilled their responsibilities to act in accordance with kotahitanga. The whānau pani acted in a way that was contrary to a process where an outcome considered proper had been agreed to by the hapū. As a result, the actions of the whānau pani have diminished the mana of themselves, Ngāti Tuarua, Ngāti Tuatahi and Ngārimu. The take is particularly serious, because the whānau pani also breached their own tapu and the tapu of the tūpāpaku when they took the tūpāpaku back to the rohe of Ngāti Tuarua. The normal hākari that would take place after the burial to whakanoa the whānau pani has also not occurred, meaning the whānau pani remains in a state of tapu.
• 4.24 In this situation, an utu is required for a state of ea to be achieved. Ngāti Tuarua and Ngāti Tuatahi will need to agree on the utu, and this is likely to require a hui (gathering). At the hui, options which might be discussed include:

(a) Kōrero (addresses) to one another and koha (offerings) in the form of taonga (valuable objects) being exchanged that, if accepted, may be sufficient utu for a status of ea to be achieved.

(b) Alternatively, or in addition, the hapū may agree that the only way to achieve a state of ea and restore the mana of all involved as well as remedy the breach of tapu may be to hahu (exhume) the tūpāpaku and return it to the urupā next to the marae of Ngāti Tuatahi.

• 4.25 In determining and carrying out the appropriate utu, the hapū will need to be mindful of their responsibilities to show aroha and manaakitanga to the whānau pani. The whānau pani will also need to be mindful of their responsibilities to act in accordance with kotahitanga so that a state of ea can be achieved.

(e) Any other concepts of tikanga Māori that are engaged.

• 4.26 Tika (what is right) is engaged in this factual situation because the hapū engaged in a customary process of making their request during the pōwhiri. Through that process, an outcome was reached that was considered tika by the hapū. The whānau pani acting contrary to the tika outcome is one reason for the take.

(f) Any tikanga processes or procedures that have been, are, or could be engaged.

• 4.27 A tono is the tikanga process engaged in this case. As earlier explained, a tono allows a group to make a request to another group to take possession of the tūpāpaku.
• 4.28 The whānau of Ngārimu are what is sometimes known as the whānau pani or kirimate, which refers to the bereaved whānau. In tikanga, the whānau pani or kirimate are not able to speak during a tangihanga or participate directly in its organisation due to being in a heightened state of tapu. The state of tapu is brought about by the close whakapapa of the whānau pani or kirimate to the tūpāpaku.
• 4.29 The pōwhiri was a customary process Ngāti Tuatahi engaged in during the tangihanga in order for the tono to be made.
• 4.30 Utu may involve hui, kōrero, the exchange of koha in the form of taonga and/or an exhumation in order for a state of ea to be achieved.

Identify any relevant kōrero tuku iho and related mātauranga such as whakataukī, whakatauākī and mōteatea to build understanding of the tikanga engaged and their application in context. Where tikanga is engaged at an iwi or hapū level, identify how kōrero tuku iho and related mātauranga are expressed by those iwi and hapū.

STEP 2: IDENTIFY RELEVANT KŌRERO TUKU IHO AND RELATED MĀTAURANGA, INCLUDING, FOR EXAMPLE, WHAKATAUKĪ, WHAKATAUĀKĪ, WAIATA AND MŌTEATEA

• 4.31 In the Māori world view, death is strongly associated with the transition of Hinetītama to Hinenuitepō and the pūrākau concerning the fatal attempt of Māui to secure immortality for humankind. According to some iwi and hapū, the final resting place of those who have died is Rarohenga, where Hinenuitepō resides. This pūrakau indicates the tapu or sacred nature of the burial process and therefore the care with which it must be handled.

(a) Where tikanga is being engaged at an iwi, hapū or whānau level, identify any similar situations that have occurred within the iwi, hapū and whānau.

(b) Where it is difficult to identify similar situations within the whānau, hapū and iwi, consider similar situations in other iwi of the same waka before identifying similar situations in any iwi, hapū or whānau.

(c) Alternatively, where tikanga is not being engaged at an iwi, hapū or whānau level, identify any similar situations that have occurred in any iwi, hapū or whānau.

STEP 3: IDENTIFY OTHER SIMILAR SITUATIONS

• 4.32 Ngāti Tuarua have recently exhumed one of their tupuna who they wished to be returned to the urupā next to their marae. The hahu took years to negotiate by the hapū involved, but it has restored the mana of those hapū.
• 4.33 Twenty years ago, another whānau pani of the iwi of Ngāti Tuatahi took a tūpāpaku in the night and buried it contrary to what had been agreed to by the iwi. In that context, there was no hahu, but taonga were exchanged as utu in order for a state of ea to be achieved.

CASE STUDY 2: CUSTODIANSHIP OF TAONGA AND ŌHĀKĪ

The facts

Nīkau is the custodian of three whānau taonga (family heirlooms): a mere pounamu (greenstone club), a heitiki (greenstone pendant) and a korowai (cloak). He has four children, including Pita, the mātāmua (oldest child) and Rāwiri, the pōtiki (youngest child). In their whānau, custodianship of the three whānau taonga has been passed down through the mātāmua. This tikanga was established over a century ago when a tupuna of the whānau and rangatira of their hapū said in an ōhākī (oral statement made prior to death), “Mā ngā mātāmua ngā taonga hei tiaki” (the oldest children shall have custody of the taonga).

Rāwiri, the pōtiki of the whānau, is married to Sarah who is from Germany. Sarah moved to Aotearoa New Zealand when she was nine. Rāwiri and Sarah have several children. They have also lived with and cared for Nīkau for the last five years. Nīkau has relied heavily on Rāwiri and Sarah in his old age, and he is grateful for their support. Living with Rāwiri and Sarah has also meant Nīkau has been able to spend a lot of time with his mokopuna (grandchildren).

The health of Nīkau deteriorated rapidly two weeks ago, and he passed away suddenly. Before Nīkau passed away, he told Rāwiri and Sarah in an ōhākī that he would leave the three whānau taonga to them. His will states that the whānau taonga are to be passed down in accordance with tikanga.

Figure 9: The relationships and positions of the whānau taonga, Nīkau, Pita, Rāwiri and Sarah

Applying the guide to case study 2

Identify the concepts of tikanga Māori that are engaged by the factual situation, including associated responsibilities and relevant tikanga processes and procedures. Where tikanga is engaged at an iwi, hapū or whānau level, identify how the concepts, including the associated responsibilities and processes or procedures, are expressed by those iwi, hapū or whānau. Consider the following:

(a) The structural concepts of whakapapa and whanaungatanga.

STEP 1: IDENTIFY THE TIKANGA

• 4.34 Nīkau and his children whakapapa to each other. They also whakapapa to the ancestor who established the tikanga regarding the whānau taonga in the initial ōhākī.
• 4.35 The whānau taonga whakapapa to the natural resources from which they have been made, tracing back to the atua (ancestor-god) credited with creating those natural resources. The whānau taonga also whakapapa to their custodians, tracing back to the person or people who created them.
• 4.36 Whanaungatanga is engaged between Nīkau and his children because of their whakapapa to each other. Whanaungatanga is also engaged between Nīkau and Sarah because of their relationship. This whanaungatanga generates responsibilities that include Nīkau, his children and Sarah showing manaakitanga and aroha towards each other.
• 4.37 Whanaungatanga is also engaged between the custodians of the whānau taonga and the whānau taonga themselves. This is because of the whakapapa of the whānau taonga to their custodians, tracing back to the person or people who created them. This whanaungatanga generates kaitiakitanga responsibilities for the custodians to fulfil as well as responsibilities to show manaakitanga and aroha to the whānau taonga.

(b) The relational concepts of mana, tapu and noa arising from the status of an entity and:

(i) to the extent mana is engaged, its source; and

(ii) to the extent mana and tapu are engaged, the relevance of that to the protection of mauri.

(ii)

• 4.38 Nīkau, his children and Sarah each have mana. The sources of mana of Nīkau and his children are mana tangata and, reflecting Nīkau’s Māori ancestry, mana tupuna. The source of Sarah’s mana is mana tangata. Nīkau, his children and Sarah will diminish, maintain or enhance their mana depending on how they fulfil responsibilities that are consistent with mana. In this context, the responsibilities related to the mana of Nīkau, his children and Sarah are the same as those of whanaungatanga described above. The individuals need to show manaakitanga and aroha towards each other, and the custodians of the whānau taonga need to fulfil their kaitiakitanga responsibilities as well as show manaakitanga and aroha to the whānau taonga.
• 4.39 The whānau taonga also have mana. The source of the mana of the whānau taonga is mana atua (mana of the atua Māori). This is because the whānau taonga whakapapa to the natural resources from which they have been made, tracing back to the atua credited with creating those natural resources.
• 4.40 While tapu and noa are not strongly engaged, the whānau taonga are inherently tapu to a degree that demands respect. This tapu arises in two ways. It arises through the whakapapa of the taonga to the atua. It also arises through the whakapapa of the whānau taonga tracing back to the person or people that created them.
• 4.41 The ōhākī of both the tupuna and Nīkau are also tapu and demand respect.
• 4.42 Each of the whānau taonga has a mauri. Custodians of the whānau taonga will help to protect the mauri of the whānau taonga by fulfilling their kaitiakitanga responsibilities and respecting the tapu of the whānau taonga.

(c) Responsibilities associated with the structural and relational concepts, including, for example, kaitiakitanga, manaakitanga and aroha.

• 4.43 In this factual situation, the relevant responsibilities arising from whanaungatanga and associated with mana are manaakitanga, aroha and kaitiakitanga:

(a) The children of Nīkau and Sarah will need to show manaakitanga and aroha to each other.

(b) The next custodian of the whānau taonga will need to fulfil their kaitiakitanga responsibilities as well as show manaakitanga and aroha to the whānau taonga.

(d) The take in the context, and the prescriptive concepts of utu and ea for maintaining balance.

• 4.44 The take in this context is that there have been two ōhākī that stipulate different testamentary wishes for the same whānau taonga. The appropriate utu for a state of ea to be achieved is not so much about who the “right” custodian is but about how the whānau reach a decision and whether that process enables all involved to fulfil their responsibilities that are associated with whanaungatanga and with mana.
• 4.45 It is important to understand that one ōhākī does not necessarily take precedence over the other. Tikanga is pragmatic and can adapt to different circumstances. The tikanga in this whānau may allow custodianship of one, two or all of the whānau taonga to go to Rāwiri and Sarah for the remainder of the life of Rāwiri, to acknowledge the ōhākī of Nīkau and Rāwiri and Sarah’s care of him, then revert to the oldest child Pita on the death of Rāwiri. This seems an appropriate result that respects the tapu of both ōhākī and maintains the mana of all involved. Alternatively, the whānau may agree that the ōhākī of Nīkau has adapted the tikanga of the whānau permanently and now the whānau taonga will be passed down through the pōtiki, the youngest child. However, this seems unlikely given that the ōhākī of Nīkau was more narrowly worded than the ōhākī of the tupuna.
• 4.46 Ideally, a decision will be reached by consensus at a whānau hui (a process enabling all to fulfil their whanaungatanga and mana-related responsibilities). If consensus cannot be reached, the whānau may utilise a pūkenga from their broader whānau or hapū to guide them. If there is a dispute, an interface between tikanga and state law may arise.

(e) Any other concepts of tikanga Māori that are engaged.

• 4.47 No other concepts appear to be engaged in this context.

(f) Any tikanga processes or procedures that have been, are, or could be engaged.

• 4.48 An ōhākī is the main tikanga process engaged in this case. An ōhāki can cover a range of matters, including guidance, information not previously disclosed or testamentary wishes. Ōhākī are tapu because the spoken word has an inherent value in tikanga and because a person giving an ōhākī is usually in a state of heightened tapu due to being close to death.
• 4.49 Utu may involve a whānau hui to determine how the take should be addressed for a state of ea to be achieved.

Identify any relevant kōrero tuku iho and related mātauranga such as whakataukī, whakatauākī and mōteatea to build understanding of the tikanga engaged and their application in context. Where tikanga is engaged at an iwi or hapū level, identify how kōrero tuku iho and related mātauranga are expressed by those iwi and hapū.

STEP 2: IDENTIFY RELEVANT KŌRERO TUKU IHO AND RELATED MĀTAURANGA, INCLUDING, FOR EXAMPLE, WHAKATAUKĪ, WHAKATAUĀKĪ, WAIATA AND MŌTEATEA

• 4.50 Some consider the words of Hinetītama, spoken when she realised her father was her lover and before she fled to Rarohenga, to be the first ōhākī. She said:3

I will leave this realm of Te Aotūroa and relocate to Rarohenga and there await our offspring to ensure they safely make passage when they pass from this world into the next. There I will take the name Hine-nui-te-pō.

• 4.51 Her statement was significant because it outlined the fate of humanity on death. It helps to explain why, according to tikanga, ōhākī are considered so tapu.

(a) Where tikanga is being engaged at an iwi, hapū or whānau level, identify any similar situations that have occurred within the iwi, hapū and whānau.

(b) Where it is difficult to identify similar situations within the whānau, hapū and iwi, consider similar situations in other iwi of the same waka before identifying similar situations in any iwi, hapū or whānau.

(c) Alternatively, where tikanga is not being engaged at an iwi, hapū or whānau level, identify any similar situations that have occurred in any iwi, hapū or whānau.

STEP 3: IDENTIFY OTHER SIMILAR SITUATIONS

• 4.52 Within the hapū to which Nīkau and his whānau belong, another whānau have had issues with whānau taonga not being passed on in accordance with the tikanga of the whānau. Their whānau taonga have gone missing, generating tension and distrust within the whānau.

3. Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [2.25].

• 4.53 Another whānau, also from the same hapū, recently complied with a request made in an ōhākī by the custodian of a kahu kiwi (a korowai adorned with the feathers of kiwi). The ōhākī stipulated that the kahu kiwi should be given to a particular master weaver rather than the mātāmua of the whānau. The whānau agreed that this was the right approach because the kahu kiwi needed to be cared for by someone with expertise in kahu conservation. The whānau asked the master weaver to accept requests by the whānau to use the kahu kiwi on special occasions. The whānau and the master weaver also agreed that a consensus will need to be reached by the whānau as to what will happen to the kahu kiwi when the master weaver is no longer able to care for it.

CASE STUDY 3: WHANAUNGATANGA AND BREACH OF CONTRACT FOR SUPPLY

The facts

The trustees of six ahu whenua trusts own land in the central North Island.4 The trustees and the beneficiaries of the trusts are all connected to each other by whakapapa. Whanaungatanga between the beneficiaries is particularly strong because six tūpuna (ancestors) to whom all the beneficiaries whakapapa were killed in battle with a neighbouring hapū in the late eighteenth century.

Most of the whenua (land) in the six trusts is used for dairy farming. However, land that is too steep was planted with mānuka 10 years ago, and the trusts entered into a joint venture arrangement for the purposes of collecting and processing honey.

The joint venture operates through a limited partnership (a type of business structure subject to the Limited Partnerships Act 2008). The six ahu whenua trusts are limited partners in the limited partnership. The general partner company, responsible for managing the limited partnership, has eight directors (one from each of the ahu whenua trusts and two who are independent).

The six ahu whenua trusts employ their whānau to collect honey from their respective whenua, and the employees supply the honey to the limited partnership under contracts of supply. The limited partnership purchased honey processing equipment and leases the premises where the honey is processed using funds contributed to it by each of the ahu whenua trusts.

In the last two years, there has been tension in the joint venture. Poor weather has impacted honey production, which has impacted the supply of honey to the limited partnership and reduced profits.

Earlier this year, a category one cyclone devastated the central North Island. The whenua of ahu whenua trusts 1 and 2 where mānuka had been planted slid away in a mass of debris, and the whānau that collected honey from that whenua had severe flooding in their homes. The whenua of ahu whenua trusts 3, 4, 5 and 6 and the whānau that collect honey from that whenua were not directly affected by the cyclone.

The whānau from ahu whenua trusts 3 and 4 stopped work to help the whānau of ahu whenua trusts 1 and 2 who were affected. They spent four weeks helping the whānau clear the silt from their homes and debris from the whenua. Because of the time spent helping those other whānau, the whānau from ahu whenua trusts 3 and 4 did not collect and supply honey to the limited partnership during those four weeks. The whānau from ahu whenua trusts 5 and 6 that were not directly affected did not stop work to help the whānau of ahu whenua trusts 1 and 2. They kept working and continued to collect and supply honey to the limited partnership.

⁴ An ahu whenua trust is a type of trust constituted under Te Ture Whenua Maori Act 1993, s 215.

Four of the directors of the general partner company (the two from ahu whenua trusts 5 and 6 and the independent directors) are sympathetic to the whānau of ahu whenua trusts 1 and 2, but they are dissatisfied that the whānau from ahu whenua trusts 3 and 4 did not communicate with them that they would stop working to help the whānau from ahu whenua trusts 1 and 2 to clear the silt from their homes and debris from the whenua. The actions of the whānau from ahu whenua trusts 3 and 4 will further impact this year’s profits, which will already be severely affected by the impact of the cyclone on the whenua of ahu whenua trusts 1 and 2 where the mānuka slipped away.

Those four directors consider whether the limited partnership should make a claim against the whānau from ahu whenua trusts 3 and 4 for breach of their contracts of supply. The limited partnership may have a claim because the whānau from ahu whenua trusts 3 and 4 who stopped working to help are unlikely to be able to rely on the force majeure clauses in their contracts (which waive contract performance for a period in the event of an “act of God”) because their whenua and homes were not affected by the cyclone.

When the trustees of ahu whenua trusts 3 and 4 are notified of a potential claim, they respond that the whānau who stopped work to help with the clean-up were acting in accordance with tikanga. They also say that the whānau of ahu whenua trusts 5 and 6 breached tikanga by not stopping work to help.

Figure 10: The joint venture structure and the relationships between the entities,

whānau and whenua

Applying the guide to case study 3

Identify the concepts of tikanga Māori that are engaged by the factual situation, including associated responsibilities and relevant tikanga processes and procedures. Where tikanga is engaged at an iwi, hapū or whānau level, identify how the concepts, including the associated responsibilities and processes or procedures, are expressed by those iwi, hapū or whānau. Consider the following:

(a) The structural concepts of whakapapa and whanaungatanga.

STEP 1: IDENTIFY THE TIKANGA

• 4.54 The whānau all whakapapa to each other. The whānau of ahu whenua trusts 1 and 2 also whakapapa to the land damaged by the cyclone, because it was discovered and named by one of their ancestors.
• 4.55 Whanaungatanga is strongly engaged because of the whakapapa between the whānau and because of the tūpuna to whom they all whakapapa who were killed in battle. In this situation, whanaungatanga generates responsibilities for the whānau of ahu whenua trusts 3, 4, 5 and 6 to show aroha and manaakitanga to the whānau of ahu whenua trusts 1 and 2 in relation to the damage caused by the cyclone. At the same time, the whānau of ahu whenua trusts 3, 4, 5 and 6 have responsibilities to show aroha and manaakitanga to the whānau of ahu whenua trusts 1 and 2 and to each other in relation to the limited partnership. The whānau of ahu whenua trusts 1 and 2 are absolved of their whanaungatanga responsibilities in relation to the limited partnership because they have been severely impacted by the cyclone.
• 4.56 Whanaungatanga is also engaged between the whānau of ahu whenua trusts 1 and 2 and the whenua because of their whakapapa to the whenua. The whānau of ahu whenua trusts 1 and 2 have kaitiakitanga responsibilities to the whenua.

(b) The relational concepts of mana, tapu and noa arising from the status of an entity and:

(i) to the extent mana is engaged, its source; and

(ii) to the extent mana and tapu are engaged, the relevance of that to the protection of mauri.

(ii)

• 4.57 The whānau of all the ahu whenua trusts have mana. The source of the mana of each whānau in relation to each other is mana tangata and mana tupuna. The whānau of ahu whenua trusts 1 and 2 also have mana in relation to the whenua. The source of this mana is mana whenua (power of the land, authority over land) arising from their connection to the whenua. The basis of their mana whenua is take tupuna (an ancestral claim).
• 4.58 The mana of the whānau will be diminished, maintained or enhanced depending on how they fulfil their responsibilities. In this context, the responsibilities consistent with mana are the same as those of whanaungatanga described above. The whānau of ahu whenua trusts 3, 4, 5 and 6 need to show aroha and manaakitanga to the whānau of ahu whenua trusts 1 and 2 in relation to the damage caused by the cyclone. They also need to show aroha and manaakitanga to the whānau of ahu whenua trusts 1 and 2 and to each other

in relation to the limited partnership. The whānau of ahu whenua trusts 1 and 2 need to fulfil their kaitiakitanga responsibilities to the whenua.

• 4.59 Tapu and noa are not strongly engaged by the factual situation. The whenua that has been affected by the cyclone will be tapu to a degree that demands respect although not to a degree where access must be restricted. This tapu arises in two ways. It arises through the connection of the whenua to Papatūānuku and Tāne (as atua of whenua). It also arises through the whakapapa of the whānau of ahu whenua trusts 1 and 2 to the whenua.
• 4.60 Mauri is not strongly engaged, although the mauri of the whenua is likely to have been affected by the cyclone. The whānau of ahu whenua trusts 1 and 2 will be responsible for restoring the mauri of the whenua by fulfilling their kaitiakitanga responsibilities and respecting the tapu of the whenua.

(c) Responsibilities associated with the structural and relational concepts, including, for example, kaitiakitanga, manaakitanga and aroha.

• 4.61 In this factual situation, the relevant responsibilities arising from whanaungatanga and associated with mana are aroha, manaakitanga and kaitiakitanga:

(a) The whānau of ahu whenua trusts 3, 4, 5 and 6 need to show aroha and manaakitanga to the whānau of ahu whenua trusts 1 and 2 in relation to the damage caused by the cyclone.

(b) The whānau of ahu whenua trusts 3, 4, 5 and 6 need to show aroha and manaakitanga to the whānau of ahu whenua trusts 1 and 2 and each other in relation to the limited partnership.

(c) The whānau of ahu whenua trusts 1 and 2 need to fulfil their kaitiakitanga responsibilities in relation to the whenua.

(d) The take in the context, and the prescriptive concepts of utu and ea for maintaining balance.

• 4.62 There are two take in this factual situation:

(a) While the whānau of ahu whenua trusts 3 and 4 have fulfilled their responsibilities to show aroha and manaakitanga to the whānau of ahu whenua trusts 1 and 2 in relation to the damage caused by the cyclone, they have not fulfilled their responsibilities to the whānau of ahu whenua trusts 1, 2, 5 and 6 in relation to the limited partnership. This is because they neglected the collection and supply of honey.

(b) While the whānau of ahu whenua trusts 5 and 6 have fulfilled their responsibilities to show aroha and manaakitanga to the whānau of ahu whenua trusts 1, 2, 3 and 4 in relation to the limited partnership by collecting and supplying honey, they have not fulfilled their responsibilities to the whānau of ahu whenua trusts 1 and 2 in relation to the damage caused by the cyclone.

• 4.63 To achieve a state of ea, utu is required from the whānau of ahu whenua trusts 3, 4, 5 and 6 to remedy their failure to fulfil responsibilities. The trustees may call a hui at which the whānau of ahu whenua trusts 3, 4, 5 and 6 may give koha to the groups in relation to

whom they neglected their responsibilities (the whānau of ahu whenua trusts 1 and 2 and the limited partnership). The koha would be an acknowledgement of the failure to fulfil these responsibilities.

• 4.64 If the koha are accepted, utu will have been achieved, the mana that has been diminished will be restored and there will be a state of ea. It may also be appropriate for the trustees of the ahu whenua trusts to discuss how these situations might be appropriately managed in the future.
• 4.65 The whānau of ahu whenua trusts 1 and 2 may have to provide an utu in response at some point in the future so that utu and therefore ea are maintained among the whānau of the ahu whenua trusts.

(e) Any other concepts of tikanga Māori that are engaged.

• 4.66 No other concepts appear to be engaged in this context.

(f) Any tikanga processes or procedures that have been, are, or could be engaged.

• 4.67 Utu may involve hui and giving koha to achieve a state of ea.

Identify any relevant kōrero tuku iho and related mātauranga such as whakataukī, whakatauākī and mōteatea to build understanding of the tikanga engaged and their application in context. Where tikanga is engaged at an iwi or hapū level, identify how kōrero tuku iho and related mātauranga are expressed by those iwi and hapū.

STEP 2: IDENTIFY RELEVANT KŌRERO TUKU IHO AND RELATED MĀTAURANGA, INCLUDING, FOR EXAMPLE, WHAKATAUKĪ, WHAKATAUĀKĪ, WAIATA AND MŌTEATEA

• 4.68 There are many examples of whakataukī that indicate the significance of helping those in need, particularly those between whom there is whakapapa and/or whanaungatanga. “Ki a koe tētehi kīwai, ki a au tētehi kīwai”, for instance, can be translated to mean that the work or the burden is to be shared equally.5

(a) Where tikanga is being engaged at an iwi, hapū or whānau level, identify any similar situations that have occurred within the iwi, hapū and whānau.

(b) Where it is difficult to identify similar situations within the whānau, hapū and iwi, consider similar situations in other iwi of the same waka before identifying similar situations in any iwi, hapū or whānau.

(c) Alternatively, where tikanga is not being engaged at an iwi, hapū or whānau level, identify any similar situations that have occurred in any iwi, hapū or whānau.

STEP 3: IDENTIFY OTHER SIMILAR SITUATIONS

⁵ Hirini Moko Mead and Neil Grove Ngā Pēpeha a ngā Tīpuna (Victoria University Press, 2001) at 212.

• 4.69 Other whānau of the hapū to which all the whānau whakapapa ceased work to help people impacted by the cyclone. Many businesses in the area who were not directly affected did not cease work but gave koha to those directly affected.
• 4.70 Three years ago, a hapū from the same iwi to which all the whānau are connected by whakapapa refused to catch and supply kōura (crayfish) to a fisheries joint venture due to evidence of the resource being depleted. The hapū notified other members of the joint venture of their decision and offered to forgo their share of the profits derived from the kōura catch for the season. The joint venture partners acknowledged the offer but still allocated a share of the profits from the kōura to the hapū, to acknowledge that the decision made by the hapū was based in tikanga and reflected kaitiakitanga responsibilities to the resource. The contracts of supply were also amended to waive the requirement to catch and supply a species where to do so would deplete that species in the future.

CASE STUDY 4: MANA MOANA AND CONSULTATION REGARDING THE REGULATION OF A PIPI BED
The facts

Ngāti Tuatoru and Ngāti Tuawhā are neighbouring hapū. Both hapū have collected pipi (a type of shellfish) from the local pipi bed for as long as anyone can remember, but only Ngāti Tuatoru occupies the whenua adjacent to the pipi bed.

The collection by Ngāti Tuawhā of pipi from the pipi bed is based on an agreement with Ngāti Tuatoru in the early nineteenth century for the mutual collection of kaimoana (seafood) from their respective fishing grounds. Under the agreement, in exchange for collection by Ngāti Tuawhā of pipi from the pipi bed, Ngāti Tuatoru may spear or cast nets for pātiki (flounder) from the harbour bed adjacent to whenua occupied by Ngāti Tuawhā.

It is well known that, when the agreement was reached, a rangatira of Ngāti Tuatoru and a rangatira of Ngāti Tuawhā exchanged words. The rangatira of Ngāti Tuatoru said, “Kei a mātou te mana, kei a koutou ngā pipi” (we retain the mana, and you may have the pipi), and the rangatira of Ngāti Tuawhā responded, “Kei a mātou te mana, kei a koutou ngā pātiki” (we retain the mana, and you may have the pātiki).

The agreement was settled through a tomo (arranged marriage) between a child of each of the rangatira. Further tomo between members of both hapū have since reinforced that agreement.

Now, the local council is required to consult with local hapū regarding the regulation of the pipi bed. Ngāti Tuatoru claims it should be the sole hapū consulted by the local council. Ngāti Tuawhā claims it should also be consulted.

Figure 11: The relationships between the pipi bed, the hapū and the local council

Applying the guide to case study 4

Identify the concepts of tikanga Māori that are engaged by the factual situation, including associated responsibilities and relevant tikanga processes and procedures. Where tikanga is engaged at an iwi, hapū or whānau level, identify how the concepts, including the associated responsibilities and processes or procedures, are expressed by those iwi, hapū or whānau. Consider the following:

(a) The structural concepts of whakapapa and whanaungatanga.

STEP 1: IDENTIFY THE TIKANGA

• 4.71 Ngāti Tuatoru has direct whakapapa to the pipi bed because it was discovered and named by one of their tupuna. While some members of Ngāti Tuawhā also whakapapa to the pipi bed, this is through their Ngāti Tuatoru whakapapa, which was established through the arranged marriages that were entered into to reinforce the agreement between the hapū. Ngāti Tuatoru and Ngāti Tuawhā also whakapapa to each other via those marriages.
• 4.72 Since Ngāti Tuatoru has whakapapa to the pipi bed, Ngāti Tuatoru automatically has a whanaungatanga connection to it. Kaitiakitanga responsibilities derive from that whanaungatanga.
• 4.73 Both Ngāti Tuatoru and Ngāti Tuawhā also have whanaungatanga responsibilities to each other as a result of their whakapapa to each other and the agreement reached by their tūpuna. These responsibilities include showing manaakitanga and aroha towards each other in relation to the pipi bed and honouring the agreement.

The relational concepts of mana, tapu and noa arising from the status of an entity and:

(i) to the extent mana is engaged, its source; and

(ii) to the extent mana and tapu are engaged, the relevance of that to the protection of mauri.

(ii)

• 4.74 Both Ngāti Tuatoru and Ngāti Tuawhā have mana in relation to the pipi bed, the source of which is mana moana (power or authority relating to part of the sea). However, the basis of the mana moana differs between the two hapū, as reflected in the kōrero between the rangatira of the hapū when the agreement was reached. The mana moana of Ngāti Tuatoru is based in take tupuna (through its direct whakapapa to the pipi bed), while the mana moana of Ngāti Tuawhā is based in take hoko via the agreement (take hoko refers to an exchange). This difference means that, while both hapū have kaitiakitanga responsibilities associated with mana moana, the responsibilities of Ngāti Tuatoru in relation to the pipi bed are greater.
• 4.75 It is also notable that the way the local council approaches consultation could affect the mana moana of one or both hapū. This could have implications for the relationship between Ngāti Tuatoru and Ngāti Tuawhā as well as their relationships and respective mana in relation to other hapū in the area. Both Ngāti Tuatoru and Ngāti Tuawhā will want to ensure that their respective mana is not impacted by the council’s actions.
• 4.76 The pipi bed is tapu to a degree that demands respect, although not to a degree where access must be restricted. This tapu arises in two ways. It arises through the whakapapa of the pipi bed to Hinemoana (an atua associated with the moana and shellfish in particular). It also arises through the whakapapa of Ngāti Tuatoru to the pipi bed. The way the local council regulates collection of pipi will need to give due respect to its tapu. This will be a matter of concern to both Ngāti Tuatoru and Ngāti Tuawhā. Each hapū will want to ensure that the way collection of pipi is regulated respects tapu as part of fulfilling their respective kaitiakitanga responsibilities.
• 4.77 Noa is engaged because Ngāti Tuatoru and Ngāti Tuawhā have been able to collect kaimoana from the pipi bed without state-imposed restriction in accordance with their original agreement. Each hapū will want to ensure that the way the pipi bed is regulated does not impact on their access to the pipi bed in the future.
• 4.78 The way the pipi bed is regulated may have an impact on its mauri. Both hapū will be responsible for maintaining and protecting the mauri of the pipi bed by fulfilling their kaitiakitanga responsibilities and respecting the tapu of the pipi bed.

(c) Responsibilities associated with the structural and relational concepts, including, for example, kaitiakitanga, manaakitanga and aroha.

• 4.79 In this factual situation, the relevant responsibilities arising from whanaungatanga and associated with mana are aroha, manaakitanga and kaitiakitanga:

(a) The hapū have whanaungatanga responsibilities to each other as a result of their whakapapa to each other and the agreement reached by their tūpuna. These responsibilities include showing manaakitanga and aroha towards each other in relation to the pipi bed. For Ngāti Tuatoru, this may mean ensuring Ngāti Tuawhā has

continued access to the pipi bed, and for Ngāti Tuawhā, this may mean care needs to be taken to ensure that the pipi bed is not depleted.

(b) Both hapū also have kaitiakitanga responsibilities in relation to the pipi bed. The kaitiakitanga responsibilities of Ngāti Tuatoru derive from whanaungatanga (due to the direct whakapapa of the hapū to the pipi bed) and are also inherent in its mana moana status based in take tupuna. The kaitiakitanga responsibilities of Ngāti Tuawhā are inherent in its mana moana status based in take hoko. Because the kaitiakitanga responsibilities are generated differently for each hapū, the responsibilities and the way in which they are fulfilled are different — the responsibilities of Ngāti Tuatoru in relation to the pipi bed are greater. Accordingly, Ngāti Tuatoru fulfilling its responsibilities might extend to involvement in management of the pipi bed going forward, while Ngāti Tuawhā fulfilling its responsibilities might be limited to access management.

(d) The take in the context, and the prescriptive concepts of utu and ea for maintaining balance.

• 4.80 The take in the context is the local council being required to consult with local hapū and Ngāti Tuatoru and Ngāti Tuawhā having different views about who should be consulted.
• 4.81 Utu and ea have been maintained until now through the agreement between Ngāti Tuatoru and Ngāti Tuawhā and through each hapū fulfilling their responsibilities to the pipi bed and each other. This has enabled a state of balance in relation to the mana moana of each hapū. It has also protected the mauri of the pipi bed and respected its tapu.
• 4.82 One way the hapū might address the take is to agree on how they might fulfil their respective responsibilities to the pipi bed and each other moving forward. This could involve a tikanga process to determine the appropriate utu in order for a state of ea to be achieved. It may be appropriate for a hui to be called by the hapū at which they discuss how they could fulfil their respective responsibilities to the pipi bed and each other. The hapū might agree that:

(a) The responsibilities of Ngāti Tuatoru mean they should be consulted on all matters relating to the regulation of the pipi bed. In being consulted, Ngāti Tuatoru will actively try to ensure Ngāti Tuawhā has continued access to the pipi bed.

(b) The responsibilities of Ngāti Tuawhā mean they should be consulted on matters relating to access to the pipi bed. Ngāti Tuawhā will also continue to take care to ensure the pipi bed is not depleted.

• 4.83 The hapū may wish to invite the local council to the hui so that it has a better understanding of the tikanga in application and interaction in relation to the pipi bed and the hapū.
• 4.84 The hapū may not be able to reach an agreement between each other as to how their responsibilities in relation to the pipi bed and each other can be fulfilled moving forward. Even if an agreement is reached between the hapū, it may not be acted on by the local council. In either of these scenarios, an interface between tikanga and state law may arise.

(e) Any other concepts of tikanga Māori that are engaged.

• 4.85 No other concepts appear to be engaged in this context.

(f) Any tikanga processes or procedures that have been, are, or could be engaged.

• 4.86 The process that has regulated the pipi bed between the hapū until this point has been the agreement entered into by the hapū in the early nineteenth century. The marriage entered into as part of the agreement was a tomo, and subsequent tomo have reinforced the agreement. Arranged marriages of this kind place a heavier obligation on the descendants of those marriages to fulfil the whanaungatanga responsibilities that are also consistent with their mana moana.
• 4.87 Utu may involve hui in order for a state of ea to be achieved.

Identify any relevant kōrero tuku iho and related mātauranga such as whakataukī, whakatauākī and mōteatea to build understanding of the tikanga engaged and their application in context. Where tikanga is engaged at an iwi or hapū level, identify how kōrero tuku iho and related mātauranga are expressed by those iwi and hapū.

STEP 2: IDENTIFY RELEVANT KŌRERO TUKU IHO AND RELATED MĀTAURANGA, INCLUDING, FOR EXAMPLE, WHAKATAUKĪ, WHAKATAUĀKĪ, WAIATA AND MŌTEATEA

• 4.88 Some iwi and hapū trace the whakapapa of shellfish to Hinemoana, a daughter of Hineahuone. Hinemoana personifies water and constantly bites or gnaws Papatūānuku as tides rise and fall, articulated in the whakataukī “Te ngaunga a Hinemoana”.6

(a) Where tikanga is being engaged at an iwi, hapū or whānau level, identify any similar situations that have occurred within the iwi, hapū and whānau.

(b) Where it is difficult to identify similar situations within the whānau, hapū and iwi, consider similar situations in other iwi of the same waka before identifying similar situations in any iwi, hapū or whānau.

(c) Alternatively, where tikanga is not being engaged at an iwi, hapū or whānau level, identify any similar situations that have occurred in any iwi, hapū or whānau.

STEP 3: IDENTIFY OTHER SIMILAR SITUATIONS

• 4.89 Recently, two hapū of the same iwi as Ngāti Tuatoru and Ngāti Tuawhā entered into a kawenata (covenant) that set out the different areas of their rohe over which they have mana whenua and the basis of that mana whenua. The kawenata also sets out how the hapū wish to engage with the local council should the council be required to consult local hapū in relation to the whenua.

⁶ Hirini Moko Mead and Neil Grove Ngā Pēpeha a ngā Tīpuna (Victoria University Press, 2001) at 383.

• 4.90 Two other iwi of the same waka to which Ngāti Tuatoru and Ngāti Tuawhā affiliate have found a tikanga-led resolution in a similar context. The two iwi have been placed in the same large natural grouping for the purposes of a settlement with the Crown relating to breaches by the Crown of te Tiriti o Waitangi | Treaty of Waitangi. Commercial redress in the settlement includes 40 deferred selection properties that the large natural grouping will have a right to purchase from the Crown for a period after settlement. The iwi have entered into an agreement, separate to the Crown, that sets out which deferred selection properties they should each have a right to purchase under the settlement in accordance with tikanga. If both iwi agree, the large natural grouping will purchase the deferred selection properties from the Crown after settlement and transfer them to the iwi with the greater interest.

CASE STUDY 5: CREATING A WHĀNAU THROUGH SURROGACY

The facts

Rāniera and Matthew are a married male couple who have been together for 15 years when they decide they are ready to start a whānau via surrogacy. Rāniera is of Ngāti Tuarima, and Matthew moved to Aotearoa New Zealand from Scotland when he was three.

Rāniera has a brother who is married to Erana. Erana is of Ngāti Tuaono, and she has agreed to be Rāniera and Matthew’s surrogate. Rāniera and Matthew hope Erana will be able to have two children by surrogacy for them to raise so they (Rāniera and Matthew) can each be a genetic parent of one of the children.

Rāniera and Matthew start looking for an ova donor whose ova will be used with their sperm to create embryos for implantation in Erana via in vitro fertilisation (IVF). Rāniera and Matthew would like the ova donor to be Māori so that the children will share the same whakapapa. Otherwise, only the child whose genetic parent is Rāniera will be Māori with whakapapa to a hapū and iwi.

Rāniera and Matthew meet Anahera through one of Matthew’s work colleagues, and they become close friends. Anahera is of Ngāti Tuawhitu. After Rāniera and Matthew have known Anahera for a year, they mention to her that they are looking for an ova donor, and she immediately offers to help.

Rāniera, Matthew, Erana, her husband and Anahera begin the surrogacy process. It involves getting approval for the surrogacy arrangement from the Ethics Committee on Assisted Reproductive Technology, a committee designated by the Minister of Health. To get approval, Rāniera, Matthew, Erana, her husband and Anahera must meet certain requirements under guidelines applying to surrogacy arrangements involving IVF. This includes a requirement for each individual and the group to have counselling regarding the surrogacy arrangement. The counselling must be “culturally appropriate” and provide for “whānau involvement”.7 A principle of the only legislation that directly addresses surrogacy (the Human Assisted Reproductive Technology Act 2004) also states that “the needs, values and beliefs of Māori should be considered and treated with respect” by all people exercising powers or functions under the legislation.8

The parents of Anahera come with her to both her individual counselling appointment and the group counselling appointment. They want to understand how tikanga will be acknowledged and complied

7. Advisory Committee on Assisted Reproductive Technology Guidelines for family gamete donation, embryo donation, the use of donated eggs with donated sperm and clinic assisted surrogacy (September 2020) at [B(3)].

⁸ Human Assisted Reproductive Technology Act 2004, s 4(f).

with in the surrogacy arrangement. They are also concerned to ensure the future children are born

and raised in a manner consistent with tikanga.

Figure 12: The relationships between the individuals involved in the surrogacy arrangement and their hapū

Applying the guide to case study 5

Identify the concepts of tikanga Māori that are engaged by the factual situation, including associated responsibilities and relevant tikanga processes and procedures. Where tikanga is engaged at an iwi, hapū or whānau level, identify how the concepts, including the associated responsibilities and processes or procedures, are expressed by those iwi, hapū or whānau. Consider the following:

(a) The structural concepts of whakapapa and whanaungatanga.

STEP 1: IDENTIFY THE TIKANGA

• 4.91 One of the future children will whakapapa to Ngāti Tuarima and the whānau of Rāniera through Rāniera. Both children will whakapapa to Ngāti Tuawhitu and the whānau of Anahera through Anahera. Both children may also be considered to whakapapa to Ngāti Tuaono and the whānau of Erana through Erana. This is because Erana will become pregnant, carry and give birth to the children.
• 4.92 Whanaungatanga is already engaged between Matthew, Rāniera and Erana because Erana is Rāniera’s brother’s wife. In agreeing to be Matthew and Rāniera’s surrogate, Erana may be fulfilling her responsibilities arising from whanaungatanga to show aroha

and manaakitanga. In fulfilling these responsibilities, Erana will be helping to ensure the whakapapa of Rāniera continues and that Rāniera and Matthew do not become whare ngaro (lost houses). Whare ngaro is a term alluding to the loss of whakapapa resulting from infertility.

• 4.93 The surrogacy arrangement may generate whanaungatanga between Erana and Anahera because they will both be involved in the creation of a whānau through the surrogacy arrangement.
• 4.94 Whanaungatanga already exists between Matthew, Rāniera and Anahera through their close friendship. Whanaungatanga does not always require direct whakapapa. The whanaungatanga between Matthew, Rāniera and Anahera may also be a reason for Anahera offering to donate her ova for the surrogacy arrangement. Similar to Erana, Anahera may be fulfilling her responsibilities to show aroha and manaakitanga arising from whanaungatanga. Anahera will also be helping to ensure the whakapapa of Rāniera continues and that Rāniera and Matthew do not become whare ngaro.
• 4.95 The surrogacy arrangement will further strengthen whanaungatanga between Matthew, Rāniera, Erana and Anahera. Matthew and Rāniera will have whanaungatanga responsibilities to show Erana and Anahera aroha and manaakitanga due to the surrogacy arrangement.
• 4.96 The surrogacy arrangement will also further strengthen whanaungatanga between the individuals and their respective whānau and hapū, particularly when the children are born. The whānau and perhaps the hapū of each individual will want to be involved in the children’s upbringing in order to fulfil their own responsibilities (to show aroha and manaakitanga) arising from whanaungatanga. Part of fulfilling these responsibilities will include ensuring both children are aware of their whakapapa.
• 4.97 Whanaungatanga is also engaged between Rāniera, Erana, Anahera as individuals and their respective whānau and hapū. Their whānau and hapū could disagree with their involvement in the surrogacy arrangement (perhaps because they consider it is not tika). If this happens, whanaungatanga and a responsibility arising from it to act in accordance with kotahitanga may require the person’s involvement in the surrogacy arrangement to cease.

(b) The relational concepts of mana, tapu and noa arising from the status of an entity and:

(i) to the extent mana is engaged, its source; and

(ii) to the extent mana and tapu are engaged, the relevance of that to the protection of mauri.

(ii)

• 4.98 The individuals, the whānau and the hapū have mana in relation to the surrogacy arrangement. The mana is sourced differently, so we identify the sources of the mana of the individuals, the whānau and the hapū below:

(a) The sources of the mana of both Anahera and Erana are mana tangata, mana tupuna and mana wāhine.

(b) The sources of the mana of Rāniera are mana tangata and mana tupuna.

(c) The source of the mana of Matthew is mana tangata.

(d) The source of the mana of the whānau and hapū is mana tupuna.

• 4.99 The mana of the individuals, whānau and hapū will be diminished, maintained or enhanced depending on how they fulfil their responsibilities in the surrogacy arrangement. In this context, the responsibilities associated with mana are the same as those arising from whanaungatanga described above. The individuals, whānau and hapū have responsibilities to show aroha and manaakitanga. The individuals also have a responsibility to act in accordance with kotahitanga.
• 4.100 Female reproductive organs and their functions are considered particularly tapu. Anahera will therefore be in a heightened state of tapu during ova donation. Erana will be in a heightened state of tapu during pregnancy and birth.
• 4.101 Noa is relevant to the extent that the tapu of Anahera and Erana might be actively reduced through a process to whakanoa to allow medical treatment in the surrogacy arrangement to occur. The purpose of a process to whakanoa would be to avoid a breach of tapu.
• 4.102 The mauri of Erana and Anahera may be affected due to the general health risks associated with pregnancy (in relation to Erana) and ova donation (in relation to Anahera). The mauri of Erana and Anahera will need to be protected throughout the surrogacy arrangement. Protection will be partially achieved by Matthew and Rāniera fulfilling their responsibilities to show aroha and manaakitanga and by ensuring that the tapu of Erana and Anahera is respected.

(c) Responsibilities associated with the structural and relational concepts, including, for example, kaitiakitanga, manaakitanga and aroha.

• 4.103 In this factual situation, the relevant responsibilities arising from whanaungatanga and associated with mana are aroha, manaakitanga and kotahitanga:

(a) Erana and Anahera are showing aroha and manaakitanga by agreeing to be involved in the surrogacy arrangement.

(b) Matthew and Rāniera will need to show aroha and manaakitanga towards Erana and Anahera, their whānau and their hapū during the surrogacy arrangement.

(c) The whānau and hapū will want to show aroha and manaakitanga to all involved, particularly the future children.

(d) If the surrogacy arrangement is not considered tika by the respective whānau and hapū of the individuals, they may be required to cease their involvement in the surrogacy arrangement in accordance with kotahitanga.

(d) The take in the context, and the prescriptive concepts of utu and ea for maintaining balance.

• 4.104 The take in this context is Anahera agreeing to donate her ova and Erana agreeing to become pregnant, carry and give birth to children Matthew and Rāniera will raise.
• 4.105 The appropriate utu in this context will be, at a minimum, ensuring each person, whānau and hapū can fulfil their responsibilities arising from whanaungatanga and associated with mana. More may be required for a state of ea to be achieved. For example, the whānau

of Rāniera and his hapū may wish to give a koha to Erana and Anahera, their whānau and/or their hapū to recognise their involvement in the surrogacy arrangement.

(e) Any other concepts of tikanga Māori that are engaged.

• 4.106 Tika may be engaged in this context. This is about whether the surrogacy arrangement is considered to be ethically and culturally right. Views may differ among the whānau and hapū about whether the surrogacy arrangement is tika.
• 4.107 Whakamā (shame) could also be engaged in this context. If the responsibilities engaged in this factual situation are not fulfilled, utu will not have been appropriate and so a state of ea will not be achieved. This could place some or all of the individuals, their whānau and the hapū in a state of whakamā.

(f) Any tikanga `processes or procedures that have been, are, or could be engaged.

• 4.108 If Matthew and Rāniera do not have children, they will become whare ngaro. As earlier explained, the term literally translates to lost houses and alludes to infertility resulting in the loss of whakapapa.
• 4.109 Some may consider the surrogacy arrangement is similar to a whāngai (customary adoption) or atawhai (caregiving) arrangement, where a child is given to others to raise for a variety of reasons, including infertility.
• 4.110 There could be karakia (ritual prayers) during medical treatment in the surrogacy arrangement, to whakanoa Anahera and Erana for limited periods to avoid breaches of tapu relating to their reproductive organs and functions.
• 4.111 An individual, whānau or hapū may wish to give koha to recognise the contribution of Anahera and Erana to the surrogacy arrangement if it is considered an appropriate utu for a status of ea to be achieved.
• 4.112 There are many tikanga associated with childbirth. For example, the whenua (placenta) and pito (umbilical cord) of Māori children are often returned to the land to which they are connected through whakapapa, and sometimes tohi (ritual ceremonies) are conducted after birth. The whānau may need to consider where the whenua and pito of the children born as a result of the surrogacy arrangement are returned to as well as whether there should be a tohi.

Identify any relevant kōrero tuku iho and related mātauranga such as whakataukī, whakatauākī and mōteatea to build understanding of the tikanga engaged and their application in context. Where tikanga is engaged at an iwi or hapū level, identify how kōrero tuku iho and related mātauranga are expressed by those iwi and hapū.

STEP 2: IDENTIFY RELEVANT KŌRERO TUKU IHO AND RELATED MĀTAURANGA, INCLUDING, FOR EXAMPLE, WHAKATAUKĪ, WHAKATAUĀKĪ, WAIATA AND MŌTEATEA

• 4.113 The creation narrative of Te Kore, Te Pō and Te Ao Mārama is a metaphor for the birth process and emphasises the importance of women and their ability to give birth.9
• 4.114 Maternal figures feature prominently in kōrero tuku iho in the whakapapa of humanity. It is widely accepted by Māori that the first human, a woman named Hinetītama, was created by the children of Papatūānuku and Ranginui with the assistance of Papatūānuku, who provided the uha (female element).
• 4.115 There are numerous examples of whakataukī that indicate the significance of women and their ability to give birth. “He wahine, he whenua, e ngaro ai te tangata”, for instance, can be translated to mean that, without women to guarantee progeny and land, the people will perish.10

(a) Where tikanga is being engaged at an iwi, hapū or whānau level, identify any similar situations that have occurred within the iwi, hapū and whānau.

(b) Where it is difficult to identify similar situations within the whānau, hapū and iwi, consider similar situations in other iwi of the same waka before identifying similar situations in any iwi, hapū or whānau.

(c) Alternatively, where tikanga is not being engaged at an iwi, hapū or whānau level, identify any similar situations that have occurred in any iwi, hapū or whānau.

STEP 3: IDENTIFY OTHER SIMILAR SITUATIONS

• 4.116 The parents of Anahera are not aware of any situations in Ngāti Tuawhitu where a person has donated their ova for the purposes of a surrogacy arrangement. However, they do remember being told about a situation in the late 1800s where a tupuna of Ngāti Tuawhitu was unable to bear children of her own. Her husband, who was from a different hapū, had natural intercourse with other women and the tupuna raised the children. The children were considered to be descendants of Ngāti Tuawhitu by whakapapa, even though they did not have a genetic connection to the hapū.
• 4.117 Rāniera is the first person from his iwi to enter into a surrogacy arrangement as far as he is aware. He has spoken to his kuia about the proposed surrogacy arrangement, and she has told him that it sounds very similar to a whāngai arrangement. She herself is a whāngai and was raised by her grandmother. The kuia of Rāniera does not see any issue with the surrogacy arrangement in tikanga. In other words, she considers it to be tika. In her view, the most important thing is the children and ensuring that they know their whakapapa.
• 4.118 Another hapū from the same iwi as the hapū of Erana was recently involved in a surrogacy arrangement that occurred after a male couple posted online looking for a Māori ova donor. A donor from the hapū volunteered, and the hapū supported the surrogacy arrangement. There were 40 other potential Māori donors who responded to the post offering to help.

⁹ The creation narrative of Te Kore, Te Pō and Te Ao Mārama is described in Chapter 2.

10. Rangimarie Rose Pere Ako Concepts and Learning in the Māori Tradition (Te Kohanga Reo National Trust Board, Wellington, 1994) at 20.

CASE STUDY 6: A RĀHUI AND AN ASSAULT

The facts

A man and his two children drown while holidaying at a small beachside town. A rāhui (a process that formally restricts access to an area for a certain period) is placed on the beach by the local hapū, Ngāti Tuawaru. The rāhui extends to the local boat ramp and will be in place for at least three weeks as the search continues for the man’s body.

The rāhui frustrates local commercial fishing companies whose businesses will be affected by not being able to launch their vessels. The nearest boat ramp where they can launch is over two hours’ drive away. The crew of one commercial fishing vessel are drinking at a local pub when they make plans to launch their boat the next day despite the rāhui.

Matiu and Hōhepa are twins from Ngāti Tuawaru. They have grown up in the town and are closely connected to their hapū and marae. Their best friend Tim is not Māori but has grown up with Matiu and Hōhepa. Tim is considered a member of the whānau of Matiu and Hōhepa and attends hui at the marae, tangihanga and other hapū events.

Matiu, Hōhepa and Tim are at the local pub when they overhear the crew of the commercial fishing vessel planning to launch their boat the next day. The friends decide to go to the local boat ramp to try to stop them. At the boat ramp, a discussion escalates, and Matiu and Tim punch two of the crew. The crew are shaken but not otherwise physically injured. Matiu and Tim are charged and convicted of common assault.

Figure 13: The relationships between the hapū responsible for the rāhui, the individuals involved in the assault and the commercial fishers

Applying the guide to case study 6

Identify the concepts of tikanga Māori that are engaged by the factual situation, including associated responsibilities and relevant tikanga processes and procedures. Where tikanga is engaged at an iwi, hapū or whānau level, identify how the concepts, including the associated responsibilities and processes or procedures, are expressed by those iwi, hapū or whānau. Consider the following:

(a) The structural concepts of whakapapa and whanaungatanga.

STEP 1: IDENTIFY THE TIKANGA

• 4.119 Matiu and Hōhepa whakapapa to Ngāti Tuawaru. Ngāti Tuawaru also whakapapa to the beach on which the rāhui has been placed. This is because the beach was discovered and named by a tupuna of the hapū.
• 4.120 Whanaungatanga is engaged between Matiu and Hōhepa and Ngāti Tuawaru because of their whakapapa to Ngāti Tuawaru. Whanaungatanga is engaged between Matiu, Hōhepa and Tim because of their close friendship. Whanaungatanga is engaged between Tim and Ngāti Tuawaru because of Tim’s long association with the hapū. The whanaungatanga between Matiu, Hōhepa, Tim and Ngāti Tuawaru generates responsibilities between the three men and the hapū to show manaakitanga and act in accordance with kotahitanga.
• 4.121 Whanaungatanga is also engaged between Ngāti Tuawaru and the beach on which the rāhui has been placed because of the whakapapa of the hapū to the beach. The whanaungatanga between Ngāti Tuawaru and the beach generates kaitiakitanga responsibilities. Ngāti Tuawaru was fulfilling these responsibilities by placing the rāhui on the beach.

(b) The relational concepts of mana, tapu and noa arising from the status of an entity and:

(i) to the extent mana is engaged, its source; and

(ii) to the extent mana and tapu are engaged, the relevance of that to the protection of mauri.

(ii)

• 4.122 Matiu, Hōhepa and Tim each have mana. The sources of mana of Matiu and Hōhepa are mana tangata and mana tupuna. The source of Tim’s mana is mana tangata.
• 4.123 Ngāti Tuawaru also has mana. The source of the mana of the hapū is mana tupuna and mana moana based in take tupuna. That is because the hapū has whakapapa to the beach.
• 4.124 The mana of the three men and the hapū will be diminished, maintained or enhanced depending on how they fulfil their responsibilities. In this factual situation the responsibilities associated with the mana of the three men and the hapū are the same as the whanaungatanga responsibilities described above. The three men and Ngāti Tuawaru have responsibilities to show manaakitanga and act in accordance with kotahitanga. Ngāti Tuawaru has kaitiakitanga responsibilities in relation to the beach.
• 4.125 The commercial fishers also have mana. Similar to Tim, the source of each of their mana is mana tangata. The mana of the commercial fishers will be diminished, maintained or enhanced depending on how they fulfil responsibilities consistent with their mana. In this factual situation, the mana of the commercial fishers will be affected by their performance of associated responsibilities, such as showing manaakitanga by respecting the rāhui.
• 4.126 The beach over which the rāhui has been placed is extremely tapu because of the deaths that have occurred there.
• 4.127 By punching the commercial fishers, Matiu and Tim have breached the inherent tapu of the commercial fishers.
• 4.128 Noa is not strongly engaged. However, when the rāhui is lifted this will occur through a process of whakanoa. The whakanoa process will reduce the potency of the tapu and enable people to access the beach without restriction.
• 4.129 Mauri is not strongly engaged, although each individual and the beach has a mauri that may have been affected by these events. Had the commercial fishers managed to launch their vessel in breach of the rāhui, they may have further impacted the mauri of the beach by disrespecting its tapu.

(c) Responsibilities associated with the structural and relational concepts, including, for example, kaitiakitanga, manaakitanga and aroha.

• 4.130 In this factual situation, the relevant responsibilities arising from whanaungatanga and associated with mana are manaakitanga, kotahitanga and kaitiakitanga:

(a) The three men and Ngāti Tuawaru have responsibilities to show manaakitanga and act in accordance with kotahitanga.

(b) Ngāti Tuawaru has kaitiakitanga responsibilities in relation to the beach. This responsibility has been recognised by Ngāti Tuawaru by placing the rāhui on the beach.

(c) The commercial fishers have a responsibility to show manaakitanga in relation to the rāhui.

(d) The take in the context, and the prescriptive concepts of utu and ea for maintaining balance.

• 4.131 There are multiple take in this factual situation:

(a) While the three men were trying to show manaakitanga for Ngāti Tuawaru and the rāhui by seeking to get the commercial fishers to respect the restriction, they did not do so with hapū support. In fact, they acted unilaterally, which means they did not fulfil their responsibility to act in accordance with kotahitanga. They also violated the inherent tapu of the commercial fishers.

(b) By attempting to launch their vessel, the commercial fishers failed to respect the rāhui. In doing so, they did not fulfil their responsibility to show manaakitanga in relation to the rāhui. The failure to fulfil this responsibility is significant because of the level of tapu relating to the rāhui.

• 4.132 The take have diminished the mana of the three men, Ngāti Tuawaru and the commercial fishers. For a state of ea to be achieved, utu is required to remedy the parties’ respective failures to live up to their responsibilities. One way to achieve a state of ea is for Ngāti Tuawaru to call a hui so that all involved can agree to an appropriate utu. In taking this approach, Ngāti Tuawaru would be fulfilling its own responsibility to show manaakitanga to the three men. The responsibility arises from whanaungatanga and relates to the mana of the hapū.
• 4.133 If an appropriate utu can be agreed at a hui, the mana of the three men, the hapū and the commercial fishers could be restored. Utu may involve apologies being made in kōrero, the gifting of koha in the form of taonga or the offering of a service such as collecting rubbish from the beach over which the rāhui has been placed. If the commercial fishers chose not to attend the hui, that would not prevent the mana of the three men and the hapū being restored or a state of ea being achieved. It would simply result in the mana of the commercial fishers remaining diminished.

(e) Any other concepts of tikanga Māori that are engaged.

• 4.134 No other concepts appear to be engaged in this context.

(f) Any tikanga processes or procedures that have been, are, or could be engaged.

• 4.135 A rāhui is a process that formally restricts access to an area for a certain period. There are different causes for rāhui, one of which is the protection of natural resources. Where a rāhui is caused by death, as it is in this context, the rāhui recognises the tapu state of an area brought about by the death or deaths that have occurred.
• 4.136 Utu may involve hui, kōrero and the gifting of koha for a state of ea to be achieved.

Identify any relevant kōrero tuku iho and related mātauranga such as whakataukī, whakatauākī and mōteatea to build understanding of the tikanga engaged and their application in context. Where tikanga is engaged at an iwi or hapū level, identify how kōrero tuku iho and related mātauranga are expressed by those iwi and hapū.

STEP 2: IDENTIFY RELEVANT KŌRERO TUKU IHO AND RELATED MĀTAURANGA, INCLUDING, FOR EXAMPLE, WHAKATAUKĪ, WHAKATAUĀKĪ, WAIATA AND MŌTEATEA

• 4.137 Rāhui are a long-established practice, set in place to recognise or place an area in a state of tapu. Rāhui do not appear to be associated with a particular atua, nor have we been able to identify other mātauranga relating specifically to rāhui.

Where tikanga is being engaged at an iwi, hapū or whānau level, identify any similar situations that have occurred within the iwi, hapū and whānau.

(b) Where it is difficult to identify similar situations within the whānau, hapū and iwi, consider similar situations in other iwi of the same waka before identifying similar situations in any iwi, hapū or whānau.

(c) Alternatively, where tikanga is not being engaged at an iwi, hapū or whānau level, identify any similar situations that have occurred in any iwi, hapū or whānau.

STEP 3: IDENTIFY OTHER SIMILAR SITUATIONS

• 4.138 It is standard practice for Ngāti Tuawaru to place rāhui on areas where death has occurred to recognise tapu. One example is in relation to a river that connects to the beach where the most recent drownings have occurred. Forty years ago, a whānau from Ngāti Tuawaru drowned in the river while netting for tuna (eels). The hapū placed a rāhui on that part of the river. The rāhui is yet to be lifted so no one swims in that part of the river anymore. Ngāti Tuawaru also refrain from collecting kaimoana or water from any part of the river.

Part Two

Interaction between tikanga and state law

134 STUDY PAPER 24 – HE POUTAMA TE AKA MATUA O TE TURE | LAW COMMISSION

I think that there is a key distinction between law in the colonial period and that of the post-1970s modern period. It is this: where tikanga Māori was recognised during the colonial period, it was recognised only to the extent necessary to succeed in extinguishing it ... The recognition of custom in the modern era is different. It is intended to be permanent and, admittedly within the broad confines of the status quo, transformative.

Justice Joseph Williams1

1. Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 12. We acknowledge that not everyone regards the modern shift as “transformative”: see for example Moana Jackson “Changing realities: unchanging truths” (1994) 10 Australian Journal of Law and Society 115 at 116; Ani Mikaere Colonising Myths — Māori Realities | He Rukuruku Whakaaro (Huia Publishers, Wellington, 2011); Carwyn Jones New Treaty New Tradition: Reconciling New Zealand and Māori Law (UBC Press, Vancouver, 2016) at 42–50.

CHAPTER 5

Tikanga and the common law

INTRODUCTION

• 5.1 In this part, we provide an overview of the historical foundations of engagement and continuing engagement between tikanga and state law. The part shows the impact that tikanga has already had on state law and lays a foundation for Part Three in which we discuss strategies for their future engagement. Chapter 5 and Chapter 6 take a high-level historical overview of legal interactions between tikanga and the two main sources of state law — common law and statute. Chapter 7 considers specific areas of state law in more depth, describing how lawmakers in areas such as environmental law, criminal law and family law are currently engaging with tikanga.
• 5.2 In the present chapter, we begin by examining how the common law has engaged with tikanga. Modern cases have brought the relationship between tikanga and the common law into focus.1 While these decisions mark significant developments, the relationship between tikanga and the common law has developed over nearly two centuries. As judges begin to grapple with tikanga, understanding where we are and how we got here assumes importance.
• 5.3 We first discuss the engagement between tikanga and the common law through the customary law doctrine. We then examine modern authorities, beginning with Takamore v Clarke,2 that move beyond the application of customary law doctrines to engage with tikanga in new ways.

EARLY DEVELOPMENTS: TIKANGA AS CUSTOMARY LAW

• 5.4 The English common law brought with it doctrines concerning the recognition of “local custom”, and it was through that lens that state law first interacted with indigenous law in Aotearoa New Zealand. We highlight two preliminary points. First, many of the older authorities use “local custom”, “customary law” or “indigenous customary law” to refer to tikanga itself. We do not consider that custom and tikanga are synonymous and we have not used them as such in this paper. When we use the terms “customary law” or

1. See Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733; Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801; Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239; Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142.

² Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733.

“tikanga as custom” we are intending to refer only to common law recognition of tikanga and not to tikanga itself. Second, the common law has always contained doctrines to facilitate the recognition of local customs as part of the common law.3 The common law extended this recognition of custom to the custom of indigenous peoples in British colonies unless and until altered by legislation.4 Thus, extending recognition to tikanga through these doctrines was not novel from the common law’s perspective.

• 5.5 Two important, interrelated legal doctrines were brought with English common law to the new colony of Aotearoa New Zealand that shaped early engagement with tikanga:

(a) The doctrine of continuity recognised some pre-existing customs of indigenous inhabitants as having legal effect as customary law, despite the acquisition of British sovereignty.5 Indigenous custom was not recognised by the common law without meeting a threshold test that required the custom to have existed from time immemorial, to have continued as of right and without interruption since its origin, to be reasonable, and to not have been extinguished by statute.6 The doctrine of continuity was reflected in Aotearoa New Zealand by the English Laws Act 1858, which provided for the laws of England to apply in Aotearoa New Zealand “so far as applicable to the circumstances of the said Colony of New Zealand”.7

(b) The doctrine of native title considered the radical title acquired by the colonising power — in this case, the British Crown — to be subject to existing native rights.8 Those native rights cannot be extinguished otherwise than by the free consent of the native occupiers — and then only to the Crown and in strict compliance with the provisions of any relevant statutes.9

• 5.6 The two doctrines are interrelated because the first defines the content of any native rights or title asserted under the second.10 As Elias CJ was later to explain in Attorney- General v Ngati Apa, any property interest of the Crown in land over which it has acquired

3. The foundational case for these requirements is The Case of Tanistry (1608) Dav Ir 28, 80 ER 516 (KB) at 32; see also Sir William Blackstone Commentaries on the Laws of England (1765–9) (University of Chicago Press, London, 1979) vol 1 at 63: “[t]he lex non scripta, or unwritten law, includes not only general customs, or the common law properly so called, but also the particular customs of certain parts of the kingdom; and likewise, those particular laws that are by custom observed only in certain courts and jurisdictions”. Some parts of the common law in England evolved out of customary practices that were particular to various localities to become customary law common to the realm. See Brian Z Tamanaha A General Jurisprudence of Law and Society (Oxford University Press, Oxford, 2001) at 5; Alan Cromartie “The idea of common law as custom” in Amanda Perreau Saussine and James Bernard Murphy (eds) The Nature of Customary Law (Cambridge University Press, Cambridge, 2007) 203 at 222; AWB Simpson “The common law and legal theory” in AWB Simpson (ed) Legal Theory and Legal History: Essays on the Common Law (A&C Black, London, 1987) 359 at 373; and P J Fitzgerald Salmond on Jurisprudence (12th ed, Sweet & Maxwell Ltd, London, 1966) at 189.

⁴ Takamore v Clarke [2011] NZCA 587, [2012] 1 NZLR 573 at fn 43.

5. Takamore v Clarke [2011] NZCA 587, [2012] 1 NZLR 573 at [112] citing P G McHugh The Aboriginal Rights of the New Zealand Maori at Common Law (PhD Thesis, University of Cambridge, 1987) at 149–150 and 184.

⁶ Takamore v Clarke [2011] NZCA 587, [2012] 1 NZLR 573 at [109].

7. English Laws Act 1858, s 1. See also Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 11, citing Douglas Lambert “Van Der Peet and Delgamuukw: ten unresolved issues” (1998) 32 University of British Columbia Law Review 249 at 261.
8. Te Runanganui o Te Ika Whenua Inc Society v Attorney-General [1993] NZCA 218; [1994] 2 NZLR 20 (CA) at 23–24 per Cooke P for the Court.
9. R v Symonds (1847) NZPCC 387 at 390 per Chapman J, in a passage later expressly adopted by the Privy Council in a judgment delivered by Lord Davey: Nireaha Tamaki v Baker (1901) NZPCC 371 at 384.

¹⁰ Takamore v Clarke [2011] NZCA 587, [2012] 1 NZLR 573 at [120] per Glazebrooke and Wild JJ.

sovereignty depends upon any pre-existing customary interest and its nature, which is a question of fact:11

The content of such customary interest is a question fact discoverable, if necessary, by evidence ... As a matter of custom the burden on the Crown’s radical title might be limited to use or occupation rights held as a matter of custom ...

• 5.7 Initially, these two doctrines shaped two lines of case law through which the foundations of the doctrines in Aotearoa New Zealand were tested. We have therefore structured our discussion around:

(a) property rights cases that addressed rights and title in land, as founded in indigenous customary law; and

(b) “general custom” cases (that is, those not concerned with property) that addressed whether tikanga could be given effect to by the common law by meeting the criteria of a customary law recognition test.

PROPERTY RIGHTS

• 5.8 Before discussing how the courts have treated Māori customary property rights in state law, we observe that transforming tikanga-based relational rights and interests in whenua into alienable property rights and interests departs from the fundamental nature of that relationship in tikanga, which is based on whakapapa (connections) and whanaungatanga (kinship in an extended sense). Recognition in the form of alienable property rights or interests, while affirming rights to land in the common law, could thus not have been a direct application or recognition of tikanga.12 Case law identifies this important difference, noting that tikanga-based interests should not be conflated with and do not require proof of proprietorship in an English law sense.13
• 5.9 The courts’ modern treatment of Māori customary property rights is different to treatment in the colonial period, although there has not been a linear progression from rejection to acceptance. The cases demonstrate significant variations in approach. We have identified three broad themes in the authorities: outright rejection, acknowledgment without enforcement, and recognition. We discuss each of these themes below, then outline the modern approach as seen in Ngati Apa and Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board.

Rejection of proprietary rights

• 5.10 As is well known, the Court in Wi Parata v Bishop of Wellington in 1878 found that Māori were “without any kind of civil government, or any settled system of law”.14 The Court described te Tiriti o Waitangi | Treaty of Waitangi (the Treaty) as a “simple nullity” and dismissed the reference in the Native Rights Act 1865 to “the Ancient Custom and Usage

¹¹ Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA) at [31].

12. Anthropologists and prominent writers have argued that not all land was held communally and that Māori recognised concepts of private ownership. See Richard Boast “Māori land boards: experts at being defendants 1900–1950” [2021] OtaLawRw 4; (2021) 17 Otago Law Review 83 at 84; Te Maire Tau “Property rights in Kaiapoi” (2016) 47 Victoria University of Wellington Law Review 677.

¹³ Re Edwards (Te Whakatōhea No 2) [2021] NZHC 1025, [2022] 2 NZLR 772 at [129]–[130]; Re Reeder [2021] NZHC 2726

at [24]–[27].

¹⁴ Wi Parata v Bishop of Wellington (1878) 3 NZ Jur (NS) SC 72 at 77.

of the Maori people”, saying that “a phrase in a statute cannot call what is non-existent into being”.15 The Court also said that the Crown was the “sole arbiter” of its own justice as it relates to customary rights.16

• 5.11 The Privy Council expressly rejected the idea there could be no such thing as customary rights to land in Nireaha Tamaki v Baker in 1901.17 However, the influence of Wi Parata can be found deep into the twentieth century. An example is the 1963 decision in the Ninety Mile Beach case, where Wi Parata was cited for the proposition that it was for the Crown to determine the nature and incidents of any title it would confer and that “it must be the sole arbiter of its own justice”.18

Acknowledgement but not enforcement

• 5.12 Although Wi Parata had a powerful influence on the overall direction of the law as it related to customary property rights and interests, it was not universally applied. Some decisions did acknowledge the existence of customary interests in land based on tikanga, but then refused or failed to give effect to them. In Mangakahia v New Zealand Timber Co, Gilles J did not accept that the Treaty was a simple nullity and acknowledged the existence of customary interests in land. However, he found that they were not enforceable rights in the ordinary courts, saying:19

One of the attributes or incidents of land in fee simple under English law is that the owner being out of possession may by entry obtain a constructive trust possession as to entitle him by virtue of his freehold title to sue as a trespasser. No attribute or incident can be held to attach to an ownership according to native custom.

• 5.13 In other cases, courts deferred to the Crown to recognise customary interests or found that they did not survive the operation of other common law norms or statutes.20 For example, in Re the Bed of the Wanganui River Te Kōti Pīra | Court of Appeal (the Court of Appeal) rejected the idea that there could be ownership of the riverbed separate from ownership of the lands adjacent to the same bed, relying on factual findings of Te Kooti Pīra Māori | Māori Appellate Court (the Māori Appellate Court) about customary relationships to riverbeds. On that basis, the Court said that any interest to the riverbed was alienated when the title to the adjacent lands was alienated. This also meant that the ad medium filum rule (the common law presumption of riparian ownership to the middle of the flowing water) applied to exclude any adverse customary interests.21 Similarly, in Ninety Mile Beach, a claim to the foreshore failed because of the extinguishing effect of section 147 of the Harbours Act 1878.22

¹⁵ Wi Parata v Bishop of Wellington (1878) 3 NZ Jur (NS) SC 72 at 79. See also the Native Rights Act 1865, s 3.

¹⁶ Wi Parata v Bishop of Wellington (1878) 3 NZ Jur (NS) SC 72 at 78.

¹⁷ Nireaha Tamaki v Baker [1901] UKLawRpAC 18; [1901] AC 561 (PC) at 577. See the reasoning in Re Wanganui River Packet License to Stuart

[1903] NZGazLawRp 87; [1903] 23 NZLR 510 (SC) at 514 and Re the Ninety Mile Beach [1963] NZLR 461 (CA) at 476 for examples.

¹⁸ Re the Ninety Mile Beach [1963] NZLR 461 (CA) at 476.

¹⁹ Mangakahia v New Zealand Timber Co (1884) 2 NZLR 345 (SC) at 350.

20. See for example Re the Ninety Mile Beach [1963] NZLR 461 (CA); Waipapakura v Hempton [1914] NZGazLawRp 141; (1914) 33 NZLR 1065 (SC) at 1071–1072; Hohepa Wi Neera v Bishop of Wellington (1902) 21 NZLR 655 (CA); Inspector of Fisheries v Ihaia Weepu [1956] NZLR 920 (HC).
21. Re the Bed of the Wanganui River [1962] NZLR 600 (CA) at 609 per Gresson J, 616–617 per Cleary J and 624 per Turner J.

²² Re the Ninety Mile Beach [1963] NZLR 461 (CA).

Recognition of customary proprietary rights

• 5.14 R v Symonds, which predated Wi Parata, is a case that indicated early acceptance of custom as giving rise to property rights and interests.23 In that case, which involved a dispute between two British settlers over the validity of a Crown grant, Chapman J observed:24

Whatever may be the opinion of jurists as to the strength or weakness of the Native title, whatsoever may have been the past vague notions of the Natives of this country, whatever may be their present clearer and still growing conception of their own dominion over land, it cannot be too solemnly asserted that it is entitled to be respected, that it cannot be extinguished (at least in times of peace) otherwise than by the free consent of the Native occupiers.

• 5.15 In Tamihana Korokai v Solicitor-General, the full Court of Appeal recognised the existence of customary rights to a lake bed and their enforceability in the Native Land Court. The Court held that Native Land Court applicants were entitled to have their title investigated unless it was shown the title had been extinguished by statute, cession or Crown grant. 25
• 5.16 The prior existence of customary property rights in respect of riverbeds and the foreshore was also confirmed by the Court of Appeal in the first Wanganui River case and the Ninety Mile Beach case respectively.26 While the Court of Appeal ultimately found the respective rights had not survived alienation of adjacent lands or statutory extinguishment, it did not doubt the prior existence of customary property rights to riverbeds and to the foreshore.

Modern approach: Ngati Apa and Trans-Tasman Resources

• 5.17 The now-settled approach in state law to customary property interests is that they are enforceable in the ordinary courts unless expressly extinguished by statute.27
• 5.18 In the 2003 Ngati Apa case, which concerned Māori customary interests in the foreshore and seabed, the Court of Appeal found that Te Kooti Whenua Māori | Māori Land Court could inquire into whether certain land below the high-water mark is Māori customary land. Elias CJ stated that:28

23. R v Symonds [1840– 1932] NZPCC 387 (SC); see also Shaunnagh Dorsett Juridical Encounters: Māori and the Colonial Courts 1840–1852 (University of Auckland Press, Auckland, 2017) at 50–69, 85, 90 and 155. The Symonds line of authority has been interpreted differently by some prominent writers, with emphasis placed on the fact that non-Māori were the beneficiaries of the application of customary interests. See Sarah Down and David V Williams “Building the foundations of tikanga jurisprudence” [2022] CanterLawRw 2; (2022) 29 Canterbury Law Review 27.

²⁴ R v Symonds [1840– 1932] NZPCC 387 (PC) at 390.

25. Tamihana Korokai v Solicitor-General [1912] NZGazLawRp 230; (1912) 32 NZLR 321 (CA) at 345 per Stout CJ, at 349–350 per Edwards J, 351 per Williams J and 356 per Chapman J.
26. See Re the Bed of the Wanganui River [1955] NZLR 419 (CA) at 461 per North J who observed that, prior to the Treaty of Waitangi, the bed of the river would have been tribal property. In the same case at 427–433, Cooke J found the following factors influential in determining the claimants held the bed of the Wanganui river under their customs and usages as at 1840: the river was in the boundaries of the Wanganui iwi; the river was an integral part of the community life of the iwi; fishing weirs were attached to the bed of the river and the evidence illustrated that the river was a highway

for the iwi. In Re the Ninety Mile Beach [1963] NZLR 461 (CA) at 467, Gresson J affirmed that the foreshore of the Ninety Mile Beach had immediately before the Treaty been part of the territory in respect of which the two appellate iwi exercised exclusive dominion and control and therefore deemed to own and occupy those lands.

27. Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA) at [32]–[33]; Paki v Attorney-General [2012] NZSC 50, [2012] 3 NZLR 277.

²⁸ Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA) at [49].

Maori custom and usage recognising property in foreshore and seabed lands displaces any English Crown prerogative and is effective as a matter of New Zealand law, unless such property interests have been lawfully extinguished.

• 5.19 Tipping J said that “Maori customary law is an ingredient of the common law of New Zealand”.29 In respect of the customary title, he said:30

... Maori customary title was, as I have already discussed, not a matter of grace and favour but of common law. Having become part of the common law of New Zealand, it could not be ignored by the Crown unless and until Parliament had clearly extinguished it, and then only subject to whatever might have been put in its place.

• 5.20 In Paki v Attorney-General in 2012, Te Kōti Mana Nui | Supreme Court (the Supreme Court) affirmed the Ngati Apa reasoning in the context of customary property interests in the Waikato River. Following Ngati Apa, Elias CJ held that “application of the common law presumption of riparian ownership to the middle of the flow could not arise until Maori customary interests were excluded”.31 Māori customary interests in the riverbed therefore displaced the common law presumption of riparian ownership to the middle of the riverbed.
• 5.21 In 2021 the Supreme Court in Trans-Tasman Resources unanimously held that a statutory reference in the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZ Act) to “existing interests” in the coastal marine area included tikanga- based interests that had been claimed but not yet granted by the courts under the Marine and Coastal Area (Takutai Moana) Act 2011 (Takutai Moana Act).32 The Court concluded that tikanga will be “applicable law” under the EEZ Act where its recognition and application is appropriate to the particular circumstances of the consent application at hand.33 The Court also held that “tikanga-based customary rights and interests” were existing interests under relevant legislation.34
• 5.22 The Court of Appeal had held that it was:35

... axiomatic that the tikanga Māori that defines and governs the interests of tangata whenua in the taonga protected by the Treaty is an integral strand of the common law of New Zealand.

• 5.23 Importantly, the Court explained that the continued existence of customary property rights necessarily implies the continued existence and operation of tikanga defining their nature and extent.36 The Supreme Court agreed with the Court of Appeal that the Takutai

²⁹ Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA) at [185].

³⁰ Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA) at [208].

³¹ Paki v Attorney-General [2012] NZSC 50, [2012] 3 NZLR 277 at [18].

32. Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [149] per William Young and France JJ, [237] per Glazebrook J, [296] per Williams J and [332] per Winkelmann CJ.
33. Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [169] per William Young and France JJ, [237] per Glazebrook J, [296]–[297] per Williams J and [332] per Winkelmann CJ.
34. Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012, s 59(2)(a). See Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [8] and [154]–[155] per William Young and France JJ, [237] per Glazebrook J, [296]–[297] per Williams J and [332] per Winkelmann CJ.

³⁵ Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2020] NZCA 86, [2020] NZRMA 248 at [177].

36. Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2020] NZCA 86, [2020] NZRMA 248 at [177], citing the same observation made by Tipping J in Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA) in relation to tikanga of customary land.

Moana Act was not the source of customary interests but rather the mechanism for their recognition.37 The rights claimed under the Takutai Moana Act were “existing interests”.38

• 5.24 In addressing the status of tikanga, France and Young JJ observed that tikanga has been “treated as norms influencing the development of the common law”.39 Their Honours added that “tikanga Māori is a body of customs and practices, part of which is properly described as custom law” and that “tikanga as law” is a subset of the customary values and practices referred to in the EEZ Act. On that reasoning, it followed that tikanga was “applicable law”.40 In a footnote, France and Young JJ left open the question of whether tikanga is a separate or third source of law and whether there should be any change to the threshold tests set out in Public Trustee v Loasby (discussed below).41 They also gave an illustration of how tikanga might be engaged under the EEZ Act. They said that the decision maker would look at the tikanga itself and consider what it might say about the rights or interests of customary “owners” or of the resource itself. For instance, if the tikanga emphasises mauri, consideration of environmental effects (as required by the EEZ Act) would extend beyond physical effects.42
• 5.25 Williams J agreed with France and Young JJ’s reasoning as to the relevance of tikanga. However, he added that what is meant by “existing interests” and “other applicable law” “must not only be viewed through a Pākehā lens”, commenting:43

As the Court of Appeal rightly pointed out, the interests of iwi with mana moana in the consent area are the longest-standing human related interests in that place. As with all interests, they reflect the relevant values of the interest-holder. Those values — mana, whanaungatanga and kaitiakitanga — are relational. They are also principles of law that predate the arrival of the common law in 1840.

• 5.26 The judgments of the Court of Appeal and the Supreme Court in Trans-Tasman Resources recognised tikanga both as a strand of the common law and as “law” in its own right. In order to do this, the courts built on existing and established common law principles grounded in the presumption of continuity. This exemplifies the common law method in action.

GENERAL CUSTOM

• 5.27 The category we describe as “general custom” captures all customs that are not concerned with interests or rights in property. In the 1908 case of Public Trustee v

37. Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [154] per France and William Young JJ.
38. Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [154] per France and William Young JJ referring to Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733.
39. Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [168] per France and William Young JJ.
40. Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [171] per France and William Young JJ.

⁴¹ Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at fn 282.

⁴² Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [172].

⁴³ Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [297].

Loasby,44 the Court considered that a custom could give rise to enforceable rights in the courts if it satisfied the criteria that:45

(a) the custom existed as a general custom;

(b) it is not contrary to statute; and

(c) it is reasonable, taking the whole of the circumstances into account.

• 5.28 In Loasby, the Court considered whether the costs of the tangi of rangatira Mahupuku should be paid by the Public Trustee. The Court found that tangi were a well-established custom, saying:46

... it is no objection to a custom founded, as this is, on immemorial usage that it is not comfortable to the common law of the land, for it is of the very essence of the custom that it should vary from it.

• 5.29 In this respect, the Loasby decision may be contrasted with the earlier 1888 case of Rira Peti v Ngaraihi Te Paku, in which Prendergast CJ had refused to recognise Māori customary marriage and therefore entertain the plaintiff’s interest in the deceased’s estate unless they were recognised by law. He said:47

The natives are British subjects, their relations to each other are governed by the laws of the land, and not by their usages, unless, and only so far as these laws have provided for their recognition of their usages.

• 5.30 Subsequent to Loasby, general customs were also recognised by the Privy Council in the 1919 case of Hineita Rirerire Arani v Public Trustee of New Zealand.48 The case concerned the customary adoption of a non-Māori child by Māori and whether the child could succeed to Māori land interests that were otherwise inalienable to non-Māori under the relevant native lands legislation.49 The Privy Council recognised the right of Māori to adopt both according to their customs and according to the relevant legislation, saying:50

It would, therefore, appear that a Maori has the same rights of availing himself of the Adoption of Children Act as a person of European descent ... The right of the Maori to adopt according to his own custom is not interfered with by giving him a further right to adopt in the form and under the conditions provided by the Act.

• 5.31 The Privy Council also recognised Māori authority to modify their own customs, saying that Māori “as a race may have some internal power of self-government enabling the tribe or tribes by common consent to modify their customs”.51
• 5.32 The criteria set out in Loasby for recognition of general custom were endorsed nearly 80 years later by Te Kōti Matua | High Court (the High Court) in Huakina Development Trust v Waikato Valley Authority.52 In that case, the High Court held that “customs and practices that include spiritual elements are cognisable in a court of law provided they are properly

⁴⁴ Public Trustee v Loasby [1908] NZGazLawRp 71; (1908) 27 NZLR 801 (SC).

⁴⁵ Public Trustee v Loasby [1908] NZGazLawRp 71; (1908) 27 NZLR 801 (SC) at 806.

⁴⁶ Public Trustee v Loasby [1908] NZGazLawRp 71; (1908) 27 NZLR 801 (SC) at 806.

⁴⁷ Rira Peti v Ngaraihi Te Paku [1888] 7 NZLR 235 (HC) at 239.

⁴⁸ Hineiti Hirerire Arani v Public Trustee of New Zealand (1919) NZPCC 1 (PC).

⁴⁹ Hineiti Hirerire Arani v Public Trustee of New Zealand (1919) NZPCC 1 (PC) at 1–2.

⁵⁰ Hineiti Hirerire Arani v Public Trustee of New Zealand (1919) NZPCC 1 (PC) at 4.

⁵¹ Hineiti Hirerire Arani v Public Trustee of New Zealand (1919) NZPCC 1 (PC) at 5.

⁵² Huakina Development Trust v Waikato Valley Authority [1987] NZHC 130; [1987] 2 NZLR 188 (HC).

established, usually by evidence”.53 In the 2004 case of Proprietors of Parininihi Ki Waitotara Block v Ngaruahine Iwi Authority, the High Court held that Loasby stated the criteria that Māori custom must meet to be part of the common law of Aotearoa New Zealand.54 The Loasby approach was also largely adopted by the Court of Appeal in R v Iti in 2008.55 This case considered whether a defence based on tikanga was available to the defendant, Mr Iti, who had been charged with the unlawful discharge of a firearm. In finding that the defence was not available, the Court found that the tikanga claimed by the defendant could not be reconciled with the relevant statutory policy.56

Modern approach to custom: Loasby overruled

• 5.33 In Ellis v R, the Supreme Court gave considerable attention to the relationship between tikanga and the common law.57 The Court was addressing whether, and to what extent, tikanga should inform the law as it relates to rights of appeal in respect of a deceased person. The case was not expressly concerned with either property or general custom. 58 Nonetheless, a majority of the Court overruled Loasby.59
• 5.34 Glazebrook J, with whom Winkelmann CJ and Williams J agreed,60 considered that the Loasby incorporation rules are “colonial relics with no place in modern Aotearoa/New Zealand”.61 Several cases pre-dating Ellis had cast doubt on the need for “colonial incorporation tests”.62 There is now no good reason, Glazebrook J considered, to retain the incorporation rules in any context given their incompatibility with the nature of tikanga and the underlying premise of the superiority and dominance of Western law.63 The majority on this point did not reformulate a test for the incorporation of custom into the common law or indeed indicate whether in their view a test or framework would be appropriate at all.64 The minority on this point considered that the Loasby test should not have been overruled in Ellis, where no counsel argued it should be overruled and where the Court was not in a position to articulate what would replace it.65

⁵³ Huakina Development Trust v Waikato Valley Authority [1987] NZHC 130; [1987] 2 NZLR 188 (HC) at 215.

⁵⁴ Proprietors of Parininihi ki Waitotara Block v Ngaruahine Iwi Authority [2004] 2 NZLR 201 (HC) at [18].

⁵⁵ R v Iti [2007] NZCA 119, [2008] 1 NZLR 587.

⁵⁶ R v Iti [2007] NZCA 119, [2008] 1 NZLR 587 at [50].

⁵⁷ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239.

⁵⁸ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 is addressed below in more detail.

59. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [113]–[115] per Glazebrook J, and Winkelmann CJ and Williams J in agreement at [177] and [260] respectively.

⁶⁰ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [177] and [260].

⁶¹ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [113].

62. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [114]: “[The Supreme Court] in Trans-Tasman said that the tests set out in Loasby were not necessary on the approach taken by this Court in Takamore (where tikanga was seen as a relevant factor but not controlling).” In addition, Glazebrook J cited at fn 133 her own suggestion in the earlier Takamore (CA) decision at [254] that a “more modern” approach could be taken that did not rely on strict colonial rules, and Williams J recorded his view at [260] of Ellis v R that the Supreme Court in Takamore had implicitly abandoned the Loasby test.

⁶³ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [113]–[115].

64. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [116] per Glazebrook J, [183] per Winkelmann CJ and [261] per Williams J.

⁶⁵ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at fn 279.

• 5.35 The implications of the cases discussed above and how the law might develop in the absence of the Loasby criteria are discussed in Chapter 8. As that discussion makes clear, some aspects of tikanga will continue to be incorporated into the common law and given effect to through the customary law doctrine.
• 5.36 However, the courts have also re-examined the place of tikanga in the common law. Further decisions reposition tikanga from being recognisable to the common law through the customary law doctrine to:

(a) providing a source of values that can inform the common law;66 and

(b) recognising tikanga as being a separate source of law.67

• 5.37 In advance of our Chapter 8 discussion, we next review case law relating to each of these categories.

FURTHER DEVELOPMENTS: TIKANGA VALUES AND TIKANGA AS LAW

Tikanga values

Takamore v Clarke

• 5.38 The Supreme Court’s 2012 decision in Takamore v Clarke marked a significant step in the relationship between tikanga and the common law.68 This case addressed the place of tikanga in the law relating to burial. None of the three Supreme Court judgments applied the Loasby test, preferring instead to recognise tikanga alongside other important values as a “relevant factor in deciding on the burial place of a person with Māori whakapapa”. 69 Weighing these values, the Court nevertheless found that the decision for burial lay with the deceased’s wife and not his whānau.70
• 5.39 The significance of this decision should not be underestimated. It is one of the first cases that recognises tikanga values as having legal significance within the common law.71 In Part One of this paper, we demonstrate that tikanga is a complex system of values, norms and rules that exists naturally within mātauranga Māori. Until Takamore, outside of statutory incorporation, the common law did not directly engage with tikanga values. Engagement continued to be framed by reference to the Loasby test or the rules applying to recognition of property interests. By contrast, Takamore allowed the common law to look beyond customary practices and their “reasonableness” to the broader normative and legal significance of tikanga values.

⁶⁶ Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [94].

⁶⁷ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [111] per Glazebrook J.

68. Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733. See the analysis in Carwyn Jones “Lost from sight: developing recognition of Māori law in Aotearoa New Zealand” (2021) 1(2) Legalities 162.
69. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [95], citing Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [164] per Tipping, McGrath and Blanchard JJ.

⁷⁰ Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [169] per Tipping, McGrath and Blanchard JJ.

71. Courts of specialist jurisdiction such as Te Kooti Whenua Māori | Māori Land Court and Te Kōti Taiao | Environment Court have operated within legislative frameworks that facilitate the incorporation of tikanga into their operation and decisions since the early 90s. Although significant, those jurisdictions exist within their relevant legislative frameworks, while Takamore was decided in the context of the common law outright.

• 5.40 The Supreme Court found that Mr Takamore’s widow should have the power to decide where he would be buried.72 However, the majority of Tipping, McGrath and Blanchard JJ considered that tikanga was a relevant consideration for the executor when making the burial decision.73 The majority judgment did not attempt to apply the Loasby criteria for recognition of custom, holding instead that the values of tikanga and corresponding customary practice were a relevant consideration for the person who has the common law right and duty to dispose of a deceased’s body.74
• 5.41 Elias CJ took a different approach to the majority, focusing on the resolution of competing values.75 Her Honour made the following points in relation to tikanga values and the common law:

(a) Values and cultural precepts important in Aotearoa New Zealand society must be weighed in the common law method according to their materiality in the particular case.76

(b) Māori custom according to tikanga is part of the values of the Aotearoa New Zealand common law.77

(c) What constitutes Māori custom is a question of fact for expert evidence or reference to the Māori Appellate Court in the appropriate case.78

(d) A court engaged in a process of identifying custom is “not engaged in the same process of interpretation or law creation, as is its responsibility in stating the common law”.79

(e) The law cannot give effect to customs or values that are contrary to statute or to fundamental principles and policies of the law.80

(f) The reasonableness of the tikanga is not determined by an observed aspect (for example, forcible removal) but rather by reference to the underlying values that define the custom.81

Post-Takamore

• 5.42 Since Takamore, the courts have begun to consider tikanga values where appropriate to do so in the circumstances of the case. For example, in Sweeney v The Prison Manager, Spring Hill Corrections Facility, the High Court found that revoking the plaintiff’s prison

72. Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [12] per Elias CJ, [165] per Tipping, McGrath and Blanchard JJ and [175] per William Young J.

⁷³ Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [156] per Tipping, McGrath and Blanchard JJ.

⁷⁴ Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [112]–[119] and [152].

⁷⁵ Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [92].

⁷⁶ Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [94].

77. Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [94], citing Public Trustee v Loasby [1908] NZGazLawRp 71; (1908) 27 NZLR 801 (SC) at 807.

⁷⁸ Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [95].

⁷⁹ Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [95].

⁸⁰ Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [95].

⁸¹ Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [96].

visitor’s pass was unlawful.82 The plaintiff was Māori and worked as an addictions counsellor. The Court held that a declaration was necessary in order to uphold the plaintiff’s mana (authority, esteem) and vindicate his rights.83 The Court referred to Takamore v Clarke and Trans-Tasman Resources to support the view that, where tikanga is “material” to a case, “the courts can, and may have an obligation to recognise and uphold the values of tikanga Māori in applying the law of judicial review and granting remedies”.84

• 5.43 The Court of Appeal has commented on how tikanga may inform the principles of equity and the nature of fiduciary duties in the context of Māori land administration and ownership.85 In Kusabs v Staite, a rangatira for two hapū was acting as a trustee on separate trusts that represented each hapū, creating a potential conflict of interest. The Court noted that Māori land is a communal asset, with associated rights and obligations that arise from whanaungatanga.86 Because whanaungatanga is complex, most owners have multiple interests in blocks affiliated to multiple hapū. Trustees are appointed by owners and are generally leaders within their communities. These trustees are also likely to have complex whanaungatanga connections and consequently may be trustees for multiple blocks of Māori land.87 The Court went on to say:88

If fiduciary duties are applied to Māori land administration without due regard to whanaungatanga, the former may frustrate the positive expression of the latter. This would be contrary to the underlying values of equity which, after all, developed as a response to the rigid formalism of the common law courts.

• 5.44 The Court was satisfied that “[b]earing the principles of equity and tikanga” in mind, the interests of a rangatira in both of the trusts and his position as trustee for both trusts could not give rise to a real possibility of conflict on the facts.89

Ellis v R

• 5.45 In Ellis v R, the Supreme Court considered whether tikanga could have any effect on the test for whether an appeal should continue in the event of the appellant’s death. By a majority comprising Glazebrook, O’Regan and Arnold JJ (the “test majority”), the Court did not consider that tikanga was material to the development of the common law rule in issue.90

⁸² Sweeney v Prison Manager, Spring Hill Corrections Facility [2021] NZHC 181, [2021] 2 NZLR 27.

⁸³ Sweeney v Prison Manager, Spring Hill Corrections Facility [2021] NZHC 181, [2021] 2 NZLR 27 at [1].

⁸⁴ Sweeney v Prison Manager, Spring Hill Corrections Facility [2021] NZHC 181, [2021] 2 NZLR 27 at [75].

⁸⁵ Kusabs v Staite [2019] NZCA 420, [2023] 2 NZLR 144 at [119]–[122].

⁸⁶ Kusabs v Staite [2019] NZCA 420, [2023] 2 NZLR 144 at [119].

⁸⁷ Kusabs v Staite [2019] NZCA 420, [2023] 2 NZLR 144 at [123].

⁸⁸ Kusabs v Staite [2019] NZCA 420, [2023] 2 NZLR 144 at [124].

⁸⁹ Kusabs v Staite [2019] NZCA 420, [2023] 2 NZLR 144 at [134].

90. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [11] and at [142]–[145] per Glazebrook J and [315] per O’Regan and Arnold JJ.

• 5.46 The Court, however, expressed the unanimous view that tikanga:

(a) has been and will continue to be recognised in the development of the common law of Aotearoa New Zealand in cases where it is relevant;91 and

(b) forms part of state law as a result of being incorporated into statutes and regulations.92

• 5.47 A different majority comprising Winkelmann CJ and Glazebrook and Williams JJ (the “tikanga majority”) recognised that tikanga was the first law of Aotearoa New Zealand and that it continues to shape and regulate the lives of Māori.93 In their separate reasons, they each acknowledge the large and increasing presence of tikanga in state law. The “tikanga minority” (comprising O’Regan and Arnold JJ) also acknowledged that “fundamental concepts of the common law have been adapted so as to give effect to core values of tikanga in particular contexts”.94
• 5.48 Each of the judges in the tikanga majority identified potential principles for future engagement between tikanga and the common law. The majority held in relation to tikanga that:

(a) the Loasby criteria should no longer apply;95

(b) tikanga is a complete system with fundamental concepts that are intertwined and exist as an interconnected matrix;96

(c) the appropriate method for engagement must depend on the circumstances of the case;97

(d) the relationship between tikanga and the common law will evolve contextually and as required on a case-by-case basis;98

(e) tikanga values may clash with other values in society, existing principles or existing common law, and this conflict will need to be worked through;99 and

91. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [108]–[110] per Glazebrook J, [171]–[174] per Winkelmann CJ, [257]–[259] per Williams J and [279] per O’Regan and Arnold JJ.
92. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [98]–[102] per Glazebrook J, [175]–[176] per Winkelmann CJ, [257] per Williams J and [280] per O’Regan and Arnold JJ.
93. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [107] and [110] per Glazebrook J, [168], [169] and [172] per Winkelmann CJ and [272] per Williams J.
94. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [280] per O’Regan and Arnold JJ, referring to legislation identifying Te Urewera as a legal entity and the Whanganui River as a legal person.
95. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [21] and [113]–[116] per Glazebrook J, [177] per Winkelmann CJ and [260] per Williams J. The minority on this point (O’Regan and Arnold JJ) were critical of the majority noting in fn 297 that “the test set out in the incorporation cases should not be overruled without the Court being in a position to articulate what replaces it, especially as no counsel argued that it should be overruled”.

⁹⁶ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [180] per Winkelmann CJ.

⁹⁷ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [121]–[125] per Glazebrook J, [181] per Winkelmann CJ and

[273] per Williams J.

98. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [116], [119] and [127] per Glazebrook J, [183] per Winkelmann CJ and [261] per Williams J.
99. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [119] per Glazebrook J, [182] per Winkelmann CJ and [266] per Williams J: “unambiguous statutory language will be required to exclude tikanga”.

(f) the courts must not exceed their function when engaging with tikanga and care must be taken not to impair the operation of tikanga as a system of law and custom in its own right.100

• 5.49 As noted above, the test majority did not consider it necessary to consider tikanga when assessing whether to allow an appeal to continue after the death of the deceased. Given that two members of this majority did not consider the present case to be a suitable case to make pronouncements of a general nature about the incorporation or application of tikanga in Aotearoa New Zealand’s common law, that is not surprising.
• 5.50 Significantly, Mr Ellis was not Māori, nor were any of the alleged victims.101 As Winkelmann CJ put it, this meant that the case raised for consideration “the place of tikanga in the common law in a particularly stark way”.102 Until Ellis, most of the cases that engaged with tikanga had what might be described as a Māori element in that Māori rights or interests were engaged in some way.103 These factors ultimately colour the court’s reasoning in each case and impose factual limitations on the broader impact of the court’s analysis. Ellis had none of these limitations and so the decision is particularly relevant for considering how tikanga might infuse the development of the common law for everyone.
• 5.51 The judges were consistent in their views that tikanga remains a coherent and distinct system grounded in its own cultural context.104 To that end, the tikanga majority judges were wary of the common law declaring tikanga as opposed to applying it.105 Williams J phrased his concern in this way:106

I simply wish to acknowledge that tikanga Māori continues to operate as law in the lives of Māori people and communities today; and that the risks to tikanga’s integrity of dialogue with the common law are real enough and need to [be] mitigated.

• 5.52 In terms of how a court ascertains tikanga, the tikanga majority judges seemed to move away from the current approach of treating proof of tikanga as a question of evidence. Williams J said he was “somewhat uncomfortable” with its application to indigenous law, noting that there are multiple techniques available to assist courts to understand and apply tikanga.107

100. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [22] per the majority (Winkelmann CJ, Glazebrook and Williams JJ).

¹⁰¹ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [160].

¹⁰² Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [160].

103. Although, the beneficiaries of these were not always Māori. See Sarah Down and David V Williams “Building the foundations of tikanga jurisprudence” [2022] CanterLawRw 2; (2022) 29 Canterbury Law Review 27 at 35.
104. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [171] and [180]–[181] per Winkelmann CJ and [256] per Williams J.

¹⁰⁵ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [180]–[181] per Winkelmann CJ and [271] per Williams J.

¹⁰⁶ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [272] per Williams J.

107. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [273] per Williams J. Glazebrook J also noted the various methods available to a court at [125].

Tikanga as law

• 5.53 The common law has further recognised tikanga as law within Māori society.108 In this category of case, tikanga is being recognised as operating as law in its own right without regard to state law rules for incorporation. However, declarations made by the court about tikanga may have secondary legal consequences within state law. The High Court decision in Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) provides an example.
• 5.54 In Ngāti Whātua (No 4), the High Court was tasked with making declarations on the scope and content of mana whenua (authority in respect of land) between different Māori groups. This meant that the legal issues concerned tikanga operating within te ao Māori, rather than tikanga as either a basis for or direct influence on the common law. In relation to tikanga, Palmer J accepted that:

(a) the law that accompanied Māori to Aotearoa New Zealand was constituted by tikanga; 109

(b) tikanga governs and binds iwi and hapū and is developed over time by iwi and hapū;110

(c) tikanga is a “free-standing” legal framework recognised by state law;111 and

(d) tikanga does not, however, bind the Crown or directly modify the common law or statutory law that bind the Crown.112

• 5.55 Ngāti Whātua (No 4) built on earlier High Court decisions. In Ngāti Whātua Ōrākei v Attorney-General (No 1), Palmer J said that tikanga is “law proved as a matter of fact”.113 In Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2), Palmer J urged caution when “finding” tikanga as fact because tikanga is created by the relevant hapū or iwi through practice, tradition and deliberation.114 A court’s recognition of tikanga is only a “snapshot at a certain point”, which cannot change the tikanga determined by hapū or iwi exercising their rangatiratanga.115
• 5.56 Ellis v R, which was delivered six months after Ngāti Whātua (No 4), did not expressly reference Palmer J’s decision.116 Even so, the Court made various statements that indicated support for the recognition of tikanga as law within Māori society on its own terms.117 A majority in Ellis recognised that “tikanga was the first law of Aotearoa/New

108. See Ngāti Whātua Ōrākei (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [355] (a “free-standing legal framework”); and see Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [169], fn 282 per William Young and France JJ, agreed to by Glazebrook J at [237], Williams J at [296]–[297] and Winkelmann CJ at [332].

¹⁰⁹ Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [355].

¹¹⁰ Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [355].

¹¹¹ Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [355].

¹¹² Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [570].

113. Ngāti Whātua Ōrākei Trust v Attorney-General (No 1) [2020] NZHC 3120 at [36]. Palmer J was echoing similar comments made by Elias CJ in Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [95].

¹¹⁴ Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2) [2021] NZHC 291, [2021] 2 NZLR 1 at [58].

¹¹⁵ Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2) [2021] NZHC 291, [2021] 2 NZLR 1 at [58].

116. Other than at fn 185 per Winkelmann CJ as an authority supporting a tikanga-consistent approach to statutory interpretation.
117. Sarah Down and David V Williams “Building the foundations of tikanga jurisprudence” [2022] CanterLawRw 2; (2022) 29 Canterbury Law Review 27 at 37.

Zealand and that it continues to shape and regulate the lives of Māori”.118 As Glazebrook J said:119

... tikanga will continue to be applied by Māori and will continue to develop, independent of its place as part of the common law or as contained in legislation and policy. In this sense, tikanga is a separate or third source of law.

• 5.57 The Supreme Court’s 2022 decision in Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd illustrates how a tikanga framework can expand to address novel issues.120 In that case, Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal (the Waitangi Tribunal) left open the prospect of resumption of lands in favour of an iwi who were not traditional mana whenua (Ngāti Kahungunu ki Wairarapa).121 The High Court held this to be contrary to tikanga based on tikanga evidence given before the Waitangi Tribunal about who were the mana whenua, namely Raukawa.122 Raukawa’s claim to mana whenua was based on whakapapa to the whenua, usually the strongest basis for exercising mana (authority, responsibilities) in respect of whenua.123 However, the Supreme Court (Williams J writing for the majority comprising also Winkelmann CJ and Glazebrook J) reversed the High Court’s decision, finding that the Tribunal did not err.124 Instead, the Court emphasised that context is everything and it is “dangerous to apply tikanga principles, even important ones, as if they are rules that exclude context”.125 Williams J for the majority commented that:126

... tikanga is a principles based system of law that is highly sensitive to context and sceptical of unbending rules.

• 5.58 Applying a contextual approach, his Honour said that, while mana whenua is important and not lightly overridden,127 “even within its own tikanga framework, mana whenua is neither immutable nor incapable of adaption to new circumstances”.128 Williams J also referred to the concept of tuku whenua involving transfers of land for many purposes, including compensation for wrongdoing, recognition of service or building alliances.129
• 5.59 Williams J observed that the Waitangi Tribunal did not refuse to apply tikanga. Rather, it concluded that mana whenua need not be the controlling tikanga because other tikanga principles were in play, namely hara (a wrong), utu (reciprocity), ea (a settled state) and mana. He referred to the need for the Crown to restore the mana of Ngāti Kahungunu ki

118. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [22] and at [107] and [110] per Glazebrook J, [168], [169] and [172] per Winkelmann CJ and [272] per Williams J.

¹¹⁹ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [111].

¹²⁰ Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142.

121. Resumption of land refers to a remedy that the Waitangi Tribunal may order. The Tribunal can make a binding recommendation to the Crown that it purchase the land and return it to Māori ownership as a way of settling a claim.

¹²² Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, [2021] 2 NZLR 142 per Cooke J at [147(d)].

¹²³ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, [2021] 2 NZLR 142 per Cooke J at [105]–[107].

124. The decision went on appeal directly from the High Court to the Supreme Court: Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2021] NZSC 134; Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2021] NZSC 183.

¹²⁵ Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142 at [74].

¹²⁶ Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142 at [76].

¹²⁷ Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142 at [75].

¹²⁸ Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142 at [76].

¹²⁹ Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142 at [81].

Wairarapa for the Crown’s hara or wrongdoing to them in rendering them landless.130 Relevant context also included the allocation of Crown land belonging to Ngāti Kahungunu ki Wairarapa (non-mana whenua), that Raukawa had already settled their claims and that Ngāti Kahungunu ki Wairarapa had a well-founded claim.131 For these reasons, the majority concluded that the High Court was wrong to give primacy to mana whenua, noting that, while an important principle, there were other relevant principles.

CONCLUSION

• 5.60 In this chapter, we have reviewed how the common law addresses tikanga. Doing so has shown how the courts have turned from their original reliance on rules of incorporation governing the recognition of tikanga as customary law towards a repositioning of tikanga. The way is open to recognition of tikanga by itself, both providing a source of values informative of the common law and, further, simply engaging with tikanga directly upon its own terms, unmediated by state law tests or contending values. This need not be confined to Māori (although tikanga continues to determine Māori relational interests, and courts may at times be asked to adjudicate). In the following chapter, we move to considering how a similar shift in the ways that tikanga has been acknowledged by state law can be seen in a legislative context.

¹³⁰ Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142 at [77].

¹³¹ Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142 at [82].

CHAPTER 6

Tikanga and statute law

INTRODUCTION

• 6.1 This chapter discusses the different approaches taken by the state to recognition of tikanga in legislation. While the interaction between common law and tikanga has attracted considerable attention, statutes and statutory interpretation have always been the primary mechanism by which state law engages with tikanga. In addition, the application of tikanga within the common law can be modified by statute.1 New statutes must be drafted with consideration of whether the statute might affect tikanga practices and must be consistent with tikanga “as far as practicable”.2
• 6.2 This chapter identifies key themes in the engagement between tikanga and legislation. We have divided our discussion of themes into two time periods — the period before 1975 and the period after 1975. We have found it helpful to approach our analysis in this way because of the shift in societal and government attitudes towards Māori generally that was occurring from around 1975.3 This was reflected in both government policy and legislation.

ENGAGEMENT WITH TIKANGA IN STATUTES BEFORE 1975

• 6.3 Early statutes had to acknowledge and consider tikanga by necessity.4 Until around 1860, Māori outnumbered the non-Māori settler population,5 and tikanga was the only system

1. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [98]. Glazebrook J notes that tikanga itself cannot be modified by statute, only its operation within the common law.

² Legislation Design and Advisory Committee Legislation Guidelines: 2021 Edition (September 2021) at [3.4] and [5.3].

3. Caren Fox “Ko te mana te utu: narratives of sovereignty, law and tribal citizenship in the Pōtikirua ki Te Toka-a-Taiau district” (PhD Thesis, Te Whare Wānanga o Awanuiārangi, 2023) at 53.
4. Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 9. See also Jacinta Ruru and others Inspiring National Indigenous Legal Education for Aotearoa New Zealand’s Bachelor of Laws Degree: Phase One — Strengthening the Ability for Māori Law to Become a Firm Foundational Component of a Legal Education in Aotearoa New Zealand (Ngā Pae o te Māramatanga, supported by the Michael and Suzanne Borrin Foundation, August 2020) at 27–28; Caren Fox “Ko te mana te utu: narratives of

sovereignty, law and tribal citizenship in the Pōtikirua ki Te Toka-a-Taiau district” (PhD Thesis, Te Whare Wānanga o Awanuiārangi, 2023) at 49.

5. Te Ara: The Encyclopaedia of New Zealand “Māori and European population numbers, 1838–1901” (4 October 2021) Nga korero a ipurangi o Aotearoa | New Zealand History <nzhistory.govt.nz>.

of law that operated in most of Aotearoa New Zealand. In the Muriwhenua report, Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal said:6

It was natural ... [for Māori] to assume that their own laws and standards would continue without let or hindrance. Indeed, they knew no other law or standards ... Moreover, throughout the crucial period from first contact to 1865, Māori were by far the majority population in this district. It was their way that prevailed, and it must have seemed to them that their arrangements with Europeans would be determined according to no other laws and customs than their own.

• 6.4 Early legislators made attempts to engage with tikanga, although their approaches were varied.7 As Te Aka Matua o te Ture | Law Commission (the Commission) observed in Māori Custom and Values in New Zealand Law, this was in part a result of the colonial government struggling to decide whether “English law should apply equally to everyone in New Zealand or whether exceptions should be made in favour of Māori and taking into account Māori customs”.8 At least initially, the sentiment of the colonial government towards Māori custom seemed favourable. An account from Lord Russell to Governor Hobson was certainly to that effect:9

[The Māori people] have established by their own customs a division and appropriation of the soil ... with usages having the character and authority of law ... it will of course be the duty of the protectors to make themselves conversant with these native customs ...

• 6.5 Some officials appeared satisfied that, with the exception of “barbarous customs”, Māori should be exempted from the application of any British law in relation to matters between Māori:10

... there was no reason why the aborigines should not be exempted from any responsibility to English law or to English courts of justice as far as respects their relations and dealings with each other.

6. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Muriwhenua Land Report (Wai 45, 1997) at 2; see also Robert Joseph “Colonial biculturalism? The recognition & denial of Māori custom in the colonial & post-colonial legal system of Aotearoa/New Zealand” (paper prepared for Te Mātāhauariki Research Institute, Te Whare Wananga o Waikato | University of Waikato FRST Project, 1998) at 2; Ani Mikaere Colonising Myths — Māori Realities: He Rukuruku Whakaaro (Huia Publishers, Wellington, 2011) at 258.
7. Various commentators have written about the attitudes of early government in this period. See Alex Frame “Colonising attitudes towards Māori custom” [1981] New Zealand Law Journal 105 at 105–106; Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 18–26; Jacinta Ruru and others Inspiring National Indigenous Legal Education for Aotearoa New Zealand’s Bachelor of Laws Degree: Phase One — Strengthening the Ability for Māori Law to Become a Firm Foundational Component of a Legal Education in Aotearoa New Zealand (Ngā Pae o te Māramatanga, supported by the Michael and Suzanne Borrin Foundation, August 2020) at 27–29.

⁸ Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 18.

9. Dispatch from Lord John Russell to Governor Hobson, 9 December 1840, in “Correspondence respecting the colonization of New Zealand” Great Britain Parliamentary Papers relating to New Zealand, No 17 at 27–28; see also Alex Frame “Colonising attitudes towards Māori custom” [1981] New Zealand Law Journal 105 at 105–106.
10. Instructions from James Stephen to Willoughby Shortland, as cited in Shaunnagh Dorsett “Sworn on the dirt of graves: sovereignty, jurisdiction and the judicial abrogation of ‘barbarous’ customs in New Zealand in the 1840s” (2009) 30 The Journal of Legal History 175 at 179.

• 6.6 However, as Professor Emeritus David V Williams captures in his research report on early Crown policy for the Waitangi Tribunal, government officials were also concerned with the assimilation of Māori into other ways of life.11 After this early period of statutory engagement, general recognition of tikanga declined over time with the exception of land tenure and the work of the Native Land Court.12
• 6.7 The pre-1975 statutes therefore represented an amalgamation of different attitudes towards Māori custom.13 An analysis of statutes over this period reveals a variety of methods by which they engaged with tikanga or “customs”:

(a) Providing for matters to be determined according to “native customs” to varying degrees.

(b) Recognising “native rights” to certain resources.

(c) Attempting to recognise specific customs through prescriptive drafting.

(d) Establishing processes that enabled tikanga to operate.

(e) Establishing geographic areas where Māori custom operated in some limited form with respect to matters between Māori.

(f) Providing that a particular custom is of no legal effect.

(g) Ignoring tikanga.

• 6.8 Below, we expand on each of these methods and discuss some examples.

Providing for matters to be determined according to “native customs”

• 6.9 The most common way in which pre-1975 statutes attempted to recognise tikanga was to provide that matters were to be determined, to varying degrees, according to “native customs”.14 Naturally, this led to different judicial interpretations of what native customs were. As the Commission has previously described the ensuing process, it was an “assimilation by recognition followed by extinguishment through re-interpretation”.15 For example, referring to the Native Land Court’s investigation of titles, the Commission said:16

The Court’s investigation of titles to land was expressed to be in accordance with Māori custom. However, it awarded titles only to individuals, and at one stage awarded title for land areas less than 5,000 acres to 10 owners or less.

11. See the discussion in David V Williams Crown Policy Affecting Māori Knowledge Systems and Cultural Practices (Waitangi Tribunal Publications, Wai 262 #K003, 2001) at ch 1. Williams cites Alan Ward A Show of Justice: Racial ‘amalgamation’ in nineteenth century New Zealand (Auckland University Press, Auckland, 1974), which also includes a critical analysis of early government policy.
12. Jacinta Ruru and others Inspiring National Indigenous Legal Education for Aotearoa New Zealand’s Bachelor of Laws Degree: Phase One — Strengthening the Ability for Māori Law to Become a Firm Foundational Component of a Legal Education in Aotearoa New Zealand (Ngā Pae o te Māramatanga, supported by the Michael and Suzanne Borrin Foundation, August 2020) at 27–28.

¹³ See also the discussion in Te Aka Matua o te Ture | Law Commission Mataitai: Nga tikanga Maori me te Tiriti o Waitangi

| The Treaty of Waitangi and Maori Fisheries (NZLC PP9, 1989) at 130–131.

14. “Custom” being the dominant way that legislation referred to tikanga. Several different usages occur including “Native customs”, “Native customs and usages” and “Māori custom”.

¹⁵ Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 25.

¹⁶ Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 25.

• 6.10 The Commission’s attention to the Native Land Court reflects the numerous references to custom in native lands statutes in the nineteenth and early twentieth centuries.17 To exemplify the process of recognition and subsequent interpretation, the Native Lands Act 1865 and the Papakura decision are typical.18 The Act gave the Native Land Court jurisdiction to inquire (upon application) into who should succeed to Māori land derived from a Crown grant on intestacy according to English law “as nearly as it can be reconciled with Native custom”.19 In the Papakura decision, the Native Land Court interpreted this provision to mean that English law should apply except where “strict adherence to English rules of law would be very repugnant to native ideas and customs”.20 The Court held that the provision meant all issue of the deceased would inherit land in equal shares.21
• 6.11 Another example in the succession context is the Native Succession Act 1881. This Act allowed Māori to apply to the Native Land Court to “inquire and ascertain who ought to succeed” to Māori land or land derived from a Crown grant.22 In respect of Māori land, the Native Land Court was to be “guided by Native custom or usage”. In respect of land derived from a Crown grant, the Court was to be “guided by the law of New Zealand”. Te Kōti Matua | High Court (the High Court) commented on this statute in the 1890 decision of Pahoro v Cuff:23

By “The Native Succession Act, 1881,” as amended in 1882, the Native Land Court is required, in granting succession orders respecting lands held under Crown grant, to guide itself by the law of New Zealand as nearly as it can be reconciled with Native custom ... as this Court has no cognisance of Native custom except through references to the Native Land Court, it cannot overrule a decision of the Native Land Court on any question within the jurisdiction of that Court which requires for its determination a knowledge of Native custom. The amending Act of 1882 seems indeed to make Native custom paramount in questions of succession, even to lands held by Natives under Crown grant. If the law of the colony respecting descents and successions cannot be reconciled with Native custom, the latter it would seem must prevail.

• 6.12 The High Court’s interpretation is notable in that it deferred to the Native Land Court’s understanding of native custom where it could not be reconciled with “the law of the colony”.

Recognising “native rights” to certain resources

• 6.13 Another approach taken in legislation was to recognise some existing customary rights to resources. This method is similar to the first approach of providing for matters to be determined according to custom. However, the difference is that it purports to recognise pre-existing rights rather than providing a legislative basis for recognition of customs.

17. A few examples include the Native Lands Acts 1862 and 1865, Native Succession Act 1881, Native Land Court Act 1894, Native Lands Act 1909 and the Native Lands Act 1931. These are some of the major Acts, but numerous examples can be found in Acts passed every year.

¹⁸ “Papakura — claim of succession” (12 April 1867) New Zealand Gazette 19.

¹⁹ Native Lands Act 1865, s 30.

²⁰ “Papakura — claim of succession” (12 April 1867) New Zealand Gazette 19 at 19–20.

²¹ “Papakura — claim of succession” (12 April 1867) New Zealand Gazette 19 at 19.

²² Native Succession Act 1881, s 3.

²³ Pahoro v Cuff (1890) 8 NZLR 751 (HC) at 756.

• 6.14 For example, customary fishing rights were recognised in the Fish Protection Act 1877. 24 It gave the Governor in Council power to create fishing districts and to regulate fishing within those districts, including the power to grant exclusive rights to a fishery.25 Section 8 of the Act provided:26

Nothing in this Act contained shall be deemed to repeal, alter, or affect any of the provisions of the Treaty of Waitangi, or to take away, annul, or abridge any of the rights of the aboriginal natives to any fishery secured to them thereunder.

• 6.15 Provisions of this type did not necessarily mean affirmation of customary rights. Commenting on a similar provision in the Fisheries Act 1908, Stout CJ held that the provision was only a saving provision for rights that existed separately from the Act. He said:27

There is no attempt in the Fisheries Act, 1908, to give rights to non-Maoris not given to Maoris. All have the right to fish in the sea and in tidal rivers who obey the regulations and restrictions of the statute. This statute has not given, and no New Zealand statute gives, any communal or individual rights of fishery, territorial or extra-territorial, in the sea or tidal rivers ... It may be, to put the case the strongest possible way for the Maoris, that the Treaty of Waitangi meant to give such an exclusive right to the Maoris, but if it meant to do so no legislation has been passed conferring the right ...

• 6.16 This case was considered good law until the case of Te Weehi v Regional Fisheries Officer

in 1986.28

Attempting to recognise specific customs through prescriptive drafting

• 6.17 A less common method of recognising tikanga in statute was attempting to recognise specific customs through prescriptive drafting. Rather than provide for “native customs” more generally, these statutes attempted to recognise a particular custom. An early example of this is seen in the Native Exemption Ordinance 1844. The Ordinance’s Preamble indicates an intention to gradually introduce English laws and customs:29

... it is greatly to be desired that the whole aboriginal native population of these Islands, in their relations and dealings amongst themselves, be brought to yield a ready obedience to the laws and customs of England: And whereas this end may more speedily and peaceably be attained by the gradual than by the immediate and indiscriminate enforcement of the said laws, so that in course of time, the force of ancient usages being weakened and the nature and administration of our laws being understood ...

• 6.18 To achieve this gradual introduction, the Ordinance created exemptions from the “procedure and nature of the punishment” for several crimes. One of these exemptions was that Māori who were convicted of theft could pay up to four times the value of the

24. The Commission has previously noted that the Act is not entirely clear. See Te Aka Matua o te Ture | Law Commission Mataitai: Nga tikanga Maori me te Tiriti o Waitangi | The Treaty of Waitangi and Maori Fisheries (NZLC PP9, 1989) at 146.

²⁵ Fish Protection Act 1877, ss 3–5.

²⁶ Fish Protection Act 1877, s 8.

27. Waipapakura v Hempton [1914] NZGazLawRp 141; (1914) 33 NZLR 1065 at 1071–1072. See the discussion in Te Aka Matua o te Ture | Law Commission Mataitai: Nga tikanga Maori me te Tiriti o Waitangi | The Treaty of Waitangi and Maori Fisheries (NZLC PP9, 1989) at 55–56.
28. Te Aka Matua o te Ture | Law Commission Mataitai: Nga tikanga Maori me te Tiriti o Waitangi | The Treaty of Waitangi and Maori Fisheries (NZLC PP9, 1989) at 56; Te Weehi v Regional Fisheries Officer [1986] NZHC 149; [1986] 1 NZLR 680 (HC) at 692–693.

²⁹ Native Exemption Ordinance 1844, Preamble.

goods instead of facing punishment.30 This has been described as an “obvious adaptation of the Māori customary institution of muru”.31

Establishing processes that enabled tikanga to operate

• 6.19 Another method is including processes in legislation that enable tikanga to operate. There are early examples of this approach, although it has become more popular since 1975.32
• 6.20 An early example that has received mixed criticism is the Resident Magistrates Courts Ordinance 1846.33 This Ordinance allowed two Native Assessors to sit with any magistrate in civil cases.34 The Ordinance went further, giving these assessors the power to “hear and determine summarily all claims and demands whatsoever of a civil nature arising between persons of the Native race”.35 Further, the assessors were able to determine the admissibility of evidence.36 This was all with the view to providing for the “adaptation of law to the circumstances of both races”.37
• 6.21 The role of the Native Assessor was continued in the Resident Magistrates Act 1867 and was not abolished until 1893.38 Commentators have noted the merits of the Native Assessor role, with Dr Robert Joseph noting in particular:39

For its time, the Resident Magistrates system with Māori Assessors was perceived as a successful initiative. The critical factor contributing its success was direct involvement of local Māori leadership, adequate consultation with the local people about what laws would apply, and what role the chiefs should play in their enforcement.

• 6.22 On the other hand, some commentators have noted the way in which successive Acts related to resident magistrates encouraged Māori to assimilate into the new court system.40
• 6.23 Another example is the Native Circuit Courts Act 1858. This Act provided for the establishment of districts and of Native Circuit Courts within those districts.41 These courts had both criminal and civil jurisdictions. Native Assessors could sit with magistrates on

³⁰ Native Exemption Ordinance 1844, s 7.

31. Robert Joseph “Re-creating legal space for the first law of Aotearoa-New Zealand” (2009) 17 Taumauri | Waikato Law Review 74 at 77–78. At fn 28, Joseph describes muru as “a ritualised compensatory institution where an offended party was allowed to take possessions owned by the offender party. The institution was an effective method for avoiding violent confrontations.”
32. See for example the Part 3A mediation process in Te Ture Whenua Maori Act 1993 or the institution of the Family Group Conference established in the Children, Young Persons, and Their Families Act 1989.

³³ Other examples include the Native Districts Regulation Act 1878 and the Native Circuit Courts Act 1858.

³⁴ Resident Magistrates Courts Ordinance 1846, s 19.

³⁵ Resident Magistrates Courts Ordinance 1846, s 19.

³⁶ Resident Magistrates Courts Ordinance 1846, s 21.

³⁷ Resident Magistrates Courts Ordinance 1846, Preamble.

³⁸ Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 20.

39. Robert Joseph “Re-creating legal space for the first law of Aotearoa-New Zealand” (2009) 17 Taumauri | Waikato Law Review 74 at 78. See also Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 20.
40. Both David V Williams and Mark Hickford have argued that the role of the Native Assessor encouraged Māori to assimilate into the court system. See David V Williams Crown Policy Affecting Māori Knowledge Systems and Cultural Practices (Waitangi Tribunal Publications, Wai 262 #K003, 2001) at 20–21.

⁴¹ Native Circuit Courts Act 1858, ss 1 and 2.

these courts. Alternatively, two or more Native Assessors could sit together as a court with all the powers and functions of a Native Circuit Court.42

Establishing geographic areas where Māori custom operated in some limited form

• 6.24 Another common approach in early statutes was to establish geographic areas where Māori customs operated in some limited form. An approach to recognising custom that relied on geographic boundaries was a more workable approach when Māori still retained well-established tribal bases under customary ownership. Where this is the case in overseas jurisdictions, a geographic approach is still being used.43
• 6.25 The earliest example from Aotearoa New Zealand is found in the New Zealand Constitution Act 1852 (UK).44 It provided for “particular districts” to be set aside where native customs “so far as they are not repugnant to the general principles of humanity” would apply “in all their relations to and dealings with each other”.45 This power was never used, despite calls for districts to be set aside by various Māori movements.46 The Act did not provide for tikanga to govern relationships between Māori and non-Māori in these districts. However, this was the intention when the Act was prepared and approved by Parliament in London in 1846.47 The original version of the Act had a provision stating:48

Within such districts (as may be declared) the laws, customs, and usages of the aboriginal inhabitants, so far as they are not repugnant to the general principles of humanity, shall for the present be maintained.

• 6.26 The Native Committees Act 1883 provided for a similar geographical approach, albeit in a much more limited way. It provided for districts to be created and for the establishment of a “Native Committee” by election for each district.49 The Native Committee had the power to sit as a court of arbitration and determine disputes between “Natives usually resident in the district, where the cause of the dispute has arisen within the district and the matter does not exceed twenty pounds in value”.50 The parties had to agree to be bound by the decision.51

Providing that custom is of no legal effect

• 6.27 Another possible approach is for legislation to expressly provide that a certain custom has no legal effect. There are relatively few examples of this approach.

⁴² Native Circuit Courts Act 1858, s 33.

⁴³ The First Nations reserves in both Canada and the United States are prominent examples.

44. For a comprehensive discussion of the New Zealand Constitution Act 1852 see Robert Joseph ‘The Government of Themselves’: Case Law, Policy and Section 71 of the New Zealand Constitution Act 1852 (Te Mātāhauariki Institute, University of Waikato, Hamilton, 2002).

⁴⁵ New Zealand Constitution Act 1852, s 71.

46. Robert Joseph “Colonial biculturalism? The recognition & denial of Māori custom in the colonial & post-colonial legal system of Aotearoa/New Zealand” (paper prepared for Te Mātāhauariki Research Institute, Te Whare Wananga o Waikato | University of Waikato FRST Project, 1998) at 6.

⁴⁷ Alex Frame “Colonising attitudes towards Māori custom” [1981] New Zealand Law Journal 105 at 106.

⁴⁸ Alex Frame “Colonising attitudes Towards Māori custom” [1981] New Zealand Law Journal 105 at 106.

⁴⁹ Native Committees Act 1883, s 4.

⁵⁰ Native Committees Act 1883, s 11.

⁵¹ Native Committees Act 1883, s 11.

• 6.28 One example is the Adoption Act 1955. The Act provides that adoptions in accordance with Māori custom are of no force and effect.52 The Act is still in force and continues to affect legal recognition of whāngai (raising or adopting children according to tikanga). For example, Te Kōti Pīra | Court of Appeal has held that the Adoption Act precludes a whāngai child from making a claim under the Family Protection Act 1955 unless they have been formally adopted.53
• 6.29 Another example is the Native Land Laws Amendment Act 1895, which amended the principal Act to prevent ōhākī (a customary oral expression of testamentary wishes) from being recognised as a legally valid distribution of property.54

Ignoring tikanga

• 6.30 It may seem unusual to describe ignoring tikanga as a method of engagement. However, in circumstances where there was overlap or similarity between the areas covered by statute and tikanga, an absence of legislative direction to consider tikanga could mean those administering the legislation could not consider tikanga or were less likely to.
• 6.31 An example is the Guardianship Act 1968. Under the Act, the only guardians as of right were the natural birth mother and father of the child.55 Although the Act did not directly mention tikanga or custom, commentators on the Act have suggested that the Act was clearly inconsistent with a Māori world view.56
• 6.32 The Wills Act 2007 provides another example. The Act makes no mention of ōhākī, effectively precluding ōhākī from being a valid testamentary distribution of property by requiring that a will must be in writing.57

Some observations about statutory engagement before 1975

• 6.33 Some overarching observations can be made about the different methods by which statute engaged with tikanga prior to 1975.

52. Adoption Act 1955, s 19. There is an exception in s 19(2) for adoptions made before the commencement of the Native Land Act 1909.
53. Keelan v Peach [2002] NZCA 296; [2003] 1 NZLR 589 (CA) at [43]. However, 2021 amendments to Te Ture Whenua Maori Act 1993 provide that Te Kooti Whenua Māori | Māori Land Court may determine whether someone is a whāngai for the purposes of a claim under the Family Protection Act 1955 that relates to Māori freehold land: see Te Ture Whenua Maori Act 1993, s

115. For a description of whāngai see Te Aka Matua o Te Ture | Law Commission He arotake i te āheinga ki ngā rawa a

te tangata ka mate ana | Review of succession law: rights to a person’s property on death (NZLC R145, 2021) at 134– 135.

54. For a description of ōhākī see Te Aka Matua o Te Ture | Law Commission He arotake I te āheinga ki ngā rawa a te tangata ka mate ana | Review of succession law: rights to a person’s property on death (NZLC R145, 2021) at 385–386. Section 33 of the Native Land Laws Amendment Act 1895 provided that “No interest in land or personal estate shall pass by any unwritten will or ohaki”. Up until this point, the common law had recognised ōhākī. See the discussion of ōhākī in T Bennion and J Boyd Succession to Maori Land, 1900–52 (Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Rangahaua Whanui series, 1997) at 11.
55. Guardianship Act 1968, s 6. If the parents are not married or not living together as husband and wife, the mother would be the only guardian as of right.
56. See Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 24–25 and Te Aka Matua o Te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 56.
57. See Wills Act 2007, ss 6, 8 and 11. Te Aka Matua o te Ture | Law Commission He arotake i te āheinga ki ngā rawa a te tangata ka mate ana | Review of succession law: rights to a person’s property on death (NZLC R145, 2021) at 386.

Recognition was sometimes used as a tool for assimilation

• 6.34 Not every mention of custom was clearly designed to assimilate or extinguish custom. Particularly in the areas of Māori land and succession, government did appear to have a willingness to allow custom to continue to operate, albeit as “incorporated custom”.58 However, recognition of tikanga in statute was sometimes used as a tool for assimilation. As Justice Joseph Williams (writing extra-judicially) says:59

... examples of recognition were intended to be points along a journey to jurisdictional amalgamation, rather than dots to be joined to demonstrate continuity of recognition of ongoing custom to the present day.

• 6.35 Other commentators have also argued that the limited recognition of custom early on by the government was largely intended as a temporary or transitional measure.60

Legislative direction was not always followed

• 6.36 Despite various Acts requiring courts to recognise or make determinations according to “native custom”, the cases indicate that this was not always done, particularly in cases outside of the Native Land Court.61 In Willoughby v Pana Waihopi, the Court remarked:62

... Judges have acted on the assumption that they might invoke Native custom to determine the succession to the freehold lands of Maoris ... A body of custom has been recognized and created in that Court which represents the sense of justice of its Judges in dealing with a people in the course of transition from a state of tribal communism to a state in which property may be owned in severalty, or in the shape approaching severalty represented by tenancy in common. Many of the customs set up by that Court must have been founded with but slight regard for the ideas which prevailed in savage times.

• 6.37 On this assessment, the sometimes-strong direction from the legislature to determine matters according to “native custom” was not always followed. Some judges may have seen fit to apply tikanga “by analogy”,63 meaning that they recognised tikanga by analogising it with English legal concepts that they understood. Others created legal rules

58. Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 10.
59. Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 10.
60. Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 22–23; Alex Frame “Colonising attitudes towards Māori custom” [1981] New Zealand Law Journal 105 at 106; David V Williams Crown Policy Affecting Māori Knowledge Systems and Cultural Practices (Waitangi Tribunal Publications, Wai 262 #K003, 2001) at ch 1.
61. Te Aka Matua o te Ture | Law Commission Mataitai: Nga tikanga Maori me te Tiriti o Waitangi | The Treaty of Waitangi and Maori Fisheries (NZLC PP9, 1989) at 135; Alan Ward A Show of Justice: Racial ‘amalgamation’ in nineteenth century New Zealand (2nd ed, Auckland University Press, Auckland, 1995) at 202 and 231–232 discussing Chief Judge Fenton in particular. For a collection of cases with commentary from the Native Land Court, where custom was regularly applied by judges (albeit as they understood it and for the purposes of extinguishing native title), see Richard Boast The Native

Land Court 1862–1887 (Thomson Reuters, Wellington, 2013); Richard Boast The Native Land Court Volume 2, 1888–1909: A Historical Study, Cases and Commentary (Thomson Reuters, Wellington, 2015); Richard Boast The Native/Māori Land Court Volume 3, 1910–1953: Collectivism, Land Development and the Law (Thomson Reuters, Wellington, 2019).

⁶² Willoughby v Panapa Wahopi [1910] NZGazLawRp 138; (1910) 29 NZLR 1123 at 1149–1150.

63. Te Aka Matua o te Ture | Law Commission Mataitai: Nga tikanga Maori me te Tiriti o Waitangi | The Treaty of Waitangi and Maori Fisheries (NZLC PP9, 1989) at 135.

or “customs” based upon a sense of justice that required them (as they saw it) to help Māori move on from “ideas which prevailed in savage times”.64

Statutes did not resolve differences between prevailing English legal theory and tikanga

• 6.38 Despite clear statutory references to “native customs”, the pre-1975 statutes did not appear to resolve differences between tikanga and prevailing English legal theory. The legislature appears to have been unwilling to shed critical assumptions based upon English legal theory about what law is or how it should operate in order to engage with tikanga. Where the legislature made the attempt to engage with tikanga beyond references to custom, the statutes did little to go beyond a superficial understanding. Alternatively, where the role of engaging with tikanga was passed on to the courts through statutory references to “native custom”, the courts struggled to apply “native custom” as it is properly understood by reference to mātauranga Māori.

ENGAGEMENT WITH TIKANGA AFTER 1975

• 6.39 By 1975, the loss of land and other resources had resulted in an exodus of Māori from traditional papakāinga into urban centres, disconnecting many Māori from their tribal base. Where tikanga survived, this was only in isolated communities largely beyond the reach of outside influence.65
• 6.40 The 1970s also saw numerous Māori-led protests, bringing national attention to areas such as land loss, revitalisation of te reo Māori and the social and economic position of Māori.66 Resulting social and political developments led to a shift in approach to statutes engaging with tikanga. This includes the language used to engage tikanga within statutes, with references to “native customs” replaced by general references to “tikanga” or the incorporation of Māori words that engage a particular tikanga concept. In many ways, this statutory shift from recognising tikanga as observable behaviours to acknowledging the deeper system that drives those behaviours preceded the similar change now occurring within the common law.
• 6.41 Several notable developments in the post-1975 period include:

(a) increasing use of kupu Māori (Māori words) within statutes;

(b) provisions requiring Māori groups to be involved in decision making;

(c) principles provisions;

(d) provisions allowing courts to obtain cultural reports;

(e) requiring statutory bodies to have Māori representation;

(f) te Tiriti o Waitangi | Treaty of Waitangi (the Treaty) settlement Acts; and

(g) recognition of Te Awa Tupua and Te Urewera as legal persons.

⁶⁴ Willoughby v Panapa Wahopi [1910] NZGazLawRp 138; (1910) 29 NZLR 1123 at 1150.

65. Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 11. Māori who lived in urban centres faced different issues again, including near total land loss. See for example Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Report of the Waitangi Tribunal on the Orakei Claim (Wai 9, 1987).
66. See Basil Keane “Ngā rōpū tautohetohe — Māori protest movements” (20 June 2012) Te Ara: the Encyclopedia of New Zealand <teara.govt.nz>.

Increasing use of kupu Māori within statutes

• 6.42 In early statutes, the use of te reo Māori was largely a matter of necessity as most Māori did not speak English.67 In the nineteenth century, this meant that many proclamations, statutes and judgments were translated in te reo Māori.68 However, once Māori were able to speak English widely and the perceived need to use te reo Māori diminished, so did the commitment to using it. The period of 1900–1975 saw a “dramatic decline in the civic status of te reo Māori”.69
• 6.43 As a result of political pressure driven by community action, statutes began to use kupu Māori more frequently from 1975 onwards.70 Some Acts were even redrafted to include kupu Māori and Māori concepts in place of English equivalents that had been used previously.71 Some statutes began to include sections in te reo Māori, and a small number of statutes have been published in both English and te reo Māori.72 These modern examples represent something very different to the earlier use of te reo Māori. Rather than being a literal translation from English to Māori, kupu Māori may now need to be understood and interpreted according to tikanga.73 Ross Carter explains:74

Māori language in legislation is about bilingual, but could also involve bijural, legislation; that is, legislation the interpretation of which depends on both the common law and law in accordance with tikanga Māori.

• 6.44 Despite these significant shifts, te reo Māori is not fully recognised as “an ordinary language of legal enactment”.75 While it is now common to find isolated kupu Māori in statutes, substantial use of te reo Māori remains relatively rare.

Provisions requiring Māori groups to be involved in decision making

• 6.45 Some statutes provide for shared decision making between government and Māori, particularly in the resource management area. Much of this is found in Treaty settlement

67. See Tai Ahu “Te reo Māori as a language of New Zealand Law: the attainment of civic status” (LLM Dissertation, Te Herenga Waka | Victoria University of Wellington, 2012) for a comprehensive discussion of the use of te reo Māori in legislation.
68. Tai Ahu “Te reo Māori as a language of New Zealand law: the attainment of civic status” (LLM Dissertation, Te Herenga Waka | Victoria University of Wellington, 2012) at 11. Ahu notes that a standing order of the House in 1868 required Bills and Acts to be translated into Māori.
69. Tai Ahu “Te reo Māori as a language of New Zealand law: the attainment of civic status” (LLM Dissertation, Te Herenga Waka | Victoria University of Wellington, 2012) at 12.
70. Te reo Māori movements such as the petition to Parliament led by Ngā Tamatoa, the establishment of various whare wānanga and the Waitangi Tribunal report on te reo Māori were all factors. See Te Rōpū Whakamana i te Tiriti o Waitangi

| Waitangi Tribunal Te Reo Māori Claim (Wai 11, 1986). Some earlier examples of statutes include the use of kaitiakitanga

in the Resource Management Act 1991 and the use of whānau, hapū and iwi in the Children, Young Persons, and Their Families Act 1989.

71. See the Protected Objects Amendment Act 2006. Among other things, this renamed the Antiquities Act 1975 and replaced the definition of “artifact” with “taonga tūturu”.
72. See Te Ture mō Te Reo Māori 2016 and Te Ture mō Mokomoko (Hei Whakahoki i te Ihi, te Mana, me te Rangatiratanga) 2013 for examples of Acts published entirely in both English and te reo Māori.
73. Tai Ahu has argued that definitions of kupu Māori within legislation need to be removed and the Interpretation Act 1999 amended to require kupu Māori to be interpreted according to tikanga. See Tai Ahu “Te reo Māori as a language of New Zealand law: the attainment of civic status” (LLM Dissertation, Te Herenga Waka | Victoria University of Wellington, 2012) at 94.

⁷⁴ Ross Carter Burrows and Carter Statute Law in New Zealand (6th ed, LexisNexis, Wellington, 2021) at 186.

75. Tai Ahu “Te reo Māori as a language of New Zealand law: the attainment of civic status” (LLM Dissertation, Te Herenga Waka | Victoria University of Wellington, 2012) at 13.

statutes, which we discuss below. However, the Resource Management Act 1991 (RMA) is an example of incorporating such a provision in a general statute. The RMA was amended in 2017 to provide for:76

... iwi authorities and local authorities to discuss, agree, and record ways in which tangata whenua may, through their iwi authorities, participate in resource management and decision-making processes under this Act.

• 6.46 The amendment allows “iwi authorities” to invite local government authorities to develop a Mana Whakahono a Rohe (iwi participation arrangement) over a particular rohe (region) with a view to joint participation in the management and care of that rohe.77 Although Mana Whakahono a Rohe are limited in certain respects, they attempt to enable Māori to exercise obligations of kaitiakitanga (guardianship) and manaakitanga (care) for natural resources through mutual agreement with local government.
• 6.47 Although they are tempered by the limitations of the RMA, Māori involvement through Mana Whakahono a Rohe arrangements allows tikanga to influence environmental management. Importantly in this context, the tikanga comes from “iwi authorities”, which in theory represent the iwi with mana whenua (authority over land according to tikanga) over a particular area.
• 6.48 Another example is Te Urewera Act 2014, a settlement Act that establishes a comprehensive management scheme for Te Urewera.78 By comparison with the Mana Whakahono a Rohe arrangements in the RMA, Te Urewera Act 2014 may be a stronger example of shared decision making as Tūhoe have a majority on the Board that manages Te Urewera.79

Principles provisions

• 6.49 An increasingly common statutory way to recognise tikanga is to provide for it within a principles provision.80 These provisions require those applying the Act to do so in accordance with the principles set out.81 When the principles reference tikanga, the effect is to require decision makers to consider tikanga concepts.82
• 6.50 Examples of principles provisions referring to tikanga can be found in the Town and Country Planning Act 1977 and the RMA. The Town and Country Planning Act provided for the recognition of several matters of “national importance”.83 These included “[t]he

⁷⁶ Resource Legislation Amendment Act 2017.

⁷⁷ See Resource Management Act 1991, pt 5, sub-pt 2.

78. The Act establishes Te Urewera Board to act on behalf of Te Urewera and provide for its governance, with two-thirds of the Board appointed by Tūhoe Te Uru Taumatua. The Board is given “all the powers reasonably necessary to achieve its purpose and perform its functions”, which include preparing a management plan for Te Urewera and making bylaws for Te Urewera. Te Urewera Act 2014, ss 19–21.

⁷⁹ Te Urewera Act 2014, s 21.

80. See Ross Carter Burrows and Carter Statute Law in New Zealand (6th ed, LexisNexis, Wellington, 2021) at 166–176 for a discussion of principles provisions.

⁸¹ Ross Carter Burrows and Carter Statute Law in New Zealand (6th ed, LexisNexis, Wellington, 2021) at 171.

82. Some other notable Acts that contain principles provisions with a tikanga element are the Coroners Act 2006, Mental Health (Compulsory Assessment and Treatment) Act 1992, Sentencing Act 2002, Climate Change Response Act 2002, Te Ture Whenua Maori Act 1993, Te Aratuku Whakaata Irirangi Māori Act 2003, Marine and Coastal Area (Takutai Moana) Act 2011, Heritage New Zealand Pouhere Taonga Act 2014, Te Urewera Act 2014, Te Ture mō Te Reo Māori 2016 and Education and Training Act 2020.

⁸³ Town and Country Planning Act 1977, s 3. This Act was the predecessor to the Resource Management Act 1991.

relationship of the Maori people and their culture and traditions with their ancestral land”.84 Initially, this was restricted to land owned by Māori but was expanded by the courts in 1987 to include all land over which Māori had an ancestral connection.85 The RMA expanded this to virtually all natural resources.86

• 6.51 Section 7 of the RMA lists other matters that must be regarded when exercising powers under the Act, including kaitiakitanga.87 As defined in the Act, kaitiakitanga means “the exercise of guardianship by the tangata whenua of an area in accordance with tikanga Maori in relation to natural and physical resources; and includes the ethic of stewardship”.88 In Takamore Trustees v Kapiti Coast District Council, the High Court held that section 7 created an obligation not just to hear and understand the views of tangata whenua regarding kaitiakitanga where it is relevant but also to allow those views to influence decision making in a substantial way.89
• 6.52 Examples can also be found in the Children, Young Persons, and Their Families Act 1989 (now the Oranga Tamariki Act 1989). As enacted, the Act provided for general principles to guide the exercise of powers under the Act, including:90

... wherever possible, a child’s or young person’s family, whanau, hapu, iwi, and family group should participate in the making of decisions affecting that child or young person, and accordingly that, wherever possible, regard should be had to the views of that family, whanau, hapu, iwi, and family group.

• 6.53 In 2017, the principles sections within the Act were expanded to include references to mana tamaiti (a child or young person’s intrinsic value and inherent dignity), whakapapa (connections) and whanaungatanga (relationship, kinship).91 The Act also provides that a holistic approach must be taken by those administering the Act, which includes considerations of a child’s whakapapa and cultural identity.92
• 6.54 Some have criticised the approach of using principles provisions in legislation, on the basis that principles are easy to understand in the abstract but are not easy to apply in specific situations.93

84. Town and Country Planning Act 1977, s 3(1)(g). The previous Town and Country Planning Act of 1953 contained no reference to Māori or Māori culture. The recognition of the relationship between Māori and the whenua was a significant development in the statutory recognition of tikanga in the resource management space. The requirement for decision makers to consider Māori connections to virtually all land in Aotearoa New Zealand is something that might not have been possible even a few decades prior. Williams notes that this “changed the game in an obviously important way”. See Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 17.

⁸⁵ Royal Forest and Bird Protection Society Inc v W A Habgood Ltd [1987] NZHC 1379; (1987) 12 NZTPA 76 (HC) at 9.

⁸⁶ Resource Management Act 1991, s 6.

⁸⁷ Resource Management Act 1991, s 7(a).

⁸⁸ Resource Management Act 1991 s 2.

⁸⁹ Takamore Trustees v Kapiti Coast District Council [2003] 3 NZLR 496 (HC).

⁹⁰ Children, Young Persons, and Their Families Act 1989, s 5(a).

91. Oranga Tamariki Act 1989, s 5(1)(b)(iv). “Mana tamaiti” is defined as the intrinsic value and inherent dignity derived from a child’s or young person’s whakapapa (genealogy) and their belonging to a whānau, hapū, iwi, or family group, in accordance with tikanga Māori or its equivalent in the culture of the child or young person. See Oranga Tamariki Act 1989, s 2.

⁹² Oranga Tamariki Act 1989, s 5(1)(b)(vi).

⁹³ Ross Carter Burrows and Carter Statute Law in New Zealand (6th ed, LexisNexis, Wellington, 2021) at 168.

Provisions requiring statutory bodies to have Māori representation

• 6.55 Another approach that is sometimes used is to require Māori representation on statutorily established bodies. This is not a new phenomenon. Examples from as early as the nineteenth century may be found.94 However, differences lie in the detail and the intent of the statute. In early examples of Māori representation on statutory bodies, it was intended to encourage “higher civilisation and contentment of the Maoris themselves if they were authorised and encouraged in such laudable desires”.95 Today, the significant number of statutes requiring Māori representation on statutory bodies suggests that these statutes aim to enable a distinctly Māori perspective to influence decision making.96

Allowing courts to obtain cultural reports

• 6.56 In areas that involve complex decisions and the exercise of discretion such as criminal law and family law, courts are now often empowered to obtain cultural reports to inform their decision making. The precursor to cultural reports is found in the Criminal Justice Act 1985, which allowed for offenders being sentenced to call witnesses to speak to the ethnic or cultural background of the offender.97 This was specifically designed to help meet the needs of Māori offenders.98
• 6.57 The Sentencing Act 2002 adopted a similar provision and it is now common practice to have pre-sentence reports on “information regarding the personal, family, whanau, community, and cultural background, and social circumstances of the offender”.99
• 6.58 The Oranga Tamariki Act 1989 also enables the court to request a cultural and community report on “the heritage and the ethnic, cultural, or community ties and values of the child

... or the child’s ... family, whanau, or family group”.100

Treaty settlement Acts

• 6.59 Treaty settlement Acts are a unique development in the engagement of tikanga and legislation.101 They are fundamentally different from other legislation because their purpose is to give legal effect to agreements between the Crown and iwi or hapū that settle claims relating to the Crown’s breaches of the Treaty. The settlement process will have involved lengthy kōrero (discussion) between iwi, hapū and the Crown.
• 6.60 Usually, a settlement Act will contain a brief history of the iwi or hapū and the Crown actions that require redress, usually in both te reo Māori and English. For example, the Preamble to the Waikato Raupatu Claims Settlement Act 1995 contains a history of the

⁹⁴ See for example the Native Schools Act 1867 and the Maori Councils Act 1900.

⁹⁵ Maori Councils Act 1900, Preamble.

96. See for example Education and Training Act 2020, s 127(d); Climate Change Response Act 2002, s 5H; Arts Council of New Zealand Toi Aotearoa Act 2014, s 10(4); Heritage New Zealand Pouhere Taonga Act 2014, s 10; Kāinga Ora — Homes and Communities Act 2019, s 10.

⁹⁷ Criminal Justice Act 1985, s 16. The court was required to hear the witness, with limited exceptions.

98. Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at 35, citing the speech of Michael Cullen during the second reading of the Bill. See (1985) 463 NZPD 4795.

⁹⁹ Sentencing Act 2002, s 26(2)(a).

¹⁰⁰ Oranga Tamariki Act 1989, s 187.

¹⁰¹ There are now nearly 50 settlement Acts.

Kīngitanga movement and the invasion and raupatu (conquest) of Waikato lands.102 An apology from the Crown is then recorded that acknowledges the effects of Crown action towards the particular iwi or hapū.

• 6.61 The operative provisions of settlement Acts can be broadly categorised into commercial redress and cultural redress. Commercial redress involves the transfer of assets to established post-Treaty settlement entities. Cultural redress can involve much more nuanced forms of redress and varies widely across iwi and hapū. For example, the Ngāi Tahu Claims Settlement Act 1998 provided for the renaming and vesting of Aoraki Mount Cook in Ngāi Tahu on the condition that, after a period, Ngāi Tahu would return it on behalf of the people of Aotearoa New Zealand.103
• 6.62 Settlement Acts often provide definitions of the relevant iwi or hapū, with different approaches between legislation. Some settlement Acts provide extensive lists of all hapū or whānau what make up the relevant iwi or hapū.104 Others define the iwi or hapū as including all persons descending from a common ancestor.105
• 6.63 Some settlement Acts have also defined tikanga as including “Māori customary law”.106 Legislative acknowledgement of tikanga as “law” is not an insignificant development, even if this is mostly found in settlement legislation. Other than settlement Acts, only the Oranga Tamariki Act defines tikanga as including “customary law”.107
• 6.64 Finally, all settlement Acts provide that the settlement agreement reached is full and final and the Crown is released from all obligations and liabilities to the iwi or hapū arising from their breaches of the Treaty.108

Recognition of places as legal persons

• 6.65 Some settlement Acts have affirmed the identity of places as legal persons. For example, both Te Awa Tupua (referring to the Whanganui River) and Te Urewera (a forested area formerly designated by the Crown as a National Park) have been recognised in statutes as legal persons with all the rights, powers, duties and liabilities of legal persons.109

102. See also for example Ngāi Tahu Claims Settlement Act 1998, Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010, Ngāti Awa Claims Settlement Act 2005 and Tūhoe Claims Settlement Act 2014, although nearly every settlement Act contains similar provisions.
103. Ngāi Tahu Claims Settlement Act 1998, ss 15–16. Other forms of cultural redress include the renaming of places, declaration of whenua rāhui, vesting of fee simple in cultural redress properties, acknowledgement by the Crown of the cultural, spiritual and historical association of iwi and hapū to their whenua and the establishment of reserves.

¹⁰⁴ See for example Waikato Raupatu Claims Settlement Act 1995, s 7.

¹⁰⁵ See for example Ngāti Awa Claims Settlement Act 2005, s 13.

106. See for example Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, s 7; Ngāti Tūwharetoa Claims Settlement Act 2018, s 12; and Ngāti Rangi Claims Settlement Act 2019, s 12.

¹⁰⁷ Oranga Tamariki Act 1989, s 2.

¹⁰⁸ See for example Tūhoe Claims Settlement Act 2014, s 15 and Ngāti Awa Claims Settlement Act 2005, s 15.

¹⁰⁹ Te Urewera Act 2014, s 11; Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, s 14.

• 6.66 Additionally, Te Urewera Act 2014 provides:110

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

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

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

CONCLUSION

• 6.67 In this chapter we have given a high-level historical overview of the statutory recognition of tikanga. We have shown how early legislation gave some limited recognition to, for example, “native custom”, but at the same time was also explicitly used as a tool directed towards the assimilation of Māori to European ways of life. A shift that began in the 1970s brought changes to the ways that statutes recognise, interpret and apply tikanga. Legislative recognition of tikanga has increased post-1975 and has been more meaningful. However, there remain limitations. In the following chapter, we turn to consider the influence of tikanga in the modern legal landscape in more detail, by considering how eight different areas of the law have engaged with tikanga.

110. Te Urewera Act 2014, s 3. For a thorough examination of the Act more broadly see Jacinta Ruru “Tūhoe-Crown settlement — Te Urewera Act 2014” [October 2014] Māori Law Review 16.

CHAPTER 7

Tikanga and state law today

INTRODUCTION

• 7.1 In this chapter, our focus moves beyond the overview which Chapters 5 and 6 have provided of general common law and statutory approaches to tikanga. We now turn to summarise how tikanga has been addressed in a range of specific areas of the law:1

(a) tikanga and environmental law;

(b) tikanga and criminal law;

(c) tikanga and family law;

(d) tikanga and the law of judicial review;

(e) tikanga and the New Zealand Bill of Rights Act 1990;

(f) tikanga and evidence;

(g) tikanga and Māori land; and

(h) tikanga in the Marine and Coastal Area (Takutai Moana) Act 2011.

TIKANGA AND ENVIRONMENTAL LAW

• 7.2 Tikanga has been a feature of environmental law for more than 30 years. It features most prominently in the Resource Management Act 1991 (RMA), associated statutory planning instruments and case law that has developed.2 Government bodies dedicated to environmental protection and administration engage with tikanga and with Māori, including Te Papa Atawhai | Department of Conservation, Manatū Mō Te Taiao | Ministry for the Environment and local government bodies. Several te Tiriti o Waitangi | Treaty of

1. There are other areas of the law that we do not cover. See for example Khylee Quince and Jayden Houghton “Privacy and Māori concepts” in Nikki Chamberlain and Stephen Penk (eds) Privacy Law in New Zealand (3rd ed, Thomson Reuters, Wellington, 2023) 43; Southern Response Earthquake Services Ltd v Ross [2020] NZSC 126, [2021] 1 NZLR 117 at [55] concerning tikanga and class actions; and GF v Comptroller of the New Zealand Customs Service [2023] NZEmpC 101 concerning tikanga and employment law.
2. For a discussion of the RMA and tikanga, see Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd [2020] NZHC 2768, [2021] 3 NZLR 352. There are numerous other environmental statutes that provide for Māori interests, such as the Heritage New Zealand Pouhere Taonga Act 2014, Conservation Act 1987, Fisheries Act 1996 and Environment Act 1986.

Waitangi (the Treaty) settlement Acts also expressly recognise and incorporate tikanga in respect of the environment.3

The Resource Management Act 1991

• 7.3 The RMA provides that “the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga” and “the protection of protected customary rights” are both matters of national importance that must be recognised and provided for.4 In addition, decision makers under the RMA must have regard to kaitiakitanga.5 As Chapter 6 describes, the RMA defines kaitiakitanga as “the exercise of guardianship by the tangata whenua of an area in accordance with tikanga Māori in relation to natural and physical resources and includes the ethic of stewardship”.6 Other Māori concepts defined by the RMA include tangata whenua, mana whenua and tikanga Māori. According to these definitions:7

(a) Tangata whenua means, in relation to a particular area, “the iwi, or hapu, that holds mana whenua over that area”.

(b) Mana whenua means “customary authority exercised by an iwi or hapu in an identified area”.

(c) Tikanga Māori means “Maori customary values and practices”.

• 7.4 Te Kōti Matua | High Court (the High Court) in Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd has explained that these terms need to be applied according to tikanga Māori:8

The RMA is replete with references to kupu Māori, including Māori, iwi, hapū, kaitiakitanga, tangata whenua, mana whenua, tāonga, taiapure, mahinga mataitai and tikanga Māori. Parliament plainly anticipated that resource management decision-makers will be able to grasp these concepts and where necessary, apply them in accordance with tikanga Māori.

• 7.5 People exercising functions under the RMA must also take into account the principles of the Treaty.9 The significance of this requirement was affirmed by the Privy Council in McGuire v Hasting District Council, noting that these “are strong directions, to be borne in mind at every stage of the planning process”.10
• 7.6 The RMA expressly contemplates that “iwi authorities” will be involved in developing “Mana Whakahono a Rohe” or iwi participation arrangements.11 The purpose of a Mana Whakahono a Rohe is to:12

³ We discuss some prominent examples in Chapter 6.

⁴ Resource Management Act 1991, ss 6(e) and (g).

⁵ Resource Management Act 1991, s 7(a).

⁶ Resource Management Act 1991, s 2.

⁷ Resource Management Act 1991, s 2.

⁸ Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd [2020] NZHC 2768, [2021] 3 NZLR 352 at [64].

⁹ Resource Management Act 1991, s 8.

¹⁰ McGuire v Hastings District Council [2000] UKPC 43, [2002] 2 NZLR 577 at [21].

¹¹ Resource Management Act 1991, s 58M.

¹² Resource Management Act 1991, s 58M.

... provide a mechanism for iwi authorities and local authorities to discuss, agree, and record ways in which tangata whenua may, through their iwi authorities, participate in resource management and decision-making processes.

• 7.7 Other provisions enable Māori, iwi and hapū to participate in resource management decision making, including the transfer of functions and powers to an iwi authority and recognition of tikanga where appropriate in Environment Court hearings.13 The RMA also enables the appointment of Environment Court Commissioners with knowledge and expertise in matters relating to the Treaty and kaupapa Māori.14 The Environment Court, when discharging its obligations under the RMA, does not have the role of conferring, declaring or affirming tikanga-based rights, powers and or authority.15 Rather, it may make evidential findings about tikanga-based claims as a part of discharging its obligations to Māori under the RMA.16

Engaging with the spiritual dimension of tikanga

• 7.8 From the early years of RMA litigation, courts and local authorities acknowledged that the Māori world view was holistic and that there was no necessary division between spiritual or metaphysical and physical matters.17 However, especially in the early years of the RMA, courts sometimes struggled to incorporate the spiritual or metaphysical dimension into their decision making. This had implications for how the merits of a particular proposal were assessed.
• 7.9 On occasion, the Environment Court has given less weight to spiritual or metaphysical matters where there were no related physical effects.18 For example, in Mahuta v Waikato Regional Council the Environment Court said in regard to the relationship between Waikato-Tainui and the Waikato River that “[a] central tenet of this relationship is the metaphysical aspect of the Waikato River, its mauri, and associated metaphysical phenomena”.19 Having made that finding, the Court nevertheless granted a resource consent that involved discharges from a dairy factory into the Waikato River. The Court reasoned:20

It is our judgment that because of the community value of the proposed expansion of the dairy factory, and because the cultural interests of Waikato-Tainui people would be provided for in so many other ways which avoid tangible harm to the river, the perceptions which are not represented by tangible effects do not deserve such weight as to prevail over the proposal and defeat it.

• 7.10 There were also instances where the Environment Court simply found that the claimed effect was not justiciable. In Beadle v Minister of Corrections, a case concerning a then proposed prison in Ngawha, the Environment Court considered that effects on the local taniwha (a guardian) named Takauere were not capable of adjudication.21 The Court said

¹³ Resource Management Act 1991, ss 33, 36B and 269(3).

¹⁴ Resource Management Act 1991, s 253(e).

¹⁵ Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd [2020] NZHC 2768, [2021] 3 NZLR 352 at [135].

¹⁶ Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd [2020] NZHC 2768, [2021] 3 NZLR 352 at [135].

¹⁷ Haddon v Auckland Regional Council [1993] NZPT 204; [1994] NZRMA 49 (PT) at 63.

¹⁸ Hamilton v Far North District Council [2015] NZEnvC 12; Verstraete v Far North District Council [2013] NZEnvC 108.

¹⁹ Mahuta v Waikato Regional Council NZEnvC Auckland A91/98, 29 July 1998 at [71].

²⁰ Mahuta v Waikato Regional Council NZEnvC Auckland A91/98, 29 July 1998 at [268].

²¹ Beadle v Minister of Corrections NZEnvC Wellington A074/02, 8 April 2002 at [440], [441] and [445].

there was no reliable basis for deciding conflicting claims about “mythical, spiritual, symbolic or metaphysical beings” and considered that it was not compelled to find that the taniwha exists if not persuaded that it exists by the evidence.22 On appeal, the High Court upheld the Environment Court’s decision to grant consent for the prison.23 However, the High Court said that if the Environment Court had excluded the taniwha from its assessment entirely it would have failed to properly recognise and provide for the relationship of Māori with their culture and traditions regarding their taonga.24

A rule of reason approach to engaging with the spiritual dimension of tikanga

• 7.11 In other cases, courts have applied a “rule of reason” approach to engaging with the spiritual dimension of tikanga, which provides the courts with a path to evaluating evidence about Māori values and metaphysical matters.
• 7.12 An explanation of the “rule of reason” approach can be found in Ngati Hokopu Ki Hokowhitu v Whakatane District Council. In this case, Te Rūnanga o Ngāti Awa applied for consent for a subdivision that was opposed by members of a local hapū, Ngāti Hokopu. The Environment Court considered the RMA requirement to recognise and provide for the “relationship” of Māori with their taonga, first drawing on the concept of whanaungatanga. The Court said whanaungatanga denotes that “in traditional Māori thinking relationships are everything — between people, between people and the physical world, and between people and atua (spiritual entities)”.25 It also noted that there is “no rigid distinction between physical beings, tipuna (ancestors) atua (spirits) and taniwha”.26 The Environment Court then explained the “rule of reason” approach:27

That “rule of reason” approach if applied by the Environment Court, to intrinsic and other values and traditions, means that the Court can decide issues raising beliefs about those values and traditions by listening to, reading and examining (amongst other things):

• whether the values correlate with physical features of the world (places, people);
• people’s explanations of their values and their traditions;
• whether there is external evidence (e.g Maori Land Court Minutes) or corroborating information (e.g waiata, or whakatauki) about the values. By “external” we mean before they became important for a particular issue and (potentially) changed by the value- holders;
• the internal consistency of people’s explanations (whether there are contradictions);
• the coherence of those values with others;
• how widely the beliefs are expressed and held.

In a Court of course, values are ascertained by listening to and assessing evidence dispassionately with the assistance of cross-examination and submissions. Further, there are “rules” as to how to weigh or assess evidence.

²² Beadle v Minister of Corrections NZEnvC Wellington A074/02, 8 April 2002 at [440].

²³ Friends and Community of Ngawha Inc v Minister of Corrections [2002] NZRMA 401 (HC).

²⁴ Friends and Community of Ngawha Inc v Minister of Corrections [2002] NZRMA 401 (HC) at [41].

²⁵ Ngati Hokopu Ki Hokowhitu v Whakatane District Council [2002] NZEnvC 421, (2002) 9 ELRNZ 111 at [39].

²⁶ Ngati Hokopu Ki Hokowhitu v Whakatane District Council [2002] NZEnvC 421, (2002) 9 ELRNZ 111 at [42].

²⁷ Ngati Hokopu Ki Hokowhitu v Whakatane District Council [2002] NZEnvC 421, (2002) 9 ELRNZ 111at [53].

• 7.13 That “rule of reason” approach was applied earlier in Tainui Hapu v Waikato District Council. In this case, the Planning Tribunal (now the Environment Court) rejected an application for a television translator on a hill known as Horea,28 noting that the whole area was closely associated with deep respect for the appellant’s ancestors.29 The Council appealed to the High Court, which held that a “rule of reason approach” should apply. The High Court said, “the question is whether objectively, the particular kind of activity is intrinsically offensive to an established waahi tapu or other cultural considerations”.30 The Court explained that Tainui see Horea in metaphysical and cultural terms.31 The Court went on, saying:32

The developer derives her justification from the belief that she stands on “the common good”; in this case, better television signals. Strip the land of dignity, and doubtless the justification is powerful. But for others — as for Tainui here — what occurs is then culturally debilitating: what is lost is something to do with the integrity, and the spirit of a place, that no element of economic advancement can ever justify.

Measuring environmental impacts by reference to tikanga

• 7.14 There is now a large body of jurisprudence that assesses Māori interests by reference to tikanga.33 For example, where persons holding mana whenua give credible and reliable evidence about the effect of a proposed activity from a tikanga perspective, that evidence should be determinative as to the relevant effects from a tikanga perspective. 34

Assessing oral evidence of tikanga

• 7.15 An issue for the Environment Court concerns how tikanga-based claims can be proved.35 In some cases, the Court has cast doubt on whether oral tradition is capable of verification and whether it is too vague to be useful.36 However, the Court in Ngati Hokopu offered the following guidance as to the assessment of evidence:37

... we have to bear in mind that Ngati Awa, and Maori generally, have a culture in which oral statements are the accepted method of discourse on serious issues, and statements of

²⁸ Tainui Hapu v Waikato District Council PT A75/96, 21 August 1996.

²⁹ Tainui Hapu v Waikato District Council PT A75/96, 21 August 1996.

³⁰ TV3 Network Services Ltd v Waikato District Council [1998] 1 NZLR 360 (HC) at 371.

³¹ TV3 Network Services Ltd v Waikato District Council [1998] 1 NZLR 360 (HC) at 371.

³² TV3 Network Services Ltd v Waikato District Council [1998] 1 NZLR 360 (HC) at 371.

33. See for example Ngati Kahungungu Iwi Inc v Hawkes Bay Regional Council [2015] NZEnvC 50; Director-General of Conservation v Taranaki Regional Council [2019] NZEnvC 203 at [238]; Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd [2020] NZHC 2768, [2021] 3 NZLR 352; Ngati Rangi Trust v Manawatu-Wanganui Regional Council NZEnvC A67/2004, 18 May 2004; Outstanding Landscape Protection Society Inc v Hastings District Council [2007] NZEnvC 87; [2008] NZRMA 8 (NZEnvC); Ngati Ruahine v Bay of Plenty Regional Council [2012] NZHC 2407; [2012] NZRMA 523 (HC); Motiti Rohe Moana Trust v Bay of Plenty Regional Council [2014] NZEnvC 125; Re Waiheke Marinas Ltd [2015] NZEnvC 218; Sustainable Matatā v Bay of Plenty Regional Council [2015] NZEnvC 90, (2015) 18 ELRNZ 620; Puwera Māori Ancestral Land Unincorporated Group v Whangarei District Council [2016] NZEnvC 94; Wilson v Waikato Regional Council [2021] NZEnvC 131; Bay of Islands Maritime Park Inc v Northland Regional Council [2022] NZEnvC 228; Ngā Kaitiaki o Te Awa o Ngaruroro [2022] NZEnvC 227.
34. Tauranga Environmental Protection Society Inc v Tauranga City Council [2021] NZHC 1201, [2021] 3 NZLR 882 at [65]– [66].
35. Nga Uri o Wiremu Mormona Raua Ko Whakarongohau Pita Inc (Pita Whanau) v Far North District Council NZEnvC Auckland A14/08, 13 February 2008; Ngai Te Hapu Inc v Bay of Plenty Council [2017] NZEnvC 73.

³⁶ St Lukes Group Ltd v The Auckland City Council NZEnvC Auckland A132/01, 3 December 2001.

³⁷ Ngati Hokopu Ki Hokowhitu v Whakatane District Council [2002] NZEnvC 421, (2002) 9 ELRNZ 111 at [56].

whakapapa are very important as connecting individuals to their land. In the absence of other evidence from experts on tikanga Maori, the evidence of tangata whenua must be given some weight (and in appropriate cases considerable, perhaps determinative, weight). In the end the weight to be given to the evidence in any case is unique to that case.

• 7.16 There is now clear High Court authority that evidence of oral tradition is not to be discounted simply because of its oral nature.38

Resolving issues of mana

• 7.17 A recurring issue in environmental cases is identifying those who exercise mana (authority, responsibilities) in respect of a particular area. Disputes on this issue can arise both within Māori communities and between Māori communities.39 The Environment Court has generally adopted a cautious approach to the resolution of claims to mana whenua.40 For example, in Ngāi Te Hapū Inc v Bay of Plenty Regional Council (a case concerning the grounding of a container ship, MV Rena) the Court had to determine whose claims to kaitiakitanga and rangatiratanga or customary authority should be recognised, and whose tikanga should be applied.41 In resolving the competing claims, the Court considered ancestral connections, continuous occupation, proximity to the reef, the nature of the cultural and customary associations with the reef, the use of the area as a fishing ground and the manner in which different groups had exercised their kaitiakitanga.42
• 7.18 In Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd, the High Court commented on the Environment Court’s approach to recognition of mana whenua status. It observed that while the Environment Court was reluctant to do so, it would make assessments of relative mana whenua in order to discharge its obligations.43 However, the High Court also said that:44

... any assessment of this kind will be predicated on the asserted relationship being clearly grounded in and defined in accordance with tikanga Māori and mātauranga Māori and that any claim based on it is equally clearly directed to the discharge of the statutory obligations to Māori and to a precise resource management outcome.

• 7.19 The Environment Court’s decision in Director-General of Conservation v Taranaki Regional Council illustrates the type of assessment needed when considering mana whenua status. In that case, a group of residents who described themselves as Poutama claimed tangata whenua status.45 Some, but not all, of the group were Māori. One of those residents, whose property would be directly and severely affected by the proposal to reroute a State Highway, identified a whakapapa link to a different local hapū through her grandmother, a link she had not previously been aware of until the proceedings. Poutama

³⁸ Takamore Trustees v Kapiti District Council [2003] 3 NZLR 496 (HC) at [68] per Ronald Young J.

39. For example, Beadle v Minister of Corrections NZEnvC Wellington A074/02, 8 April 2002; and Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd [2020] NZHC 2768, [2021] 3 NZLR 352.
40. See for example Tawa v Bay of Plenty Regional Council PT A018/95, 24 March 1995 at [35]–[36]; Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93 at [128]–[129]; Luxton v Bay of Plenty Regional Council PT A049/94, 14 June 1994; and Paihia & District Citizens Assn Inc v Northland Regional Council PT A077/95, 10 August 1995.

⁴¹ Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 73 at [82].

⁴² Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 73 at [85].

⁴³ Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd [2020] NZHC 2768, [2021] 3 NZLR 352 at [130]–[131] and [133].

⁴⁴ Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd [2020] NZHC 2768, [2021] 3 NZLR 352 at [133].

⁴⁵ Director-General of Conservation v Taranaki Regional Council [2019] NZEnvC 203 at [17].

opposed the application. However, the proposal was generally supported by Ngāti Tama, the widely recognised hapū (local tribe) of the affected area. Ngāti Tama also opposed any claim by Poutama to kaitiaki or mana whenua status.

• 7.20 In declining to acknowledge Poutama as kaitiaki or mana whenua, the Environment Court referred to whakapapa and whanaungatanga.46 The Court noted that Poutama did not whakapapa (have genealogical connection) to the affected land and that there was no corroborating evidence in the form of waiata (song) or whakataukī (proverb) that Poutama had a relationship to the land in tikanga terms.47 The Court also found there was no recognition of Poutama as a hapū by neighbouring iwi or hapū.48 The Court therefore found that Poutama had not established any proper basis for claiming kaitiaki status in accordance with tikanga.49

TIKANGA AND CRIMINAL LAW

• 7.21 The genesis of modern engagement between tikanga and the criminal law can be found in the Department of Justice report The Maori and the Criminal Justice System: A New Perspective | He Whaipaanga Hou, authored by Moana Jackson.50 A key finding of this report was that engagement with tikanga is needed to improve outcomes for Māori within the criminal justice system.51
• 7.22 Despite this, the Crimes Act 1961 and the Sentencing Act 2002 (the two main Acts that provide for Aotearoa New Zealand’s criminal law) do not directly engage with tikanga. Additionally, the Crimes Act is partially a code, meaning that it applies to all offences for which an offender may be tried in Aotearoa New Zealand.52 This can make criminal law resistant to change in ways that other areas of the law are not. As the authors of Criminal Law in Aotearoa New Zealand observe:53

There have been some efforts over the last four decades to recognise Māori cultural values in various adaptations of the criminal justice process. None of these are directed at recognising and applying tikanga Māori as a system of law.

• 7.23 Efforts to recognise tikanga in the criminal justice system have included:

(a) tikanga increasingly being considered when a court is exercising its discretion in determining an appropriate sentence;

(b) increased incorporation of tikanga in initiatives such as solutions-focused courts and rehabilitative programmes; and

⁴⁶ Director-General of Conservation v Taranaki Regional Council [2019] NZEnvC 203 at [237] and [319].

⁴⁷ Director-General of Conservation v Taranaki Regional Council [2019] NZEnvC 203 at [320].

⁴⁸ Director-General of Conservation v Taranaki Regional Council [2019] NZEnvC 203 at [320].

⁴⁹ Director-General of Conservation v Taranaki Regional Council [2019] NZEnvC 203 at [339].

50. Moana Jackson The Maori and the Criminal Justice System: A New Perspective | He Whaipaanga Hou (Department of Justice, Study Series 18, 1987–1988, part 2).

⁵¹ See discussion in Moana Jackson The Maori and the Criminal Justice System: A New Perspective | He Whaipaanga Hou

(Department of Justice, Study Series 18, 1987–1988, part 2) from 259.

52. Crimes Act 1961, s 5. See also Geoffrey Palmer “The reform of the Crimes Act 1961” (1990) 20 Victoria University of Wellington Law Review 9 at 13.
53. Julia Tolmie, Kris Gledhill, Fleur Te Aho and Khylee Quince Criminal Law in Aotearoa New Zealand (LexisNexis, Wellington, 2022) at 36.

(c) the emergence of tikanga in specific areas outside the Crimes Act such as extradition and posthumous continuation of criminal proceedings.

Arguments made for recognising tikanga as an alternative criminal justice system

• 7.24 Before discussing efforts to recognise tikanga in the criminal law, it is worth noting that Māori defendants have occasionally argued that they should be dealt with according to tikanga, not tried under the Crimes Act. For example, in R v Mason, counsel for the defendant asked whether:54

... some form of parallel or alternative criminal jurisdiction based on Maori custom is available to Maori and, in this particular case, to Mr Mason so that the serious allegations made against him can be tried in that forum.

• 7.25 The High Court answered in the negative, noting that the need to rebuild customary practices made an alternative customary system unviable.55 However, the Court did refer to the nineteenth century consideration of tikanga as having the character and authority of the law.56 Speaking to potential issues the Court saw in having two separate systems, it endorsed observations from Te Kōti Pīra | Court of Appeal (the Court of Appeal) in R v Talalaina that “[t]he law of New Zealand must be administered in the interests of our society as a whole”.57 On appeal, the Court of Appeal upheld this decision, saying: “tikanga is not presently a viable legal process for serious crime even if continuity of custom could be demonstrated”.58 A series of other cases have followed and affirmed the Mason decisions.59
• 7.26 In an earlier case, R v Iti, the defendant had discharged live rounds on the marae ātea as part of a “historically unique occasion when the Waitangi Tribunal entered the Ruatoki Valley to hear Tuhoe grievances dating from the nineteenth century”.60 Counsel for the defendant put forward the defence that the discharge was lawful according to tikanga Tūhoe. However, Hammond J (on behalf of the Court) held that, although the evidence established that the discharge of a firearm at Tauarau Marae was consistent with custom, the Arms Act 1988 “limited the customary right”.61

Consideration of tikanga in sentencing

• 7.27 There are provisions in the Sentencing Act that allow a court to take into account an offender’s cultural background during sentencing. Section 8(i) of the Sentencing Act requires as a principle of sentencing that a court:

... must take into account the offender’s personal, family, whanau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose.

⁵⁴ R v Mason [2012] NZHC 1361, [2012] 2 NZLR 695 at [6].

⁵⁵ R v Mason [2012] NZHC 1361, [2012] 2 NZLR 695 at [47]–[48].

⁵⁶ R v Mason [2012] NZHC 1361, [2012] 2 NZLR 695 at [13] and [28].

⁵⁷ R v Mason [2012] NZHC 1361, [2012] 2 NZLR 695 at [49]–[53]; R v Talalaina (1991) 7 CRNZ (CA) at 36.

⁵⁸ Mason v R [2013] NZCA 310, (2013) 26 CRNZ 464 at [3] and [41].

⁵⁹ See Main v Police [2018] NZHC 1828; Ferri v Police [2018] NZCA 181 at [8].

⁶⁰ R v Iti [2007] NZCA 119, [2008] 1 NZLR 587 at [3].

⁶¹ R v Iti [2007] NZCA 119, [2008] 1 NZLR 587 at [49].

• 7.28 The Sentencing Act allows the court to direct that a cultural report be prepared that can include this information.62 It also allows an offender to request a court to hear any person speak to the cultural background of the offender and how that relates to their offending. 63 The provisions relating to the cultural background of an offender can be traced to section 16 of the Criminal Justice Act 1985.64 This section “was a conscious attempt to recognise the importance of trying to meet the needs of Māori offenders”.65
• 7.29 These provisions have enabled courts to consider cultural factors when sentencing, including tikanga. For example, in Henare v R, the Court of Appeal considered whether the sentencing judge should have recognised the impact of Mr Henare’s state of whakamā when sentencing him. In Chapter 3, we refer to whakamā as “the outward expression of inward disintegration” and note the responsibility others may have to redress this.66 The Court found that whakamā reflected upon the mana of Mr Henare and his whānau.67 Applying this to the sentencing context, the Court commented that whakamā may be a “unique mitigating factor when sentencing a Māori defendant”.68 On further appeal, Te Kōti Mana Nui | Supreme Court (the Supreme Court) affirmed that the potential effect of whakamā in sentencing is a matter of general or public importance. However, it did not arise on the facts of the particular case.69 The earlier case of R v Mason had also considered the relevance of whakamā. In that case, the High Court accepted that Mr Mason experienced various stages of whakamā leading up to his offending but found that it could not be an excuse for the serious crimes that he committed.70
• 7.30 Whanaungatanga is another potentially relevant matter. In Solicitor-General v Heta, the High Court found that systemic deprivation may remove an offender from their whānau.71 In such cases, there may be tikanga dimensions to a successful rehabilitation. It may be open to courts to regard this as a relevant factor when determining a sentence, given the important part that rebuilding these whanaungatanga connections will play.
• 7.31 Overall, despite case law discussing the impact of cultural reports, the authors of Criminal Law in Aotearoa New Zealand have said that:72

⁶² Sentencing Act 2002, s 26.

⁶³ Sentencing Act 2002, s 27.

⁶⁴ Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [35].

65. Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [35], citing Michael Cullen at the second reading of the Criminal Justice Bill. See (1985) 463 NZPD 4795.
66. Joan Metge In and Out of Touch: Whakamaa in Cross-Cultural Context (Victoria University Press, Wellington, 1986) at 77.

⁶⁷ Henare v R [2020] NZCA 188 at [25].

⁶⁸ Henare v R [2020] NZCA 188 at [26].

⁶⁹ Henare v R [2020] NZSC 96 at [13].

⁷⁰ R v Mason [2012] NZHC 1849, [2012] 2 NZLR 695 at [39].

⁷¹ Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [64].

72. Julia Tolmie, Kris Gledhill, Fleur Te Aho and Khylee Quince Criminal Law in Aotearoa New Zealand (LexisNexis, Wellington, 2022) at 39.

... [w]hilst significant, cultural reports are considered after the defendant has already pleaded or been found guilty of a criminal offence, are not necessarily funded or introduced as a matter of course, are not always appreciated by the sentencing judge, and arguably simply make a stage that should always have gathered this kind of information more efficient.

Tikanga and rehabilitation programmes

• 7.32 Where a person pleads guilty to or is found guilty of an offence, the court can allow them to participate in a rehabilitation programme before they are sentenced.73 These rehabilitation programmes have started to incorporate tikanga.
• 7.33 Te Whare Whakapiki Wairua | Alcohol and Other Drug Treatment Court was established in 2012. It focuses on breaking the cycle of offending by treating the causes of the offending, particularly offending driven by alcohol and/or drug substance use disorders.74 The Court features a Pou Oranga: a Māori cultural advisor with experience of wellness and substance use recovery.75 It also embeds tikanga in the Court’s process, using karakia (incantations or prayers) to open and close proceedings and practising himene (hymns) and waiata (song).76
• 7.34 Te Kōti Rangatahi | Rangatahi Court formed in 2008. It operates on the same basis as Te Kōti Taiohi | Youth Court except that proceedings are primarily designed for young Māori people.77 Proceedings are held on marae (sometimes the marae associated with the offender) with the assistance of kaumātua and kuia (male and female elders).78 The Court process starts with a pōwhiri (welcome).79 The participants are expected to learn and deliver a mihi (acknowledgement).80
• 7.35 Te Kooti o Matariki | Matariki Court is a court that provides for participation in a culturally focussed rehabilitation programme. It is based in Kaikohe and was established in 2010. The local iwi, Ngāpuhi, are involved in the programme. The Matariki Court incorporates tikanga in various ways. For example, the participant’s whānau are brought into Court and the prosecutor and kaumātua guide the Court in how proceedings are conducted, including using karakia and mihi where appropriate for the parties.
• 7.36 The authors of Criminal Law in Aotearoa New Zealand have commented that “[s]pecial efforts to embed Māori values and processes within these solutions-focused courts are

⁷³ Sentencing Act 2002, s 25(1)(d).

⁷⁴ Te Tāhū o te Ture | Ministry of Justice “Alcohol and Other Drug Treatment Court” <www.justice.govt.nz>.

75. Julia Tolmie, Kris Gledhill, Fleur Te Aho and Khylee Quince Criminal Law in Aotearoa New Zealand (LexisNexis, Wellington, 2022) at fn 187.
76. Te Tāhū o te Ture | Ministry of Justice Alcohol and Other Drug Treatment Court Outcomes Evaluation 2018–19 (June 2019) at 13.

⁷⁷ District Courts Act 1947, s 4(4).

⁷⁸ Te Kāhui Ture o Aotearoa | New Zealand Law Society “Te Ao Mārama coming into the light” (25 June 2021)

<www.lawsociety.org.nz>.

⁷⁹ Te Kōti Taiohi o Aotearoa | Youth Court of New Zealand “Rangatahi Courts & Pasifika Courts”

<www.youthcourt.govt.nz>. See also Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 27.

⁸⁰ Te Kōti Taiohi o Aotearoa | Youth Court of New Zealand “Rangatahi Courts & Pasifika Courts”

<www.youthcourt.govt.nz>.

seen within the Matariki Court and Rangatahi Courts with some positive effect”.81 However, Associate Professor Khylee Quince has described solutions-focused courts as “the Indigenous window dressing of existing Pākehā institutions”.82 It is worth noting that these specialist courts only operate upon referral from a court with jurisdiction to sentence an offender.83

Other criminal law-related initiatives that engage tikanga

• 7.37 Other programmes dedicated to restorative justice and therapeutic jurisprudence utilise tikanga. Examples include Te Whānau Awhina, Te Pae Oranga Iwi Community Panels, Kowhiritanga, Te Kupenga, Te Tirohanga, and kaupapa Māori drug treatment.
• 7.38 Te Whānau Awhina is a restorative justice programme run out of Hoani Waititi Marae. This programme began as a “by Māori for Māori” initiative but now can be accessed by non- Māori.84 The process starts with a hui to discuss the offending with the offender, their whānau, the victim and (where possible) the victim’s whānau, members of Te Whānau Awhina and a community panel.85
• 7.39 Te Pae Oranga Iwi Community Panels are designed for iwi/Māori institutions and police to deal with offending.86 Once someone commits an offence, police can refer them to a local service agency that runs the programme.87 The programme uses tikanga and kaupapa Māori restorative justice practices.88 However, the authors of Criminal Law in Aotearoa New Zealand have criticised Te Pae Oranga Iwi Community Panels for relying on police discretion to divert offenders, and on offenders admitting guilt. They have also observed that state law still provides the overarching framework for the process.89
• 7.40 Another initiative, Te Ao Mārama, focuses on incorporating te reo Māori and tikanga into solutions-focused judging in Te Kōti-ā-Rohe | District Court (the District Court). The pioneer of this initiative, Chief Judge Taumaunu, has explained that Te Ao Mārama incorporates best practices developed in the District Court’s solutions-focused specialist

81. Julia Tolmie, Kris Gledhill, Fleur Te Aho and Khylee Quince Criminal Law in Aotearoa New Zealand (LexisNexis, Wellington, 2022) at 38, referring to Kaipuke Ltd Evaluation of the Early Outcomes of Ngā Kooti Rangatahi (Ministry of Justice, Wellington, 2012); Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 27. For calls by Māori to expand the Rangatahi Courts and Matariki Court, see Ināia Tonu Nei — Now is the Time: We Lead, You Follow (report prepared for Te Tāhū o te Ture

| Ministry of Justice, July 2019) at 27.

82. Khylee Quince “Therapeutic jurisprudence and Māori” in Warren Brookbanks (ed) Therapeutic Jurisprudence: New Zealand Perspectives (Thomson Reuters, Wellington, 2015) 347 at 347.

⁸³ Sentencing Act 2002, s 25.

84. Pita Sharples “Te Whānau Āwhina: an indigenous programme for restorative justice by the Māori of New Zealand (Inaugural Conference of Restorative Practices International, Queensland, Australia, 17 October 2007)

<www.scoop.co.nz>.

85. Pita Sharples “Te Whānau Āwhina: an indigenous programme for restorative justice by the Māori of New Zealand” (Inaugural Conference of Restorative Practices International, Queensland, Australia, 17 October 2007)

<www.scoop.co.nz>.

⁸⁶ These panels were formed in Hutt Valley, Gisborne and Manukau in 2013.

⁸⁷ Ngā Pirihimana o Aotearoa | New Zealand Police “Te Pae Oranga Iwi Community Panels” <www.police.govt.nz>.

⁸⁸ Ngā Pirihimana o Aotearoa | New Zealand Police “Te Pae Oranga Iwi Community Panels” <www.police.govt.nz>.

89. Julia Tolmie, Kris Gledhill, Fleur Te Aho and Khylee Quince Criminal Law in Aotearoa New Zealand (LexisNexis, Wellington, 2022) at 38.

courts into its mainstream criminal jurisdiction.90 He says “[t]his includes adopting plain language and culture and processes that incorporate tikanga and te ao Māori”.91

Tikanga and specific areas of the criminal law

Extradition

• 7.41 Tikanga has had some consideration in an extradition context. In Tukaki v Commonwealth of Australia, the Court of Appeal was prepared to take judicial notice of whanaungatanga when interpreting and applying the Extradition Act 1999.92 Counsel for Mr Tukaki had argued that the family unit from which he would be removed if extradited extended beyond his immediate family to include his hapū and iwi. However, this was not found to be “oppressive” under the Act. The Court acknowledged that although whanaungatanga could be a relevant consideration in determining whether extradition would be “oppressive”, cultural considerations will always be relevant to extradition and each culture defines the family unit differently. The appeal was dismissed.

Posthumous continuation of proceedings

• 7.42 In Ellis v R, the Supreme Court unanimously held that there is jurisdiction, upon application, to continue an appeal process after the death of an applicant if it is in the interests of justice to do so.93 Although the judges were split on the exact formulation of that test, they all agreed that tikanga may be a relevant consideration.94 The Court’s approach to tikanga is discussed in Chapter 5.

TIKANGA AND FAMILY LAW

• 7.43 Together with environmental law, family law is an area that has seen relatively significant engagement with tikanga.95 This may be because, as Justice Joseph Williams (writing extra-judicially) says, “the whanau persists as an institution in the hearts and minds of Māori people”.96
• 7.44 The Department of Social Welfare report Puao-te-Ata-tu marks the start of this engagement.97 The report, commissioned to hear a Māori perspective on the operations

90. Te Kōti-ā-Rohe o Aotearoa | District Court of New Zealand “Transformative Te Ao Mārama model announced for District Court” (11 November 2020) <www.districtcourts.govt.nz>.
91. Te Kōti-ā-Rohe o Aotearoa | District Court of New Zealand “Transformative Te Ao Mārama model announced for District Court” (11 November 2020) <www.districtcourts.govt.nz>.

⁹² Tukaki v Commonwealth of Australia [2018] NZCA 324, [2018] NZAR 1597.

⁹³ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [5]–[7].

⁹⁴ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [10]–[11].

95. Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 17. Williams noted that Māori relationships with the environment and Māori collective relationships are “co-equal” cores of Māori culture.
96. Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 24.
97. The Maori Perspective Advisory Committee Puao-te-Ata-tu (day break): The Report of the Ministerial Advisory Committee on a Maori Perspective for the Department of Social Welfare (September 1988). See also Alison Cleland “Protection of mana tamaiti (tamariki): the right to cultural connectedness” (2021) 10 New Zealand Family Law Journal 141 at 141.

of the Department of Social Welfare,98 became a primary driver for the enactment of the Children, Young Persons, and Their Families Act 1989 (now the Oranga Tamariki Act 1989). Since then, tikanga has begun to be recognised in a range of family law areas, including:

(a) care and protection of young people;

(b) guardianship;

(c) whāngai and adoption, succession to Māori land, and family protection;

(d) surrogacy; and

(e) taonga in relation to succession and relationship property.

• 7.45 In addition, tikanga is being increasingly considered and used in Te Kōti Whānau | Family Court (the Family Court) procedure such as opening the Court in te reo Māori or using mihi, pepeha (tribal sayings) and karakia where these are appropriate for the parties. 99

Care and protection of young people

• 7.46 Following Puao-te-Ata-tu, the Children, Young Persons, and Their Families Act (CYFA) responded to this report’s calls to recognise tamariki Māori and their place within whānau, hapū and iwi.100 The CYFA, like earlier legislation, was designed to provide for the “care and protection” of young people where the Department of Social Welfare (as it was then called) had determined that intervention was required.101 However, the CYFA took a fresh approach.102 When speaking at the Bill’s second reading, Hon Michael Cullen said:103

The Bill incorporates the most far-reaching changes to our children and young persons’ legislation since the Child Welfare Act 1925 ... The Bill recognises that the well-being of children and young persons is bound in with the well-being of their families. For that reason, the word “families” has been included in the title of the amended form of the Bill.

• 7.47 In line with the spirit of Puao-te-Ata-tu, the CYFA provided for the recognition, at least in principle, of children and young persons within their “kin matrix” of whānau, hapū and iwi and other family groups.104 In particular, the CYFA’s general principles included that whānau, hapū and iwi should participate in decision making and that connections to whānau, hapū and iwi should be strengthened and maintained.105

98. The Maori Perspective Advisory Committee Puao-te-Ata-tu (day break): The Report of the Ministerial Advisory Committee on a Maori Perspective for the Department of Social Welfare (September 1988) at Preface.
99. Annis Summerville “Tikanga in the Family Court — the gorilla in the room” (2016) 8 New Zealand Family Law Journal 157 at 160.
100. The Maori Perspective Advisory Committee Puao-te-Ata-tu (day break): The Report of the Ministerial Advisory Committee on a Maori Perspective for the Department of Social Welfare (September 1988) at Preface. The government accepted the “spirit and recommendations” of the report. See Mark Henaghan, Bill Atkin, Shonagh Burnhill and Anna Chapman Family Law in New Zealand (20th ed, LexisNexis, Wellington, 2021) at 459–460.
101. See the long titles of both the Children and Young Persons Act 1974 and the Children, Young Persons, and Their Families Act 1989. See also Mark Henaghan, Bill Atkin, Shonagh Burnhill and Anna Chapman Family Law in New Zealand (20th ed, LexisNexis, Wellington, 2021) at 459. The CYFA also contains a pt IV, dedicated to the Youth Justice system.
102. See an account of this changed approach in Chief Executive of Oranga Tamariki — Ministry for Children v BH JA [2021] NZFC 210, [2021] NZFLR 201 at [14]–[17].

¹⁰³ (27 April 1989) 497 NZPD 10246.

104. See the long title of the CYFA and ss 4–5, 7 and 13. See also commentary in Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 24.

¹⁰⁵ Children, Young Persons, and Their Families Act 1989, s 5.

• 7.48 The CYFA also introduced the family group conference mechanism for enabling whānau participation in decision making.106 To that end, conference processes are regulated in any way thought fit,107 the child or young person’s whānau are entitled to attend as of right (although subject to the opinion of a Care and Protection Co-ordinator),108 and whānau are empowered to make decisions regarding the care and protection of the child or young person.109 Extra-judicially, Justice Joseph Williams has said that the family group conference “tries to replicate, albeit in a very attenuated form, the old social control role of the whanau under tikanga”.110
• 7.49 Where court intervention is required, courts are enabled to obtain a cultural report on “the heritage and the ethnic, cultural, or community ties and values of the child ... or the child’s ... family, whanau, or family group”.111
• 7.50 The CYFA was amended several times between 2016 and 2019. These amendments included changing its name to the Oranga Tamariki Act 1989 (OTA).112 Although the operative provisions were largely unchanged,113 significant changes were made to the principles provisions. In particular, the OTA now recognises concepts of mana tamaiti, whakapapa and whanaungatanga in addition to the place of a child within their family, whānau, hapū, iwi and family group.114 Mana tamaiti, whakapapa and whanaungatanga are defined as follows:115

mana tamaiti (tamariki) means the intrinsic value and inherent dignity derived from a child’s or young person’s whakapapa (genealogy) and their belonging to a whānau, hapū, iwi, or family group, in accordance with tikanga Māori or its equivalent in the culture of the

child or young person

whakapapa, in relation to a person, means the multi-generational kinship relationships that help to describe who the person is in terms of their mātua (parents), and tūpuna (ancestors), from whom they descend

whanaungatanga, in relation to a person, means—

(a) the purposeful carrying out of responsibilities based on obligations to whakapapa:

(b) the kinship that provides the foundations for reciprocal obligations and responsibilities to be met:

(c) the wider kinship ties that need to be protected and maintained to ensure the maintenance and protection of their sense of belonging, identity, and connection ...

¹⁰⁶ Children, Young Persons, and Their Families Act 1989, ss 20–38.

¹⁰⁷ Oranga Tamariki Act 1989, s 26.

¹⁰⁸ Oranga Tamariki Act 1989, s 22(b)(ii).

¹⁰⁹ Oranga Tamariki Act 1989, s 29.

110. Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 24.

¹¹¹ Oranga Tamariki Act 1989, s 187.

112. The amendments had their genesis in a Manatū Whakahiato Ora | Ministry of Social Development report prepared by an expert panel with a mandate to “determine how to transform the lives of our vulnerable children once and for all”. See Mark Henaghan, Bill Atkin, Shonagh Burnhill and Anna Chapman Family Law in New Zealand (20th ed, LexisNexis, Wellington, 2021) at 461.

¹¹³ With the exception of the special guardianship provisions that we discuss below.

¹¹⁴ See Oranga Tamariki Act 1989, ss 5 and 13.

¹¹⁵ Oranga Tamariki Act 1989, s 2.

• 7.51 In practice, these principles tend to be most relevant when a child has been uplifted from their family and the Family Court must decide about their placement under the OTA.116 Tension can arise if the court must decide whether to place a child within their whānau, hapū or iwi or elsewhere. An example of this tension can be found in cases about “special guardianship”, an arrangement where a person is appointed as a special guardian of a child or young person and has exclusive rights, including the ability to restrict other guardians’ access to the child.117 In Chief Executive of Oranga Tamariki — Ministry for Children v BH JA, the Family Court said that a special guardianship order that places the child outside of their whānau, hapū or iwi will generally be “fundamentally irreconcilable with principles of wellbeing that speak to mana, whakapapa and whanaungatanga”.118 The Court continued:119

While special guardianship is a legal relationship of and between identified individuals in relation to a child, the legal assignment of exclusive decision-making and limited means for reconsideration of guardianship and custody and access arrangements is incompatible with responsibilities for the child that arise from whakapapa and kinship connection and with the notion of affording protection to the child and the kinship group.

• 7.52 In Re WH, the Family Court interpreted whakapapa, whanaungatanga and mana tamaiti differently. In that case, the Family Court held that BH was authority for the proposition that the principles of whakapapa, whanaungatanga and mana tamaiti in the OTA “bear such weight that they will in almost all cases prevent the making of a special guardianship order”.120 The Family Court said that, to the extent BH suggested the particular circumstances of the child do not usually have an impact on the significance of whakapapa, whanaungatanga and mana tamaiti, the Court respectfully disagreed.121 It also said that the approach taken in BH would have the effect of “demoting the paramountcy rule which demands consideration of all factors affecting a child”.122 In the Court’s view, where the principles of whakapapa, whanaungatanga and mana tamaiti are unable to be applied in practical terms, a different guardianship solution will be needed.123
• 7.53 Despite Re WH, the approach in BH was affirmed by the High Court in McHugh v McHugh.124 The principles of whakapapa, whanaungatanga and mana tamaiti have yet to be considered by the Court of Appeal or the Supreme Court.

116. See discussion in Mark Henaghan, Bill Atkin, Shonagh Burnhill and Anna Chapman Family Law in New Zealand (20th ed, LexisNexis, Wellington, 2021) at 471.
117. Special guardianship confers some exclusive rights to the special guardian with minimal ability for review by others and substantially restricts other guardians’ ability to gain access to the child or amend the special guardian’s exclusive rights. Special guardianship does not go so far as adoption in that it still allows other guardians to retain some rights, with limited ability to review guardians’ and special guardians’ respective guardianship rights. See Oranga Tamariki Act 1989, s 113B.

¹¹⁸ Chief Executive of Oranga Tamariki — Ministry for Children v BH JA [2021] NZFC 210, [2021] NZFLR 201 at [39]–[41].

¹¹⁹ Chief Executive of Oranga Tamariki — Ministry for Children v BH JA [2021] NZFC 210, [2021] NZFLR 201 at [34].

¹²⁰ Re WH [2021] NZFC 4090, [2021] NZFLR 216 at [69].

¹²¹ Re WH [2021] NZFC 4090, [2021] NZFLR 216 at [70].

¹²² Re WH [2021] NZFC 4090, [2021] NZFLR 216 at [70].

¹²³ Re WH [2021] NZFC 4090, [2021] NZFLR 216 at [71].

¹²⁴ McHugh v McHugh [2022] NZHC 1174 at [93] and [116].

• 7.54 Another example outside of special guardianship is Moana’s Mother v Smith.125 The High Court said that cases concerning the placement of children will involve a holistic assessment of a child’s best interests and wellbeing, considering all of the principles in the OTA as a whole integrated system.126 The Court said that placing a child where they can develop a sense of belonging and attachment is of equal importance to placing them within their kin matrix, but preference should always be given to the kin group where possible.127 Nevertheless, the Court found on the facts before it that the child should remain in a placement outside the whānau and hapū, with access orders in favour of the child’s whānau. The Court relied on the evidence of a psychologist as to the harm that would be caused by a “reverse uplift”, saying the tikanga evidence could not address the risk of trauma from a change of placement.128

Guardianship outside the care and protection framework

• 7.55 Tikanga can also be engaged when courts are considering guardianship arrangements for a child outside of the OTA. Guardianship is defined in the Care of Children Act 2004 (COCA) as “having, in relation to [a] child, all duties, powers, rights and responsibilities that a parent of the child has in relation to the upbringing of the child”.129
• 7.56 Both the OTA and the COCA contain guardianship provisions and will often overlap in practice.130 However, there are key differences in the Acts’ objectives, purposes and principles. The focus of the OTA is state intervention to keep children safe. The COCA focuses on adjusting rights and responsibilities in relation to children in the private sphere (for example, custody arrangements between separated parents).131 Where orders have been made under the OTA, they will generally prevent the court from dealing with the same issues under the COCA.132
• 7.57 Like the OTA, the COCA provides that the welfare and best interests of a child must be the first and paramount consideration in any proceeding involving guardianship of the child.133 The COCA sets out principles that relate to a child’s welfare and best interests, which include:134

¹²⁵ Moana’s Mother v Smith [2022] NZHC 2934.

¹²⁶ Moana’s Mother v Smith [2022] NZHC 2934 at [44]–[57].

¹²⁷ Moana’s Mother v Smith [2022] NZHC 2934 at [55]–[56].

¹²⁸ Moana’s Mother v Smith [2022] NZHC 2934 at [127]–[136].

¹²⁹ Care of Children Act 2004, s 15.

130. See Oranga Tamariki Act 1989, s 110 and Care of Children Act 2004, pt 2; Hughes v Ministry of Social Development [2014] NZHC 3093 at [78]. The OTA also defines guardianship by reference to section 15 of the COCA as having all duties, powers, rights and responsibilities that a parent of a child has in relation to the upbringing of the child.
131. Hughes v Ministry of Social Development [2014] NZHC 3093 at [62]–[63]; Care of Children Act 2004, ss 3–5; Oranga Tamariki Act 1989, ss 4–5 and 13. See also Chief Executive of Oranga Tamariki-Ministry for Children v MQ [2021] NZFC 9089; [2021] NZFLR 1 at [34] where the Court said: “The [Oranga Tamariki Act 1989] is primarily a child protection statute, the [Care of Children Act 2004] a prescription for resolution of guardianship and care disputes.”

¹³² DSW v H (Te Kōti Whānau | Family Court, Otahuhu, CYPF 048/171/98, 29 November 1999) at 8.

133. Care of Children Act 2004, s 4. We note that amendments were made to the principles provisions in the COCA in 2014 by placing the principle that a child’s safety must be protected from all forms of violence at the head of the principles set out in that section. See Low v Way [2015] NZCA 153, [2015] NZFLR 547 at [8].

¹³⁴ Care of Children Act 2004, s 5.

(e) a child should continue to have a relationship with both of his or her parents, and that a child’s relationship with his or her family group, whānau, hapū, or iwi should be preserved and strengthened:

(f) a child’s identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened.

• 7.58 Both the OTA and the COCA require a child’s welfare and best interests to be the paramount consideration, with the child’s connection to their whānau, hapū and iwi being part of that consideration. The COCA, however, lacks the references to mana tamaiti, whakapapa and whanaungatanga that are in the OTA.
• 7.59 The COCA has been criticised for taking an individualistic approach rather than considering a child’s place within their kin group.135 For example, the COCA requires whānau, hapū and iwi members to seek leave to apply for parenting orders, while parents, step-parents and guardians can apply as of right.136

Whāngai and family law

• 7.60 Whāngai is a Māori practice where a child is raised by someone other than their birth parents, usually another relative.137 Rather than being a way of dealing with children who lack parents, the concept and practice of whāngai is firmly rooted in whanaungatanga.138 Whāngai has persisted as an institution in te ao Māori139 despite the legal difficulties caused by the Adoption Act 1955 and its predecessors.140

Whāngai and adoption

• 7.61 Section 19 of the Adoption Act provides that “no adoption in accordance with Maori custom shall be of any force or effect, whether in respect of intestate succession to Maori land or otherwise”.141 Significantly, this means whāngai relationships between a whāngai

135. Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 25, citing Bill Atkin “Harmonising family law” (2006) 37 Victoria University of Wellington Law Review 465 at 477.

¹³⁶ Care of Children Act 2004, s 47.

137. The term “whāngai” is also the verb “to feed”. Some hapū prefer other terms such as “atawhai” or “taurima” to refer to the practice of caring for a child other than a birth child, and there are variances about the nature of the relationship that these terms denote: see Professor Milroy’s explanation in Hohua — Estate of Tangi Biddle (2001) 10 Rotorua Appellate MB 43 (10 APRO 43) and Waihoroi Shortland’s explanation in Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He Pāharakeke, He Rito Whakakīkinga Whāruarua: Oranga Tamariki Urgent Inquiry (Wai 2915, 2021)

at 15. For discussion of whāngai generally, see Merata Kawharu and Erica Newman “Whakapaparanga: social structure, leadership and whāngai” in Michael Reilly, Suzanne Duncan, Gianna Leoni, Lachy Paterson, Lyn Carter, Matiu Rātima and Poia Rewi (eds) Te Kōparapara: An Introduction to the Māori World (Auckland University Press, Auckland, 2018) 48 at 59–63; Geo Graham “Whangai tamariki” (1948) 57 Journal of the Polynesian Society 268; Mihiata Pirini “The Māori Land Court: exploring the space between law, design, and kaupapa Māori” (LLM Dissertation, Te Whare Wānanga o Ōtākou

| University of Otago, 2020) at 18–21; Michael Sharp “Māori estates: wills” in Wills and Succession (online looseleaf ed, LexisNexis) at [16.12]; and Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 5.

138. Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 5.
139. Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 25.

¹⁴⁰ The position in the Adoption Act 1955 has its origins in the Native Lands Act 1909, s 161.

¹⁴¹ Adoption Act 1955, s 19.

child and their mātua whāngai (parents under a whāngai arrangement) are not formally recognised under state law.

• 7.62 The Adoption Act requires a court to be satisfied that an adoption order will promote the welfare and interests of the child.142 Although the Act prevents whāngai arrangements from having any legal effect, tikanga has become relevant when assessing a child’s welfare and best interests through an interpretive approach to the Act that is coloured by the principles of the Treaty.143 The High Court has said:144

... familial organisation of one of the peoples a party to the Treaty, must be seen as one of the taonga, the preservation of which is contemplated. Accordingly we take the view that all Acts dealing with the status, future and control of children, are to be interpreted as coloured by the principles of the Treaty of Waitangi. Family organisation may be said to be included among those things which the Treaty was intended to preserve and protect.

• 7.63 However, the Court noted that family and whānau units of any community may be dysfunctional in reality and therefore unable to meet the idealised values of the family or whānau group.145 In each case, the court will therefore need to assess the extent to which the whānau can reasonably uphold those idealised values.146
• 7.64 In an adoption case, Re Bartha, the Family Court said that care for a Māori child should first and foremost be provided by their whānau, hapū or iwi, but in reality that may not always be a feasible option.147 The Court granted an adoption order to a non-Māori family with the support of the whānau, saying:148

In this case the whānau themselves identified and approved the applicants as parents who would support the children’s whakapapa and whanaungatanga and who would walk alongside the whānau. That is consistent with the Māori view that whatever the law might say, adoptive parents do not replace a child’s blood whānau but rather add to it.

Whāngai and family protection

• 7.65 Whāngai are not eligible to make a claim for further provision from the estate of their mātua whāngai under the Family Protection Act 1955 (FPA).149 In Keelan v Peach, the Court of Appeal held that a whāngai who had not been formally adopted was not eligible to claim under the FPA. The Court relied on section 19 of the Adoption Act.150
• 7.66 However, in 2021 Te Aka Matua o te Ture | Law Commission (the Commission) recommended that whāngai should be included in the succession regime as a category

¹⁴² Adoption Act 1955, s 11.

¹⁴³ BP v Director-General of Social Welfare [1997] NZHC 1262; [1997] NZFLR 642 (HC) at 646–648.

¹⁴⁴ BP v Director-General of Social Welfare [1997] NZHC 1262; [1997] NZFLR 642 (HC) at 646.

¹⁴⁵ BP v Director-General of Social Welfare [1997] NZHC 1262; [1997] NZFLR 642 (HC) at 648.

¹⁴⁶ BP v Director-General of Social Welfare [1997] NZHC 1262; [1997] NZFLR 642 (HC) at 648.

¹⁴⁷ Re Bartha [2016] NZFC 7039 at [24]–[26].

¹⁴⁸ Re Bartha [2016] NZFC 7039 at [26].

149. However, 2021 amendments to Te Ture Whenua Maori Act 1993 include an amendment that Te Kōti Whenua Māori | Māori Land Court may determine whether someone is a whāngai for the purposes of a claim under the FPA that relates to Māori freehold land: see Te Ture Whenua Maori Act 1993, s 115.

¹⁵⁰ Keelan v Peach [2002] NZCA 296; [2003] 1 NZLR 589 (CA) at [43].

of children eligible to claim.151 The Commission said that the extent to which whāngai should receive provision from the estate of the matua whāngai and/or the estate of the birth parent is a question that should be informed by the tikanga of the relevant whānau.152 The Commission also considered that whāngai who have been formally adopted should remain eligible to claim against the estate of their birth parent, regardless of the terms of the Adoption Act.153

Surrogacy

• 7.67 Surrogacy is a unique method of building a family that provides intended parents with an opportunity to have a child when they are otherwise unable to do so.154 Surrogacy is to some extent regulated by the Human Assisted Reproductive Technology Act 2004 (HART Act). That Act includes a principle that the needs, values and beliefs of Māori should be considered and treated with respect.155 Advisory Committee on Assisted Reproductive Technology Guidelines further require counselling to be “culturally appropriate” and to satisfy the Ethics Committee on Assisted Reproductive Technology that the counselling has provided for whānau and extended family involvement.156
• 7.68 In 2022, the Commission published a report relating to surrogacy. The report recommended that the government commission Māori-led research to provide a better understanding of tikanga and surrogacy and Māori perspectives on surrogacy.157

Taonga and family law

• 7.69 Taonga have been described in various ways, including that they are highly prized and valuable objects, resources, techniques, phenomena or ideas.158 Taonga have associated tikanga including mana (power, prestige), tapu (sacredness), mauri (life force) and utu (reciprocity).159

151. Te Aka Matua o Te Ture | Law Commission He arotake i te āheinga ki ngā rawa a te tangata ka mate ana | Review of succession law: rights to a person’s property on death (NZLC R145, 2021) at 159.
152. Te Aka Matua o Te Ture | Law Commission He arotake i te āheinga ki ngā rawa a te tangata ka mate ana | Review of succession law: rights to a person’s property on death (NZLC R145, 2021) at 159.
153. Te Aka Matua o Te Ture | Law Commission He arotake i te āheinga ki ngā rawa a te tangata ka mate ana | Review of succession law: rights to a person’s property on death (NZLC R145, 2021) at 159.
154. Te Aka Matua o te Ture | Law Commission Te Kōpū Whāngai: He Arotake | Review of Surrogacy (NZLC R146, 2022) at 6.

¹⁵⁵ Human Assisted Reproductive Technology Act 2004, s 4(f).

156. Advisory Committee on Assisted Reproductive Technology Guidelines for family gamete donation, embryo donation, the use of donated eggs with donated sperm and clinic assisted surrogacy (September 2020) at [B(3)]–[B(4)].
157. Te Aka Matua o te Ture | Law Commission Te Kōpū Whāngai: He Arotake | Review of Surrogacy (NZLC R146, 2022) at 7.
158. For a fuller description see Te Aka Matua o Te Ture | Law Commission He arotake i te āheinga ki ngā rawa a te tangata ka mate ana | Review of succession law: rights to a person’s property on death (NZLC R145, 2021) at 90–91.
159. Te Aka Matua o Te Ture | Law Commission He arotake i te āheinga ki ngā rawa a te tangata ka mate ana | Review of succession law: rights to a person’s property on death (NZLC R145, 2021) at 90–91.

Taonga and succession

• 7.70 Presently, taonga fall under general succession rules and are in theory treated as personal property of the deceased for the purposes of succession.160
• 7.71 For example, in Biddle v Pooley, a case concerning two taiaha (long weapons) and a tewhatewha (weapon or axe) held by a recently deceased person, the High Court held that the taonga were held on trust by a member of the deceased’s whānau on terms that required the trustee to care for the taonga with respect for tikanga.161
• 7.72 In 2021, the Commission recommended that succession to taonga should be determined by the tikanga of the relevant whānau or hapū and that taonga should not be available to meet any entitlement or claim to a deceased’s estate.162 The Commission recommended that taonga should be defined within a tikanga construct and its meaning limited to items that are connected to te ao Māori.163

Taonga and relationship property

• 7.73 Recognising that taonga are not like other property, the Property (Relationships) Act 1976 (PRA) excludes taonga from the definition of family chattels.164 Taonga are not defined in the PRA and case law does not provide a conclusive definition. Initially, Courts took a broad approach to the meaning of taonga, including items that could be considered heirlooms.165 Then, in Sydney v Sydney, the Family Court held that taonga should be defined within a tikanga construct. However, the concept could be applied pan-culturally provided the central elements of tikanga were shown to exist.166
• 7.74 To date, no Māori have made a claim under the PRA in relation to taonga. In 2019, the Commission’s report on relationship property recommended that taonga should be defined within a tikanga construct and should not be classified as relationship property in any circumstances.167

160. See Te Ture Whenua Maori Act 1993, ss 100–101; Te Aka Matua o Te Ture | Law Commission He arotake i te āheinga ki ngā rawa a te tangata ka mate ana | Review of succession law: rights to a person’s property on death (NZLC R145, 2021) at 90.

¹⁶¹ Biddle v Pooley [2017] NZHC 338 at [161]–[169].

162. Te Aka Matua o Te Ture | Law Commission He arotake i te āheinga ki ngā rawa a te tangata ka mate ana | Review of succession law: rights to a person’s property on death (NZLC R145, 2021) at 95–96. Succession to taonga is currently determined by general succession law. See Te Ture Whenua Maori Act 1993, ss 100–103 and 110.
163. Te Aka Matua o Te Ture | Law Commission He arotake i te āheinga ki ngā rawa a te tangata ka mate ana | Review of succession law: rights to a person’s property on death (NZLC R145, 2021) at 98.

¹⁶⁴ Property (Relationships) Act 1976, s 2(c)(i).

165. See Page v Page [2001] NZHC 592; (2001) 21 FRNZ 275 (HC); Perry v West DC Waitakere FP 239/01, 25 March 2003; Perry v West [2004] NZFLR 515 (HC).

¹⁶⁶ Sydney v Sydney [2012] NZFC 2685 at [54] and [58].

167. Te Aka Matua o te Ture | Law Commission Te Arotake i te Property (Relationships) Act 1976 | Review of the Property (Relationships) Act 1976 (NZLC R143, 2019) at 350.

TIKANGA AND THE LAW OF JUDICIAL REVIEW

• 7.75 Judicial review involves reviewing the exercise of public power by a public official in accordance with the law.168 Tikanga has become especially relevant to judicial review as public officials increasingly have statutory obligations to take tikanga into account.169 As Winkelmann CJ has noted, “cases in which tikanga values are mandatory or discretionary considerations are fertile grounds for judicial review, requiring judges to engage in this area”.170 Tikanga can also be relevant to a public official’s actions where there is no statutory requirement to consider tikanga.171 According to Justice Matthew Palmer, writing extra-judicially, “the law of judicial review is a primary avenue by which the judiciary adjudicates on claims of indigenous rights”.172
• 7.76 This section focuses on the contemporary status of tikanga in aspects of judicial review, specifically:

(a) the impact of the Treaty on the law of judicial review;

(b) the emergence of tikanga as a factor in judicial review cases; and

(c) tikanga in the judicial review of the Treaty settlement process.

The impact of the Treaty on the law of judicial review

• 7.77 Before examining the direct impact of tikanga on the law relating to judicial review, we first briefly discuss how the Treaty has affected the law.
• 7.78 The Treaty is not directly enforceable in Aotearoa New Zealand courts,173 and it was not until 1987 that the courts began to seriously consider the role of the Treaty in judicial review proceedings.174 Nonetheless, the impact of the Treaty in public law has been described as “profound”.175
• 7.79 The High Court’s decision in Huakina Development Trust v Waikato Valley Authority has been described as a “bedrock of Aotearoa’s judicial te Tiriti jurisprudence”.176 In that case, the Huakina Development Trust challenged the Planning Tribunal’s decision to allow an application for a water right that enabled treated farm effluent to be disposed of in a stream that fed the Waikato River.177 The Court found that “the Treaty is part of the fabric

¹⁶⁸ Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385 at 388.

169. Chief Justice Helen Winkelmann “The power of narrative — shaping Aotearoa New Zealand’s public law” (paper presented to conference “The Making (and Re-Making) of Public Law”, Dublin, 6–8 July 2022) at 13.
170. Chief Justice Helen Winkelmann “The power of narrative — shaping Aotearoa New Zealand’s public law” (paper presented to conference “The Making (and Re-Making) of Public Law”, Dublin, 6–8 July 2022) at 13.
171. See Sweeney v Prison Manager, Spring Hill Corrections Facility [2021] NZHC 181, [2021] 2 NZLR 27, which we discuss below.
172. Matthew S R Palmer “Indigenous rights, judges and judicial review” (paper presented to public law conference “Frontiers of Public Law”, Melbourne, 11–13 July 2018) at 2.

¹⁷³ Te Heuheu Tūkino v Aotea District Māori Land Board [1941] NZLR 590 (PC).

174. See Huakina Development Trust v Waikato Valley Authority [1987] NZHC 130; [1987] 2 NZLR 188 (HC) and New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA).
175. Chief Justice Helen Winkelmann “The power of narrative — shaping Aotearoa New Zealand’s public law” (paper presented to conference “The Making (and Re-Making) of Public Law”, Dublin, 6–8 July 2022) at 7.
176. Alister Hughes “Trans-Tasman Resources and presuming consistency with te Tiriti o Waitangi” (2022) New Zealand Law Journal 325 at 326.

¹⁷⁷ Huakina Development Trust v Waikato Valley Authority [1987] NZHC 130; [1987] 2 NZLR 188 (HC) at 188.

of New Zealand society”,178 that it has a status “perceivable, whether or not enforceable, in law” and that it contains “promises which the Crown is obliged to perform”.179 Because there was no requirement in the Act for a decision maker to consider the Treaty, the Treaty could only be relevant as an extrinsic aid in interpreting the relevant legislation.180 Huakina is notable because the High Court found that the Treaty was a relevant consideration for a decision maker despite lack of specific direction to consider the Treaty within the relevant legislation.

• 7.80 In New Zealand Maori Council v Attorney-General, the applicant sought judicial review of the proposed transfer of all or any of the lands to state-owned enterprises under the State-Owned Enterprises Act 1986.181 Section 9 of this Act prevented the Crown from acting in a manner inconsistent with the “principles of the Treaty of Waitangi”.182 The Court found that this required the Crown, when selling state assets, to safeguard Māori interests arising from Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal (Waitangi Tribunal) claims for breaches of the Treaty.183
• 7.81 The 1991 case of Attorney-General v New Zealand Maori Council was a challenge by the New Zealand Māori Council to the government’s process for implementing its broadcasting policy.184 The relevant Act, the Radiocommunications Act 1989, did not contain a Treaty clause. Nevertheless, the Court of Appeal found that “the Crown, as a Treaty partner, could not act in conformity with the Treaty or its principles without taking into account any relevant recommendations by the Waitangi Tribunal”.185
• 7.82 An approach that requires the Crown to observe or take into account Treaty principles as articulated by the courts continues to frame the public conversation between Māori and the Crown.186 We expect this approach will continue to be relevant due to legislation increasingly including references to the Treaty. It is also possible that the Treaty will form the basis of a claim for judicial review of a decision maker’s treatment of tikanga. In Ngāti Whātua Ōrākei Trust v Attorney-General (No 4), the High Court explained:187

... where Treaty obligations legally bind the Crown, the Crown will have legal obligations in relation to tikanga, to act reasonably and in good faith, with mutual cooperation and trust, and to actively protect tikanga. Whether there are such legal obligations, and what exactly they require, depends on the statutory and factual context in which the issue arises.

¹⁷⁸ Huakina Development Trust v Waikato Valley Authority [1987] NZHC 130; [1987] 2 NZLR 188 (HC) at 210.

¹⁷⁹ Huakina Development Trust v Waikato Valley Authority [1987] NZHC 130; [1987] 2 NZLR 188 (HC) at 206.

¹⁸⁰ Huakina Development Trust v Waikato Valley Authority [1987] NZHC 130; [1987] 2 NZLR 188 (HC) at 224.

¹⁸¹ New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA).

¹⁸² State Owned Enterprises Act 1986, s 9.

¹⁸³ New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA).

¹⁸⁴ Attorney-General v New Zealand Maori Council [1990] NZCA 352; [1991] 2 NZLR 129 (CA).

¹⁸⁵ Attorney-General v New Zealand Maori Council [1990] NZCA 352; [1991] 2 NZLR 129 (CA) at 135.

186. See Matthew S R Palmer “Indigenous rights, judges and judicial review in New Zealand” (paper presented to public law conference “Frontiers of Public Law”, Melbourne, 11–13 July 2018): as at 2018, Palmer identified at least 27 cases that invoke the Treaty directly in judicial review proceedings. In 2021, at least 35 statutes contained explicit references to the Treaty. See Philip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, Wellington, 2021) at 89.

¹⁸⁷ Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843 at [587].

• 7.83 Although the Treaty provides an avenue for claimants to challenge the exercise of public power, the Crown can choose to bind itself to the Treaty principles through legislative incorporation or can, by statutory design, minimise its obligations arising from the Treaty. This means the Crown can ultimately determine the extent to which it is held accountable to the Treaty principles, subject only to the political consequences it faces.188

The development of tikanga as a factor in judicial review proceedings

• 7.84 Tikanga has been taken into account as a factor in judicial review proceedings independently of the Treaty. The High Court has held that:189

Where material to a case, the Courts can, and may have an obligation to, recognise and uphold the values of tikanga Māori in applying the law of judicial review and granting remedies.

• 7.85 As we discussed in Chapter 5, in Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board the Supreme Court held that there was an obligation on a decision maker to consider tikanga because “tikanga-based customary rights and interests” were “existing interests” under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012.190 The tikanga-based customary rights and interests included kaitiakitanga of the iwi of their relevant rohe (region).191 They also included rights claimed but not yet granted under the Marine and Coastal Area (Takutai Moana) Act 2011 (Takutai Moana Act).192 The Court also found that tikanga must be taken into account as “other applicable law” under the Act where appropriate.193
• 7.86 In Te Pou Matakana Ltd v Attorney-General, the High Court upheld a judicial review claim by a Māori health provider about Manatū Hauora | Ministry of Health refusing to release information about Māori who had not been vaccinated against COVID-19. One of the reasons for the Court’s decision was that the Ministry of Health did not have adequate regard to the Treaty and its principles “as informed by tikanga”.194
• 7.87 As we also discussed in Chapter 5, in Wairarapa Moana ki Pouākani Inc v Mercury NZ Ltd the Crown and the iwi Raukawa sought judicial review of the Waitangi Tribunal’s preliminary determination to exercise its power to return possession of land to Māori for two significant areas of land.195 In respect of one of the land areas, the iwi who stood to receive the land did not have mana whenua. The High Court held that tikanga binds the Waitangi Tribunal in the exercise of its functions. On the particular facts, it had acted

188. See the discussion in Matthew S R Palmer “Indigenous rights, judges and judicial review in New Zealand” (paper presented to public law conference “Frontiers of Public Law”, Melbourne, 11–13 July 2018) at 4–7, where Palmer concludes, “[g]iven the constitutional arrangements, indigenous rights are, ultimately, protected politically in New Zealand.”

¹⁸⁹ Sweeney v Prison Manager, Spring Hill Corrections Facility [2021] NZHC 181, [2021] 2 NZLR 27 at [75].

190. Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012, s 59(2)(a). See Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [8] and [154]–[155] per William Young and France JJ, [237] per Glazebrook J, [296]–[297] per Williams J and [332] per Winkelmann CJ.

¹⁹¹ Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [154].

¹⁹² Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [8].

193. Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127 at [169] per William Young and France JJ, [237] per Glazebrook J, [296]–[297] per Williams J and [332] per Winkelmann CJ.

¹⁹⁴ Te Pou Matakana Ltd v Attorney-General [2021] NZHC 2942, [2022] 2 NZLR 148 at [134].

¹⁹⁵ Wairarapa Moana ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142.

unlawfully.196 The Supreme Court, by majority, overturned the High Court’s decision and applied a more contextualised approach to the question of mana whenua.197 The Supreme Court held that although mana whenua is a “very important principle of tikanga” it is not absolute.198 Tikanga is a “principles-based system of law that is highly sensitive to context and sceptical of unbending rules”.199

• 7.88 Judicial review claims have also been upheld in part because it was consistent with tikanga to do so, despite there being no legislative requirement on the decision maker to consider tikanga. In Sweeney v The Prison Manager, Spring Hill Corrections Facility, the High Court issued a declaration that the revocation of Mr Sweeney’s specified visitor approval was unreasonable, given the negative impact on Mr Sweeney’s mana.200

Tikanga and the Treaty settlement process

• 7.89 The courts have previously refrained from adjudicating on the Treaty settlement process on the basis this would interfere with the legislative process and cut across the “non- interference” principle.201 This had frustrated the attempts of many iwi and hapū to challenge the way the Crown conducted its settlement negotiations.202 However, in its 2018 decision in Ngāti Whātua Ōrākei, the Supreme Court held that the principle of non- interference did not preclude the courts’ jurisdiction to make declarations about rights simply because the declaration sought may potentially be the subject of legislation.203 Ngāti Whātua Ōrākei were therefore able to pursue declarations as to their rights in specific areas of Tāmaki Makaurau.
• 7.90 In Ngāti Whātua Ōrākei v Attorney-General (No 4), the High Court made several findings about how tikanga relates to judicial review of government decisions in the Treaty settlement process. The Court said:204

Tikanga is at the heart of overlapping customary interests between iwi. So, when the Crown makes decisions in redressing its own wrongs in relation to the Treaty that impact on the tikanga or interests at tikanga of an iwi, the Crown will have a duty to take tikanga into account.

¹⁹⁶ Mercury Ltd v Waitangi Tribunal [2021] NZHC 654, [2021] 2 NZLR 142.

¹⁹⁷ Wairarapa Moana ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142 at [163].

¹⁹⁸ Wairarapa Moana ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142 at [76].

¹⁹⁹ Wairarapa Moana ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142 at [76].

²⁰⁰ Sweeney v Prison Manager, Spring Hill Corrections Facility [2021] NZHC 181, [2021] 2 NZLR 27 at [1].

201. The non-interference principle refers to the principle that courts will generally not interfere with the legislative process: Philip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, Wellington, 2021) at 126 and 577.

²⁰² See for example Milroy v Attorney-General [2005] NZAR 562 (CA) and New Zealand Maori Council v Attorney-General

[2007] NZCA 269; [2008] 1 NZLR 318 (CA).

²⁰³ Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116 at [46].

²⁰⁴ Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [597].

• 7.91 The Court said that the duty to take tikanga into account also requires the Crown to take reasonable steps to understand, recognise and respect the tikanga of iwi or hapū. 205 It said that ignoring tikanga when it is relevant in a Treaty settlement context would be unlawful.206 The Court was therefore critical of the Crown’s policy and approach to the Treaty settlement process because it did not explicitly acknowledge the Crown’s legal requirement to consider tikanga and to act reasonably having regard to tikanga.207 The Court said that this requirement would become critically important when there were overlapping interests between iwi or hapū seeking redress.208

TIKANGA AND THE NEW ZEALAND BILL OF RIGHTS ACT 1990

• 7.92 The New Zealand Bill of Rights Act 1990 (NZ Bill of Rights) makes no mention of tikanga and does not explicitly affirm any Māori rights. For this reason, there is very little case law on the relationship between tikanga and the NZ Bill of Rights. Fleur Te Aho has noted that the intersection between the NZ Bill of Rights and tikanga involves a suite of undetermined and underexplored issues.209
• 7.93 However, tikanga is implicitly relevant to the NZ Bill of Rights through several sections, especially:

(a) section 19, which contains the right to freedom from discrimination;

(b) section 20, which contains the right for minorities to enjoy their culture; and

(c) section 5, which provides that the rights contained in the NZ Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Section 19: freedom from discrimination

• 7.94 Section 19 provides:210

(1) Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993.

(2) Measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination that is unlawful by virtue of Part 2 of the Human Rights Act 1993 do not constitute discrimination.

• 7.95 On their face, both subsections (1) and (2) have the potential to protect the right of Māori to act in accordance with tikanga, although this potential remains unexplored. However, one decision from the Human Rights Review Tribunal (HRRT) also demonstrates the potential for section 19 to be used in the opposite way — to obstruct the exercise of tikanga.

²⁰⁵ Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [603].

²⁰⁶ Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [623].

²⁰⁷ Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [622].

²⁰⁸ Philip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, Wellington, 2021) at 127.

209. Fleur Te Aho “Māori and the Bill of Rights Act: a case of missed opportunities?” (2013) 11 New Zealand Journal of Public and International Law 183 at 184.
210. Grounds of discrimination in the Human Rights Acts 1993 include sex, religious belief, ethical belief, colour, race, and ethnic or national origins.

• 7.96 Bullock v Department of Corrections concerned a poroporoaki (farewell) held by Ara Poutama Aotearoa | Department of Corrections for prisoners graduating from a course.211 According to the tikanga of the event, the front row was reserved for males and only males were invited to speak. The plaintiff, a female prisoner, claimed that this amounted to discrimination based on sex.
• 7.97 The HRRT said that the case involved a conflict between the protection of equal opportunity and cultural values. While it acknowledged the cultural significance of tikanga, it found that the tikanga of the event did constitute discrimination on the grounds of sex, writing:212

We are satisfied that the department expectations of the plaintiff when she attended the graduation (specifically, in that it expected she would not be a speaker, and it expected her to sit behind the men) amounted to detrimental treatment by reason of her sex: male employees employed on work of the same description as the plaintiff were not subjected to the same limiting expectations.

• 7.98 The Bullock decision was not appealed, and we are not aware of any other court or tribunal decisions addressing the relationship between section 19 and tikanga. Nevertheless, some scholars have expressed concern about the broader potential for section 19 to be used in this way to undermine the exercise of tikanga.213

Section 20: rights of minorities

• 7.99 Section 20 provides:

A person who belongs to an ethnic, religious, or linguistic minority in New Zealand shall not be denied the right, in community with other members of that minority, to enjoy the culture, to profess and practise the religion, or to use the language, of that minority.

• 7.100 Te Aho has identified a tension in relying on section 20, a minority rights provision, to protect Māori rights as tangata whenua.214 Nevertheless, section 20 affords a degree of protection for tikanga as a right to enjoy one’s culture.
• 7.101 In Ministry for Primary Industries v Whati, the District Court considered section 20 in the context of a mahinga kai (customary food gathering place). Mr Whati was gathering kaimoana (seafood) from a mahinga kai connected to his whānau without a permit. The Court found that Mr Whati was entitled to rely on section 20, saying:215

... [section 20] clearly embodies the enjoyment of cultural rights by a member of the minority group. And cultural practices by minorities obviously include activities such as hunting and fishing ...

It does not take recondite reasoning to also conclude s 20 embodies common law customary rights. Thus, to the extent cognisable in law, Mr Whati was exercising his s 20 right on 23 December 2016 to enjoy his long held cultural practice of collecting seafood for a minority community event.

²¹¹ Bullock v Dept of Corrections (2008) 5 NZELR 379 (HRRT) at [2].

²¹² Bullock v Dept of Corrections (2008) 5 NZELR 379 (HRRT) at [90].

²¹³ For example Claire Charters “BORA and Maori: the fundamental issues” [2003] New Zealand Law Journal 459.

214. Fleur Te Aho “Māori and the Bill of Rights Act: a case of missed opportunities?” (2013) 11 New Zealand Journal of Public and International Law 183 at 193.

²¹⁵ Ministry for Primary Industries v Te Hira Charlie Ned Whati [2020] NZDC 19801, [2020] DCR 287 at [40].

• 7.102 Although no NZ Bill of Rights arguments had been put before the Court, in Takamore v Clarke Elias CJ also commented on section 20, saying:216

Cultural identification is an aspect of human dignity and always an important consideration where it is raised, as are the preferences and practices which come with such identification, as s 20 of the New Zealand Bill of Rights Act 1990 affirms.

• 7.103 However, section 20 is not without limit. In a case involving an application to move a criminal proceeding from a court to a marae so that it might proceed in accordance with tikanga, the judge observed:217

Section 20 of the New Zealand Bill of Rights Act 1990 cannot be used as a barrier against equality before the law. The right to enjoy the culture, profess and practice the religion and use the language of a minority cannot be used as a weapon against equality or the other rights expressed in that Act.

Section 5: justified limitations

• 7.104 Section 5 provides that the rights and freedoms contained in the NZ Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.218
• 7.105 As Professor Claire Charters has argued, section 5 has the potential to affirm the exercise of tikanga.219 For example, in a case like Bullock it might be possible for a court to hold that an exercise of tikanga was a reasonable limit on section 19.
• 7.106 In Whati, the Court considered section 5 in the context of mahinga kai. It said:220

Section 5 of the Bill of Rights Act required that the discretion be exercised in a manner that did not unreasonably interfere with Mr Whati’s rights under s 20 of the Bill of Rights Act.

• 7.107 In the circumstances, the Court found that a total prohibition on gathering kaimoana from the mahinga kai was a disproportionate (and therefore unreasonable) interference with that right.
• 7.108 However, Charters has also noted that section 5 has the potential to limit tikanga. Courts may not view tikanga as a justified limitation on a protected right,221 or in certain circumstances a court might hold that an interference with tikanga is a reasonable limit on the cultural rights protected by section 20.
• 7.109 The potential of section 5 (whether to affirm or undermine exercises of tikanga) remains largely unexplored.

²¹⁶ Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [12].

²¹⁷ Police v Taurua [2002] DCR 306 at [50].

²¹⁸ New Zealand Bill of Rights Act 1990, s 5.

²¹⁹ Claire Charters “BORA and Maori: the fundamental issues” [2003] New Zealand Law Journal 459 at 460.

²²⁰ Ministry for Primary Industries v Te Hira Charlie Ned Whati [2020] NZDC 19801, [2020] DCR 287 at 287.

²²¹ Claire Charters “BORA and Maori: the fundamental issues” [2003] New Zealand Law Journal 459 at 460.

TIKANGA AND EVIDENCE

• 7.110 The Evidence Act 2006 provides rules that govern the admissibility of evidence in many court proceedings. Because tikanga is routinely established by evidence in court proceedings, the rules concerning the admissibility of evidence are of particular importance for tikanga.222
• 7.111 Generally, all relevant evidence is admissible under the Evidence Act unless it is excluded by the Evidence Act or any other Act.223 There are several evidential rules that may affect the admissibility of tikanga evidence, including:224

(a) the hearsay rule;

(b) the opinion rule; and

(c) section 9 relating to evidence admitted by way of an agreed statement.

• 7.112 We discuss each of these topics below. We also briefly examine the rules relating to evidence in the Māori Land Court and the Environment Court.

The hearsay rule

• 7.113 The Evidence Act defines a hearsay statement as a statement that was made by anyone other than the witness and is offered in evidence to prove the truth of its contents.225 Hearsay statements are generally not admissible.226 The general rule against hearsay is subject to exceptions. In particular, a hearsay statement can be admitted provided that the circumstances relating to it give reasonable assurance as to its reliability.227
• 7.114 Because mātauranga is often transmitted orally according to tikanga, it would usually be a hearsay statement and therefore must fall within an exception to be admitted.228 In 1991, the Commission noted the difficulties that the rule against hearsay can pose for Māori. It envisaged at the time that the reliability exception to the hearsay rule would enable reliable oral sources of tikanga to be admitted in the case of evidence from a recipient of a long-standing oral tradition.229

²²² See Te Aka Matua o te Ture | Law Commission Te Arotake Tuatoru i te Evidence Act 2006 | The Third Review of the Evidence Act 2006 (NZLC IP50, 2023) at 8–20 for a comprehensive discussion of tikanga and evidence.

²²³ Evidence Act 2006, s 7(1).

²²⁴ There are other rules for admitting evidence of mātauranga or tikanga both within and outside the Act. Under s 128(2), a judge or jury can take notice of uncontroverted facts, which may include mātauranga or tikanga. See for example Tukaki v Commonwealth of Australia [2018] NZCA 324, [2018] NZAR 1597 at [38]. Section 129 allows published material on mātauranga and tikanga to be admitted as matters of “public history” if a judge considers the sources are reliable. High Court Rule 9.36 and the High Court’s inherent jurisdiction both allow the appointment of pūkenga as independent court experts for opinions or advice on tikanga. See Ngāti Whātua Ōrākei Trust v Attorney-General (No 1) [2020] NZHC 3120 at [36]. Lastly, the High Court may refer a question of tikanga to Te Kooti Pīra Māori | Māori Appellate Court. See Te Ture Whenua Maori Act 1993, s 61.

²²⁵ Evidence Act 2006, s 4.

²²⁶ Evidence Act 2006, s 17.

227. Evidence Act 2006, s 18. The original maker of the statement must also be unavailable as a witness or undue expense or delay would be caused if they were required to be a witness.
228. See the discussion of the hearsay rule in Te Aka Matua o te Ture | Law Commission Evidence Law: Hearsay (NZLC PP15, 1991) at [60].

²²⁹ Te Aka Matua o te Ture | Law Commission Evidence Law: Hearsay (NZLC PP15, 1991) at [60].

The opinion rule

• 7.115 Statements of opinion are generally not admissible under the Evidence Act.230 An exception is if the statement is given by an expert witness and is likely to provide substantial help to the fact finder.231 An “expert” is defined as “a person who has specialised knowledge or skill based on training, study or experience”.232
• 7.116 Case law prior to the Evidence Act had already established that expert opinion evidence from those qualified in terms of Māori culture was admissible.233 In its work on the Evidence Code, the Commission expected this position would continue.234
• 7.117 As part of consultation in its third review of the Evidence Act, the Commission has said that as courts are increasingly being asked to consider tikanga and mātauranga in proceedings subject to the Evidence Act, “it is desirable to consider whether further clarity is required”.235 The Commission has asked whether the Evidence Act should introduce statutory exceptions to the rules against hearsay and opinion evidence for evidence of tikanga (and potentially mātauranga Māori).236

Agreed statements of fact

• 7.118 A judge may admit evidence that is otherwise inadmissible with the agreement of all parties.237 It was this mechanism that allowed an agreed statement of facts to be admitted in Ellis v R, which contained an “Agreed Statement of Tikanga”.238

How tikanga is established in practice

• 7.119 There are several methods by which tikanga can be established in practice. These include:

(a) tikanga established as a matter of fact;

(b) tikanga established by expert evidence; and

(c) tikanga evidence as an exception to the rules against hearsay and opinion evidence.

• 7.120 We briefly explain these methods below.

²³⁰ Evidence Act 2006, s 23.

²³¹ Evidence Act 2006, s 25.

²³² Evidence Act 2006, s 4.

²³³ See for example Ministry of Agriculture and Fisheries v Hakaria and Scott [1989] DCR 289 at 294.

234. Te Aka Matua o te Ture | Law Commission Evidence law reform: te ao Māori consultation (unpublished consultation paper, 1997) at [34].
235. Te Aka Matua o te Ture | Law Commission Te Arotake Tuatoru i te Evidence Act 2006 | The Third Review of the Evidence Act 2006 (NZLC IP50, 2023) at 17.
236. Te Aka Matua o te Ture | Law Commission Te Arotake Tuatoru i te Evidence Act 2006 | The Third Review of the Evidence Act 2006 (NZLC IP50, 2023) at 20.

²³⁷ Evidence Act 2006, s 9.

238. See Hirini Moko Mead and Pou Temara Statement of tikanga, 31 January 2020, in Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239.

Tikanga established as a matter of fact

• 7.121 The “orthodox” approach to establishing tikanga is to treat it as a matter of fact to be established by evidence.239 This is the same method by which foreign law is established.240
• 7.122 In Ellis v R, the Supreme Court expressed caution about this approach. Williams J was “somewhat uncomfortable” with the evidential approach to tikanga, suspecting that it was “simply a convenient and efficient way of getting unfamiliar material before the judge who had then to apply it”.241 Williams J noted there are multiple techniques available to assist the courts to understand and apply tikanga.242 Glazebrook J said that it is “not appropriate to refer to [tikanga] as having to be proved as a question of fact” because tikanga is not foreign law, it is part of the common law.243 Glazebrook J also said that the best approach to ascertaining tikanga will be contextual and subject to matters of accessibility and cost.244

Tikanga established by expert evidence

• 7.123 Tikanga evidence given by pūkenga has been routinely admitted in cases.245 These cases suggest that the expert evidence provisions are routinely being used to admit tikanga evidence. Expert evidence has rarely been challenged on admissibility grounds to date.246

Tikanga evidence as an exception to the hearsay and opinion rules

• 7.124 While there are many examples of tikanga evidence being admitted under the expert evidence rule, there is little case law relating to the admissibility of tikanga evidence and the hearsay or opinion rules.247
• 7.125 In Proprietors of Wakatū Inc v Attorney-General, the High Court commented on how the rules in the Evidence Act might apply to traditional oral evidence:248

²³⁹ See Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [95]; Ngāti Whātua Ōrākei Trust v Attorney-General [2020] NZHC 3120 at [36]; Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2) [2021] NZHC 291, [2021] 2 NZLR 1 at [47].

²⁴⁰ Maria Hook and Jack Wass The Conflict of Laws in New Zealand (LexisNexis, Wellington, 2020) at [3.43]–[3.44].

²⁴¹ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [273].

²⁴² Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [273].

²⁴³ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at fn 151.

²⁴⁴ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [125].

²⁴⁵ See for example Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [2]; Ngawaka v Ngāti Rehua-Ngātiwai Ki Aotea Trust Board (No 2) [2021] NZHC 291, [2021] 2 NZLR 1 at [48]; Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, [2021] 2 NZLR 142 at fn 78; Urlich v Attorney-General [2022] NZCA 38, [2022] 2 NZLR 599 at [37] and [39].

²⁴⁶ Te Aka Matua o te Ture | Law Commission Te Arotake Tuatoru i te Evidence Act 2006 | The Third Review of the Evidence Act 2006 (NZLC IP50, 2023) at 22.

²⁴⁷ Te Aka Matua o te Ture | Law Commission Te Arotake Tuatoru i te Evidence Act 2006 | The Third Review of the Evidence Act 2006 (NZLC IP50, 2023) at 16.

²⁴⁸ Proprietors of Wakatū Inc v Attorney-General HC Nelson CIV-2010-442-181, 7 December 2010 at [45], set out in

Proprietors of Wakatū Inc v Attorney-General [2012] NZHC 1461 at [41]–[42].

In terms of the Evidence Act 2006, the admissibility gateways for traditional, oral evidence would appear to involve a mixture of rules relating to opinion and hearsay evidence, and general questions of relevance (probative value). As a matter of principle, and noting the approaches outlined in the various cases referred to, I think it would be surprising if appropriate evidence of oral history was not admissible simply because it did not fit easily within the concepts of hearsay and opinion evidence as it is most commonly dealt with.

Other evidential rules: Māori Land Court, Environment Court, Family Court and claims under the Takutai Moana Act

• 7.126 Proceedings in the Māori Land Court, Environment Court and Family Court and under the Takutai Moana Act have different evidential rules than those that apply under the Evidence Act.249 In these different jurisdictions, the approach taken might be described as more flexible than the rules in the Evidence Act.250 The courts are empowered in each instance to hear evidence that they think will assist the court, whether or not that evidence would be admissible under the Evidence Act.251 These jurisdictions are also empowered to conduct court proceedings in less formal ways or in ways that specifically recognise kawa or tikanga.252 Provisions allowing more flexibility are generally well accepted and are used to incorporate tikanga into court procedure where appropriate.

A moving landscape

• 7.127 The Supreme Court’s decision in Ellis v R demonstrates that the rules of evidence are intimately connected with the development of tikanga and the common law. Currently, the orthodox method for ascertaining tikanga is to establish it as a matter of fact, usually done by expert evidence. If the courts shift away from establishing tikanga as fact, as the Supreme Court in Ellis v R identified may be desirable depending on the context, different methods of ascertaining tikanga will need to be found. It may be that courts will begin to take judicial notice of commonly understood tikanga so that the need for tikanga to be established by evidence diminishes over time.253 This raises the question of how this interaction can occur in a way which maintains the integrity of state law and tikanga. The ability to bring tikanga before the courts in a range of ways best suited to the nature of the dispute is an important aspect of the developing relationship between tikanga and the common law, as discussed in Chapter 8.

249. Te Ture Whenua Maori Act 1993, s 69(1); Resource Management Act 1991, s 276; Marine and Coastal Area (Takutai Moana) Act 2011, s 105, Family Court Act 1980, s 12A.
250. Te Aka Matua o te Ture | Law Commission Te Arotake Tuatoru i te Evidence Act 2006 | The Third Review of the Evidence Act 2006 (NZLC IP50, 2023) at 17.
251. Te Aka Matua o te Ture | Law Commission Te Arotake Tuatoru i te Evidence Act 2006 | The Third Review of the Evidence Act 2006 (NZLC IP50, 2023) at 17.

²⁵² Resource Management Act 1991, s 269; Te Ture Whenua Maori Act 1993, s 66; Family Court Act 1980, s 10.

253. For example in Doney v Adlam [2023] NZHC 363 at [81] the High Court considered tikanga without hearing any evidence from experts on tikanga. The judge in this case, Harvey J, is a former judge of the Māori Land Court.

TIKANGA AND MĀORI LAND: TE TURE WHENUA MAORI ACT 1993

• 7.128 Today, Māori land comprises approximately five per cent of the total land of Aotearoa New Zealand.254 In the North Island, it is closer to 14 per cent. All Māori land as defined by Te Ture Whenua Maori Act 1993 (TTWMA) is governed by TTWMA. In 2015, there were over 27,000 individual titles and 2.9 million ownership interests in those titles. The average number of owners in a single block was 85. The largest had thousands of owners. Those titles were managed by 5,835 trusts, 2,276 reservations and 159 incorporations established under TTWMA. Twenty-two per cent of Māori land had no management structure in 2015.255
• 7.129 There is a long and complex history of engagement between state law, Māori land and the Māori Land Court that we do not cover in detail in this Study Paper. The works of leading authors such as Professor Richard Boast,256 Professor Tā Hugh Kawharu,257 Professor Emeritus David V Williams,258 Tā Edward Taihakurei Durie,259 Chief Judge Caren Fox,260 and others provide a comprehensive analysis. Waitangi Tribunal reports also contain many of the detailed and complex histories that describe the effect of state law on Māori land both generally and in specific areas.261
• 7.130 TTWMA is significant in placing tikanga at the forefront of its approach. In this section, we therefore provide a brief overview of TTWMA with some examples of cases under TTWMA that engage with tikanga. Before moving to discuss the cases, we first briefly introduce:

(a) the background to TTWMA; and

(b) the tikanga-consistent philosophy of TTWMA and some of its key parts.

The background to TTWMA

• 7.131 The origins of TTWMA can be traced back through the complex history of native land laws dating back to the mid-nineteenth century.262 The Waitangi Tribunal has recorded that nineteenth century native land legislation facilitated the alienation of Māori land to the Crown and settlers until a relatively small proportion of land remained in Māori

²⁵⁴ Caren Wickliffe, Stephanie Milroy and Matiu Dickson Laws of New Zealand Overview of the evolution of Māori land law 1840–1993 (online ed) at [11]; Te Kooti Whenua Māori | Māori Land Court and Te Tāhū o te Ture | Ministry of Justice He Pou Herenga Tangata, He Pou Herenga Whenua, He Pou Whare Kōrero — 150 Years of the Māori Land Court (October 2015).

²⁵⁵ Te Kooti Whenua Māori | Māori Land Court and Te Tāhū o te Ture | Ministry of Justice He Pou Herenga Tangata, He Pou Herenga Whenua, He Pou Whare Kōrero — 150 Years of the Māori Land Court (October 2015) at 98.

²⁵⁶ Richard Boast, Andrew Erueti, Doug McPhail and Judge N F Smith Māori Land Law (2nd ed, LexisNexis Butterworths, Wellington, 2004).

²⁵⁷ I H Kawharu Māori Land Tenure: Studies of a Changing Institution (Oxford University Press, Oxford, 1977).

²⁵⁸ David V Williams Te Kooti Tango Whenua: The Native Land Court 1864–1909 (Huia Publishers, Wellington, 1999).

²⁵⁹ Edward Taihakurei Durie “Custom law” (unpublished draft paper, 1994).

²⁶⁰ Caren Fox “Ko te mana te utu: narratives of sovereignty, law and tribal citizenship in the Pōtikirua ki Te Toka-a-Taiau district” (PhD Thesis, Te Whare Wānanga o Awanuiārangi, 2023) at ch 10.

261. See Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He Kura Whenua ka Rokohanga: Report on Claims about the Reform of Te Ture Whenua Māori Act 1993 (Wai 2478, 2016) at 11–46 for a detailed description of the history of Te Ture Whenua Maori Act 1993.

²⁶² Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He Kura Whenua ka Rokohanga: Report on Claims about the Reform of Te Ture Whenua Māori Act 1993 (Wai 2478, 2016) at 11.

ownership by the early twentieth century.263 The Tribunal said that the operation of the Native Land Court and the legislative direction of native land laws during this time was driven by a policy to alienate Māori land for Crown and settler use.264 A key aspect of this process was conversion from customary tenure into the individual title that we are familiar with today.265 This form of title was starkly different to the system with which Māori were familiar. As the Tribunal has described that system:266

Māori saw themselves as users of the land rather than its owners ... They were born out of it, for the land was Papatuanuku, the mother earth who conceived the ancestors of the Māori people ... In all, the essential Māori value of land, as we see it, was that lands were associated with particular communities and, save for violence, could not pass outside the descent group ... Such was the association between land and particular kin groups that to prove an interest in land, in Māori law, people had only to say who they were ...

• 7.132 The Crown itself has also acknowledged in settlement legislation how unfair the native land laws were and how, cumulatively and in concert with other Crown measures, those laws effectively destroyed communal title and the tribal cohesion that customary land tenure supported.267
• 7.133 Around 1930, the Māori Land Court had largely finished its investigation of titles.268 Then from roughly 1930 to 1970, Crown policy was focused on large-scale Māori land development for economic benefit.269 The general approach for over a century was therefore conversion, alienation and ensuring whatever land was left in Māori hands was as economically viable as possible.
• 7.134 In 1974, amendments to the Maori Affairs Act 1953 introduced a focus on “the retention of Maori land in the hands of its owners, and its use or administration by them for their benefit”.270 Te Ture Whenua Maori Bill was introduced to Parliament in 1987, following Māori protest action and a report from the New Zealand Māori Council on Māori land policy.271 After a lengthy process through Parliament, TTWMA was enacted in 1993.

263. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He Kura Whenua ka Rokohanga: Report on Claims about the Reform of Te Ture Whenua Māori Act 1993 (Wai 2478, 2016) at 11.
264. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He Kura Whenua ka Rokohanga: Report on Claims about the Reform of Te Ture Whenua Māori Act 1993 (Wai 2478, 2016) at 14.
265. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He Kura Whenua ka Rokohanga: Report on Claims about the Reform of Te Ture Whenua Māori Act 1993 (Wai 2478, 2016) at 11.

²⁶⁶ Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Muriwhenua Land Report (Wai 45, 1997) at 23–24.

²⁶⁷ Ngāti Awa Claims Settlement Act 2005, s 8(5)(b).

²⁶⁸ Te Kooti Whenua Māori | Māori Land Court and Te Tāhū o te Ture | Ministry of Justice He Pou Herenga Tangata, He Pou Herenga Whenua, He Pou Whare Kōrero — 150 Years of the Māori Land Court (October 2015) at 54.

²⁶⁹ Te Kooti Whenua Māori | Māori Land Court and Te Tāhū o te Ture | Ministry of Justice He Pou Herenga Tangata, He Pou Herenga Whenua, He Pou Whare Kōrero — 150 Years of the Māori Land Court (October 2015) at 61; Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He Kura Whenua ka Rokohanga: Report on Claims about the Reform of Te Ture Whenua Māori Act 1993 (Wai 2478, 2016) at 27–29. This can be seen in the direction taken in the Maori Affairs Act 1953 and the Maori Affairs Amendment Act 1967: see the Preambles to both Acts.

²⁷⁰ Maori Affairs Amendment Act 1974, pt II.

271. See Te Kooti Whenua Māori | Māori Land Court and Te Tāhū o te Ture | Ministry of Justice He Pou Herenga Tangata, He Pou Herenga Whenua, He Pou Whare Kōrero — 150 Years of the Māori Land Court (October 2015) at 74; New Zealand Māori Council Kaupapa: Te Wahanga Tuatahi: a discussion paper on Māori affairs legislation (Wellington, New Zealand Māori Council, 1983). Protest action included the events at Ōrākei (Bastion Point) and the 1975 Land March.

TTWMA philosophy and significant parts

• 7.135 TTWMA takes a significantly different approach to Māori land than its predecessors.272 TTWMA recognises that land is a taonga tuku iho (treasure handed down) of special significance to Māori.273 Its purpose is therefore grounded in tikanga, acknowledging the importance of land for Māori as something which is handed down from ancestors. To that end, it promotes the retention of land by Māori and facilitates the occupation, development and use of that land for Māori benefit.274
• 7.136 TTWMA contains several parts that work together to give effect to the statutory purpose. It establishes the Māori Land Court (which we discuss further in Chapter 8) and Te Kooti Pīra Māori | Māori Appellate Court (the Māori Appellate Court). Other parts of TTWMA address:275

(a) the determination of the status of land;

(b) the general prohibition on alienation of Māori land and exceptions;

(c) the administration of estates comprised of Māori land;

(d) governance structures over Māori land including trusts, incorporations and reservations; and

(e) dispute resolution.

• 7.137 We consider these briefly below.

Land status and restrictions on alienation

• 7.138 The Māori Land Court has jurisdiction to determine the status of any parcel of land, and no Māori land may change status except in accordance with TTWMA.276 In exercising its powers and functions under TTWMA, the Māori Land Court must always have regard to two fundamental principles relating to the retention and use of Māori land.277 It must promote and assist:278

(a) the retention of Māori land and general land owned by Māori in the hands of its owners, and

(b) the effective use, management and development of such land.

²⁷² Compare Te Ture Whenua Maori Act 1993, Preamble and the provisions relating to Māori land in the Maori Affairs Act 1953. See also Caren Wickliffe, Stephanie Milroy and Matiu Dickson Laws of New Zealand Overview of the evolution of Māori land law 1840–1993 (online ed) at [11].

²⁷³ Te Ture Whenua Maori Act 1993, Preamble.

274. Te Ture Whenua Maori Act 1993, Preamble. See also Caren Wickliffe, Stephanie Milroy and Matiu Dickson Laws of New Zealand Overview of the evolution of Māori land law 1840–1993 (online ed) at [12].
275. This is not a comprehensive list. Other parts relate to records of ownership, duties and powers of the Court, powers of owners, leases, representation of owners, title reconstruction and improvement, occupation orders and surveys.

²⁷⁶ Te Ture Whenua Maori Act 1993, ss 120–131.

277. Te Ture Whenua Maori Act 1993, ss 2 and 17. See also the discussions in Re Cleave [1995] NZMAC 4; (1995) 3 NZ ConvC 192,245 (MAC) at 245–249 and Valuer-General v Mangatu Inc [1997] NZCA 147; [1997] 3 NZLR 641 at 650.

²⁷⁸ Te Ture Whenua Maori Act 1993, s 17(1).

• 7.139 This, combined with a general prohibition on the alienation of Māori land, means that TTWMA imposes heavy restrictions on Māori land alienation.279
• 7.140 At times, the restrictions on alienation that are designed to keep Māori land in Māori ownership can mean that Māori are unable to leverage their land in order to develop it. Consequently, there can be some tension between the principles of retention and utilisation. As the authors of Adams’ Land Transfer describe the tension:280

While it is obviously important that Māori land is retained in the hands of its owners, their whānau and their hapū, it is equally important that those owners have the ability to utilise the land. A crucial component for utilisation is access to money. The conflict arises when owners, for example, propose to mortgage the land or perhaps sell or lease a part of the land in order to raise monetary funds ...

• 7.141 In line with the objective of retention of land by Māori, TTWMA also places restrictions on succession to Māori land. Owners cannot leave their interests in Māori land to anyone in their will besides a limited class of people within the owner’s hapū.281 If an owner of Māori land dies without a will, the people entitled to inherit are limited to those as closely related to the deceased as possible.282

Governance structures

• 7.142 TTWMA establishes governance structures for managing Māori land, although owners are not limited to using these structures.283 Five types of specialised trusts can be established over Māori land to fit particular circumstances. They are:284

(a) Ahu whenua trusts, which are designed for the benefit of any persons with ownership interests in the land.

(b) Whenua topu trusts, which are designed for the general benefit of the members of the iwi or hapū related to the land.

(c) Whānau trusts, which are designed for the benefit of the descendants of a named ancestor.

(d) Pūtea trusts, which are designed to manage minimal interests in land or unknown beneficiaries and enable them to pool their interests.

(e) Kai tiaki trusts, which are designed for the benefit of any person beneficially entitled who is unable to manage their interests, such as minors or persons under a disability.

• 7.143 Alternatively, owners may choose to vest their interests in a Māori incorporation established under TTWMA.285 Māori incorporations may be established to facilitate the

²⁷⁹ Te Ture Whenua Maori Act 1993, ss 145–146. Alienation is not limited to basic disposition of Māori land. It includes a wide variety of interests such as the making or grant of any lease, licence, easement, profit, mortgage, charge encumbrance or trust: see “alienation” defined in s 4.

²⁸⁰ Adams’ Land Transfer (NZ) (looseleaf ed, LexisNexis) at TTWMA.5.2.

²⁸¹ Te Ture Whenua Maori Act 1993, s 108.

²⁸² Te Ture Whenua Maori Act 1993, s 109(1). The deceased’s children, then siblings, then those “nearest in the chain of title” to the deceased are entitled.

²⁸³ Te Ture Whenua Maori Act 1993, s 21(2).

²⁸⁴ See Te Ture Whenua Maori Act 1993, ss 212–217.

²⁸⁵ Te Ture Whenua Maori Act 1993, s 147.

economic and commercial use of the land on behalf of the owners.286 Between 2005 and 2015, there were only three applications to the Court to establish a Māori incorporation.287

• 7.144 Lastly, owners may wish to establish a Māori reservation. The majority of marae around the country are administered under TTWMA as Māori reservations.288 While land is set apart as a reservation, it is unable to be alienated.289

Dispute resolution

• 7.145 Part 3A of TTWMA establishes a dispute resolution mechanism to enable parties to resolve disputes in accordance with the law and “as far as possible, in accordance with the relevant tikanga of the whanau or hapu with whom they are affiliated, for both the process and the substance of the resolution”.290 The Māori Land Court describes the process as a “free, tikanga-based mediation service”.291 Mediation may be requested by any party or at the judge’s initiative,292 but all parties must agree to it.293 The mediator may follow any procedures or admit any material they think fit.294

Cases

• 7.146 Cases heard under TTWMA contain sophisticated examples of engagement between tikanga and state law. This is not surprising given that TTWMA exists as a regime for Māori land and almost all applicants are Māori. These circumstances have generated a high level of engagement between tikanga and state law. We discuss below two areas of this engagement — the law relating to whāngai and to trusts established under TTWMA.

Whāngai

• 7.147 Whāngai may succeed to interests in Māori land under TTWMA.295 TTWMA defines whāngai as “a person adopted in accordance with tikanga Maori”.296 Amendments that came into effect in 2021 changed the legal framework for whāngai to succeed.297 These new provisions relating to whāngai and their “relationship of descent” remain largely

286. Te Kooti Whenua Māori | Māori Land Court and Te Tāhū o te Ture | Ministry of Justice He Pou Herenga Tangata, He Pou Herenga Whenua, He Pou Whare Kōrero — 150 Years of the Māori Land Court (October 2015) at 113.
287. Te Kooti Whenua Māori | Māori Land Court and Te Tāhū o te Ture | Ministry of Justice He Pou Herenga Tangata, He Pou Herenga Whenua, He Pou Whare Kōrero — 150 Years of the Māori Land Court (October 2015) at 113.
288. Caren Wickliffe, Stephanie Milroy and Matiu Dickson Laws of New Zealand Overview of the evolution of Māori land law 1840–1993 (online ed) at [13]. Māori reservations can be used for other purposes such as wāhi tapu.

²⁸⁹ Te Ture Whenua Maori Act 1993, s 338(11)(b).

290. Te Ture Whenua Maori Act 1993, s 98I. The only excluded matters relate to the Māori Fisheries Act 2004, the Maori Commercial Aquaculture Claims Settlement Act 2004 and matters regarding representation.

²⁹¹ Te Kooti Whenua Māori | Māori Land Court “Dispute resolution service” <www.maorilandcourt.govt.nz>.

²⁹² Te Ture Whenua Maori Act 1993, s 98L.

²⁹³ Te Ture Whenua Maori Act 1993, s 98J.

²⁹⁴ Te Ture Whenua Maori Act 1993, s 98O.

²⁹⁵ See Te Ture Whenua Maori Act 1993, pt 4; Grant v Grant (2021) 104 Tairawhiti MB 122 (104 TRW 122) at [14]–[18].

²⁹⁶ Te Ture Whenua Maori Act 1993, s 4.

²⁹⁷ Te Ture Whenua Maori (Succession, Dispute Resolution, and Related Matters) Amendment Act 2020, ss 30–31.

untested.298 Tikanga remains as a central consideration in determining whether a whāngai will succeed or not.299

• 7.148 The Māori Land Court has a two-step process to determine whether a person was a whāngai of the deceased and whether they are entitled to succeed to interests in Māori land according to tikanga.300 The results of this inquiry will vary because the tikanga regarding whāngai and succession varies among iwi, hapū and whānau.301 In order to ascertain the relevant tikanga, the Māori Land Court relies on evidence from respected kaumātua and tohunga (Māori knowledge experts) who have knowledge of the relevant tikanga.302 Usually, expertise in the relevant tikanga is demonstrated in part by the experts’ whakapapa to the iwi or hapū in question. Where no expert evidence is available, the Māori Land Court relies on the relevant tikanga as established in prior cases.303
• 7.149 The practical application of tikanga regarding whāngai is by and large specific to a particular iwi or hapū. The Māori Land Court has been careful not to generalise the tikanga it hears in evidence and has relied on previous evidence of tikanga where the previous evidence pertained to the relevant iwi or hapū.304
• 7.150 The Māori Land Court has created a presumption that, for a whāngai to succeed to interests in Māori land, they must demonstrate a whakapapa connection to the land. 305 A person with no whakapapa connection who is seeking to succeed as a whāngai bears the onus of demonstrating that they are entitled to do so.306 The Māori Land Court has said this is “consistent with well known principles of tikanga that rights to land are regulated by whakapapa” while also noting that some hapū have a more flexible approach.307
• 7.151 The Court’s presumption that whāngai must have whakapapa connections to succeed has been developed from consistent evidence of the tikanga of different iwi and hapū. The presumption also responds to the reality that the Court does not always have sufficient evidence of the tikanga of an iwi or hapū before it and must proceed to make its decisions on some basis. While the rule of requiring whāngai to have whakapapa

²⁹⁸ We could only locate three cases that have considered the new provisions.

²⁹⁹ Roberts v Paul Succession to Riana Margaret Eru (2022) 254 Taitokerau MB 129 (254 TTK 129) at [16].

³⁰⁰ Moses-Heeney — Estate of Eric Moses, Re (2018) 201 Waiariki MB 122 (201 WAR 122) at [7].

301. See for example Hohua — Estate of Tangi Biddle or Hohua (2001) 10 Waiariki Appellate MB 43 (10 AP 43); Karauti — Estate of George Tukua (2000) 116 Otorohanga MB 81 (116 OTO 81); Milner v Milner — Estate of Warahi Te Keu Faenza Milner (2008) 83 Ruatoria MB 108 (83 RUA 108); Pomare — Estate of Peter Here Pomare (2015) 103 Taitokerau MB 95 (103 TTK 95).

³⁰² Mihiata Pirini “The Māori Land Court: exploring the space between law, design, and kaupapa Māori” (LLM Dissertation, Te Whare Wānanga o Ōtākou | University of Otago, 2020) at 19, citing Hohua — Estate of Tangi Biddle or Hohua (2001) 10 Waiariki Appellate MB 43 (10 AP 43); Coutts — Estate of James Pou (2008) 129 Whangarei MB 145 (129 WH 145). See also Retemeyer v Loloa — Estate of Tahuaka Waipouri (2016) 129 Taitokerau MB 288 (129 TTK 288) at [48] and James Anson-Holland and others Wills and Succession (NZ) (online ed, LexisNexis) at [16.44].

³⁰³ See Retemeyer v Loloa — Estate of Tahuaka Waipouri (2016) 129 Taitokerau MB 288 (129 TTK 288) where the Court relied on the evidence given in Karauti — Estate of George Tukua (2000) 116 Otorohanga MB 81 (116 OTO 81) to establish the relevant tikanga.

³⁰⁴ See Retemeyer v Loloa — Estate of Tahuaka Waipouri (2016) 129 Taitokerau MB 288 (129 TTK 288) at [55]–[57] where evidence of Ngāti Mahuta tikanga was relied on, and Pomare — Estate of Peter Here Pomare (2015) 103 Taitokerau MB 95 (103 TTK 95) at [24] where Tūhoe tikanga was distinguished from the tikanga of Te Taitokerau district.

³⁰⁵ Retemeyer v Loloa — Estate of Tahuaka Waipouri (2016) 129 Taitokerau MB 288 (129 TTK 288) at [49].

³⁰⁶ Roberts v Paul Succession to Riana Margaret Eru (2022) 254 Taitokerau MB 129 (254 TTK 129) at [12].

³⁰⁷ Retemeyer v Loloa — Estate of Tahuaka Waipouri (2016) 129 Taitokerau MB 288 (129 TTK 288) at [49].

connections to succeed is not universal and some iwi and hapū have different tikanga, the Court’s approach reflects the integral nature of whakapapa to establishing Māori rights to land in general.

Trusts under TTWMA

• 7.152 Trusts are commonly created under TTWMA as ownership structures over Māori land. This creates an area of often complex engagement between tikanga and state law that is worth exploring to show how the Māori Land Court manages these interactions. The Māori Land Court has the exclusive jurisdiction to constitute trusts under TTWMA and has all the same powers as the High Court in respect of such trusts.308 It also has jurisdiction in respect of the supervision of “every other trust constituted in respect of any Māori land and every other trust constituted in respect of any General land owned by Māori”.309 General trust law applies to trusts constituted under TTWMA to the extent that it is consistent with the TTWMA scheme.310
• 7.153 The Court of Appeal’s decision in Kusabs v Staite illustrates how tikanga and state law interact with respect to trustee duties. In that case, a rangatira for two hapū, Mr Moke, was acting as a trustee on two trusts that represented each hapū, creating a potential conflict of interest. Applying the usual strict approach to issues of conflict in cases of fiduciary duty, the High Court found that there was a conflict of interest.311 The Court of Appeal took a different view, focusing on how the reality of Māori land administration and ownership reflected tikanga and whanaungatanga. It said:312

... whanaungatanga is blind to block boundaries. The same hapū will often own multiple blocks of separately administered land. On the other hand, sometimes multiple hapū will share ownership of a single block ...

Another implication of whanaungatanga is that most Māori landowners have multiple hapū affiliations. From these affiliations they will also derive multiple interests in other Māori land blocks ...

A third implication is that with shared ownership will come shared leadership. That is, rangatira will often be rangatira of more than one hapū. In the context of Māori land administration, that means those selected by owners to serve as trustees will sometimes be trustees for multiple blocks.

• 7.154 The Court said that if fiduciary duties were applied to Māori land administration without due regard to whanaungatanga, the expression of whanaungatanga may be frustrated. 313 Bearing this in mind, there was no real sensible possibility that Mr Moke’s positions on the two trusts could give rise to a conflict.314
• 7.155 The Māori Land Court also discussed trustee duties under tikanga in Pokere v Bodger — the first fully bilingual decision issued by a New Zealand court, in which the Court was

³⁰⁸ Te Ture Whenua Maori Act 1993, ss 211 and 237.

³⁰⁹ Te Ture Whenua Maori Act 1993, s 236(1)(b)–(c).

³¹⁰ Fenwick v Naera [2016] 1 NZLR 354, [2015] NZSC 68 at [55].

³¹¹ Kusabs v Staite [2019] NZCA 420, [2023] 2 NZLR 144 at [116].

³¹² Kusabs v Staite [2019] NZCA 420, [2023] 2 NZLR 144 at [121]–[123].

³¹³ Kusabs v Staite [2019] NZCA 420, [2023] 2 NZLR 144 at [124].

³¹⁴ Kusabs v Staite [2019] NZCA 420, [2023] 2 NZLR 144 at [134].

assisted by the appointment of Dr Ruakere Hond as pūkenga.315 The case concerned the proposed demolition of a dwelling by the trustees of an ahu whenua trust established under TTWMA. The applicants argued that the dwelling was akin to a marae, that the trustees of the ahu whenua trust had tikanga duties, and that demolition of the dwelling would breach those duties. There were no express tikanga duties in the terms of the trust.

• 7.156 The Court explained that it had jurisdiction to undergo the tikanga analysis on the basis that the Māori Land Court has all the same powers of the High Court in relation to trusts, including the High Court’s inherent jurisdiction.316 Because trustee duties should be performed by trustees having regard to the context and objectives of the trust, tikanga is relevant in the context of Māori land trusts.317
• 7.157 The Court focused its tikanga analysis on mana. The Court discussed the mana of the relevant tūpuna (ancestor), the mana relationships to taonga, the mana of the whenua, kāinga (home) and place, and the mana of the people. The questions “Ko wai te Whare nei?” (“Who is this Whare?”), “Nō wai te Whare nei?” (“To whom does the Whare belong?”) and “Mō wai te Whare nei?” (“Who is the Whare for?”) were also important.318 These questions, framed by reference to mana, set the context for establishing the tikanga duties. The Court said:319

In a trust context, whanaungatanga duties will generally be achieved if the trustees are clear where the mana is located, because if that is clear, then the trustees will know who they need to involve and on what basis.

• 7.158 On the facts, the Court found that the trustees had not breached their duties under tikanga or orthodox trustee duties.320

TIKANGA IN THE MARINE AND COASTAL AREA (TAKUTAI MOANA) ACT 2011

• 7.159 The Takutai Moana Act provides this chapter’s final illustration of engagement between tikanga and state law. We introduce the Act by considering its history, before turning to litigation. Many of the rights and interests that can be established under the Takutai Moana Act require consideration of tikanga.

History

• 7.160 The Takutai Moana Act replaced the Foreshore and Seabed Act 2004 (2004 Act).321 The 2004 Act was the Crown’s response to Ngati Apa, a Court of Appeal case that held customary title in the foreshore and seabed had never been extinguished by statute and could therefore be pursued in the courts.322

³¹⁵ Pokere v Bodger — Ōuri 1A3 (2022) 459 Aotea MB 210 (459 AOT 210).

³¹⁶ Pokere v Bodger — Ōuri 1A3 (2022) 459 Aotea MB 210 (459 AOT 210) at [91].

³¹⁷ Pokere v Bodger — Ōuri 1A3 (2022) 459 Aotea MB 210 (459 AOT 210) at [94].

³¹⁸ Pokere v Bodger — Ōuri 1A3 (2022) 459 Aotea MB 210 (459 AOT 210) at [73]–[82].

³¹⁹ Pokere v Bodger — Ōuri 1A3 (2022) 459 Aotea MB 210 (459 AOT 210) at [116].

³²⁰ Pokere v Bodger — Ōuri 1A3 (2022) 459 Aotea MB 210 (459 AOT 210) at [138].

321. Marine and Coastal Area (Takutai Moana) Act 2011, Preamble; Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry Stage 1 Report (Wai 2660, 2020) at 3–4.

³²² Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA).

• 7.161 The Crown’s response was to pass the 2004 Act, driven by the policy that the foreshore and seabed belongs to and in principle is accessible by all New Zealanders.323 The 2004 Act vested ownership of the foreshore and seabed in the Crown and removed the jurisdictions of the High Court and Māori Land Court to inquire into any question of foreshore and seabed ownership.324 The policy was met with “near-universal opposition” among Māori and resulted in an immediate Waitangi Tribunal inquiry.325 The Tribunal identified multiple breaches of the Treaty and the rule of law in the 2004 Act as well as finding that the 2004 Act was unfair to Māori.326 After a Ministerial Review Panel set up in 2009 found the 2004 Act to be “severely discriminatory against whānau, hapū and iwi”,327 the government sought to replace the 2004 Act. This resulted in the Takutai Moana Act, which was enacted in 2011.

Purpose

• 7.162 The purpose of the Takutai Moana Act is to:328

(a) establish a durable scheme to ensure the protection of the legitimate interests of all New Zealanders in the marine and coastal area of Aotearoa New Zealand;

(b) recognise the mana tuku iho (inherited right or authority) exercised in the marine and coastal area by iwi, hapū, and whānau as tangata whenua;

(c) provide for the exercise of customary interests in the common marine and coastal area; and

(d) acknowledge the Treaty of Waitangi.

• 7.163 The Takutai Moana Act establishes the common marine and coastal area. This is the area between the mean high-tide mark and the outer limits of the territorial sea, less any freehold land or other areas with special status.329 No person owns or is capable of owning the common marine and coastal area.330 The Takutai Moana Act preserves the general public’s rights of access and recreational use of this area.331
• 7.164 The Takutai Moana Act also specifically restores any customary interests that were extinguished by the Foreshore and Seabed Act 2004 and gives them legal expression “in accordance with this Act”.332 The Court in Re Edwards noted that, although the Takutai

323. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Report on the Crown’s Foreshore and Seabed Policy (Wai 1071, 2004) at 83.

³²⁴ Foreshore and Seabed Act 2004, ss 10, 12 and 13.

325. Marine and Coastal Area (Takutai Moana) Act 2011, Preamble; Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry Stage 1 Report (Wai 2660, 2020) at 4.
326. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Report on the Crown’s Foreshore and Seabed Policy (Wai 1071, 2004) at 121–125.

³²⁷ Marine and Coastal Area (Takutai Moana) Act 2011, Preamble.

³²⁸ Marine and Coastal Area (Takutai Moana) Act 2011, s 4.

329. Marine and Coastal Area (Takutai Moana) Act 2011, s 9. The areas with special status are a conservation area under the Conservation Act 1987, a national park under the National Parks Act 1980 or a reserve under the Reserves Act 1977.

³³⁰ Marine and Coastal Area (Takutai Moana) Act 2011, s 11.

³³¹ Marine and Coastal Area (Takutai Moana) Act 2011, ss 26–28.

³³² Marine and Coastal Area (Takutai Moana) Act 2011, s 6(1).

Moana Act purports to restore customary interests, it only does so in the manner specified in the Takutai Moana Act.333

Key rights and interests recognised under the Takutai Moana Act

• 7.165 The Takutai Moana Act recognises customary interests in the common marine and coastal area in two ways: through customary marine title and through protected customary rights. Applicants must apply to the High Court to have these interests recognised and the High Court may refuse or grant the application. All applications were required to have been received by 1 April 2017.334 Many have yet to be heard.

Customary marine title

• 7.166 For customary marine title to be recognised, an applicant must hold the specified area “in accordance with tikanga” and have “exclusively used and occupied it from 1840 to the present day without substantial interruption”.335 The requirement for exclusivity can include “shared exclusivity” between two or more applicant groups, and customary marine title may therefore be jointly held by more than one applicant group.336 The Takutai Moana Act provides some clarification on what constitutes a “substantial interruption” by providing that the use of the common marine and coastal area by persons who are not members of the applicant group for fishing and navigation does not constitute a substantial interruption.337
• 7.167 The rights granted by customary marine title are less than the full range of rights under both traditional Western property rights and “rights that Māori would have enjoyed and exercised in the foreshore and seabed as at 1840”.338 Nevertheless, customary marine title provides for a number of rights for the title holder, including resource management rights, the right to grant conservation permission, the right to create a planning document and a wāhi tapu (sacred area) protection right.339
• 7.168 With respect to wāhi tapu protection rights, the wāhi tapu area must have defined boundaries and prohibitions or restrictions that are to apply within the wāhi tapu.340 Restrictions under a wāhi tapu can affect rights of access and use for the general public, for example if a rāhui is imposed.341

³³³ Re Edwards (Te Whakatōhea No 2) [2021] NZHC 1025, [2022] 2 NZLR 772 at [32].

³³⁴ Marine and Coastal Area (Takutai Moana) Act 2011, s 100.

³³⁵ Marine and Coastal Area (Takutai Moana) Act 2011, s 58.

336. Re Edwards (Te Whakatōhea No 2) [2021] NZHC 1025, [2022] 2 NZLR 772 at [168]–[170]. We note that this decision may be subject to appeal as it raises novel points of law concerning the Takutai Moana Act 2011.

³³⁷ Marine and Coastal Area (Takutai Moana) Act 2011, s 59(3).

³³⁸ Re Edwards (Te Whakatōhea No 2) [2021] NZHC 1025, [2022] 2 NZLR 772 at [32]–[33] and [55].

339. Marine and Coastal Area (Takutai Moana) Act 2011, pt 3, sub-pt 3; Re Edwards (Te Whakatōhea No 2) [2021] NZHC 1025, [2022] 2 NZLR 772 at [49].

³⁴⁰ Marine and Coastal Area (Takutai Moana) Act 2011, s 79.

³⁴¹ Re Ngāti Pāhauwera [2021] NZHC 3599 at [111]–[113].

Protected customary rights

• 7.169 The second way in which the Takutai Moana Act allows Māori interests to be recognised is through protected customary rights.342 A protected customary right can be any right that meets the recognition criteria under the Takutai Moana Act.343 For a protected customary right to be recognised, it must have been continuously exercised since 1840, never have been extinguished as a matter of law, and be exercised in accordance with tikanga.344

Establishing the relevant tikanga

• 7.170 Both customary marine title and protected customary rights therefore require an applicant to establish that they hold a specified area or exercise a right in accordance with tikanga. The burden is on the applicant group to prove the requirements.345 However, the Takutai Moana Act provides that “it is presumed, in the absence of proof to the contrary, that a customary interest has not been extinguished”.346
• 7.171 When hearing an application, the High Court may receive as evidence “any oral or written statement, document, matter, or information that the Court considers to be reliable, whether or not that evidence would otherwise be admissible”.347 Evidence that the applicant group holds the area in accordance with tikanga will inevitably contain detailed whakapapa and tribal histories. It is likely that much of the evidence is tapu. The High Court’s role is to weigh up the evidence to determine if the tests for marine customary title and protected customary rights are met and it does not act as the “final arbiter defining the whakapapa of the applicants”.348 It is nevertheless important to highlight that the Takutai Moana Act provides for the only way for iwi, hapū and whānau to get recognisable rights under state law in the common marine and coastal area. Therefore, while the High Court’s decision does not affect the tikanga of the applicant groups, it does significantly impact the ability for iwi, hapū and whānau to exercise their tikanga over the common marine and coastal area.
• 7.172 Applications under the Takutai Moana Act may relate to large areas of the common marine and coastal area and contain large amounts of evidence on tikanga. Where interests between applicant groups overlap, the evidence may also be contested. This is apparent in the cases that have been dealt with to date, which have had large numbers of interested parties as well as contested evidence between iwi and hapū.
• 7.173 In addition to hearing evidence, the Court has powers to refer a question of tikanga to the Māori Appellate Court and to obtain the advice of a pūkenga who has knowledge and experience of tikanga.349

³⁴² Marine and Coastal Area (Takutai Moana) Act 2011, pt 3, sub-pt 2.

³⁴³ Some specific activities are excluded: see Marine and Coastal Area (Takutai Moana) Act 2011, s 51(2).

³⁴⁴ Marine and Coastal Area (Takutai Moana) Act 2011, s 51(1).

³⁴⁵ Marine and Coastal Area (Takutai Moana) Act 2011, s 106.

³⁴⁶ Marine and Coastal Area (Takutai Moana) Act 2011, s 106.

³⁴⁷ Marine and Coastal Area (Takutai Moana) Act 2011, s 105.

³⁴⁸ Re Edwards (Te Whakatōhea No 2) [2021] NZHC 1025, [2022] 2 NZLR 772 at [301].

³⁴⁹ Marine and Coastal Area (Takutai Moana) Act 2011, s 99.

CONCLUSION

• 7.174 In this chapter, we have considered the development of tikanga in state law in eight areas. Our review shows how widely tikanga is now present in these areas of law and the increasing confidence of the courts and the legislature generally in tikanga engagement. It also highlights some areas where there is uncertainty about how the interface of tikanga with state law will play out and many ways in which, in spite of tikanga concepts’ wide use and recognition, limitations remain. Part Three therefore considers ways of supporting decision makers’ continuing engagement with tikanga, both in the courts and in a policy context.

Part Three

Future engagement

212 STUDY PAPER 24 – HE POUTAMA TE AKA MATUA O TE TURE | LAW COMMISSION

Decorated panels formed an important finish to the large meeting-houses and the carved houses of chiefs of any standing. A carved house without lattice-work stitched in patterns, no matter how simple, had an air of incompleteness, or even poverty, that the old-time Maori felt was not in keeping with the prestige that a well-carved house should convey.

Tā Te Rangi Hiroa1

1. Te Rangi Hiroa (P H Buck) “Maori decorative art: no 1, house-panels (arapaki, tuitui, or tukutuku)” (1921) 53 Transactions and Proceedings of the Royal Society of New Zealand 452 at 452.

INTRODUCTION TO PART THREE

1. As Part Two shows, tikanga is increasingly interacting with state law. Judges must adjudicate on what tikanga means and how it should be applied in a wide range of contexts. The government sector engages with tikanga too: tikanga may be involved both when implementing existing law and when developing new law. The extent to which state law now addresses tikanga may not be well appreciated. As we explored in Part Two, some examples include:

(a) common law recognition of tikanga-based rights and interests in land and other natural resources through the customary law doctrine;

(b) environmental law decisions about tikanga-based relationships and tikanga concepts, including whanaungatanga, mauri, kaitiakitanga and mana;

(c) family law decisions requiring the application of whanaungatanga, whakapapa and mana;

(d) the common law incorporation of tikanga values, including whanaungatanga, mana and tapu, utu and ea;

(e) public law declarations and decisions in respect of mana whenua, mana moana and mana tangata;

(f) criminal law and procedure applying tikanga values and processes, including whanaungatanga, utu, ea, muru and whakamā;

(g) personal property law which requires consideration of taonga; and

(h) te Tiriti o Waitangi | Treaty of Waitangi cases that address tikanga, including mana and rangatiratanga.

2. The diverse contexts in which state law and tikanga are engaging present challenges for both. While tikanga remains an independent system, incorporating tikanga concepts into state law has the potential to shift the location for the development of tikanga to state law institutions. This carries a real risk of undermining the mana of tikanga institutions. There is a risk of tikanga being misunderstood, misapplied and assimilated unless engagement between state law and tikanga is undertaken carefully. There is a need above all to be mindful of tikanga as an integrated system of concepts sourced from and practised within Māori communities. Equally, state law must operate and safeguard its law-making processes in accordance with well-settled constitutional norms. Maintaining the certainty and accessibility of the law is central to the notion of the rule of law that underlies Aotearoa New Zealand’s legal system.
3. Part Three of this Study Paper considers these challenges. Respectively, Chapters 8 and 9 consider common law and public sector engagement with tikanga. These chapters evaluate the capacity of both the common law and the public sector to appropriately incorporate tikanga into state law within existing constitutional arrangements. They also propose strategies for engaging with tikanga that seek to maintain the integrity and coherence of both tikanga and state law. The chapters envisage a weaving of tikanga and state law values which retains the integrity of both.
4. To conclude the Study Paper, Chapter 10 briefly reflects on the key contributions made by the paper, leaving open the potential for other ways of recognising tikanga that might, in future, come to fruition.

CHAPTER 8

Principles for common law engagement

INTRODUCTION

• 8.1 This chapter discusses the capacity of the courts to mediate the challenges of intersection between tikanga and the common law. It provides principles and strategies for engagement.
• 8.2 The first section of the chapter offers an account of what the common law is and how judges work, commonly referred to as the common law method. The section defines and discusses the common law method within the constitutional context of Aotearoa New Zealand. It explores the capacity of the common law method to rise to the challenges posed.
• 8.3 The second section discusses key points of intersection between tikanga and case law. We identify three main categories of tikanga-related state law — tikanga-based customary law, tikanga values and tikanga as law. We suggest they are a helpful starting point for future engagement.
• 8.4 Following this, the chapter provides strategies and guidance on how the courts might best engage with tikanga. It draws on the account of tikanga given in Part One of this Study Paper and builds incrementally on the common law as it presently exists. The three strategies discussed are:

(a) commencing any engagement with a “tikanga lens”, an approach that we illustrate by giving case law examples;

(b) tools for judicial engagement; and

(c) enabling broader or better adjudication processes that facilitate engagement with tikanga.

• 8.5 These include the role of the Māori Land Court and the use of arbitration for adjudicating tikanga disputes.

THE COMMON LAW METHOD

• 8.6 The common law method, as a method of incremental change and institutional discourse, has the capability to develop the law through embracing tikanga provided that appropriate existing boundaries of the method are adhered to. These boundaries or

guardrails assist to maintain the independence and integrity of both the common law and tikanga. Before moving to this discussion, it is helpful to first outline what we mean by the common law and the common law method.

Defining the common law and the common law method

• 8.7 The common law evolved over hundreds of years from customary practices of various localities in England to become “general customs; which are the universal rule of the whole kingdom”.1 In modern times, it has evolved further to become a body of law that is principally authored by the judiciary.2 The common law can be defined as the “principles of substantive law derived from judicial precedent that the courts establish through litigation”.3 The English common law that metaphorically arrived with Captain Cook and became the second law of Aotearoa New Zealand was derived from decisions of the English courts.4 The common law today is a body of principles derived from Aotearoa New Zealand courts, amended and adapted to meet the changing circumstances of this place.5
• 8.8 The “common law method” is distinct from the common law:6

The common law is the principles that can be extracted from the body of case law. The common law method is the process that courts use to decide the case before them which may, in a case such as this, require them to develop the common law to enable them to do that.

• 8.9 The distinctive value of the common law may be its process or method rather than its substance.7 The “process that courts use to decide the case before them” is a deceptively complex subject, despite the fact that lawyers and judges practise the method routinely.8 The following points can be made about the method.

1. William Blackstone Commentaries on the Laws of England (1765–9) (University of Chicago Press, London, 1979) vol 1 at 67.
2. Matthew S R Palmer and Dean R Knight The Constitution of New Zealand: A Contextual Analysis (Hart Publishing, Oxford, 2022) at 144.
3. Philip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, Wellington, 2021) at 32; John Gardner “Some types of law” in Douglas E Edlin (ed) Common Law Theory (Cambridge University Press, New York, 2007) 51; John Burrows “Common law among the statutes: the Lord Cooke Lecture 2007” (2008) 39 Victoria University of Wellington Law Review 401 at 401.
4. Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 4; Te Aka Matua o te Ture | Law Commission Mataitai: Nga tikanga Maori me te Tiriti o Waitangi | The Treaty of Waitangi and Maori Fisheries (NZLC PP9, 1989) at 90: “The common law was ‘the custom of the people of England’. It was fashioned by the history and the environment of the people of England and in modern times the English people who settled the various overseas communities.”
5. Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [95] per McGrath J for the majority: “the evolution of the common law in New Zealand reflects the special needs of this country and its society”; Helen Winkelmann “Picking up the threads: the story of the common law in Aotearoa New Zealand” (2021) 19 New Zealand Journal of Public and International Law 1 at 17; John Burrows “Common law among the statutes: the Lord Cooke Lecture 2007” (2008) 39 Victoria University of Wellington Law Review 401 at 406.

⁶ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [163].

7. Robert Goff “The future of the common law” (1997) 46 The International and Comparative Law Quarterly 745 at 749: “the major differences between the common law and what we may broadly call the civil law are to be found rather in the form than in the substance of our law, and still more in our judicial system and our procedure as seen in its broadest sense, together with our methods of legal reasoning”.
8. Sian Elias “Judicial review and constitutional balance” (2019) 17 New Zealand Journal of Public and International Law 1 at 4.

• 8.10 It entails a search for a statutory provision or common law principle that will decide or assist in deciding the case before the court.9 The common law includes decisions that interpret statutory provisions, and the common law in turn is influenced by statutes and the direction set by Parliament.10
• 8.11 Where statute and case law do not provide a determinative answer, the common law method allows the law to develop in a coherent and principled way to address that gap.11 The development of the law through the common law method is incremental in the sense that it proceeds on a case-by-case basis.12 Chief Justice Elias has said:13

The application of established principle to new situations or to developing social context, particularly in parallel with contemporary statutes and other trends, is the essence of the common law, which develops by analogy, case by case.

• 8.12 The common law method allows for a balance of continuity and change in the law to ensure that it serves contemporary society.14 The common law aims to retain a sense of integrity in the system as a whole as it develops.15
• 8.13 The evolution of the common law is not always one directional.16 The common law method allows for dialogue and debate about the correct direction for the law to take.17 Chief Justice Elias saw facilitating dialogue as one of the method’s great strengths:18

I am a believer in the value of common law methodology. It has great virtues in explaining the exercise of judicial authority in reasons which must convince or else they will not long endure. The common law, as its great exponents have always acknowledged, is a method of change. It is a form of institutionalised discourse or method of argumentation. Its arguments survive only until defeated by better ones, usually responding to different social conditions and developments in knowledge and insight.

⁹ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [164] per Winkelmann CJ.

10. John Burrows “Common law among the statutes: the Lord Cooke Lecture 2007” (2008) 39 Victoria University of Wellington Law Review 401 at 406; Ross Carter Burrows and Carter Statute Law in New Zealand (6th ed, LexisNexis, Wellington, 2021) at 281–288; Cathy Nijman “Ascertaining the meaning of legislation — a question of context” (2007) 38 Victoria University of Wellington Law Review 629 at 629; New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA).

¹¹ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [165] per Winkelmann CJ.

12. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [167] per Winkelmann CJ. That is not to say that the developments must also be small in kind — sometimes the law requires that individual cases take large steps forward. The classic example is Donoghue v Stevenson [1932] AC 562 (HL).

¹³ Lange v Atkinson [1997] NZHC 1810; [1997] 2 NZLR 22 (HC) at 45; upheld in Lange v Atkinson [1998] 3 NZLR 424 (CA).

¹⁴ Lange v Atkinson [1997] NZHC 1810; [1997] 2 NZLR 22 (HC) at 45.

15. In Ronald Dworkin Law’s Empire (Belknap Press, Cambridge, 1986), Dworkin argues that law is best interpreted through principles that justify and “fit” legal practice, enabling the law to speak with one voice. See elaboration in Steven Ross “Law, integrity, and interpretation: Ronald Dworkin’s Law’s Empire” (1991) 22 Metaphilosophy 265 at 273; see also Harlan F Stone “The common law in the United States” (1936) 50 Harvard Law Review 4 at 12: “we have the ideal of a unified system of judge-made and statute law woven into a seamless whole by the processes of adjudication”.

¹⁶ R v Governor of Brockhill Prison, ex p Evans (No 2) [2000] UKHL 48; [2001] 2 AC 19 (HL) at 48 per Lord Hobhouse.

17. John Burrows “Common law among the statutes: the Lord Cooke Lecture 2007” (2008) 39 Victoria University of Wellington Law Review 401 at 413 cites contract law as an example of uncertainty in the common law: “In 1998 Lord Cooke himself reviewed a book of essays on the law of contract in honour of Guenter Treitel. He concluded that virtually every essay demonstrated how unclear and uncertain that area of the law was.” See Robin Cooke “Review of consensus ad idem: essays in the law of contract in honour of Guenter Treitel” (1998) 114 Law Quarterly Review 505.
18. Sian Elias “Judicial review and constitutional balance” (2019) 17 New Zealand Journal of Public and International Law 1 at 11.

• 8.14 The common law method takes account of the values of contemporary Aotearoa New Zealand.19 Values provide an anchor, particularly those that transcend temporary political fluctuations such as the inherent dignity of the person or the right to a fair trial. Equally, as some of our societal values evolve, their contemporary iterations influence the law in new ways.20
• 8.15 Judicial independence is crucial to the legitimacy of the common law method and upholding the rule of law.21 The human right to a fair hearing in public, where the court gives the parties equal treatment, is similarly critical.22

The guardrails of the common law

• 8.16 The common law method has boundaries or “guardrails” that frame the limits of its law- making capacity. Some of the guardrails are internal to the method, and these are the focus of this chapter. Internal guardrails include the doctrine of precedent, incremental case-by-case development and appropriate consideration of the social and legislative context. The doctrine of precedent, or the principle that lower courts must follow the decisions of higher courts in similar cases, is a particularly critical guardrail.23 It is aimed at ensuring consistency and predictability in the legal system and allows for the development of legal principles over time.24
• 8.17 The external boundaries of the common law method are found in the constitutional context within which Aotearoa New Zealand courts operate. This includes the separation of powers, parliamentary supremacy and te Tiriti o Waitangi | Treaty of Waitangi (the Treaty).
• 8.18 The separation of powers in our Westminster democracy rests on the premise that the branches of government — the executive and the legislature as the political branch and

¹⁹ Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [94].

20. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [110] per Glazebrook J; Sarah Down “Tikanga Māori — recognition but key questions unanswered — Ellis” [November 2022] Māori Law Review at 13.
21. Helen Winkelmann “Picking up the threads: the story of the common law in Aotearoa New Zealand” (2021) 19 New Zealand Journal of Public and International Law 1 at 15: “The notion of an impartial and passive judge is also vital to this model. The humanity in this process is its most essential feature. The judiciary’s claim to legitimacy rests in large part upon its ability to provide equal treatment before the law, and its commitment to affording all those who come before the courts the dignity of a fair hearing.” See too Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35; Matthew S R Palmer and Dean R Knight The Constitution of New Zealand: A Contextual Analysis (Hart Publishing, Oxford, 2022) at 8.
22. See Universal Declaration of Human Rights GA Res 217A (1948), art 10; Helen Winkelmann “Picking up the threads: the story of the common law in Aotearoa New Zealand” (2021) 19 New Zealand Journal of Public and International Law 1 at 15.
23. This principle is also known as stare decisis: “to stand by things decided”. See Durgeshree Raman “The doctrine of precedent (stare decisis) revisited” [2022] New Zealand Law Journal 28 at 28; Douglas White “Originality or obedience? The doctrine of precedent in the 21st century” (2019) 28 New Zealand Universities Law Review 653 at 654 and 659. See also John Gardner “Some types of law” in Douglas E Edlin (ed) Common Law Theory (Cambridge University Press, New York, 2007) 51 at 86–87.
24. Durgeshree Raman “The doctrine of precedent (stare decisis) revisited” [2022] New Zealand Law Journal 28 at 36; Collector of Customs v Lawrence Publishing Co Ltd [1986] 1 NZLR 404 (CA) at 414, as cited in Douglas White “Originality or obedience? The doctrine of precedent in the 21st century” (2019) 28 New Zealand Universities Law Review 653 at 671.

the courts as the judicial branch — have distinctive roles.25 For example, the courts tend to avoid developing the law in a way that might usurp the role of Parliament.26

• 8.19 The principle of legislative supremacy ensures that the democratically elected legislature retains supreme law-making power.27 Primary legislation trumps the common law in the event of an irreconcilable conflict.28 Parliament can expressly overturn the effect of a court decision. Further, the courts do not have authority to strike down legislation that is inconsistent with the common law or principles of fundamental justice,29 although the courts have an important role in determining the meaning to be accorded to that legislation.30 The common law principle of legality requires the courts to read legislation as compatibly as possible with fundamental values protected by the common law, including human rights.31
• 8.20 The Treaty is a foundational constitutional document that is recognised by all three branches of government.32 The courts have increasingly emphasised the Treaty’s constitutional significance.33 Although courts do not give direct effect to the Treaty, there are several situations in which they can apply it. First, where there is a Treaty clause in the relevant statute, the courts will give it legal effect.34 Second, if it is salient to the decision, the courts regard the Treaty as a mandatory relevant consideration for administrative decision-makers.35 Third, more recently the courts have sometimes

²⁵ Philip A Joseph “Separation of powers in New Zealand” (2018) 5 Journal of International and Comparative Law 485.

26. See for example Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [259] per McGrath J; R v Hines [1997] NZCA 123; [1997] 3 NZLR 529 (CA) at 539; C v DPP [1995] UKHL 15; [1996] AC 1 (HL) at 28; see also the principle of non-interference in the legislative process in Philip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, Wellington, 2021) at 577 and 578.
27. Matthew S R Palmer and Dean R Knight The Constitution of New Zealand: A Contextual Analysis (Hart Publishing, Oxford, 2022) at 131: “put simply, what Parliament says, goes”.
28. Matthew S R Palmer and Dean R Knight The Constitution of New Zealand: A Contextual Analysis (Hart Publishing, Oxford, 2022) at 131; Philip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, Wellington, 2021) at 583 and see also at 576 and 582.
29. Matthew S R Palmer and Dean R Knight The Constitution of New Zealand: A Contextual Analysis (Hart Publishing, Oxford, 2022) at 130; Philip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, Wellington, 2021) at 611: “The orthodox view is that the courts would be powerless to stem the flow, beyond ‘reading down’ legislation as aggressively as principles of statutory interpretation might allow.”
30. John Burrows “Common law among the statutes: the Lord Cooke Lecture 2007” (2008) 39 Victoria University of Wellington Law Review 401 at 406; Ross Carter Burrows and Carter Statute Law in New Zealand (6th ed, LexisNexis, Wellington, 2021) at 281–288; Cathy Nijman “Ascertaining the meaning of legislation — a question of context” (2007) 38 Victoria University of Wellington Law Review 629 at 629.
31. New Zealand Bill of Rights Act 1990, s 6; R v Secretary of State for the Home Department, ex parte Simms [1999] UKHL 33; [2000] 2 AC 115 (HL) at 131 per Lord Hoffmann.
32. Matthew S R Palmer and Dean R Knight The Constitution of New Zealand: A Contextual Analysis (Hart Publishing, Oxford, 2022) at 219.

³³ See Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at

[150] per Winkelmann CJ and France J and at [296] per Williams J.

34. See for example the Conservation Act 1987, s 4 (which requires the Act to be administered consistently with the principles of the Treaty of Waitangi) as applied by the Court of Appeal in Ngai Tahu Maori Trust Board v Director- General of Conservation [1995] 3 NZLR 553 (CA) at 558; Matthew S R Palmer and Dean R Knight The Constitution of New Zealand: A Contextual Analysis (Hart Publishing, Oxford, 2022) at 222.
35. For example, New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA); New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513 (PC); see too Matthew S R Palmer “Indigenous rights, judges and judical review in New Zealand” in Jason N E Varhaus and Shona Wilson Stark The Frontiers of Public Law (Hart Publishing, Oxford, 2020) 123 for a review of 53 judicial review cases that consider the Treaty.

required legislation to be read consistently with the principles of the Treaty without explicit statutory reference.36

• 8.21 When the guardrails of the method are respected, the virtues of the common law can be demonstrated. The common law is:37

... flexible, it is grounded in the practicality of individual fact situations, it is the refined product of the wisdom of many minds, it is free from political influence, and it is relatively stable.

• 8.22 These virtues give the common law its legitimacy as it develops to serve modern Aotearoa New Zealand.

The common law method and tikanga

• 8.23 Some may question whether tikanga is compatible with the common law method. It may be suggested that tikanga is an indigenous legal system that creates uncertainty when combined with the common law or that incorporating tikanga into the common law is a policy choice best left to Parliament or that incremental development is required to preserve the coherence of the common law. Several points can be made in response at the outset.
• 8.24 While it may fairly be observed that tikanga is more sensitive to context than the common law, this does not mean that tikanga itself is indeterminate or uncertain. As explained in Part One of this Study Paper, tikanga is a coherent body of connected principles that, when properly applied to facts, delivers determinate and consistent outcomes. Those outcomes are appropriate to their context because the principles are applied in a way that is sensitive to that context. The same can be said of the common law.
• 8.25 We do not consider that the common law will inevitably be rendered uncertain as a consequence of engaging with tikanga. First, tikanga sets its own boundaries and it has its own commitment to coherence. When applying “precedent” within tikanga, the concern is to ensure the correct values are identified and given their best expression. 38 When those boundaries are respected, tikanga will not be applied in alien contexts. To use an analogy, where there is no contractual relationship, the common law does not apply contractual principles.
• 8.26 Second, the greater the legal profession’s understanding of tikanga, the lower the risk of incoherence, inconsistency and uncertainty resulting from inadvertent misapplication or overstepping of boundaries. This Study Paper seeks to contribute to that understanding.
• 8.27 Third, the common law develops incrementally and cautiously, seeking to ensure ongoing relevance without unduly sacrificing certainty and predictability. For example, although in Takamore v Clarke Te Kōti Mana Nui | Supreme Court (the Supreme Court) found that the values of tikanga are part of the common law of Aotearoa New Zealand (a significant

36. Huakina Development Trust v Waikato Valley Authority [1987] NZHC 130; [1987] 2 NZLR 188 (HC) at 210; Barton-Prescott v Director- General of Social Welfare [1997] NZHC 1262; [1997] 3 NZLR 179 (HC) at 184; Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2020] NZCA 86, [2020] NZRMA 248 at [171]. See also Legislation Design and Advisory Committee Legislation Guidelines: 2021 Edition (September 2021) at 32, which recognise that, because of the constitutional significance of the Treaty, legislation should be read consistently with the principles of the Treaty.
37. John Burrows “Common law among the statutes: the Lord Cooke Lecture 2007” (2008) 39 Victoria University of Wellington Law Review 401 at 411.
38. Carwyn Jones “A Māori constitutional tradition” (2014) 12 New Zealand Journal of Public and International Law 187 at 193.

development), a tikanga approach was not decisive for any of the judges on the facts of the case.39 In the later decision of Ellis v R, the Supreme Court gave important guidance on the status of tikanga, incrementally developing the law from Takamore. Again, however, tikanga was not decisive nor expressly incorporated into the majority’s test.40

• 8.28 Fourth, we acknowledge that there are areas where tikanga and common law precedents might lead to different outcomes and that this may raise the potential for common law development that is not incremental. We do not think it should be assumed that this will occur. Indeed, for the reasons noted above, we think the contrary assumption is likely more accurate, but we also suggest that any such risk can be mitigated by use of a consistent and coherent framework for engagement with tikanga that is expressly rooted in common law incrementalism. This Study Paper proposes such a framework.
• 8.29 Fifth, in response to the concern that recognising another normative system alongside the common law may create uncertainty we note that there are other examples of a system existing alongside the common law. Equity, which is a loose constellation of doctrines reflecting general notions of good conscience and fairness, is an example.41 It has existed alongside and within the common law without losing its distinctive character.42 A further example is international customary law, which is automatically part of the common law applied directly by judges.43
• 8.30 Outside of these examples, the common law method has shown great flexibility towards other legal systems. For example, foreign legal systems can be learned from insofar as their judgments may illuminate comparable legal issues.44 Sophisticated conflict of laws principles have been developed to allow legal systems to sensibly co-exist. Central to these principles is the acceptance of multiple legal systems co-existing — or a “minimum commitment to pluralism”.45 The principle of judicial comity is about “tolerating and maybe even embracing the foreign” at a basic level.46

³⁹ Clarke v Takamore [2009] NZHC 901; [2010] 2 NZLR 525 (HC); Takamore v Clarke [2011] NZCA 587, [2011] 1 NZLR 573; Takamore v Clarke

[2012] NZSC 116, [2013] 2 NZLR 733.

40. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [11] and [142]–[145] per Glazebrook J and [315] per O’Regan and Arnold JJ.
41. Andrew Butler “Historical introduction” in Andrew Butler (ed) Equity and Trusts in New Zealand (Thomson Reuters, Wellington, 2009) 2 at 2; Andrew Butler “Concluding observations: the state of equity, future developments and possible reform” in Andrew Butler (ed) Equity and Trusts in New Zealand (Thomson Reuters, Wellington, 2009) 1269 at 1269.
42. Equity is not a stand-alone, independent legal system and it should not be thought that tikanga is being directly compared to equity in that sense. As outlined in Part One, tikanga is a normative system that is the first law of Aotearoa and continues to shape and regulate the lives of Māori: Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 summarises the majority view on this point at [22], referencing [107] and [110] per Glazebrook J, [168], [169] and [172] per Winkelmann CJ and [272] per Williams J.
43. Kenneth Keith "Harkness Henry Lecture: the impact of international law on New Zealand law" (1998) 6 Taumauri | Waikato Law Review 1 at 22.
44. The practice of looking to other common law jurisdictions is widespread. An example is the Canadian jurisprudence in R v Smith 2004 SCC 14, [2004] 1 SCR 385 on the content of “interests of justice”, which provided useful guidance for the majority judgment in Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239.
45. David McClean and Veronica Abou-Nigm (eds) A Conflict of Laws (10th ed, Sweet & Maxwell, London, 2021) at [2–203]. The editors further explain at [2–022] that: “[a] conflicts way of thinking is a way of thinking that seems to gravitate around the idea of bridging legal systems and cultures”.

⁴⁶ Jack Wass and Maria Hook The Conflict of Laws in New Zealand (Lexis Nexis, Wellington, 2020) at [1.29].

• 8.31 In our view, the above discussion suggests that the common law should be capable of operating alongside tikanga and engaging with it in appropriate contexts. The relationship between tikanga and the common law is already developing incrementally through the orthodox application of the common law method on a case-by-case basis.

The need for caution — kia tūpato

• 8.32 While we consider the common law method has the capacity to engage with tikanga, caution is needed in doing so.
• 8.33 First, we acknowledge that some academics and commentators reject any engagement between tikanga and the common law in the current constitutional context.47 Some of these authors see a risk of distorting tikanga through an exercise that is “inherently assimilative”.48 Moana Jackson made this point forcefully.49 He argued that those who are redefining Māori rights and sourcing them within a pluralistic common law are only concerned with capturing Māori concepts in a way that is consistent with their law. In his view, “[t]hose who pursue such views are neo-colonists who neither understand nor respect Māori philosophy and culture. They are part of the attack on the indigenous soul”.50 Conversely, there is a danger of the courts distorting tikanga and/or the common law through “seeing superficial parallels”.51
• 8.34 These are real risks and underscore the need for caution when the common law is engaging with tikanga. For example, we suggest courts should avoid trying to develop tikanga itself and should consider carefully whether an issue is suitable for judicial determination. As the Supreme Court said in Ellis v R, the courts must take care not to exceed their function when considering tikanga.52 Comments made by Te Aka Matua o te Ture | Law Commission (the Commission) in Māori Custom and Values in New Zealand Law remain relevant today:53

Flexibility cannot be so great as to allow a proposition to be advanced as Māori custom law where it is in conflict with basic principles handed down from the ancestors. Certainty cannot be so paramount that past understandings of tikanga Māori should be adopted, along the lines of common law precedents, without continually being tested by the practical jurisprudence of Māori communal decision-making. So judges and decision-makers invited to give recognition to tikanga should bear in mind that the vitality of tikanga is being continuously replenished within the fora of te ao Māori.

• 8.35 Another constraint on courts is the principle that certain areas of law are unsuitable for judicial law making. Where there is a public policy context, the courts may sometimes be

47. Ani Mikaere “Cultural invasion continued: the ongoing colonisation of tikanga Māori” (2005) 8(2) Yearbook of New Zealand Jurisprudence 134; Moana Jackson “The Treaty and the word: the colonization of Māori philosophy” in Graham Oddie and Roy W Perrett (eds) Justice, Ethics and New Zealand Society (Oxford University Press, Auckland, 1992); Annette Sykes “The myth of tikanga in the Pākehā law” (2021) 8 Te Tai Haruru Journal of Māori and Indigenous Issues 7.

⁴⁸ Moana Jackson “Changing realities: unchanging truths” (1994) 10 Australian Journal of Law and Society 115 at 116.

⁴⁹ Moana Jackson “Changing realities: unchanging truths” (1994) 10 Australian Journal of Law and Society 115 at 116.

⁵⁰ Moana Jackson “Changing realities: unchanging truths” (1994) 10 Australian Journal of Law and Society 115 at 128.

51. Susan Glazebrook “The rule of law: guiding principle or catchphrase?” (2021) 29 Taumauri | Waikato Law Review 2 at 18.

⁵² Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [22].

⁵³ Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 5.

ill equipped to weigh the considerations involved.54 This is because the courts only decide the case before them and do not have the same tools as the executive and legislature to access relevant information, consult the community and do cost-benefit analyses.55 However, the courts have long taken signals from Parliament as to the appropriate boundaries in this context,56 and Parliament has provided clear signals that state law should engage with tikanga.57

• 8.36 Despite the need for caution, the common law does have the capacity to engage with tikanga and to do so in a way that ameliorates the risks outlined. Provided that the boundaries of the common law method are kept at the fore, common law engagement with tikanga has real potential to contribute to the law of Aotearoa New Zealand.

THE CURRENT LAW ON ENGAGEMENT

• 8.37 The Supreme Court was unanimous in Ellis v R that tikanga has been, and will continue to be, recognised in the development of the common law of Aotearoa New Zealand in cases where it is relevant.58 The Ellis case marks a significant milestone in the development of the common law relating to tikanga. It builds on earlier decisions, including Attorney- General v Ngati Apa,59 Takamore,60 and Trans-Tasman Resources Ltd v Taranaki- Whanganui Conservation Board.61 Ellis v R has also been applied in the subsequent Supreme Court decision of Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd.62 We discuss the facts and reasoning of these cases in Chapter 5. This body of case law and other senior court authorities suggests that the common law has begun a distinct new chapter in its relationship to tikanga. Through these decisions, the common law has recognised tikanga as “custom”, “values”, “law”, a “source of law” and a “principles-based system of law”.63
• 8.38 However, as Sarah Down and Professor Emeritus David V Williams observe: “there remains a lack of clarity as to when and how tikanga is part of the common law and precisely how these historical precedents are being relied on”.64 In this section, we address this issue by identifying general principles on engaging with tikanga that arise

⁵⁴ R v Hines [1997] NZCA 123; [1997] 3 NZLR 529 (CA) at 539.

55. John Burrows “Common law among the statutes: the Lord Cooke Lecture 2007” (2008) 39 Victoria University of Wellington Law Review 401 at 411.

⁵⁶ R v Hines [1997] NZCA 123; [1997] 3 NZLR 529 (CA) at 539; C v DPP [1995] UKHL 15; [1996] AC 1 (HL) at 21 per Bridge J and 21 per Ackner J.

⁵⁷ See further the discussion in Chapter 10 on public agency engagement.

58. See Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [19] and at [108]–[110] per Glazebrook J, [171]–[174] per Winkelmann CJ, [257]–[259] per Williams J and [279] per O’Regan and Arnold JJ.

⁵⁹ Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA).

⁶⁰ Takamore v Clarke [2011] NZCA 587, [2011] 1 NZLR 573; Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733.

⁶¹ Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801.

⁶² Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142, [2022] 1 NZLR 767.

63. Attorney-General v Ngati Apa [2003] 3 NZLR 644 (CA) (customs); Takamore v Clarke [2012] NZSC 116, [2013] NZLR 733 (values); Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [9] (law); Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [111] (a source of law); Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142, [2022] 1 NZLR 767 at [76] (a principles-based system of law).
64. Sarah Down and David V Williams “Building the foundations of tikanga jurisprudence” [2022] CanterLawRw 2; (2022) 29 Canterbury Law Review 27 at 37.

from case law. We also identify three categories of tikanga claims that have been heard by courts.

General principles for engaging with tikanga

• 8.39 Chapter 5 discussed Supreme Court and Te Kōti Pīra | Court of Appeal (the Court of Appeal) authorities on how state law should engage with tikanga. The following points of general guidance can be extracted from these decisions:

(a) Tikanga has been, and will continue to be, recognised in the development of the common law of Aotearoa New Zealand in cases where it is relevant.65

(b) Tikanga is the first law of Aotearoa New Zealand and continues to shape and regulate the lives of Māori.66

(c) When dealing with common law dispute resolution, if tikanga forms part of a person’s heritage, the common law may require consideration of tikanga.67 However, the potential relevance of tikanga to common law adjudication is not confined to Māori.68

(d) Tikanga must not be viewed through a non-Māori lens,69 or shoehorned into an English law framework.70 It should be defined by reference to tikanga as a complete system in which the core concepts are intertwined and exist as an interconnected matrix.71 Tikanga is a principles-based system of law, capable of adaptation according to context.72

(e) There are clear limits to common law engagement with tikanga. The courts must not exceed their function when engaging with tikanga, and care must be taken not to impair the operation of tikanga as a system of law and custom in its own right.73

(f) The common law cannot give effect to tikanga that is contrary to statute or to fundamental principles and policies of the law.74

(g) Where tikanga may clash with other values in society, existing principles or common law, this conflict will need to be worked through.75

⁶⁵ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [19]. The Court was unanimous on this point.

66. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [22] summarising the tikanga majority at [107] and [110] per Glazebrook J, [168], [169] and [172] per Winkelmann CJ and [272] per Williams J.

⁶⁷ Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [164] per Tipping, McGrath and Blanchard JJ.

68. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239; Public Trustee v Loasby [1908] NZGazLawRp 71; (1908) 27 NZLR 801 (SC); Baldick v Jackson (1910) 30 NZLR 343.
69. Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [297] per Williams J.
70. Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA) at [33], as cited in Trans-Tasman Resources Ltd v Taranaki- Whanganui Conservation Board [2020] NZCA 86, [2020] NZRMA 248 at [169].

⁷¹ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [180] per Winkelmann CJ.

72. Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142, [2022] 1 NZLR 767 at [76] per Winkelmann CJ, Glazebrook and Williams JJ.
73. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [22] summarising the tikanga majority at [121]–[125] per Glazebrook J, [181] per Winkelmann CJ and [273] per Williams J.
74. Takamore v Clarke [2012] NZSC 116, [2013] NZLR 733 at [95] per Elias CJ; Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [117] per Glazebrook J and [265] per Williams J.
75. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [119] per Glazebrook J, [182] per Winkelmann CJ and [266] per Williams J.

(h) Whether tikanga conflicts with existing values and principles should be considered against the underlying tikanga values or principles rather than any particular observed tikanga practice.76 Further, there is no presumption in favour of non-Māori legal norms.77

• 8.40 With these general principles in mind, we turn to examine the three categories of tikanga claims with which the common law has engaged.

THREE CATEGORIES OF TIKANGA CLAIMS

• 8.41 The decisions noted above might be seen as modern developments of the old customary law approach, which we discuss in Chapter 5.78 However, we suggest these authorities indicate the common law has evolved to now intersect with tikanga in relation to three categories of claims, which are:

(a) claims based on tikanga as custom;79

(b) claims based on tikanga values;80 and

(c) claims based on tikanga as law.81

• 8.42 Where a claim is based on tikanga as custom, the court is asked to convert or transplant a tikanga-based practice (usually established by evidence) into a form of interest (mainly property) recognised by law.82 In a values case, the court is asked to consider tikanga values as part of the relevant context when developing the common law more broadly.83 We identify a third and further type of claim, where the court is asked to make declarations or determinations about tikanga itself as law within Māori society.84 Below, we summarise the courts’ approach with respect to each category. Inevitably, in particular cases these categories may overlap to some extent and all tikanga-related cases will involve an inquiry as to what the relevant tikanga is.85 But it is important to understand

⁷⁶ Takamore v Clarke [2012] NZSC 116, [2013] NZLR 733 at [96] per Elias CJ.

77. Attorney-General v Ngati Apa [2003] NZCA 117, [2003] 3 NZLR 643 at [47] and [86]; Paki v Attorney-General [2012] NZSC 50, [2012] 3 NZLR 277 at [18].
78. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239; Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA); Takamore v Clarke [2011] NZCA 587, [2011] 1 NZLR 573; Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733; Trans- Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801.

⁷⁹ Attorney-General v Ngati Apa [2003] 3 NZLR 644 (CA).

⁸⁰ Takamore v Clarke [2012] NZSC 116, [2013] NZLR 733 at [4].

⁸¹ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [22].

82. For example Public Trustee v Loasby [1908] NZGazLawRp 71; (1908) 27 NZLR 801 (SC); Arani v Public Trustee [1919] NZPCC 1 at 1–2; Attorney- General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA) at [32]–[33]; Re the Bed of the Wanganui River [1955] NZLR 419 (CA) at 461 per North J; Paki v Attorney-General [2012] NZSC 50, [2012] 3 NZLR 277 at [18]; Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [9].
83. For example the approach of the minority in Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [10] and [210]–[211] per Winkelmann CJ and [236] per Williams J; see further at [212] per Winkelmann CJ and [238]–[244] per Williams J; Kusabs v Staite [2019] NZCA 420, [2023] 2 NZLR 144 at [124] and [134]–[142]; Takamore v Clarke [2012] NZSC 116, [2013] NZLR 733 in particular per Elias CJ.
84. For example: Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601; Ngāti Whātua Ōrākei Trust v Attorney-General (No 5) [2023] NZHC 74.
85. Te Rūnanga o Ngāti Whātua v Kingi [2023] NZHC 1348 is an example of a case engaging all three categories. In that case, the Court resolved to strike out parts of a claim under the Marine and Coastal Area (Takutai Moana) Act 2011,

what type of claim is made as this defines what type of engagement the court is undertaking with tikanga and the implications of that for both tikanga and state law.

Category One: claims based on tikanga as custom

• 8.43 Claims based on tikanga as custom seek recognition of a tikanga-based custom or practice as giving rise to legally enforceable rights and interests in the common law. Historically, these have been called customary law claims.86 As we discussed in more detail in Chapter 5, customary law claims can be divided into general custom claims and claims about customary property rights. Below, we briefly summarise the courts’ approach to each type of claim. We also envisage that, as the law in this area continues to develop, these two sub-categories will merge. For present purposes we treat them as a single category of claim.

The courts’ approach to general custom claims

• 8.44 The 1908 case of Public Trustee v Loasby long provided the criteria for when the court would accept a claim that a general (in other words, non-property) tikanga-based custom should be recognised in the common law as giving rise to enforceable rights and obligations. The tikanga had to be a generally practiced and longstanding custom, not contrary to statute, and reasonable.87 This could include contemporary expressions of the custom.88 In the Supreme Court’s 2022 decision in Ellis v R, a majority agreed that the Loasby criteria for recognition of general custom should no longer apply.89 Glazebrook J noted in particular that the requirements for generality, certainty and consistency did not accord with the nature of tikanga.90 Her Honour also observed that the requirement for reasonableness wrongly imported notions of judging tikanga and assumed the superiority of Western values.91 The majority opinion addressing tikanga issues did not go on to articulate a replacement test.92

concluding among other things that tikanga values were relevant to whether the claim should be struck out at [17]–[33] and [47]–[55]. The Court also found at [97]–[103] that some of the tikanga claims had no prospect of success and struck them out without the need for evidence on those matters, as the relevant tikanga were well settled.

86. As we discuss in Chapter 5, when we refer to “customary law” or “tikanga as custom” we are refering to the common law doctrine inherited from English law which gives legal effect, within the common law, to selected rights or iterests sourced in tikanga. We are not using “custom” or “customary law” as synonmous with tikanga itself.
87. Public Trustee v Loasby [1908] NZGazLawRp 71; (1908) 27 NZLR 801 (SC); and see further discussion of Loasby in Takamore v Clarke [2011] NZCA 587, [2011] 1 NZLR 573 at [172] per Glazebrook J.

⁸⁸ R v Iti [2007] NZCA 119, [2008] 1 NZLR 587.

⁸⁹ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [113]–[116] per Glazebrook J, [177] per Winkelmann CJ and

[260] per Williams J.

⁹⁰ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [113]- [115] per Glazebrook J.

⁹¹ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [115] per Glazebrook J.

92. In Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at fn 297 O’Regan and Arnold JJ note that “In the present case, the majority overrule the established test for incorporation of custom into the common law, but without saying how it will be replaced ... although we acknowledge Williams J does address the issues at [261]–[265]. We consider that the test set out in the incorporation cases should not be overruled without the Court being in a position to articulate what replaces it, especially as no counsel argued that it should be overruled.”

• 8.45 Nevertheless, we do not read the Supreme Court’s decision in Ellis v R as preventing further “custom” law claims.93 The previously summarised general principles stated by courts for engaging with tikanga would logically apply to such claims, as would the requirement to establish the claimed tikanga-based custom. Below, we set out principles stated by the Court of Appeal in Ngati Apa that (while on their face pertaining to customary land rights or interests) may have some relevance here.94 The main risk to guard against when recognising tikanga as custom is that state law supplants tikanga.

The courts’ approach to customary property rights claims

• 8.46 The Court of Appeal’s Ngati Apa decision set out the following principles relating to the recognition of claims to customary rights and interests in land:

(a) The assumption of sovereignty did not displace pre-existing property held according to tikanga.95

(b) The precise nature and form of any customary land rights or interests must be defined by reference to tikanga and this will be “either known to lawyers or discoverable by them by evidence”.96

(c) Statutory extinguishment of customary land rights must be clear and plain.97

(d) There is no presumption in favour of adverse English common law norms.98

• 8.47 The requirements for proof of customary property claims relating to land have been largely governed by statute since 1862.99 Present examples of relevant statutes include Te Ture Whenua Maori Act 1993 and the Marine and Coastal Area (Takutai Moana) Act 2011 (Takutai Moana Act).100 Te Ture Whenua Maori Act requires Māori customary land to be held “in accordance with tikanga Māori” and the Takutai Moana Act requires customary marine title to have been held since 1840 and in “accordance with tikanga”.101 The phrase “in accordance with tikanga Māori” has been held to mean “to make a determination

93. An example of the potential type of tikanga-based claim that falls into this category is a claim that an area is subject to a rāhui or restricted use, as occurred in Parininihi ki Waitotara v Ngā Ruahine Iwi Authority [2004] 2 NZLR 201 (HC). As noted by the High Court in that case at [10], this claim gave rise to three key issues. Did the tohunga impose the rāhui? If so, what is the status of the rāhui in customary law? If the rāhui does exist, and gives rise to customary rights, do those rights amount to justification in law for the defendant’s conduct (in that case, an affirmative defence to the alleged intentional tort of trespass)?

⁹⁴ Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA).

95. Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA) at [15] and [32]–[33] per Elias CJ and [137]–[140] per Keith and Anderson JJ.
96. Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA) at [32]–[33] and [54] per Elias CJ and [184] per Tipping J. The applicable tikanga may also be a matter for submission: see the observations of Glazebrook and Williams JJ in Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [125] and [273] respectively.

⁹⁷ Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA) at [161] per Keith and Anderson JJ and [47] per Elias CJ.

98. Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA) at [33] and [86]–[87] per Elias CJ; see also Paki v Attorney- General [2012] NZSC 50, [2012] 3 NZLR 277 at [18].

⁹⁹ Native Land Act 1862.

100. The Marine and Coastal Area (Takutai Moana) Act 2011 governs customary marine title or marine rights. Te Ture Whenua Maori Act 1993 governs Māori customary land: see s 129.

¹⁰¹ Te Ture Whenua Maori Act 1993, s 129(2)(a); Marine and Coastal Area (Takutai Moana) Act 2011, ss 51 and 58.

according to tikanga Māori — from the inside”.102 Chapter 7 refers to some of the case law dealing with claims under these schemes.103

• 8.48 With respect to customary property claims that relate to types of property other than land (for example, water or intellectual property), there is little case law directly on point.104 There is some case law on recognition of a customary right to fisheries.105 As a starting point, we suggest it would be logical for principles for the recognition of customary land claims set out in Ngati Apa to also apply to other types of property claims. Beyond this, in addition to the general principles for engaging with tikanga summarised in the previous section, the approach taken will need to be developed depending on the specific nature of the tikanga custom and any applicable common law and legislative context.106

Category Two: tikanga values

• 8.49 The second category of tikanga claims is claims based on tikanga values. Claims that seek recognition of tikanga values can arise in a variety of contexts, including environmental law, employment law, sentencing and family law.107 Recognition of tikanga values can also be relevant to the development of the common law itself and to the outcome in particular cases.108
• 8.50 As noted by Elias CJ in Takamore, common law recognition of tikanga values does not involve a contest between competing rules of law.109 Rather, the court weighs the tikanga values alongside other values that are material to the resolution of a dispute. This may involve developing the common law, but it does not develop tikanga itself or transform it into state law. The case of Takamore illustrates how tikanga values can influence the content and shape of the common law — in that case, by tikanga being included in the matters to be weighed by the court making a decision with respect to burial of a person. This process of weaving is the everyday work of the common law method.

102. John da Silva v Aotea Māori Committee and Hauraki Māori Trust Board (1998) 25 Tai Tokerau MB 212 (25 TTK 212); Re Edwards (Te Whakatōhea No 2) [2021] NZHC 1025, [2022] 2 NZLR 772 at [119]–[168]; Re Reeder (of Ngā Pōtiki) [2021] NZHC 2726, [2022] 3 NZLR 304 at [23]–[28].
103. For an overview of the operation of the Takutai Moana Act see: Re Edwards (Te Whakatōhea No 2) [2021] NZHC 1025, [2022] 2 NZLR 772; Re Reeder (of Ngā Pōtiki) [2021] NZHC 2726, [2022] 3 NZLR 304.
104. See most recently Attorney-General v Trustees of Whaititiri Māori Reserves [2023] NZHC 204; Mercury NZ Ltd v Māori Land Court [2023] NZHC 1644 at [79]–[95] on the issue of the Māori Land Court’s lack of jurisdiction to determine a claim to water.

¹⁰⁵ Te Weehi v Regional Fisheries Officer [1986] NZHC 149; [1986] 1 NZLR 680 (HC) at 686–688.

106. An example of custom law analysis can be found in Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801.
107. See for example GF v Comptroller of the New Zealand Customs Service [2023] NZEmpC 101. In that case Customs had included within its institutional framework a commitment to, among other things, a “te ao Māori perspective” and “te ara tika” (we do what is right). It had also made express reference to “mana” as being an expected characteristic within the employment relationship. The Court considered that where, as here, the evidence demonstrates a commitment to act in accordance with tikanga, an employer should be obliged to do so in substance and that this required Customs to

consider how applicable tikanga and tikanga values should inform its conduct and then to act accordingly: see generally at [128]–[142] and particularly at [138]. The Court also found that the tikanga values are relevant to all staff. At the time of publication of this Study Paper it was unclear whether the decision would be appealed.

¹⁰⁸ See also for example Te Rūnanga o Ngāti Whātua v Kingi [2023] NZHC 1348.

¹⁰⁹ Takamore v Clarke [2012] NZSC 116, [2013] NZLR 733 at [92].

• 8.51 However, Takamore also reveals the complexity of the common law’s engagement with tikanga values. None of the nine judges in three different courts involved in the Takamore litigation (Te Kōti Matua | High Court (the High Court), the Court of Appeal and the Supreme Court) favoured a result that would have been tikanga-consistent. One author suggests this is surprising from a Māori perspective, given the significance of the tikanga values engaged in that case (those that relate to the burial of a deceased person).110 While Takamore is authority for the common law recognition of tikanga values, it was also a case where tikanga values were not determinative of the outcome.
• 8.52 The fact that tikanga was not determinative in this case brings into focus the question of the weight afforded to tikanga. History has shown that there is a risk non-tikanga values may carry presumptive significance in the weighing exercise. There are, however, directions from modern decisions on tikanga as custom law that are relevant. They include statements made in Ngati Apa (subsequently affirmed by the Supreme Court in Paki v Attorney-General) that, to the extent that tikanga gives rise to cognisable interests, there is no presumption in favour of contrary non-tikanga values.111
• 8.53 We consider that the minority decision in Ellis v R is consistent with this direction. The minority judges saw tikanga as relevant to the common law rule at issue, which was whether the interests of justice favoured continuing an appeal after the appellant’s death.112 Winkelmann CJ and Williams J would have preferred an approach to assessing the interests of justice that “folded” tikanga considerations in.113 Winkelmann CJ’s approach included a consideration of tikanga values and concepts, which “provide a framework” for considering the issue of continuance and what the interests of justice require.114 The final test the Chief Justice proposed for assessing the interests of justice would have been “a development of the common law appropriate for Aotearoa New Zealand” that was “consistent with tikanga”.115 For example, consideration of one element

— the “personal interest in having a miscarriage of justice addressed through the appellate process” — would have required direct consideration of the mana of the appellant and the appellant’s whānau.116

• 8.54 Williams J endorsed the framework proposed by Winkelmann CJ.117 Tikanga provided a “very helpful perspective on the issues” in the case.118 Williams J saw nuances within the methodology of engagement with tikanga, which he called the “difficult task ... in

110. Natalie Coates “The recognition of tikanga in the common law of New Zealand” [2015] New Zealand Law Review 1 at 12.
111. Attorney-General v Ngati Apa [2003] NZCA 117, [2003] 3 NZLR 643 at [47] and [86]; Paki v Attorney-General [2012] NZSC 50, [2012] 3 NZLR 277 at [18].
112. As discussed in Chapter 5, the majority regarding the test for “interests of justice” (comprising Glazebrook, O’Regan and Arnold JJ) did not consider that tikanga was material to the development of the common law rule in issue: Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [11] and [142]–[145] per Glazebrook J and [315] per O’Regan and Arnold JJ.
113. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [10] and [210]–[211] per Winkelmann CJ and [236] per Williams J. See further at [212] per Winkelmann CJ and [238]–[244] per Williams J.

¹¹⁴ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [187].

¹¹⁵ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [212].

¹¹⁶ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [210(c)].

¹¹⁷ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [238].

¹¹⁸ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [256].

determining the weight the relevant tikanga principle should carry”.119 In his view, context will provide guidance but the “tikanga-as-an-ingredient” approach will often ensure that the common law of Aotearoa New Zealand develops along a path that is mindful of both legal traditions.120

• 8.55 Williams J’s description of tikanga as an ingredient effectively captures the essence of the court’s role in claims based on tikanga values. The weight to be given to tikanga in a particular case will be a matter for the court, although we consider that the court does not approach the question of weight with an unfettered discretion. First, in line with the principle developed in cases addressing tikanga as customary law, there is no presumption in favour of English common law values. Second, the significance of the tikanga values in question will provide guidance as to the weight to be given. In some cases, the significance of the tikanga values will be such that they should be determinative. In other words, a genuine engagement with tikanga will assist with the weighing exercise that must be undertaken.121

Category Three: tikanga as law

• 8.56 The third and final category of tikanga claim is those that ask the court to make declarations or determinations about tikanga itself.122 This category of case effectively deals with tikanga where it is determinative and operating as law within Māori society, requiring the court to determine what the tikanga is. Unlike the prior two categories, the key conceptual difference in such cases is that courts are not concerned with state law filters or the exercise of weighing tikanga against other values. They may not be concerned with state law outcomes at all. This could include claims based on mana, tapu and noa that give rise to tikanga relational interests.123 Claims to mana whenua, in the sense of the authority and responsibility to speak for the whenua (land), is an example of a tikanga relational interest.
• 8.57 At present, this category of tikanga recognition does not have the direct effect of displacing or superseding the common law or statute.124 As Palmer J explained in Ngāti Whatua Ōrākei (No 4), tikanga is also not directly binding on the Crown.125 However,

¹¹⁹ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [267]–[269].

¹²⁰ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [269].

121. The approach taken by the Court of Appeal in Kusabs v Staite shows the Court giving decisive weight to the principle of whanaungatanga in the context of hapū trusts. In that case, the Court applied tikanga principles for the purpose of assessing whether a trustee on two hapū trusts was in a position of conflict when making decisions involving and affecting both trusts. The Court noted that bearing “both the principles of equity and whanaungatanga” in mind, there was no realistic prospect of a conflict: Kusabs v Staite [2019] NZCA 420, [2023] 2 NZLR 144 at [134].
122. For example Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601. See also the discussion in Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd [2020] NZHC 2768, [2021] 3 NZLR 352 at [64]– [74] and [100]–[122].
123. Our description here of “tikanga relational interests” is borrowed from the writings of the late Moana Jackson. See for example Moana Jackson “Tipuna title as a tikanga construct re the foreshore and seabed” (March 2010)

<www.converge.org.nz>; Moana Jackson Affidavit, 24 April 2012 at [19], as cited in Natalie Coates and Horiana Irwin-

Easthope “Kei raro i ngā tarutaru, ko ngā tuhinga o ngā tupuna | Beneath the herbs and plants are the writings of the ancestors: tikanga as expressed in evidence presented in legal proceedings” (paper prepared for Te Aka Matua o Te Ture | Law Commission, 2023) at [4.6].

¹²⁴ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [117].

¹²⁵ Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [570].

determinations about tikanga may have an indirect effect through judicial review,126 statute or as a matter of government policy such as in the context of the Crown’s obligations under the Treaty.127 Findings about tikanga may also inform judicial engagement with tikanga values, including in cases involving the exercise of statutory discretion.128

• 8.58 There is very little authority on the rules for engaging directly with tikanga from the courts of general jurisdiction to date. One example is the Supreme Court’s decision in Pouākani, where the Court had to consider competing tikanga claims in respect of land.129 The issue was whether the potential resumption of land to non-mana whenua accorded with tikanga.130
• 8.59 However, there is a wealth of authority from Te Kōti Taiao | Environment Court and Te Kooti Whenua Māori | Māori Land Court that can be drawn on. Although the Environment Court is not empowered to make declarations as to tikanga as such, these courts are routinely called on to resolve competing tikanga claims.131 The jurisprudence of those courts provides useful guidance for engaging with tikanga, including techniques for identifying and evaluating competing claims. Chapters 5 and 7 discuss some of this case law.
• 8.60 The Supreme Court’s directive in Ellis v R that the court must not impair the operation of tikanga as a system of law in its own right has its strongest application with respect to this category of claims.132
• 8.61 With these principles and categories of tikanga claims in mind, we turn to briefly examine some key issues relating to the courts’ engagement with tikanga. These issues provide important context for the development of principled, coherent and sustainable strategies for courts’ future engagement.

Uncertainty about the role of tikanga and when it may be relevant

• 8.62 There is some uncertainty about how the common law relates to tikanga and when tikanga may be relevant. This is reflected in the language that courts have used to describe the developing relationship between the common law and tikanga such as referring to “dialogue” and referring to tikanga as both “law” and a “source of law”. 133 Areas of uncertainty may include the type of case or the context in which tikanga could

¹²⁶ Ngāi Tai Ki Tāmaki Tribal Trust v Minister of Conservation [2018] NZSC 122, [2019] 1 NZLR 368.

¹²⁷ Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [355]–[358].

128. See for example the discussion in Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd [2020] NZHC 2768, [2021] 3 NZLR 352; and more generally the discussion of environmental law in Chapter 7.

¹²⁹ Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142, [2022] 1 NZLR 767.

130. “Resumption” is a term used to describe the Waitangi Tribunal’s power to effectively direct the return of certain categories of land subject to Treaty of Waitangi claims: Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142, [2022] 1 NZLR 767 at fn 1.
131. See for example Pokere v Bodger — Ōuri 1A3 (2022) 459 Aotea MB 210 (459 AOT 210); Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd [2020] NZHC 2768, [2021] 3 NZLR 352 at [68]–[74].
132. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [120] and [122] per Glazebrook J, [181] per Winkelmann CJ and [270]–[271] per Williams J.
133. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239. See for example discussion of the “dialogue” between tikanga and the common law at [268]–[272] per Williams J and discussion of tikanga as a “source of law” at [111] per Glazebrook J.

be relevant. Ellis has extended the potential relevance of tikanga to a case with no Māori parties, leading some commentators to express concern that the applicability of tikanga could be unclear in future cases or that tikanga may be reduced to generic application in ways that lack authenticity.134

• 8.63 The approach we suggest is designed to respond to concerns about uncertainty. We consider that some concerns can be ameliorated with a focus on the tikanga normative framework that Chapter 3 described. This framework sets natural boundaries for the application of tikanga.
• 8.64 Further, uncertainty should not be confused with elasticity. Tikanga, like the common law, has fundamental principles of general application but can vary according to the context.135 Variance is to be expected.136 The common law has its own uncertainties which, as discussed above, are partially the result of dialogue and debate as the law changes, one of the common law method’s great strengths.137 As Glazebrook J emphasised in Ellis v R, the common law as it relates to tikanga will develop gradually, favouring certainty, consistency and accessibility:138

The caselaw to date on tikanga as part of the common law has been relatively limited. Further development will be gradual as cases arise. Certainty, consistency and accessibility are strong values in our legal system. Precedent will still bind as it does conventionally, unless distinguishable. This is why the common law method is generally for the law to develop incrementally as it will continue to do with regard to the application of tikanga in the common law.

• 8.65 We acknowledge the concern that tikanga may be introduced to contexts where previously it has not featured, but we think this concern can be overstated. Tikanga performs like the common law.139 It responds to the subject matter in dispute by reference to relevant principle and in light of prior experience and precedent.140 Tikanga is likely to be relevant in areas where it already operates naturally or by statutory incorporation, for example, in environmental law, family law, inter-Māori relationships or Crown-Māori relationships. Tikanga values could also feature in other areas of the law where they have obvious application, for example, when dealing with taonga or surrogacy.141 But even here, the common law also moves incrementally. As yet, no case has found tikanga determinative of how a common law rule should be formulated.

134. Sarah Down “Tikanga Māori — recognition but key questions unanswered — Ellis” [November 2022] Māori Law Review at 12.

¹³⁵ See further Chapter 3.

136. Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142, [2022] 1 NZLR 767 at [74] per Winkelmann CJ, Glazebrook and Williams JJ.
137. John Burrows “Common law among the statutes: the Lord Cooke Lecture 2007” (2008) 39 Victoria University of Wellington Law Review 401 at 406.

¹³⁸ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [127] per Glazebrook J.

¹³⁹ Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 5.

140. Carwyn Jones “A Māori constitutional tradition” (2014) 12 New Zealand Journal of Public and International Law 187 at 193.
141. Te Aka Matua o te Ture | Law Commission Te Kōpū Whāngai: He Arotake | Review of Surrogacy (NZLC R146, 2022); Te Aka Matua o Te Ture | Law Commission He arotake i te āheinga ki ngā rawa a te tangata ka mate ana | Review of succession law: rights to a person’s property on death (NZLC R145, 2021).

Developing expertise in engaging with tikanga

• 8.66 Because tikanga was so long eclipsed by state law it has not featured in general legal education until relatively recently.142 Consequently, the legal profession and judiciary are still developing expertise in engaging with tikanga. Both lawyers and judges have necessarily shown some caution in when and how to do so.
• 8.67 In the general courts, as demonstrated by the approach taken in Ellis v R, heavy reliance is often placed on expert evidence of applicable tikanga values or practices for resolving disputes. However, given the breadth and volume of potential engagement with tikanga across the various courts, this approach is unlikely to be sustainable. Consideration of how claims involving tikanga are best facilitated within the court system is needed, particularly in novel cases. Later in this chapter we recommend some options for enhancing tikanga dispute resolution processes.
• 8.68 In many ways, though, the demands which tikanga will place on the courts are not unfamiliar. Importantly, tikanga regulates relationships based on well-known tikanga concepts.143 As is true in any case before the courts, the task will be to identify which of the tikanga concepts and the applicable principles, values or norms underpinning them are relevant to the resolution of the dispute.

STRATEGIES FOR ENGAGEMENT

• 8.69 In this section, we propose strategies for engaging with tikanga. These have been developed with the assistance of Professors Wiremu Doherty, Tā Hirini Moko Mead and Tā Pou Temara of Te Whare Wānanga o Awanuiārangi (the Awanuiārangi pūkenga). They respond to the issues outlined above and to larger underlying concerns about maintaining the integrity and coherence of both tikanga and the common law. Strategies for engaging with tikanga must necessarily evolve in a manner that is consistent with the common law method and that appropriately responds to concerns about the proper function of the common law.
• 8.70 The first strategy focuses on the tikanga lens and we hope will be useful to all practitioners and judges when faced with a tikanga issue. It responds to the directives of the Supreme Court that tikanga must be viewed as it is understood in te ao Māori.144
• 8.71 The second set of strategies focuses on judicial engagement with tikanga by our courts of general jurisdiction. We suggest manaakitanga should be a guiding principle for judicial engagement. In this context, we mean an obligation to take care of the mana of tikanga. We discuss the “tools” that are currently available to the judiciary to facilitate this exercise when dealing with different types of tikanga claims.

142. Jacinta Ruru and others Inspiring National Indigenous Legal Education for Aotearoa New Zealand’s Bachelor of Laws Degree: Phase One — Strengthening the Ability for Māori Law to Become a Firm Foundational Component of a Legal Education in Aotearoa New Zealand (Ngā Pae o te Māramatanga, supported by the Michael and Suzanne Borrin Foundation, August 2020).

¹⁴³ See further Chapters 3 and 4.

144. Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [122] and [123] per Glazebrook J and [270]–[272] per Williams J; Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [297] per Williams J.

• 8.72 Finally, the third strategy identifies some possible processes for resolving disputes within our existing court system and outside of the courts of general jurisdiction. Our focus has been on identifying new approaches that would be both consistent with manaakitanga and compatible with tikanga.

COMMENCING WITH A TIKANGA LENS

• 8.73 To ensure that common law recognition of tikanga is coherent from a tikanga perspective, we consider that any process for engagement with tikanga by legal practitioners and the courts must consider tikanga as it is understood within te ao Māori. We refer to this process as applying a tikanga lens. A tikanga lens is a fundamental requirement for maintaining the integrity of tikanga and the common law. It is important both to view tikanga as part of an integrated system of principles and also to understand that tikanga is pragmatic and can vary according to context. Properly understood, the fundamental concepts of tikanga also provide natural boundaries for its application by the common law which assists in maintaining the coherence of the common law.
• 8.74 We commence this section by referring to and briefly summarising our account of tikanga in Part One, which provides guidance on how to apply a tikanga lens. As we explain in the three chapters comprising that Part, any process of engagement should commence from within te ao Māori so that the cultural dimension of tikanga is properly understood. Tikanga should also be understood as an integrated framework of concepts. Following this overview, we focus primarily in this section on examples from case law that have applied a tikanga lens (of some kind) to assist in resolving tikanga issues. The cases both illustrate how courts have approached this task and may provide others with guidance.

Te ao Māori

• 8.75 Recognising that tikanga is grounded in a Māori world view is essential to understanding tikanga. As we explain in Chapter 2, we see the metaphor of te wharenui as a helpful way of conceptualising te ao Māori and as a reference point for those wishing to engage with tikanga from within te ao Māori.
• 8.76 In short summary, within the wharenui reality is multi-dimensional. There are multiple layers of consciousness and connection, which include the physical and the metaphysical. We also emphasise that it is not necessary for those engaging with tikanga to accept the world view within which tikanga is located. Rather, we suggest that understanding the underlying normative basis for tikanga will assist to properly engage with tikanga.

A tikanga framework

• 8.77 Summarising some of the essential norms which we describe in Chapter 3, whakapapa refers to the multiple layers of consciousness and connection between all things, while whanaungatanga refers to the glue that helps maintain and define that connection. Within this whakapapa and whanaungatanga matrix, the status of all natural things is defined — their mana, their tapu and when they are noa. Mana refers to their power and responsibilities, tapu to their inherent worth or their potential for harm and noa to their potential to operate without restriction. Mauri refers to life essence or force of the thing that defines it. Mana and tapu are directed to the protection of mauri.

• 8.78 It is important to note that all natural things may present with mana, tapu or noa at any given time, which will in turn define their relationship to other natural things at that time.145 Mana, tapu and noa may crystallise or assume prominence depending on the entity and the context. Utu and ea will look to maintain balance or order between all things according to their mana, tapu and noa. Kawa then provides the processes and methods for managing these complex relationships.
• 8.79 It follows that relationships are ordered by reference to these norms, with whakapapa and whanaungatanga providing the source and framework for the designation of status (mana, tapu or noa) at any given time. The interaction between all things is managed according to these designations and associated responsibilities and by reference to any applicable kawa process. We suggest that commencing with these norms and returning to them throughout any engagement will assist with identifying the contexts in which tikanga should be considered, the appropriate tikanga to consider and the weight to be given to particular tikanga values — both against each other and when interacting with common law values.
• 8.80 We identified the concepts above based on expert advice and research as core or fundamental norms that are broadly shared by hapori Māori (Māori communities). Within te ao Māori they are the basis for tikanga as an integrated system. In Chapter 3 we further consider how they may be grouped into the following categories:

(a) Concepts of connection — whakapapa and whanaungatanga. These we term structural norms. The entirety of te ao Māori is structured by reference to these concepts, and they establish an underlying normative frame.

(b) Concepts of equilibrium and balance — mauri, utu and ea. These concepts function prescriptively in the sense that they make demands for the maintenance of equilibrium and balance.

(c) Concepts of status of an entity — mana, tapu and noa. These order Māori society and provide the jural basis for relationships in te ao Māori.

(d) Concepts of responsibility or obligations associated with the tikanga mentioned above.

(e) Processes and procedures that provide the methods for regulating relationships, which many iwi and hapū call kawa.

• 8.81 In assembling fundamental tikanga concepts in this way, we are not suggesting tikanga works as a fixed system. Tikanga is both inherently pragmatic and capable of evolution. It has localised variation. The tikanga system may also be explained in different ways, with different arrangements of core tikanga concepts. Our objective is simply to provide an account of tikanga consistent with that given by the Awanuiārangi pūkenga while also providing a means of understanding the interconnections of core tikanga concepts.

145. As explained in Chapter 3, there are many types of mana and forms of tapu. Understanding those types will be key to understanding the significance of the particular status and any violation or derogation of mana or tapu.

A guide and case study illustrations

• 8.82 Based upon the Chapter 3 framework, in Chapter 4 we develop matters further by setting out case studies to provide further illustration and a step-by-step guide for tikanga analysis. Although the illustrations that Chapter 4 provides reflect only one approach to engaging with tikanga, we think they can be a useful tool for those considering how tikanga may be engaged in a legal situation. Importantly, as we emphasise in that chapter, expert input is likely to be essential in almost all cases — and to those tikanga experts, deconstructing tikanga in this way may seem at odds with how tikanga is practised in the real world. However, the objective of such an approach is to ensure that people who are unfamiliar with tikanga both are able to look through a tikanga lens and approach tikanga in a systematic way in order to maintain its integrity and coherence. We accordingly encourage reference to Chapter 4 and the entirety of Part One, before returning to the consideration of case law examples and other processes that we now set out.

Examples from case law

• 8.83 Considering what is already happening in the courts is another way to understand how tikanga may operate in a legal context. We have identified a diverse range of cases that we think helpfully illustrate the application of a tikanga lens. The following cases are a sample only and Chapters 5 and 7 discuss several further examples. In selecting the cases, we have excluded cases that are still subject to appeal or rights of appeal.

Trustee duties — grounded in a tikanga lens

• 8.84 The Māori Land Court’s decision in Pokere v Bodger illustrates how a tikanga lens can be applied to an analysis of trustee duties. In that case, the applicants challenged the decision of the trustees of an ahu whenua trust to destroy a whare (house) on trust land on the basis that the whare was akin to a marae.146 The applicants argued the trustees had breached their duties both in tikanga and in “orthodox” trust law under the Trusts Act 2019.147 The Court first outlined a “tikanga frame of reference”, which was akin to applying a tikanga lens in substance.148 Applying this frame of reference, it saw mana as central to the obligations that were owed by the trustees.149 It said mana was based in the whakapapa of the whānau that had built and lived in the whare, which was significant.150 The Court saw the tikanga framework as central to determining the status of the whare, saying:151

To respond to the question of ‘nō wai te Whare’ [to whom does the house belong] within a perception of tikanga, we need to return to the concept of ‘mana’ in the tikanga- framework.

146. Pokere v Bodger — Ōuri 1A3 (2022) 459 Aotea MB 210 (459 AOT 210). The decision was the first fully bilingual decision of the Māori Land Court.

¹⁴⁷ Pokere v Bodger — Ōuri 1A3 (2022) 459 Aotea MB 210 (459 AOT 210) at [126].

¹⁴⁸ Pokere v Bodger — Ōuri 1A3 (2022) 459 Aotea MB 210 (459 AOT 210) at [11].

¹⁴⁹ Pokere v Bodger — Ōuri 1A3 (2022) 459 Aotea MB 210 (459 AOT 210) at [42] and [87].

¹⁵⁰ Pokere v Bodger — Ōuri 1A3 (2022) 459 Aotea MB 210 (459 AOT 210) at [45].

¹⁵¹ Pokere v Bodger — Ōuri 1A3 (2022) 459 Aotea MB 210 (459 AOT 210) at [76].

• 8.85 The Court considered the tikanga of kaitiaki (guardianship) had not been met because the whare had not been maintained, which it said made the answer to the “nō wai te whare” question difficult.152 However, regardless of the status of the whare, it said that the trustees owed duties in tikanga alongside their orthodox fiduciary duties:153

Similar to fiduciary law, where the duties and remedies arise based on the nature of trustee/beneficiary relationship, as opposed to prescription, tikanga is also relational and context specific.

• 8.86 The Court said the trustees were obligated to consider the role and views of any acknowledged kaitiaki and appoint pou tikanga (experts) when making decisions that may impact on the roles or mana of the kaitiaki and pou tikanga.154 Applying its tikanga framework, the Court considered the most significant mana lay with those associated with the whare and the whenua — in this case, Ms Warren who occupied the whare. The Court considered the trustees’ actions with respect to Ms Warren were tika (correct) as they had sought to consider and look after her interests throughout, despite her refusal to co- operate with them.155 This same evidence was relevant when considering the allegation that the trustees had acted in their own interests in breach of fiduciary law, which was similarly dismissed.156

Wellbeing — mana and mauri

• 8.87 The High Court’s judgment in Te Pou Matakana Ltd v Attorney-General (No 2) is a helpful illustration of how a court can apply whakapapa, whanaungatanga and mauri as framing principles for its analysis.157 The case considered the Ministry of Health’s decision to refuse a request to release information about the vaccination status of Māori individuals to Māori health providers. The Crown argued that obligations under the Treaty, including the duty to consult and connected respect for rangatiratanga (chiefly mana), were reasons not to release private information. The Court referred to evidence of a pūkenga, Dr Carwyn Jones, who linked rangatiratanga to the underlying principles of whakapapa, whanaungatanga and the wellbeing of the people. He noted that it is not inconsistent with rangatiratanga to maintain those values and that where the highly prized taonga of health is at risk, “not all tikanga principles, values or practices will be able to be fulfilled”.158 The Court relied on Jones’ evidence that tikanga did not require the Ministry to obtain iwi by iwi consent to the disclosure.159 Importantly, the Court examined the concept of rangatiratanga within the broader tikanga framework and having done so identified the nature of the Crown’s obligations in this context.

¹⁵² Pokere v Bodger — Ōuri 1A3 (2022) 459 Aotea MB 210 (459 AOT 210) at [79].

¹⁵³ Pokere v Bodger — Ōuri 1A3 (2022) 459 Aotea MB 210 (459 AOT 210) at [103].

¹⁵⁴ Pokere v Bodger — Ōuri 1A3 (2022) 459 Aotea MB 210 (459 AOT 210) at [107].

¹⁵⁵ Pokere v Bodger — Ōuri 1A3 (2022) 459 Aotea MB 210 (459 AOT 210) at [110].

¹⁵⁶ Pokere v Bodger — Ōuri 1A3 (2022) 459 Aotea MB 210 (459 AOT 210) at [136]–[137].

¹⁵⁷ Te Pou Matakana Ltd v Attorney-General (No 2) [2021] NZHC 3319, [2022] 2 NZLR 178 at [99]–[100].

¹⁵⁸ Te Pou Matakana Ltd v Attorney-General (No 2) [2021] NZHC 3319, [2022] 2 NZLR 178 at [108]–[109].

¹⁵⁹ Te Pou Matakana Ltd v Attorney-General (No 2) [2021] NZHC 3319, [2022] 2 NZLR 178 at [107]–[113].

Lakes — mana and tapu

• 8.88 The Māori Land Court decision of Taueki v McMillan, which involved a claim that an entire lake was wāhi tapu (a sacred area), illustrates how a court can apply the concept of tapu within the broader tikanga framework when determining an issue.160 First, the Court identified the importance of connection between claims of tapu and mana:161

From the outset I express an instinctive discomfort, despite the legislative provisions, in any court determining the existence or otherwise of a wahi tapu, without the endorsement of the hapu or iwi who maintain mana whenua over the area in question. This is because the exercise of rangatiratanga by the tangata whenua tribes in the context of the customary practices within their own rohe [region] is and should only be a matter for them.

• 8.89 The Court also discussed evidence to the effect that wāhi tapu refers to a place being sacred therefore subject to restriction,162 but that there can be “tapu for certain periods: rivers until fishing was ended; cultivations until the planting or reaping was completed; and districts until hunting was done”.163 This usefully shows that the effect of tapu can be context-specific.164 The Court noted the effect of water on tapu, namely that it “dissipates the effects of tapu” and is used “to control tapu”.165 The Court said it was important that a majority of affected whānau had not been consulted and could not be said to support a finding that the lake in its entirety was wāhi tapu. In so doing, the Court emphasised a critically important aspect of tikanga — that it is premised on the support of the affected people. It also emphasised the importance of whakapapa and whanaungatanga and the related concept of mana and that mana and tapu go hand in hand. In the result, the Court found on the facts before it that, while parts of the lake may be wāhi tapu, the whole lake was not.166

Welfare and property protection — whakapapa and connection

• 8.90 Te Kōti Whānau | Family Court applied tikanga principles when considering whether to grant welfare and property orders in the case of In the matter of [S].167 The Court had been asked to make orders under the Protection of Personal and Property Rights Act 1988 in respect of S, who was at the end stages of mate wareware (Alzheimer’s disease). While S’s parents were immersed in te ao Māori and tikanga, S had been prevented from engaging with her Ringatū faith, te reo Māori and her extended whānau for much of her

¹⁶⁰ Taueki v McMillan — Horowhenua 11 (Lake) (2014) 324 Aotea MB 144 (324 AOT 144).

¹⁶¹ Taueki v McMillan — Horowhenua 11 (Lake) (2014) 324 Aotea MB 144 (324 AOT 144) at [83].

162. Taueki v McMillan — Horowhenua 11 (Lake) (2014) 324 Aotea MB 144 (324 AOT 144) at [85], referring to the evidence of Hirini Moko Mead.
163. Taueki v McMillan — Horowhenua 11 (Lake) (2014) 324 Aotea MB 144 (324 AOT 144) at [87], referring to the evidence of Hirini Moko Mead.

¹⁶⁴ Taueki v McMillan — Horowhenua 11 (Lake) (2014) 324 Aotea MB 144 (324 AOT 144) at [83].

165. Taueki v McMillan — Horowhenua 11 (Lake) (2014) 324 Aotea MB 144 (324 AOT 144) at [88] and [93], referring to the evidence of Hirini Moko Mead.
166. Taueki v McMillan — Horowhenua 11 (Lake) (2014) 324 Aotea MB 144 (324 AOT 144) at [93], referring to the evidence of Hirini Moko Mead.
167. In the matter of [S] [2021] NZFC 5911. We have elected to anonymise the name of the defendant for the present purpose and refer to the subject person only as “S”.

life. Judge Coyle described her life as being one “in which she has been crushed emotionally, culturally and spiritually, and assaulted physically”.168

• 8.91 The Judge was prepared to give tikanga principles “significant weight” in his decision because:169
  • [S] had a clear sense of where she was from, of her whakapapa links to [her iwi] and that she had a connection to the whenua there. While she attended to her taha wairua (spiritual side) surreptitiously, so as to not anger her husband, it was nevertheless a clear part of her identity.
• 8.92 The Court referred to evidence that S saw her tamariki and her mokopuna (children and grandchildren) as her main focus and commented that maintaining those relationships was a central aspect of both taha whānau (S’s family side) and managing mate wareware.170
• 8.93 Tikanga and supporting taha whānau were decisive in the Judge’s decisions about where S should live and who should be appointed welfare guardian and property manager.171 The Court said that, while there were risks with S moving from the house she shared with her husband, those “risks are outweighed by the benefit of giving effect to taha whānau, and ... tikanga principles”.172
• 8.94 The decision illustrates the importance of considering why and how tikanga values may be relevant to a person — the tikanga lens. In this case, the principle of connection to whānau was demonstrated as being a core part of S’s identity. It was therefore appropriate to give tikanga significant and even decisive weight in considering which orders were appropriate under the Protection of Personal and Property Rights Act.

Debt — tikanga, utu and ea

• 8.95 The High Court’s decision in Doney v Adlam is an example of applying tikanga as an integrated framework of principles. It involved consideration of tikanga concepts such as hara, muru and utu in the context of debt recovery. In that case, a trustee of a hapū trust had misused funds and the hapū sought to recoup those funds by sale of the trustee’s land.173 The trustee sought relief from anticipated forfeiture of her land based on the tikanga of whakapapa and whanaungatanga and sought a further opportunity to undertake tikanga processes for resolution.174 In rejecting the trustee’s claim for relief from forfeiture, Harvey J explained:175

Ultimately, in the context of this long running proceeding dating back almost 15 years, tikanga cannot provide a haven for such misconduct without the appropriate degree of muru and utu for the hara that has been caused to the satisfaction of the aggrieved party. In short, in terms of tikanga, it is evident that traditional concepts including hara, muru, utu are as relevant as whakapapa, whanaungatanga, tino rangatiratanga and manaakitanga in

¹⁶⁸ In the matter of [S] [2021] NZFC 5911 at [2].

¹⁶⁹ In the matter of [S] [2021] NZFC 5911 at [30] and [36].

¹⁷⁰ In the matter of [S] [2021] NZFC 5911 at [26]–[27] and [36].

¹⁷¹ In the matter of [S] [2021] NZFC 5911 at [64]–[68].

¹⁷² In the matter of [S] [2021] NZFC 5911 at [64].

¹⁷³ Doney v Adlam [2023] NZHC 363, [2023] 2 NZLR 521 at [1].

¹⁷⁴ Doney v Adlam [2023] NZHC 363, [2023] 2 NZLR 521 at [3] and [81]–[85].

¹⁷⁵ Doney v Adlam [2023] NZHC 363, [2023] 2 NZLR 521 at [106].

this proceeding. To even contemplate the restoration of a state of ea between the trustees, the trust beneficiaries on the one hand, and Mrs Adlam and her whānau on the other, it is essential that there continues to be recompense to the trust and its beneficiaries to the fullest extent practicable. The alternative would be to allow Mrs Adlam to effectively avoid responsibility to the trust for in excess of $10 million in circumstances where she continues to fail to provide a proper accounting for the loss or use of those funds. That can hardly be a just outcome, either in ture Pākehā or tikanga terms.

Environment — kaitiakitanga and maintaining mauri

• 8.96 The Ngāi Te Hapū v Bay of Plenty Regional Council case concerned consents required in relation to the abandoned vessel MV Rena that ran aground on Ōtāiti reef in 2011.176 The Court was required to, among other things, resolve competing claims to kaitiaki status. The Court resolved this difficult issue based on evidence of customary association, including evidence of ancestral connection, continuous occupation, proximity, nature of customary association and the manner in which kaitiaki responsibilities were discharged.
• 8.97 The Court also identified the demand to maintain mauri (life force connection between the gods and earthly matter) and the connection of all parties to the reef, and the continuing role of all parties who have whakapapa to Motiti (an adjacent island) and have ahi kā (continuous occupation) of Ōtāiti reef. The Court concluded that granting consent better provided for the mauri of the reef, because it provided an opportunity to explicitly give recognition to the concerns and needs of the various affected iwi and hapū, particularly those on Motiti.

Process — kawa

• 8.98 Tikanga can also provide processes for resolving disputes, as the High Court acknowledged in Ngāti Whātua Ōrākei:177

Tikanga governs matters of process as well as substance. There are ways of resolving disputes about tikanga which are consistent with tikanga and ways which are not. Full discussion by kaumātua on a marae, abiding by the kawa of the marae and resulting in consensus, can be consistent with tikanga.

• 8.99 While the High Court made declarations about the tikanga of particular iwi, the Court preferred to leave the resolution of disputes between them to tikanga processes. 178 The case is also notable for its extensive consideration of the concept of mana whenua.
• 8.100 Another example is Takamore v Clarke where the parties were able to resolve the issues between them following further kōrero (discussion). This is an example of a tikanga- consistent process providing an answer where there was a dispute over the application of tikanga itself as between Māori and non-Māori.

¹⁷⁶ Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 73.

177. For general discussion on the significance of tikanga process or kawa, see Ngāti Whātua Ōrākei Trust v Attorney- General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [362]–[364].
178. The Court reserved leave for parties to apply jointly to the Court to facilitate tikanga-consistent processes: Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [649(d)].

Sentencing — mana and whakamā

• 8.101 Another tikanga concept, whakamā, is particularly relevant when mana responsibilities are not discharged. Commonly referred to as shame, as explained in Chapter 3, it is “the outward expression of inward disintegration”.179 The concept of whakamā can be one factor to be taken into account in the sentencing process, as illustrated in a 2019 Te Kōti ā Rohe | District Court (the District Court) sentencing decision.180 In all sentencing decisions a judge is entitled to take into account the personal circumstances and background of an offender. The defendant (W) had crashed her car while intoxicated with alcohol and cannabis, resulting in her young child dying from injuries suffered in the accident. In granting a discharge without conviction, the District Court judge referred to the following evidence:181

It is difficult to peel away the many layers of what whakamā is ... the regret, the shame, the embarrassment, the depression, the feeling of dishonouring others, the judgment, the absolute feeling of self-doubt and worthlessness, those are all naked to the human eye. Just because we can’t see them does not mean they aren’t a struggle that greets [W] on a daily basis.

• 8.102 Feelings of helplessness and “searching for her baby in a sea of faces” were also described as whakamā. The Court then observed:182

... when one adds the loss of [W’s] baby to the fact that she, in her particular instance, is carrying or will be required to carry a burden of cultural enquiry, cultural analysis, cultural judgment ... I am satisfied that ... for [W] the consequences of conviction would be out of all proportion to the gravity of the offending.

• 8.103 While not referring expressly to the principle of ea or balance or to tikanga relating to the need to help bring someone out of a state of whakamā,183 the judgment concludes with the following whakataukī:

Kia patu tērā taniwha te whakamā, kia mate Banish that taniwha whakamā for ever.

• 8.104 This judicial approach can be seen as consistent with tikanga, insofar as the Court discharged a mana-based responsibility of bringing the offender out of her state of whakamā.

TOOLS FOR JUDICIAL ENGAGEMENT

• 8.105 In this section, we discuss tools that can assist judges to engage with tikanga. Deciding what tikanga matters should be resolved by courts and how they should go about resolving disputes involving tikanga presents a significant challenge.
• 8.106 Given that tikanga is integral to cultural identity, its use and application outside of its natural environment (including within state law) must be handled with care. Until the legal

179. Joan Metge In and out of Touch: Whakamaa in Cross-Cultural Context (Victoria University Press, Wellington, 1986) at 77.
180. We have elected to anonymise the name of the defendant. The case citation is [2019] NZDC 17641, a decision of Judge Greg Davis of the Matariki Court.

¹⁸¹ [2019] NZDC 17641 at [77].

¹⁸² [2019] NZDC 17641 at [77].

¹⁸³ See further Chapter 3.

profession as a whole has developed a sufficient level of understanding to apply tikanga appropriately, we consider that courts must be prepared to allow tikanga experts to have a significant role in judicial engagement with tikanga.

• 8.107 We propose that the promotion of manaakitanga — an obligation to take care of and uphold the mana of tikanga — should be a guiding principle for judicial engagement with tikanga. We see this principle as encouraging the judiciary to enable Māori to maintain the integrity of tikanga and patrol the boundaries of its application as well as ensure that the common law develops correctly when applying or engaging with tikanga.
• 8.108 We suggest, for example, that judges should be guided by manaakitanga when deciding whether to appoint pūkenga, when to refer issues to a specialist court or when to defer to tikanga processes entirely. Manaakitanga has heightened importance because of the intergenerational (past, present and future) implications of decisions about tikanga — especially tikanga relational interests, which are taonga tuku iho (inherited taonga). We consider the principle of manaakitanga should operate whenever tikanga is raised in court or whenever the court is engaging with tikanga more broadly.184
• 8.109 When the court must engage with tikanga, the principle of manaakitanga should prompt judges to consider which processes will best uphold the mana of tikanga. In particular, we suggest that it would be desirable for courts to consider in each dispute:

(a) The use of pūkenga to assist with disputes about the meaning and effect of tikanga within te ao Māori.

(b) Whether the ability under section 61 of Te Ture Whenua Maori Act 1993 to refer questions of tikanga that need to be resolved to Te Kooti Pīra Māori | Māori Appellate Court would assist the court.

(c) Adopting a focused case management approach, including potentially either a pre- action protocol or mandatory agenda items at the first case management conference.

• 8.110 Below, we address considerations relating to each of these potential tools. We also suggest categories of disputes in which each tool might be most appropriate. Ultimately, the question of whether a tool is appropriate can only be answered in the context of the particular dispute and by allowing tikanga itself and the principle of manaakitanga to provide guidance.

Pūkenga

• 8.111 There are several ways in which pūkenga can bring tikanga expertise to the court, including:

(a) pūkenga sitting on the bench as co-decision makers;185

184. An example is Te Ao Mārama in the District Court, where tikanga guardianship is promoted by recognising the role of local hapū in holding the mana in respect of tikanga, even as the initiative seeks to infuse court processes with te reo and tikanga Māori.
185. For example, as provided for in Te Ture Whenua Maori Act 1993, s 62 which allows for “additional members with knowledge and experience in tikanga Maori” to sit on the Appellate Court for particular hearings. At present, there is limited scope for the participation of pūkenga as additional members in this manner in hearings convened in the courts of general jurisdiction.

(b) pūkenga being appointed by the court as counsel assisting the court,186 or as court experts;187

(c) pūkenga providing an agreed statement of tikanga that is admitted with the consent of all the parties under section 9 of the Evidence Act 2006, as was done in Ellis v R; and

(d) parties calling expert evidence from pūkenga within the typical adversarial framework as independent experts, as was done in Ngāti Whātua Ōrākei.

• 8.112 This decision about when and how to bring pūkenga before the court involves consideration of two issues:

(a) Admissibility — how should tikanga be brought into the court? As law via submission, fact, expert evidence or something unique?

(b) Decision-making capacities — once tikanga is before any court, would that court benefit from pūkenga assistance in determining the dispute as it relates to tikanga?

Admissibility of tikanga evidence

• 8.113 The current common law position on admissibility is developing, as we canvassed in Part Two of this Study Paper. The orthodox approach to proving the content of tikanga in court is to treat it as a matter of fact to be established by evidence,188 often given by pūkenga.189 The courts’ treatment of tikanga is necessarily evolving. In some cases, it will be appropriate for courts to treat tikanga as settled, meaning that counsel can make submissions on this without additional evidence.190 In other cases, expert evidence will assist the court due to the nature of the dispute and the tikanga involved, particularly where the tikanga issue is novel or complex (from the common law’s perspective). In our

186. Previously “amicus curiae”. The Solicitor-General must appoint counsel to appear and be heard as counsel assisting where requested by the High Court or District Court: High Court Rules 2016, r 10.22; District Court Rules 2014, r 10.27. As to the role and status of counsel assisting, see generally Beneficial Owners of Whangaruru Whakatuira No 4 v Warin [2009] NZCA 60, [2009] NZAR 523 at [21]. It is inherent in the use of this procedure that the person appointed must be “counsel” — that is to say, a lawyer. Though that may enable the appointment of any number of appropriate pūkenga,

that will not always be the case. More broadly, there is the option to appoint counsel to assist the Court or amicus curiae with submissions and guiding discussion about those clashes between tikanga and British common law. For example, the courts have engaged Te Hunga Roia Māori (the Māori Law Society) to undertake this role in Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239; Smith v Fonterra Co-operative Group Ltd [2022] NZSC 35 (judgment pending at time of publication).

187. High Court Rules 2016, r 9.36. Pursuant to existing practice, where the parties are unable to agree on an expert the Court decides the question of who is to be appointed from a list of suitable persons named by the parties, emphasising the independence and accountability of the court expert to the court. For the procedure in a situation of disagreement, see further Kilgour v Cotterill [1994] NZHC 2494; (1994) 7 PRNZ 423 (HC). Independent pūkenga tikanga were appointed in Re Edwards (Te Whakatōhea No 2) [2021] NZHC 1025, [2022] 2 NZLR 772.
188. Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [95]; Ngāti Whātua Ōrākei Trust v Attorney-General (No 1) [2020] NZHC 3120 at [36]; Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2) [2021] NZHC 291, [2021] 2 NZLR 1 at [47].
189. See for example Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [2]; Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2) [2021] NZHC 291, [2021] 2 NZLR 1 at [48]; Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, [2021] 2 NZLR 142 at fn 78; Urlich v Attorney-General [2022] NZCA 38, [2022] 2 NZLR 599 at [37] and [39].
190. This is subject to the qualification that, during the transitional phase while the treatment of tikanga is evolving, it may assist the court and save time and cost to the parties to permit pūkenga involvement even though ordinarily an expert (including a court expert) is unable to report on questions of law: compare Theatrelight Electronic Control & Audio Systems Ltd v Angliss [1997] NZHC 2402; (1997) 10 PRNZ 422 (HC). See for example Te Rūnanga o Ngāti Whātua v Kingi [2023] NZHC 1348.

view, it should not be inferred from the fact that expert evidence will assist the court that either fact or foreign law are proper categorisations of tikanga.

When should pūkenga be appointed to assist the court?

• 8.114 In Ngāti Whātua Ōrākei Trust v Attorney-General (No 1),191 the High Court considered whether to appoint a pūkenga under rule 9.36 of the High Court Rules 2016, which provides for the appointment of a “court expert”.192 The Court suggested the following test should apply:193

The relevant considerations are similar to those in allowing an interested party to intervene in proceedings. In deciding whether to appoint pūkenga, the Court will weigh the likelihood the appointment will assist the Court against the risk of prejudice or unfairness to the litigants, guided by the overall interests of justice. The power is more likely to be exercised:

(a) the more important are the questions of tikanga in a case;

(b) the less expert tikanga evidence is provided by the parties; and

(c) the less procedural prejudice or unfairness an appointment would cause to the parties.

• 8.115 In that case, the Court declined to appoint independent pūkenga because, while the issues were “complex, nuanced and novel”,194 the parties’ own pūkenga had already separately provided a significant amount of expert evidence.195 However, in the subsequent substantive decision on this matter, the Court acknowledged that it may have been preferable to appoint a pūkenga tikanga given the complexities of the case.196
• 8.116 We consider that pūkenga may be of considerable assistance where courts are required to make decisions in the context of complex, nuanced and novel issues of tikanga. In such cases, the need for caution is paramount. The Ngāti Whātua Ōrākei case is an example of a case directly addressing tikanga where the court is called upon to act in an essentially declaratory manner. As we discuss below, it may also be that such cases are best suited to an alternative forum.
• 8.117 Pūkenga are less likely to be required where the tikanga at issue is a settled aspect of tikanga-related law or where the application of tikanga on the facts is relatively straightforward.197 In such cases, the issue is not so much about the meaning or relevance of tikanga but its application to a particular set of facts. Parties might instead rely on cases where the relevant tikanga is discussed or on authoritative reports. There is an important qualifier to this observation. In matters involving the application of local tikanga, referring to cases resolved by reference to general tikanga Māori or to the tikanga of a different iwi or hapū is unlikely to provide authoritative guidance. Judges will need to be alive to

¹⁹¹ Ngāti Whātua Ōrākei Trust v Attorney-General (No 1) [2020] NZHC 3120.

192. The Court considered that even if rule 9.36 did not apply appointment of pūkenga would be possible under the High Court’s inherent jurisdiction: Ngāti Whātua Ōrākei Trust v Attorney-General (No 1) [2020] NZHC 3120 at [36].

¹⁹³ Ngāti Whātua Ōrākei Trust v Attorney-General (No 1) [2020] NZHC 3120 at [37].

¹⁹⁴ Ngāti Whātua Ōrākei Trust v Attorney-General (No 1) [2020] NZHC 3120 at [38].

¹⁹⁵ Ngāti Whātua Ōrākei Trust v Attorney-General (No 1) [2020] NZHC 3120 at [39].

196. Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [93]: “In retrospect, I consider it would have been beneficial to appoint an independent pūkenga to conduct the conference of tikanga experts, and an independent chair of the historian experts.”

¹⁹⁷ See Te Rūnanga o Ngāti Whātua v Kingi [2023] NZHC 1348 at [97]–[103].

the potential for variation and therefore the need for expert assistance. As a matter of course, we suggest the court should always consider whether pūkenga would assist in a particular case.

Te Ture Whenua Maori Act 1993, section 61

• 8.118 Section 61 of Te Ture Whenua Maori Act 1993 provides that the High Court may state a case on “any question of tikanga Māori” and refer it to the Māori Appellate Court. Notably, the answer of the Māori Appellate Court is then binding on the High Court.198
• 8.119 We repeat the Commission’s previous comments about the appropriateness of these specialist courts making determinations about tikanga:199

The Māori Land Court and the Māori Appellate Court are markedly more appropriate than any other forum in our court structure to make determinations about tikanga. It ignores the very substance of what requires determination to suggest that decisions can simply be made after hearing competing experts give evidence. The adjudicator needs an understanding of the context, beyond fact and precedent. It involves sets of beliefs and values which are subjected to careful and sensitive assessment.

While the judges of the Māori Appellate Court do not describe themselves as expert in tikanga, that court has, among its membership, greater experience and knowledge than any other. Added to this it can seek advice from those with expertise and so is the appropriate forum for determinations in this area both at first instance and on appeal.

• 8.120 The High Court’s power to state a case for the Māori Appellate Court is much broader than the current, narrow statutory jurisdiction of the Māori Land Court itself. It allows “any question of tikanga Māori” to be referred. There are several advantages of using this approach to questions of tikanga that arise in the High Court:

(a) It brings the issue before judges with considerable experience in tikanga. Māori Appellate Court judges are required to have suitable knowledge and experience in tikanga.200

(b) It means the question of tikanga will be referred to a forum that allows a pūkenga to be appointed as co-decision maker, where required.201

(c) The decision of the Māori Appellate Court is final.202 This enables the High Court to proceed with determining the dispute following the case stated with minimal procedural delay.

198. The issue of whether that opinion would, on appeal from the decision of the High Court to the Court of Appeal (and Supreme Court), bind the appellate courts does not appear to have arisen for determination. The scheme of Te Ture Whenua Maori Act 1993, under which appeals from the Māori Appellate Court are to the Court of Appeal (and Supreme Court in exceptional circumstances), could be taken to suggest that the Court of Appeal and Supreme Court would not be bound by the opinion of the Māori Appellate Court: see ss 58A–58B.

¹⁹⁹ Te Aka Matua o te Ture | Law Commission Delivering Justice for All: A Vision for New Zealand Courts and Tribunals

(NZLC R85, 2004) at 242.

²⁰⁰ Te Ture Whenua Maori Act 1993, s 7(2A).

²⁰¹ Te Ture Whenua Maori Act 1993, s 62. This jurisdiction is confined to cases referred under s 61.

²⁰² Te Ture Whenua Maori Act 1993, s 61(4).

• 8.121 We see the option of referring a case stated to the Māori Appellate Court as a powerful resource that is currently underused. Given the increase in the number of High Court cases in which tikanga issues arise and the range of complex and novel issues involved, we anticipate that the case-stated power may be more frequently used in the future.
• 8.122 Situations where use of the case stated procedure would be most appropriate are likely to include cases where:

(a) expert evidence is filed on tikanga and there is a conflict on the evidence that must be resolved;

(b) there is a novel tikanga issue or a lack of guidance available for the court such as other relevant case law, authoritative writing or relevant reports; or

(c) the tikanga issues have the potential to affect future litigants, and counsel for one or both parties lacks experience in tikanga or there is otherwise concern about incomplete submissions on the tikanga issues.

• 8.123 In our view, there would be value in the generalist courts being required to consider stating a case for the Māori Appellate Court in any case in which tikanga as law is at issue, particularly where the court is asked to determine what the applicable tikanga is. There is no statutory basis for this at present. However, the High Court could require the parties to consider the use of this procedure, relying on the High Court Rules and its inherent powers.203 Following due consideration being given to the use of the procedure, if the Court decides not to refer the matter the reasons should be recorded.

Case management tools

• 8.124 High Court and District Court rules do not require parties to identify appropriate tools for judicial engagement with tikanga ahead of case management conferences.204 However, the court rules would not prevent the court from directing the parties to consider the use of any appropriate tools and for tikanga-related issues in general to be included on the agenda for case management conferences. For example, the parties might be directed to identify as a matter for discussion at the first case management conference:205

(a) their categorisation of the tikanga dispute (a tikanga-based customary law claim, relating to tikanga values, or addressing tikanga as law); and

(b) which tools for engagement they consider might assist the parties and the court.

• 8.125 At a more general level, the relevant heads of bench may consider it appropriate to issue a practice note directing judges to consider the appropriate tools for engagement where issues of tikanga are likely to arise in a case.206 The heads of bench may benefit from engagement with pūkenga should this path be pursued. This could include requiring the court to identify clearly the tikanga at issue at an early stage, to categorise the type of

²⁰³ In such a case, use of the section 61 pathway may achieve the procedural objective of the High Court Rules 2016, r 1.2: the just, speedy, and inexpensive determination of proceedings. For the source of that jurisdiction see High Court Rules 2016, rr 1.4(4), 1.6 and 7.1; see further Quality Pizzas Ltd v Canterbury Hotel Employees Industrial Union [1983] NZLR 612 (CA) as an instance of the Court’s inherent powers.

²⁰⁴ High Court Rules 2016, rr 7.3, 7.4 and sch 5; District Court Rules 2014, rr 7.2, 7.4 and sch 3.

²⁰⁵ In practice, tikanga disputes may not be confined to only one of these categories. In any such cases, a combination of approaches appropriate to each category may be needed to facilitate protection and engagement.

²⁰⁶ The making of a practice note appears to be the exercise of the court’s inherent power to regulate its procedure: J C Corry Laws of New Zealand Civil procedure: High Court (online ed) at [5].

claim (for example, a customary law or values case) and to indicate any associated evidential and procedural requirements.

ENHANCING PROCESSES FOR TIKANGA DISPUTE RESOLUTION

• 8.126 Enhancing processes for tikanga dispute resolution is the final element we consider may help to promote coherent common law engagement with tikanga. These processes may occur in the courts, or by way of alternative dispute resolution. Developing spaces for resolving tikanga disputes is an important part of courts patrolling the boundaries of their role. The four options we explore below are:

(a) creating a specialist tikanga panel in the High Court;

(b) providing for the appointment of pūkenga as commissioners of the High Court;

(c) expanding the jurisdiction of the Māori Land Court; and

(d) using arbitration as a binding dispute resolution process that can be customised to use tikanga as the governing law and facilitate a more tikanga-consistent procedure.

A specialist tikanga panel in the High Court

• 8.127 An option available within existing law is to establish a specialist panel of appropriately qualified judges of the High Court who could be allocated cases involving tikanga-related disputes for both case management and hearing.
• 8.128 The commercial panel provided for in the Senior Courts Act 2016 offers an example of such specialisation.207 The commercial panel is governed by Part 29 of the High Court Rules and by an Order in Council that sets out the types of proceedings to which panel judges may be assigned.208 Judges who are nominated to the panel continue to sit on a full range of other High Court matters while, as a general rule, case managing any panel cases they are assigned to in order to ensure consistency for parties.209
• 8.129 An existing provision in the Senior Courts Act allows the Chief High Court Judge, in consultation with the Attorney-General and the Chief Justice, to establish other panels of High Court Judges.210 A panel designed to hear tikanga cases could be established under this section. It could operate in a similar way to the commercial panel: the Chief High Court Judge could determine how many judges are necessary based on the workload of the Court and assign judges to the panel. A list of the types of cases suitable for a tikanga panel could be developed. Although litigants could nominate their cases to be heard by a panel judge, the Chief High Court Judge would determine whether a case should be allocated to the panel.211

207. Senior Courts Act 2016, s 19. The commercial panel was originally established as the “commercial list” in 1986 by the Judicature Act 1908, ss 24A–24G.

²⁰⁸ Senior Courts (High Court Commercial Panel) Order 2017.

209. Te Kaiwhakawā Matua | Chief High Court Judge “Commencement and operation of the Commercial Panel of the High Court” (press release, 10 August 2017).

²¹⁰ Senior Courts Act 2016, ss 19(3)–19(4).

²¹¹ Compare High Court Rules 2016, r 29.2.

• 8.130 A “tikanga panel” has several advantages. It could assist in the more efficient disposition of cases.212 It does not require a new court to be established or the jurisdiction of an existing specialist court to be reconsidered. Litigants could self-identify a case as being suitable for the panel. There may also be disadvantages of a tikanga panel. These might include:213

(a) the panel being small due to lack of judicial capacity, risking conflicts of interest or allegations of panel stacking;214

(b) the stultification of the development of familiarity and expertise with tikanga across the High Court more generally, including for judges who may ultimately sit on appeal courts;

(c) appeal rights would be to non-specialist appellate courts; and

(d) in likelihood, panel members would have general expertise in tikanga but not the specialist expertise that a pūkenga could provide, for example, relating to the tikanga of an iwi or hapū.

• 8.131 Overall, we consider the option of a tikanga panel is worthy of consideration. The potential disadvantages may mean it is preferable to explore the alternative options discussed below such as referrals to the Māori Land Court. However, at this time the need to enable the High Court to engage with tikanga appropriately and effectively on matters of intergenerational impact is a matter of considerable importance and urgency. As the perceived need for a commercial list or panel has changed over time, the need for a specialist tikanga panel may diminish over time. The establishment of a tikanga panel could be regarded as a pilot scheme, as the commercial panel was originally envisaged to be.215

Pūkenga as commissioners of the High Court

• 8.132 In particularly complex cases (for example cases involving conflicting tikanga positions or that also engage the powers, rights and/or obligations of non-Māori) another option would be to enable the High Court to appoint pūkenga on a case-by-case basis to sit with a judge as a commissioner on tikanga.

²¹² See for example Te Rūnanga o Ngāti Whātua v Kingi [2023] NZHC 1348 at [103].

213. We note also the more general discussion of jurisprudential and constitutional aspects of judicial specialisation in Aotearoa New Zealand (including comparatively) provided previously by the Commission: Te Aka Matua o te Ture | Law Commission Delivering Justice for All: A Vision for New Zealand Courts and Tribunals (NZLC R85, 2004) at 262–269; Te Aka Matua o te Ture | Law Commission Review of the Judicature Act 1908: Towards a New Courts Act (NZLC R126, 2012) at ch 10.
214. Te Aka Matua o te Ture | Law Commission Delivering Justice for All: A Vision for New Zealand Courts and Tribunals (NZLC R85, 2004) at 266 and 267; Petra Butler “The assignment of cases to judges” (2003) 1 New Zealand Journal of Public and International Law 83 at 84.
215. The Commission considered in 2004 that the commercial panel had served its purpose and was no longer necessary given the relatively low number of cases that were being allocated to it: Te Aka Matua o te Ture | Law Commission Delivering Justice for All: A Vision for New Zealand Courts and Tribunals (NZLC R85, 2004) at 266–267. Subsequently, in 2012, the Commission recommended the re-establishment of a commercial panel in the High Court as a pilot project. Since then, there has been an increase in the number of panel judges and the work of the commercial panel. In 2019, six additional judges were appointed by the Hon Justice Venning, the then Chief High Court Judge. As of March 2023, there are 15 judges allocated as panel judges: Te Kōti Matua o Aotearoa | The High Court of New Zealand “Notification of changes to the commercial panel” (press release, 22 March 2023).

• 8.133 This would require legislative amendment. While the High Court Rules provide for court- appointed experts,216 there is presently no general provision to appoint pūkenga in the role of a commissioner assisting the High Court. In contrast, there is capacity to appoint lay commissioners in the Environment Court.217 The High Court also has the power to appoint lay members to sit in certain Commerce Act matters.218 In such cases, the additional lay members are not co-equal decision makers. The majority of the court must include the judge (or, where more than one judge sits, a majority of the judges).219 These provisions could provide a model for appointing pūkenga to sit as additional members of the High Court (and equally other courts of general jurisdiction) in respect of tikanga disputes.
• 8.134 Experience under the Marine and Coastal Area (Takutai Moana) Act suggests parties may not necessarily support the appointment of pūkenga as commissioners. In a provision similar to section 61 of Te Ture Whenua Maori Act that was earlier discussed, the Takutai Moana Act enables the High Court to refer to the Māori Appellate Court or pūkenga for opinion or advice on tikanga.220 In some cases, parties have objected to these processes being instigated and the extent to which the expertise of pūkenga is relied upon.221 While these issues will need to be considered, we do not think they rule out further consideration of the appointment of pūkenga as commissioners.

An expanded Māori Land Court jurisdiction

• 8.135 In this section we explore whether the Māori Land Court might play a greater role in considering tikanga issues. Much has been written about this Court’s jurisdiction and potential for it to take on a broader role,222 including its “Maori character”,223 and whether the Court should be involved in matters relating to Māori other than land, including family

216. Commerce Act 1986, s 77. See also Human Rights Act 1993, s 126: on appeal from the Human Rights Review Tribunal, two HRRT members who are not judges sit with a High Court Judge in the High Court to determine the appeal.
217. Resource Management Act 1991, s 253 provides in this regard that, when considering whether a person is suitable to be appointed as an Environment Commissioner or Deputy Environment Commissioner of the Environment Court, regard shall be had to ensuring that the court possesses a mix of knowledge and experience including knowledge and experience in “matters relating to the Treaty of Waitangi and kaupapa Maori”.
218. Senior Courts Act 2016, s 9(2) anticipates that enactments may provide for the appointment of persons other than judges to sit with judges or as members of the court in specific proceedings.

²¹⁹ Commerce Act 1986, ss 77(10)–77(12).

²²⁰ Marine and Coastal Area (Takutai Moana) Act 2011, s 99. The Māori Appellate Court’s opinion is binding while the advice of a pūkenga is not (as under Te Ture Whenua Maori Act 1993, s 61).

²²¹ For example, Collier v Ngāti Rehua-Ngāti Wai ki Aotea [2020] NZCA 536 at [7].

²²² See for example Te Kooti Whenua Māori | Māori Land Court and Te Tāhū o te Ture | Ministry of Justice He Pou Herenga Tangata, He Pou Herenga Whenua, He Pou Whare Kōrero — 150 Years of the Māori Land Court (October 2015) at 99– 100; The Royal Commission on the Maori Land Courts “The Maori Land Courts: Report of the Royal Commission of Inquiry” [1980] IV AJHR H3; Joseph Williams “The Māori Land Court: a separate legal system?” (New Zealand Centre for Public Law, Wellington, 2001); Te Aka Matua o te Ture | Law Commission Delivering Justice for All: A Vision for New Zealand Courts and Tribunals (NZLC R85, 2004); Te Aka Matua o te Ture | Law Commission Striking the Balance: Your Opportunity to Have Your Say on the New Zealand Court System (NZLC PP51, 2002); Te Aka Matua o te Ture | Law Commission Seeking Solutions: Options for Change to the New Zealand Court System (NZLC PP52, 2002); Te Aka Matua o te Ture | Law Commission Treaty of Waitangi Claims: Addressing the Post-Settlement Phase (NZLC SP13, 2002).

²²³ The Royal Commission on the Maori Land Courts “The Maori Land Courts: Report of the Royal Commission of Inquiry” [1980] IV AJHR H3 at 61.

matters.224 The Māori Land Court was first established as a court of record in 1865 as the Native Land Court,225 a role which continued under Te Ture Whenua Maori Act 1993.226 The Court is, uniquely compared with other jurisdictions, a court of record primarily concerned with indigenous matters and has been in continuous operation for over 150 years.227 Commenting on the role of the Court in 2001, Chief Judge Williams (as he then was) said:228

The picture I painted of the Court supplemented by strong community representation and applying a mix of equity, public and Maori custom law to the extent that each of them remains relevant to the circumstances of Maori kin groups in the 21st century, is the vision which must be worked to ... it is a logical extension of the Maori Land Court’s role to adapt to meet that perceived need. That is because the Court already deals with a number of these sorts of dispute in relation to land in its current workload.

• 8.136 As his Honour has subsequently also said, “I’ve always thought the Court has a key role to play in unlocking the power of the Māori community if only it could be given that job”.229
• 8.137 The Māori Land Court has traditionally been a land title court,230 focused on resolving issues connected to land claims.231 It consists of up to 14 judges including a Chief Judge and Deputy Chief Judge who are all appointed because of their knowledge and experience of te reo Māori, tikanga and the Treaty of Waitangi.232 The Court operates within seven districts across Aotearoa New Zealand.
• 8.138 Similar to other courts established by statute, the Māori Land Court’s jurisdiction is limited to that conferred by legislation.233 However, the Court has jurisdiction over a wide range of matters concerning Māori land,234 the status of any land,235 and whether any specified person is Māori.236 In relation to any trust over Māori land, it has the same powers as the High Court. In addition, the Court has jurisdiction under the Fencing Act 1978, Protected

²²⁴ Te Kooti Whenua Māori | Māori Land Court and Te Tāhū o te Ture | Ministry of Justice He Pou Herenga Tangata, He Pou Herenga Whenua, He Pou Whare Kōrero — 150 Years of the Māori Land Court (October 2015) at 134; and see too Te Aka Matua o Te Ture | Law Commission He arotake i te āheinga ki ngā rawa a te tangata ka mate ana | Review of succession law: rights to a person’s property on death (NZLC R145, 2021) at 296: “there continues to be a desire for the Court’s jurisdiction to be expanded to deal with Māori issues generally”.

²²⁵ Native Lands Act 1865, s 5.

²²⁶ Te Ture Whenua Maori Act 1993, s 6(1).

227. Te Kooti Whenua Māori | Māori Land Court and Te Tāhū o te Ture | Ministry of Justice He Pou Herenga Tangata, He Pou Herenga Whenua, He Pou Whare Kōrero — 150 Years of the Māori Land Court (October 2015) at 78.
228. Joseph Williams “The Māori Land Court: a separate legal system?” (New Zealand Centre for Public Law, Wellington, 2001) at 10–11.
229. Te Kooti Whenua Māori | Māori Land Court and Te Tāhū o te Ture | Ministry of Justice He Pou Herenga Tangata, He Pou Herenga Whenua, He Pou Whare Kōrero — 150 Years of the Māori Land Court (October 2015) at 88.

²³⁰ Te Aka Matua o te Ture | Law Commission Delivering Justice for All: A Vision for New Zealand Courts and Tribunals

(NZLC R85, 2004) at 233.

²³¹ Te Ture Whenua Maori Act 1993, s 6(2).

²³² Te Ture Whenua Maori Act 1993, s 7.

²³³ Te Ture Whenua Maori Act 1993, s 6(2).

²³⁴ Te Ture Whenua Maori Act 1993, ss 17 and 18(1).

²³⁵ Te Ture Whenua Maori Act 1993, s 18(1)(h).

²³⁶ Te Ture Whenua Maori Act 1993, s 18(1)(e).

Objects Act 1975,237 Maori Fisheries Act 2004 and Maori Commercial Aquaculture Claims Settlement Act 2004.238 Relating to its jurisdiction:

(a) The jurisdiction is concurrent with any other court of competent jurisdiction except where exclusive jurisdiction is provided for in Te Ture Whenua Maori Act.239

(b) The Court also exercises a jurisdiction to advise other courts, commissions or tribunals on matters of representation or to determine who are the most appropriate representatives of a class or group of Māori.240

(c) In exercising its jurisdiction and powers relating to land, the Court must seek to give effect to wishes of land owners, provide a forum for discussion, facilitate the resolution of disputes, ensure fairness in dealings between multiple owners and promote practical solutions to problems.241

• 8.139 We suggest that the potential of the Māori Land Court for considering issues of tikanga more broadly should be considered. In 2004, the Commission made a series of recommendations in relation to the Māori Land Court that were not adopted by the government.242 Many of those recommendations could be revisited, including those relating to the Court’s jurisdiction. The Commission recommended expanding the jurisdiction of the Māori Land Court to include all disputes involving communal Māori assets.243 The Commission recorded that key Māori organisations and opinion leaders had expressed strong support for expanding the role of the Māori Land Court in this way.244 This reflected a preference by Māori to manage internally their own dispute resolution processes, with the Māori Land Court as a back-up where adjudication is required. However, the Commission noted there was limited support for further expanding the jurisdiction beyond the area of communal assets.245
• 8.140 The Commission also discussed appeal rights on questions of law and tikanga and the scope of judicial review of the Court’s decisions as a statutory body.246 The majority of Commissioners concluded that appeals on issues of tikanga should only be capable of challenge from the Māori Appellate Court to the Supreme Court, although two Commissioners considered that decisions on matters of tikanga by the Māori Appellate

²³⁷ Protected Objects Act 1975, pt 2.

²³⁸ Te Ture Whenua Maori Act 1993, ss 26, 26B–26C and 26P–26Q.

²³⁹ The main areas over which the Māori Land Court has exclusive jurisdiction are alienation, succession and jurisdiction of trusts established under Te Ture Whenua Maori Act 1993. See Caren Fox, Stephanie Milroy and Matiu Dickson Laws of New Zealand The Māori Land Court (online ed) at [38].

²⁴⁰ Te Ture Whenua Maori Act 1993, s 30.

²⁴¹ Te Ture Whenua Maori Act 1993, s 17.

²⁴² Te Aka Matua o te Ture | Law Commission Delivering Justice for All: A Vision for New Zealand Courts and Tribunals (NZLC R85, 2004). The Law Commission’s recommendations regarding the Māori Land Court were rejected by the government.

²⁴³ Te Aka Matua o te Ture | Law Commission Delivering Justice for All: A Vision for New Zealand Courts and Tribunals

(NZLC R85, 2004) at 239.

²⁴⁴ Te Aka Matua o te Ture | Law Commission Delivering Justice for All: A Vision for New Zealand Courts and Tribunals

(NZLC R85, 2004) at 238–239.

²⁴⁵ Te Aka Matua o te Ture | Law Commission Delivering Justice for All: A Vision for New Zealand Courts and Tribunals

(NZLC R85, 2004) at 239.

²⁴⁶ Te Aka Matua o te Ture | Law Commission Delivering Justice for All: A Vision for New Zealand Courts and Tribunals

(NZLC R85, 2004) at 234.

Court should be final.247 All Commissioners considered that standard appeal rights on other questions of law and judicial review should remain available.248

• 8.141 An option is to extend the jurisdiction of the Māori Land Court to include all claims involving tikanga as custom and tikanga as law. Any expanded jurisdiction would not automatically capture the non-tikanga elements of any claim. Rather, the extent of the jurisdiction on such matters would need to be context dependent, as it currently is. We do not consider that the further category of tikanga values claims should be within the presumptive jurisdiction of the Māori Land Court given the potentially diverse subject matter that might engage such values.
• 8.142 In line with promoting the Māori Land Court as the specialist forum when dealing only with tikanga, appeal rights could be limited to the Māori Appellate Court on questions of tikanga only. Appeals on questions of law could follow the existing track, which allows for appeals to the Court of Appeal and then the Supreme Court.249

The use of arbitration to resolve tikanga disputes

• 8.143 Arbitration under the Arbitration Act 1996 already has the potential to assist in resolving tikanga disputes where the parties agree on an appropriate process. However, the parties do not always agree on a tikanga-appropriate process up front. In that situation, the default rules in the Act apply and may not be well suited to tikanga disputes. The current default rules generally work very well for commercial disputes but were not drafted with tikanga disputes in mind. Accordingly, there may be benefit in developing new tailored default rules in the Arbitration Act to better enable tikanga-consistent arbitration.
• 8.144 Arbitration can be a highly effective means for Māori to secure the expression of cultural values in dispute resolution, including the application of tikanga Māori.250 The Arbitration Act is underpinned by the principle of party autonomy and the idea that parties should be willing to accept outcomes determined through a process they have chosen and designed. Arbitration provides the flexibility for parties to agree, for example, to conduct their proceedings entirely in te reo Māori and on a marae,251 and to adapt the rules of evidence and the procedure of the arbitration as the parties wish subject to overriding considerations of natural justice.252 The governing law can be tikanga,253 and the arbitrators can be appointed by the parties specifically for their tikanga expertise or mana.

²⁴⁷ Te Aka Matua o te Ture | Law Commission Delivering Justice for All: A Vision for New Zealand Courts and Tribunals

(NZLC R85, 2004) at 234.

²⁴⁸ Te Aka Matua o te Ture | Law Commission Delivering Justice for All: A Vision for New Zealand Courts and Tribunals

(NZLC R85, 2004) at 234.

²⁴⁹ Te Ture Whenua Maori Act 1993, s 58A.

250. Amokura Kawharu “Arbitration of Treaty of Waitangi settlement cross claim disputes” (2018) 29 Public Law Review 295 at 296.

²⁵¹ Arbitration Act 1996, sch 1 cls 20(2) and 22.

²⁵² Arbitration Act 1996, sch 1 cl 19(1).

²⁵³ Arbitration Act 1996, sch 1 cl 28(1).

• 8.145 The High Court decision in Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2) illustrates the importance of the parties to arbitration agreeing on a tikanga-consistent process from the outset.254 In this case, there was a dispute between two groups of beneficiaries of the Ngāti Rehua-Ngātiwai ki Aotea Trust as to the whakapapa of two

individuals. The High Court held that an agreement to arbitrate the dispute was an abuse of court process (due to earlier orders) and that the issue of disputed whakapapa was not in any event “capable of determination by an independent arbitrator without a strong connection to Ngāti Rehua-Ngātiwai ki Aotea”.255 The parties contested whether there was consent to arbitrate the issues relating to whakapapa by using an independent arbitrator appointed under the default rules of the Arbitration Act. The plaintiffs submitted they had intended that any arbitration would proceed within the context of the tikanga of the hapū. They argued that meant it had to be undertaken by the kaumātua validation process, involving elders of the hapū, consistent with the Court’s previous orders.256 The Court agreed and held that arbitration by an external barrister would be inconsistent with the applicable tikanga in this case.257

• 8.146 It would have been available to the parties to customise the procedure, including specifying criteria for appointment of an arbitrator such as particular experience in tikanga or relevant whakapapa.258 Further, parties have the freedom to agree to withdraw their mandate from an arbitrator and to appoint another arbitrator by consent or through a previously agreed process.259
• 8.147 In some cases, when parties have attempted to use arbitration as a process tailored to tikanga-based dispute resolution, their dispute has ended up in extensive post-award litigation.260 This is far from ideal. Extensive post-award litigation is costly and if the award is set aside, the parties then may be bound by their arbitration agreement to re-arbitrate the dispute and incur further costs. By this stage, one or more of the parties may have lost faith in the process or lost confidence in the tribunal, either of which will negatively impact the effectiveness of the process. Parties may also wait a long time for an answer to their dispute. Delay in dispute resolution can further compound existing injustice.261
• 8.148 The Arbitration Act is primarily tailored for commercial disputes. Our review of the cases suggests some of the Act’s default provisions are, in general, inappropriate for tikanga- based settings. For instance, the default rules favour confidentiality of proceedings and

²⁵⁴ Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2) [2021] NZHC 291, [2021] 2 NZLR 1.

²⁵⁵ Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2) [2021] NZHC 291, [2021] 2 NZLR 1 at [65].

²⁵⁶ Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2) [2021] NZHC 291, [2021] 2 NZLR 1 at [55].

²⁵⁷ Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2) [2021] NZHC 291, [2021] 2 NZLR 1 at [62].

²⁵⁸ If those preconditions are not met, a party can challenge the arbitrator appointment and any award rendered will not be enforceable: Arbitration Act 1996, sch 1 cl 34(2)(a)(iv).

²⁵⁹ Arbitration Act 1996, sch 1 cl 15.

²⁶⁰ For example Leef v Bidois [2013] NZHC 1349; Bidois v Leef [2015] NZCA 176, [2015] 3 NZLR 474; Ngāti Hurungaterangi v Ngāti Wahiao [2017] NZCA 429, [2017] 3 NZLR 770 (both cases led to multiple post-award litigation proceedings). In Bidois v Leef, the Court of Appeal overturned the High Court, finding that the issues of mana whenua were arbitrable and upholding the award in the face of procedural irregularities. In Ngāti Hurungaterangi, core reasoning on the central factual issues comprising five paragraphs was held by the Court of Appeal to amount to a failure to give reasons, resulting in the award being set aside.

²⁶¹ For example Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2) [2021] NZHC 291, [2021] 2 NZLR 1 at [54].

provide for ex parte preliminary orders.262 The default rules also provide for appeals on points of law to the High Court,263 which now arguably captures appeals on questions of tikanga.264 This may be inappropriate for tikanga arbitrations.265 If the parties wish to have the safeguard of an appeal, an appeal right to a specialist tribunal or to the Māori Land Court or Māori Appellate Court could be a more appropriate default option to preserve access to specialist tikanga expertise in any further adjudication.

• 8.149 Ideally, the parties will agree at the outset on procedural steps that promote a dispute resolution process consistent with tikanga. However, because that may not always occur, there could be benefit in developing new default rules to better enable tikanga-consistent processes and thereby reduce collateral recourse to the courts.

CONCLUSION

• 8.150 The common law is in a state of transition in relation to tikanga. There is a developing body of law addressing engagement between tikanga and state law. The courts must approach tikanga-related state law with care.
• 8.151 We have identified three major categories of tikanga-related claims with which the common law has engaged, namely those based on tikanga custom, tikanga values and tikanga as law. We hope that these categories provide a foundation for the incremental, case-by-case development of the common law as it engages with tikanga in a coherent and certain manner.
• 8.152 We suggest three broad strategies for engagement. The first aims to ensure that tikanga is interpreted and applied through a tikanga lens. This requires an understanding of tikanga from the inside and as an integrated normative framework.
• 8.153 The second strategy focuses on tools for judicial engagement and promoting manaakitanga of tikanga. There are already tools available that can and should be called upon as context requires, including:

(a) The use of pūkenga as court experts.

(b) Referring tikanga issues to the Māori Appellate Court through the case-stated procedure.

(c) Case management tools for early identification of tikanga cases, appropriate remedies and evidential approaches.

²⁶² Arbitration Act 1996, ss 14A and 14B and sch 1 cls 17C–17K.

²⁶³ Arbitration Act 1996, sch 2 cl 5(1).

²⁶⁴ In Ngāti Hurungaterangi v Ngāti Wahiao [2016] NZHC 3156, the High Court’s view was that tikanga-based awards cannot be appealed (unless the custom is notorious) as they only raise questions of fact. The Court of Appeal did not address that view. However, subsequent Supreme Court authorities on tikanga’s status as law (irrespective of any threshold test for custom) would indicate that a contrary result should follow: Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801; Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239.

²⁶⁵ Amokura Kawharu “Arbitration of Treaty of Waitangi settlement cross claim disputes” (2018) 29 Public Law Review 295 at 306.

• 8.154 The third strategy requires consideration of how court and alternative dispute resolution processes could be enhanced. We consider that the following options should be explored further:

(a) Establishing a specialist tikanga panel in the High Court.

(b) Providing for the appointment of pūkenga as commissioners of the High Court.

(c) Extending the jurisdiction of the Māori Land Court to include aspects of claims about tikanga as custom and tikanga as law. Consideration could also be given to limiting appeal rights on questions of tikanga to the Māori Appellate Court.

(d) Developing new tailored default rules in the Arbitration Act to better enable tikanga- consistent arbitration as an alternative forum.

CHAPTER 9

Tikanga proficiency in the public sector

INTRODUCTION

• 9.1 Public officials developing and implementing policies and laws are increasingly expected to be proficient in tikanga. However, they face systemic challenges. Guidance is needed on ways to facilitate public sector engagement with and understanding of tikanga, at the same time as assuring adequate safeguards for tikanga are set in place. In this chapter, we consider four ways of working towards these objectives:

(a) Public sector capability and capacity building are needed to enable meaningful engagement with tikanga by policy makers in public agencies. We consider work towards capability and capacity building that is under way.

(b) More procedural and policy guidance should be given on how public agencies can properly address tikanga during the policy and legislative process. This could build on existing te Tiriti o Waitangi | Treaty of Waitangi (Treaty) guidance models and should encourage tikanga consideration at an early stage.

(c) This in turn may require greater institutional support. While we do not presently recommend a specific institutional change, we discuss the importance of convening a body with tikanga expertise to support public sector tikanga engagement and consider some options.

(d) Processes could be improved for considering kupu Māori (Māori words) in legislative drafts and interpreting them consistently with tikanga. We discuss legislation establishing a public holiday marking the rising of the star cluster Te Kāhui o Matariki as a helpful example of how to engage positively with tikanga in a legislative context.

Reasons for public sector engagement with tikanga: impetus and opportunities

• 9.2 Awareness of the positive ways in which tikanga might contribute to policy is not new for public agencies. At times, government agencies have produced significant tikanga- focused work of enduring value, exemplified in reports such as Puao-te-ata-tu, He

Whaipaanga Hou and He Hīnātore ki te Ao Māori.1 Additionally, public agencies are becoming aware that it is not good practice for the government to proceed without taking sufficient account of tikanga. In Ellis v R, Te Kōti Mana Nui | Supreme Court (the Supreme Court) unanimously held that tikanga will be recognised in the development of the common law in cases where it is relevant.2 We understand that public agencies are keenly interested in the implications of Ellis for their daily work and recognise the need to change practices and build their tikanga competency. Agencies are also actively reflecting on how their statutory obligations may be affected as courts interpret legislation referring to tikanga.

• 9.3 Public service guidance for those writing new policy and legislation already invites policy makers to demonstrate how their proposals have approached an issue from the perspective of tikanga values.3 Guidelines further state that legislation “should, as far as practicable, be consistent with fundamental common law principles and tikanga”, requiring Māori customs and beliefs to be considered.4 With Ellis, the Supreme Court has reinforced both the connection of tikanga with fundamental common law principles and these policy and legislative expectations. There have also been several decades of Crown acknowledgements that it must act consistently with the Treaty, which is a foundational document in Aotearoa New Zealand’s unwritten constitution.5 As Cabinet documents reflect, the Treaty involves tikanga.6 Tikanga may also have independent relevance, as the Cabinet Office circular issuing Treaty guidance for agencies rightly observes.7
• 9.4 In the past, public service initiatives exploring tikanga have tended to be occasional and reliant on external experts rather than a standard part of public sector practice. Typically, the purpose of previous studies of tikanga was to bring Māori perspectives to the fore to better understand and respond to policy problems in ways that would make a positive difference in Māori lives. However, as we developed this chapter, we also found examples of tikanga influencing policy design and research frameworks in ways that are applicable to all, and of agencies embedding tikanga into their daily policy life.
• 9.5 One example of this approach is Ngā Tikanga Paihere, a research principles framework guiding data collection and data management practices that is underpinned by tikanga

1. The Maori Perspective Advisory Committee Puao-te-Ata-tu (day break): The Report of the Ministerial Advisory Committee on a Maori Perspective for the Department of Social Welfare (September 1988); Moana Jackson The Maori and the Criminal Justice System: A New Perspective | He Whaipaanga Hou (Department of Justice, Study Series 18, 1987–1988, part 2); Te Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001).

² Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [19] and [21].

³ Cabinet Office Circular “Te Tiriti o Waitangi / Treaty of Waitangi guidance” (22 October 2019) CO (19) 5 at 12.

⁴ Legislation Design and Advisory Committee Legislation Guidelines: 2021 Edition (September 2021) at 19.

5. Kenneth Keith “On the constitution of New Zealand: an introduction to the foundations of the current form of government” in Cabinet Office Cabinet Manual 2023 at 1–2; see too for example Ngāti Whātua Ōrākei Trust v Attorney- General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [582] and [586]–[587]. Te Rōpū Whakamana i te Tiriti o Waitangi

| Waitangi Tribunal continues to underline the linkage between the Treaty and tikanga. See for example Te Rōpū

Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Hauora: Report on Stage One of the Health Services and Outcomes Kaupapa Inquiry (Wai 2575, 2023) at 156 and 159 (noting adverse effects for Māori flowing from the fact that “tikanga and mātauranga Māori, while centrally important to many Māori, are not recognised as ‘ordinary’ in the nation as a whole”); reviewing the Tribunal’s earliest reports see also Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 69.

⁶ Cabinet Office Circular “Te Tiriti o Waitangi / Treaty of Waitangi guidance” (22 October 2019) CO (19) 5 at [74]–[76].

⁷ Cabinet Office Circular “Te Tiriti o Waitangi / Treaty of Waitangi guidance” (22 October 2019) CO (19) 5 at [76].

concepts. It was developed by Associate Professor Māui Hudson in partnership with Tatauranga Aotearoa | Stats NZ.8 Another example, He Ara Waiora, is a tikanga-based wellbeing measures framework supporting Te Tai Ōhanga | The Treasury policy work.9 He Ara Waiora was initially focused on lifting Māori living standards and Māori wellbeing. Increasingly, however, the Treasury is using He Ara Waiora alongside the conventional OECD-focused Living Standards Framework to advise Ministers and develop policy, enabling officials to “interweave and embed Te Ao Māori perspectives in [their] policy advice”.10 The underlying philosophy of He Ara Waiora is that Māori perspectives and mātauranga-based principles can contribute to lifting all New Zealanders’ intergenerational wellbeing.11 Both of these examples show that tikanga can contribute to policy making for all and support both Māori advancement and the development of the law.

• 9.6 Public officials with whom we spoke were alive to both the need and the opportunity to improve their practice. However, tools and strategies are needed to assist them. Those with whom we consulted felt that public agencies would benefit from much more guidance. There was a lot of uncertainty about how public agencies should proceed and concern about obstacles to overcome in engaging with tikanga, even while there is willingness to do so. We found agreement on the need for the public sector to upskill itself in relation to tikanga and for consideration of how this process can be systemically supported.

Relevance to local authorities

• 9.7 This chapter primarily addresses how central government can properly consider tikanga when making policy and laws.12 However, the public sector also includes local government. Local authorities (regional, district and city councils and unitary authorities) also have rule-

8. Tatauranga Aotearoa | Stats NZ “Ngā Tikanga Paihere” (23 November 2020) <www.data.govt.nz>. Grouped in five pairs, the principles are: pūkenga and whakapapa, pono and tika, wānanga and kaitiaki, wairua and mauri, tapu and noa.
9. Te Tai Ōhanga | The Treasury “He Ara Waiora” (28 October 2021) <www.treasury.govt.nz>. See too Emily O’Connell, Tia Greenaway and Tax Working Group Secretariat He Ara Waiora: A Pathway Towards Wellbeing (Te Tai Ōhanga | The Treasury, DP 18/11, September 2018) for a thorough explanation of how the framework was developed, involving Ngā Pūkenga (a Māori expert working group that continues to advise on and support the implementation of the framework), Te Puni Kōkiri and Te Arawhiti. He Ara Waiora articulates ends (outcomes that are important for waiora)

and means (approaches, processes, or tikanga principles that need to be followed to achieve the ends). The ends are: wairua (defined as “spirit”), te taiao (the natural world) and he ira tangata (the human domain, which in turn prioritises four mana principles underpinning collective and individual wellbeing). The means are: kotahitanga, tikanga, whanaungatanga, manaakitanga and tiakitanga.

10. Te Tai Ōhanga | The Treasury “He Ara Waiora” (28 October 2021) <www.treasury.govt.nz>. Beyond the Treasury, He Ara Waiora is contributing to others’ work: see Diana Cook and others He Kāhui Waiora: Living Standards Framework and He Ara Waiora COVID-19: Impacts on Wellbeing (Te Tai Ōhanga | The Treasury, DP 20/02, July 2020) at 33 (noting commercial iwi organisations have adapted the framework); Te Kōmihana Whai Hua o Aotearoa | New Zealand Productivity Commission A Fair Chance for All (Interim Report, September 2022). The Productivity Commission supports

“the idea that He Ara Waiora should be used as an overarching framework for public policy in Aotearoa New Zealand” and utilised it in shaping their own “mauri ora” (thriving) approach.

¹¹ Te Tai Ōhanga | The Treasury “He Ara Waiora” (28 October 2021) <www.treasury.govt.nz>.

¹² Public Service Act 2020, s 10; and see Te Kawa Mataaho | Public Service Commission “Te hanga o te rāngai tūmatanui

| How the public sector is organised” <www.publicservice.govt.nz>. As defined by the Public Service Act, the public service includes Crown agents such as the Accident Compensation Corporation, Te Mana Rauhī Taiao | Environmental Protection Authority, Te Whatu Ora | Health New Zealand, Kāinga Ora — Homes and Communities, Taumata Arowai (the Water Services Regulator) and Waka Kotahi | New Zealand Transport Agency. For a useful overview of primary, secondary and tertiary law-making authorities, see John Burrows “Legislation: primary, secondary and tertiary” (lecture presented to Te Tai Ōhanga | The Treasury, 26 May 2009).

making and policy-making functions. They engage with tikanga and are an important interface for Māori interaction with the state. Although the timeframes for this Study Paper have not allowed us to engage with local authorities or examine their separate processes, we offer here some general remarks.

• 9.8 The systemic issues we review in this chapter are not confined to central government. Many will also arise in the local authority context. The Supreme Court’s affirmation of the continuing applicability of tikanga in New Zealand law in Ellis v R also applies to local authorities. Already, some statutes directly affecting local authorities specifically refer to tikanga, such as the Resource Management Act 1991 and the Water Services Act 2021.13 As central government develops more laws incorporating tikanga, local authorities will need to engage with tikanga more often when putting those laws into effect. Consequently, issues such as capability and capacity, how to develop procedural guidance and access expertise, and the statutory interpretation of kupu Māori or tikanga concepts will also warrant reflection by local authorities.

BUILDING CAPABILITY AND CAPACITY TO ENGAGE WITH TIKANGA

• 9.9 A public sector that is competent and confident in engaging with tikanga is an important prerequisite to any requirement that tikanga should be considered. Policy and legal staff within agencies need sufficient skill to recognise when tikanga has a bearing on their work and to respond adequately. Even where Crown-Māori engagement on tikanga has been facilitated, we heard that disappointing outcomes and problems can arise where government officials lack appreciation of what has been shared with them in consultation. In some larger agencies, full-time roles dedicated to leading relationship building and engagement with Māori have been created. However, too often a disproportionate burden in covering capability shortfalls falls on Māori staff in generalist roles within agencies.
• 9.10 As a purely practical matter, agencies’ capability and capacity to engage with tikanga is affected by resourcing decisions. Agencies must be properly resourced to prioritise staff upskilling in tikanga and to enable ongoing tikanga engagement. This will need to be built into agencies’ baseline funding — a decision requiring support at the level of senior officials and, in likelihood, their ministers. Leadership was therefore identified to us as a key to initiating positive change.
• 9.11 Recently, initiatives have been put in place that recognise the responsibility of public service chief executives to take steps to address issues relating to organisational capability. We discuss below provisions introduced in the Public Service Act 2020 and an initiative relating to these provisions called Whāinga Amorangi (established in 2022 by Te Arawhiti | The Office for Māori Crown Relations). Both of these may promote and assist agencies’ engagement with tikanga. However, as both are relatively new and have some limitations, we also discuss other opportunities.

Capability-building initiatives: the Public Service Act and Whāinga Amorangi

• 9.12 The Public Service Act recognises that the public service has a role in supporting relationships between Māori and the Crown consistent with the Treaty.14 The Act requires

¹³ Resource Management Act 1991, ss 2 and 7(a); Water Services Act 2021, s 14.

¹⁴ Public Service Act 2020, s 14(1).

chief executives to develop and maintain the capability of the public service to engage with Māori and to understand Māori perspectives.15 This requirement, while not referring explicitly to tikanga capability, sets an objective that is unlikely to be achieved without some public service grounding in tikanga. Additionally, provisions in the Act outlining what it means to be a good employer include recognition of:16

(i) the aims and aspirations of Māori; and

(ii) the employment requirements of Māori; and

(iii) the need for greater involvement of Māori in the public service.

• 9.13 Supplementing these statutory requirements, Te Arawhiti has established the cross- agency work programme Whāinga Amorangi. The programme aims to help chief executives meet their Public Service Act responsibility, position the public service to support the Māori-Crown relationship and work across the public service towards a culture change.17 Agencies must develop organisational and individual capability-building plans to be submitted by their chief executives to Te Arawhiti for review and advice. Progress on the organisational plans will be publicly reported in agencies’ annual reports. Chief executives are expected to commit to developing their own capabilities.18 A Māori- Crown relations capability framework finalised in 2022 identifies relevant priorities, including to:19
  • make the public service more accessible and responsive to Māori;
  • enable the public service to take new approaches to complex issues;
  • enable public servants to meaningfully engage with Māori and improve the quality of government decision-making;
  • enable the public service to recognise the skills and knowledge Māori public servants bring, and the importance of better supporting Māori public servants;
  • support the growth of Māori public servants in leadership positions.
• 9.14 Whāinga Amorangi specifies “tikanga/kawa” as one of six important areas for initial focus.20

Supporting capability and capacity development and putting it in systemic context

• 9.15 By signalling the importance of raising public sector comfort, confidence and capability when encountering tikanga,21 both the Public Service Act requirements and Whāinga Amorangi set valuable expectations. Specifying tikanga and kawa as a focus area builds on the Public Service Act direction in important ways. Without this, while on its face section 14(2) of the Public Service Act is broad enough to support a priority of tikanga

¹⁵ Public Service Act 2020, s 14(2).

¹⁶ Public Service Act 2020, s 73(3)(d).

¹⁷ Te Arawhiti | The Office for Māori Crown Relations “Whāinga Amorangi resource hub” <tearawhiti.govt.nz>.

¹⁸ Te Arawhiti | The Office for Māori Crown Relations Whāinga Amorangi: Transformational Leadership (undated) at 15.

¹⁹ Te Arawhiti | The Office for Māori Crown Relations Māori Crown relations capability framework for the public service

(September 2022).

²⁰ Te Arawhiti | The Office for Māori Crown Relations Māori Crown relations capability framework for the public service

(September 2022) at 2.

21. For “comfortable”, “confident” and “capable” as relevant measures, see Te Arawhiti | The Office for Māori Crown Relations Māori Crown relations capability framework for the public service — individual capability component (undated).

upskilling within agencies, the Act does not itself prioritise tikanga. That said, from the perspective of strengthening agencies’ capability to engage with tikanga, both initiatives also have some weaknesses.

• 9.16 First, these initiatives will not necessarily lead to tikanga capability being prioritised in the short term. Whāinga Amorangi plan making is commencing for the first three-year cycle of the programme. In those first three years, te reo Māori and New Zealand history/Treaty of Waitangi literacy take priority as essential capability areas. Tikanga/kawa is an optional competency that chief executives may elect to include.22 Given this, it cannot be assumed that tikanga will be a priority focus.
• 9.17 Further, while the Public Service Act envisages that a good employer will employ and support Māori staff, this is unlikely to answer the issue. Māori staff may well have greater capability than other staff to engage with Māori and understand Māori perspectives. However, even for those who are Māori, the ability to advise on tikanga will vary and may require recourse to others with greater knowledge. The nature of tikanga expertise is such that it will never be widely shared. Agencies will need to know when and how to reach out and to whom, rather than expecting staff to hold that expertise.
• 9.18 We commend tikanga capability to those continuing to develop Whāinga Amorangi as an integral, high-priority aspect of this programme. However, we do so mindful of ongoing challenges. Tikanga expertise is a limited commodity. The reality is that expanding agencies’ specialist expertise in tikanga through recruitment into the public sector depletes the externally available supply of expertise, which iwi also rely on. This suggests that a balance is needed between sharing and teaching basic tikanga building blocks while introducing external expertise where appropriate. However, even this approach will place demands upon Māori individuals and organisations to support the public service in upskilling.
• 9.19 We see advantages in moving promptly to improve tikanga knowledge gaps and offer guidance. Given this, rather than leaving capability-building matters to individual agencies, there may be short-term merit in providing some tikanga-focused cross-government training modules and support. Te Arawhiti, in consultation with tikanga experts, would be well positioned to design and facilitate such an approach. We think agencies would welcome this based on the interest in the topic and many questions we encountered.
• 9.20 As an aside, there is also room to significantly expand the Whāinga Amorangi resource list relating to tikanga.23 For example, agencies will find already-published guides such as Te Mātāpunenga and the online Legal Māori Resource Hub (which incorporates a Māori legal dictionary) invaluable in helping to explain tikanga concepts.24 We hope that this Study Paper and our Study Paper of 2001 will also prove helpful.25

²² Te Arawhiti | The Office for Māori Crown Relations Whāinga Amorangi: Transformational Leadership (undated) at 9.

²³ Te Arawhiti | The Office for Māori Crown Relations Māori Crown relations capability framework for the public service

(September 2022) at 4.

24. Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, Victoria University Press, Wellington, 2013); The Legal Māori Resource Hub <www.legalmaori.net>; and see The Legal Māori Resource Hub “A dictionary of Māori legal terms” <www.legalmaori.net/dictionary>.

²⁵ Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001).

• 9.21 Ultimately, although building public agencies’ in-house capability is important, it must be seen as one piece of a larger whole. The value of lifting general capability to engage with tikanga is unquestioned. However, other supporting initiatives will be needed. The importance of building complementary external processes into the system that allow agencies to connect with the right expertise and be supported with guidance cannot be overemphasised.

DEVELOPING PROCEDURAL GUIDANCE: PROMPTS TO CONSIDER TIKANGA

• 9.22 Another challenge for those working on public policy and law reform can be a lack of clear direction about how and when to consider tikanga. Risks that arise include agencies developing processes or policies that are superficial or lack clarity in respect of tikanga, or missing opportunities through inadvertent neglect of tikanga approaches. Procedural guidance has an important role to play in ensuring that agencies developing policy are reflecting on the relevance of tikanga and integrating tikanga consideration where appropriate from the earliest stages of their policy development. Good policy processes will improve the resulting law.
• 9.23 At least two important pieces of Cabinet-endorsed guidance mention tikanga.26 There are also general guides for engaging with Māori.27 However, overall, comparatively little guidance exists. By contrast, the Crown has over several decades successfully embedded a norm for policy makers and public officials to consider the Treaty and engage with Māori in their work. This has been supported by extensive legal and policy guidance. As the importance of giving specific attention to tikanga is increasingly recognised, a similar process of embedding fuller guidance and earlier consideration is desirable.
• 9.24 Some agency-led guidance could be developed on each agency’s own initiative. As tikanga capability and capacity grow within the public sector, agencies will be increasingly able to develop good internal protocols for identifying and engaging appropriately with tikanga in ways suited to their work. But external guidance will still play an essential part in setting expectations. Guidance should draw attention to the need to reflect on tikanga issues and set expectations that tikanga will be meaningfully considered throughout the policy-making process from an early stage.
• 9.25 In this section, therefore, we discuss opportunities for improving guidance on when and how public agencies should consider tikanga when developing policy and legislation. As a minimum, there is room to strengthen existing Cabinet-endorsed guides, issued respectively by the Legislation Design and Advisory Committee (LDAC) and the Cabinet Office. We understand that the LDAC Legislation Guidelines (LDAC Guidelines) chapter relating to the Treaty of Waitangi, Treaty settlements and “Māori interests”, including tikanga, is under review. We therefore consider the LDAC Guidelines only briefly, before focusing more closely on processes supporting the development of Cabinet papers.

26. Legislation Design and Advisory Committee Legislation Guidelines: 2021 Edition (September 2021); Cabinet Office Circular “Te Tiriti o Waitangi / Treaty of Waitangi guidance” (22 October 2019) CO (19) 5.
27. See for example Te Arawhiti | The Office for Māori Crown Relations Guidelines for engagement with Māori (1 October 2018).

The LDAC Guidelines

• 9.26 The LDAC Guidelines advise public officials on developing good legislation.28 Adopted by Cabinet, they are a key reference for assessing whether draft legislation adheres to accepted legal and constitutional principles and maintaining the overall integrity and coherence of legislation in Aotearoa New Zealand.29 Tikanga is referenced in the LDAC Guidelines in two places: when considering how new legislation relates to the existing law and Māori interests including Treaty interests.30
• 9.27 First, when agencies are considering “how new legislation relates to the existing law”, the LDAC Guidelines recommend that they should identify “[r]elevant common law rules and principles and tikanga”.31 This language aligns with Supreme Court dicta by locating tikanga with the common law and identifying the need to consider tikanga where relevant. The language further indicates that tikanga is properly equated with common law rules and principles. As this section goes on to say, the expectation that new legislation “should, as far as practicable, be consistent with fundamental common law principles and tikanga” may require Māori language, customs and beliefs and the importance of community, whānau, hapū and iwi to be considered.32 However, these points are not further explained in the LDAC Guidelines.
• 9.28 Second, in a chapter dedicated to “The Treaty of Waitangi, Treaty settlements, and Māori interests”, agencies are asked whether proposed legislation potentially affects rights and interests recognised at common law or practices governed by tikanga. The text focuses on customary title or rights that might be affected and “potentially affected practices that are governed by tikanga”.33 In so doing, the LDAC Guidelines tend to position tikanga in a passive way, acted upon by state law. This contrasts with a policy and legislative approach in which tikanga might actively contribute to laws and legal principles that incorporate tikanga strands and apply to all.
• 9.29 Overall, while the Treaty and “Māori interests” are given attention in the LDAC Guidelines, the comparatively brief nature of explanation about tikanga contrasts with fuller treatment of other topics, such as fundamental constitutional principles and values of Aotearoa New Zealand law and separate chapters dedicated to the New Zealand Bill of Rights Act 1990, discrimination, privacy and international obligations.34 There is merit in a more developed tikanga section. Reframing tikanga discussion in the LDAC Guidelines and giving policy makers more actionable guidance would be beneficial. Indeed, tikanga might stand among the issues relevant to all legislation.

Guidance supporting the development of Cabinet papers

• 9.30 The second piece of existing policy and legislative guidance that refers to tikanga is a Cabinet Office circular: “Te Tiriti o Waitangi | Treaty of Waitangi guidance” (the Treaty

²⁸ Legislation Design and Advisory Committee Legislation Guidelines: 2021 Edition (September 2021).

²⁹ See generally Legislation Design and Advisory Committee <ldac.org.nz>.

³⁰ Legislation Design and Advisory Committee Legislation Guidelines: 2021 Edition (September 2021) at 3.4 and 5.3.

³¹ Legislation Design and Advisory Committee Legislation Guidelines: 2021 Edition (September 2021) at 3.4.

³² Legislation Design and Advisory Committee Legislation Guidelines: 2021 Edition (September 2021) at 3.4.

³³ Legislation Design and Advisory Committee Legislation Guidelines: 2021 Edition (September 2021) at 5.3.

34. Compare Legislation Design and Advisory Committee Legislation Guidelines: 2021 Edition (September 2021), chs 4 and 6–9.

circular).35 The guidance on tikanga considerations in the Treaty circular is brief and could be expanded. Alternatively, tikanga may warrant its own guidance in a separate circular. We discuss these options below. We also suggest that requirements or recommendations for policy makers to address tikanga could be built into the following documents:

(a) The Cabinet paper template, which might include a requirement for a tikanga analysis section or impact statement.

(b) Regulatory Impact Statements, which are an opportunity to reflect on how tikanga has been weighed when deciding on policy options.

Cabinet Office circular: Treaty of Waitangi guidance

• 9.31 The Cabinet Office Treaty circular sets out Treaty-related questions for policy makers to consider as they develop policy proposals, as a way of assuring decision makers that relevant factors have been addressed.36 Among the questions, policy makers are invited to assess how policy issues have been considered from a tikanga values-based perspective.37 This recognises that “courts have, in recent years, considered tikanga values to be important to the consideration of matters relating to Māori and should be given appropriate weighting in decision-making”.38 However, as with the LDAC Guidelines, the Treaty circular has a detailed discussion on the Treaty but only a brief section on tikanga. A bullet point list names some tikanga values, identifying mana, whakapapa, whanaungatanga and manaakitanga as “values that could offer perspective on an issue”.39
• 9.32 While the brevity of the tikanga discussion is not unexpected given the circular’s focus on Treaty issues, it does highlight the relative absence of significant guidance on tikanga. As a minimum, we think that the Treaty circular would benefit from expansion. Beyond this, as we discuss below, tikanga may warrant its own guidance with a much fuller analysis consistent with the Treaty circular’s recognition that tikanga has independent legal relevance.40 Guidance given to policy makers on the Treaty and tikanga should be complementary and will sometimes need to work alongside each other, particularly where Treaty obligations require legislation that provides for tikanga in some way.41 However, we see benefit in providing guidance on tikanga in a separate Cabinet Office circular rather than conflating it with Treaty issues. In practical terms, a companion tikanga- focused circular would reinforce the importance of giving attention to tikanga in its own right.

³⁵ Cabinet Office Circular “Te Tiriti o Waitangi / Treaty of Waitangi guidance” (22 October 2019) CO (19) 5.

36. Cabinet Office Circular “Te Tiriti o Waitangi / Treaty of Waitangi guidance” (22 October 2019) CO (19) 5 at [19.3] and [45].

³⁷ Cabinet Office Circular “Te Tiriti o Waitangi / Treaty of Waitangi guidance” (22 October 2019) CO (19) 5 at 12.

³⁸ Cabinet Office Circular “Te Tiriti o Waitangi / Treaty of Waitangi guidance” (22 October 2019) CO (19) 5 at [74].

³⁹ Cabinet Office Circular “Te Tiriti o Waitangi / Treaty of Waitangi guidance” (22 October 2019) CO (19) 5 at [75].

⁴⁰ Cabinet Office Circular “Te Tiriti o Waitangi / Treaty of Waitangi guidance” (22 October 2019) CO (19) 5 at [76].

41. The Plant Varieties Act 2022 is an example of this. The legislation provides for kaitiaki relationships, following the report Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity — Te Taumata Tuatahi (Wai 262, 2011): see Te Ratonga Whare Pāremata | Parliamentary Service “Plant Variety Rights Bill 2021: Bills Digest 2646” (18 May 2021) Pāremata Aotearoa | New Zealand Parliament <www.parliament.nz>.

A tikanga-focused Cabinet Office circular

• 9.33 The Treaty circular was developed with advisory input from external experts. Similarly, appropriate input from Māori with tikanga expertise would also be necessary for the development of any new tikanga-focused circular. Convening a Māori steering group of experts to develop a draft would be desirable.
• 9.34 Accordingly, we by no means fully address here what future guidance ought to contain. As a starting point, however, questions similar to those in the Treaty circular could be posed, for example:

(a) Are there tikanga perspectives relating to this issue that might inform your policy considerations and preferred approach? In addressing this question, explain:

(i) What processes have been undertaken to identify relevant tikanga?

(ii) Where tikanga has not been considered relevant, why not?

(b) To what extent have policy makers anticipated tikanga positions or legal arguments that their work is inconsistent with tikanga or has unforeseen tikanga-connected meanings? How does the proposal respond to these positions or arguments?

(c) Does the proposal allow for Māori to exercise tikanga?

(d) Is this a context where tikanga-based solutions might apply to all and be of general benefit? Is this recommendation made with Māori support?

(e) In what ways have Māori been involved in tikanga aspects of your policy design?

(f) Where tikanga concepts or tikanga-based approaches are part of the design, what role will Māori have in policy implementation?

(g) How will incorporating tikanga in this policy proposal build Māori capability and capacity and enhance Māori wellbeing?

• 9.35 As we discuss later in the chapter, further issues and policy questions may arise in drafting legislation. These include whether tikanga concepts are intended to be Māori-specific or have general application and approaches to defining tikanga concepts. It may be helpful for a tikanga circular to address such issues.
• 9.36 Robust analysis of tikanga aspects of policy proposals will be beneficial in developing Cabinet papers and their accompanying Regulatory Impact Statements. It would fulfil a similar function to Treaty analysis, encouraging structured engagement with tikanga considerations during policy development.

Cabinet policy paper requirements

• 9.37 Ministers take papers to Cabinet to provide updates or seek agreement to significant policy proposals, introduce new regulations or a Bill, or release a discussion or consultation document. The template for writing Cabinet policy papers prompts officials to address the Treaty, and Cabinet papers regularly include a Treaty section summarising how policy development has taken account of relevant matters.42 Other mandatory considerations are addressed in specific sections — requiring, for example, summaries of climate implications, population implications or human rights implications of policies.

⁴² Cabinet Office “Cabinet policy paper template” (7 May 2021) at 2 <dpmc.govt.nz>.

• 9.38 Policy makers are used to thinking about the Treaty because the mandatory requirement in Cabinet papers sets a structural incentive. There are prompts to consider the Treaty and guidance on what questions officials should consider when developing policies and advice. Although this is not necessarily proof against policies being rationalised after the fact or perfunctory approaches to addressing the Treaty, these standard requirements work to establish norms. If an issue has in another agency’s view been inadequately considered or differences of opinion remain about options, this can be put before ministers — serving as a practical incentive to ensure that outstanding issues are resolved before Cabinet considers policy proposals. The Cabinet paper template could be amended to prompt officials to include a tikanga analysis.
• 9.39 The Cabinet requirement to address climate implications has led to the development of supporting processes, including a Climate Implications of Policy Assessment (CIPA) early engagement form.43 The CIPA form is sent to Manatū mō te Taiao | Ministry for the Environment to determine whether an assessment of the climate implications of the policy proposal is required. If analysis is required, the draft analysis goes through a quality assurance process before being reported on in the climate implications section of the Cabinet paper.44 While a tikanga analysis would differ in key respects from a CIPA (which is triggered by an objectively measurable accounting threshold), a similar model could be considered for seeking early advice on the need for an assessment of the tikanga implications of a policy.

Regulatory Impact Statements

• 9.40 The 10-page maximum length of Cabinet papers does not always permit detailed analysis of an issue. In most cases, policy makers present a fuller supporting document called a Regulatory Impact Statement (RIS) attached to the relevant Cabinet paper.45 A RIS is required for all government proposals that create, amend or repeal primary or secondary legislation.46 Every RIS is publicly available, providing a high-level summary in which options are identified and weighed and justifying the recommended option. 47 Officials are directed in the RIS to “[o]utline the criteria you will use to evaluate options”.48 Examples of generic criteria suggested in the template include difficulty of implementation, time required for implementation, compatibility with pre-existing regulation or regulatory systems, fiscal or administrative or compliance costs, equity and value for money. Usefully, officials drafting a RIS are further directed to:49

43. A Climate Implications of Policy Assessment (CIPA) is required for proposals that include decreasing greenhouse gas emissions as a key policy objective or that are likely to have a direct emissions impact at or above 0.5 million tonnes CO₂-e within the first 10 years of the proposal period: Cabinet Office, Department of the Prime Minister and Cabinet “Cabinet policy paper template” (7 May 2021) at 5.
44. Manatū mō te Taiao | Ministry for the Environment Climate Implications of Policy Assessment: Guide to estimating the greenhouse gas emission impacts of policies (November 2019) at 8.
45. Cabinet Office Circular “Impact analysis requirements” (26 June 2020) CO (20) 2; Te Tai Ōhanga | The Treasury Guide to Cabinet’s Impact Analysis Requirements (June 2020).

⁴⁶ Cabinet Office Circular “Impact analysis requirements” (26 June 2020) CO (20) 2 at [13].

47. See Cabinet Office Circular “Impact analysis requirements” (26 June 2020) CO (20) 2 at [9.4]; Te Tai Ōhanga | The Treasury “Regulatory Impact Statement template” (July 2021) <treasury.govt.nz> at 9.
48. Te Tai Ōhanga | The Treasury “Regulatory Impact Statement template” (July 2021) <treasury.govt.nz> at 7: deciding upon an option to address the policy problem.

⁴⁹ Te Tai Ōhanga | The Treasury “Regulatory Impact Statement template” (July 2021) <treasury.govt.nz> at 7.

Comment on relationships between the criteria eg, where meeting one criterion can only be achieved at the expense of another (trade-offs), or where certain criteria are prioritised or weighted more than others.

• 9.41 Consistency with tikanga could be a valuable criterion for evaluating policy options. As officials can already take tikanga implications into account if they choose, this would not necessarily require any changes to the RIS template. However, revised Cabinet guidance could help to make this a more common practice by setting an expectation that, where relevant, tikanga considerations will be incorporated into RIS analyses.
• 9.42 In summary, we suggest tikanga considerations in policy could be drawn to Cabinet attention in a more systematic and rigorous way. We see merit in making the importance of tikanga visible by not simply including it within a Treaty analysis. One option would be to follow the approach of existing policy and legislative protocols for considering the Treaty or climate matters. These can provide models for a tikanga-focused equivalent.
• 9.43 However, while we think this will improve the depth of consideration of tikanga in Cabinet papers, one practical problem remains. That is, how any new guidance that may be issued in the LDAC Guidelines or through Cabinet Office circulars can be effectively overseen and support given to agencies who are still building their capacity and expertise. That requires an institution with both an overview of the requirements and sufficient expertise to advise agencies about the best way to meet them. An analogy can be drawn with how the Ministry for the Environment facilitates the CIPA process and provides quality assurance. In the next section of this chapter, we explore avenues for expert advisory input and oversight of how agencies consider tikanga in their work.

EXTERNAL EXPERT ADVISORY PROCESSES

• 9.44 It is essential that agencies are able to seek external tikanga expertise. This ranks high on the list of systemic needs we have identified. Generic guidance about tikanga, while informative and important, cannot replace context-specific engagement with those with expert knowledge of tikanga in practice. Tikanga is not something that can be sufficiently understood by a textual analysis, or even a broad public consultation exercise. However, agencies with whom we spoke identified practical challenges in finding appropriate expertise. Deep knowledge of tikanga is not widely held. Following the Ellis v R decision, some officials we spoke with wondered whether for each policy or drafting exercise a process of wānanga (deliberation) involving pūkenga (experts) would need to occur. There are also procedural hurdles relating to Cabinet confidentiality, requiring Cabinet permission to brief anyone outside the public service on confidential proposals. This can be a barrier to tikanga consultation and may suggest advantages in formally establishing a standing group of some kind rather than consulting different experts on a case-by-case basis.
• 9.45 An agency such as the Parliamentary Counsel Office (PCO) might be in a position to appoint its own advisory panel to engage with tikanga issues that arise in drafting. Because of the nature of the PCO’s work as “guardians of the statute book”,50 such a body would achieve an overview of tikanga concepts and kupu Māori wherever they arise in legislation. This would help to ensure that tikanga concepts are appropriately and

50. John Burrows “Legislation: primary, secondary and tertiary” (lecture presented to Te Tai Ōhanga | The Treasury, 26 May 2009) at 6.

consistently incorporated into legislation. However, while such advice at the legislative stage is desirable, advice and input would also be beneficial much earlier in the policy development process. Some agencies (for example, the Treasury) have established their own tikanga advisory committees.51 However, it is doubtful whether such an approach would be feasible for all agencies, or efficient and effective from a whole-of-government perspective. A proliferation of individual advisory committees seems likely to overburden experts, have significant agency costs and risk agencies receiving inconsistent or incomplete advice.

• 9.46 We therefore consider below options for providing centralised support to public agencies to engage with tikanga in an appropriate way. We begin by considering the roles of already-established bodies, including the LDAC, agencies focused on outcomes for Māori and the Māori-Crown relationship (Te Puni Kōkiri | Ministry of Māori Development and Te Arawhiti), and an officials’ group established for Treaty provisions oversight hosted by Te Arawhiti. In light of this, we then discuss whether a new public body is needed and what form it might take.

Legislation Design and Advisory Committee — role in policy and legislative design

• 9.47 The LDAC, a committee established by the Attorney-General, exists to improve the quality of legislation.52 In addition to publishing its Legislation Guidelines (discussed above), the LDAC advises agencies early in the development of policy and legislation on how to translate policy into well-designed legislation and identify potential public law issues.53 The LDAC may also scrutinise Bills introduced to Parliament.54 It is not, however, concerned with the policy objectives of legislation. Its focus is on good legislative practice.55
• 9.48 Most standing LDAC members are senior government legal advisors and officials. Other external legal practitioners, academics and regulators may be appointed at the Attorney- General’s discretion.56 The PCO provides secretarial assistance, and the Chief Parliamentary Counsel is among ex-officio members of the group. While the LDAC’s composition may include members with tikanga expertise from time to time, overall, its capacity to address tikanga is limited, reflecting the lack of Māori at senior levels in the relevant agencies.
• 9.49 LDAC subcommittees engaging with officials on the development of Bills will usually be drawn from among this standing membership.57 However, processes do allow for non-

51. Some agencies have established such committees, such as Ngā Pūkenga, an expert advisory group that continues to work alongside the Treasury supporting the tikanga-based wellbeing framework He Ara Waiora. See too Te Aka Matua o te Ture | Law Commission “Māori Liaison Committee: terms of reference” (undated) <www.lawcom.govt.nz>.
52. Legislation Design and Advisory Committee <ldac.org.nz>; Cabinet Office Cabinet Manual 2023 at [7.40]–[7.44]; Legislation Design and Advisory Committee “Briefing to the incoming Attorney-General” (10 November 2017).
53. Legislation Design and Advisory Committee “The role of the LDAC” (8 October 2021) <ldac.org.nz>; Legislation Design and Advisory Committee Legislation Guidelines: 2021 Edition (September 2021) at 4.

⁵⁴ Legislation Design and Advisory Committee “The role of the LDAC” (8 October 2021) <ldac.org.nz>.

⁵⁵ Legislation Design and Advisory Committee “The role of the LDAC” (8 October 2021) <ldac.org.nz>.

56. Legislation Design and Advisory Committee “Membership” <ldac.org.nz>; and see too Office of the Attorney-General “Adjustment of Legislation Design and Advisory Committee” (Cabinet Legislation Committee paper, 1 October 2018).

⁵⁷ Legislation Design and Advisory Committee “Engaging with LDAC” (8 October 2021) <ldac.org.nz>.

public service members to sit on LDAC subcommittees considering a Bill.58 This is one way in which tikanga expert input might be obtained on individual Bills where it is needed. The LDAC has a standing dispensation from Cabinet to share otherwise confidential material with outside contributors.59 These protocols could enable consultation with pūkenga on matters not in the public domain and would work around some of the procedural barriers to external consultation.

• 9.50 The LDAC has recently established a Māori-Crown relations subcommittee to consider ways forward. In future, if the LDAC were to address itself more systematically to tikanga issues, any such decision might prompt changes to LDAC’s composition or procedures such as a focus on Māori membership and appointing members with tikanga expertise. However, while at first glance it might seem that the LDAC’s established role puts it in a good position to scrutinise legislation in its formative stages and point out tikanga- connected issues or opportunities, this would be a substantial role change. Tikanga may have significant policy as well as legislative dimensions, raising issues beyond the normal scope of LDAC consideration. There are also some limitations in the process of bringing Bills to the LDAC. Although the LDAC can use its initiative to suggest that the responsible agency should seek advice on a particular piece of legislation, generally agencies self- select which legislative matters are prioritised for LDAC attention.60 It would require major reconfiguration for that committee to oversee tikanga input itself, address tikanga in its important policy dimensions (which are not purely matters of “legislative design”) and obtain the confidence of Māori in administering such a role.

The roles of Te Arawhiti and Te Puni Kōkiri

• 9.51 Two public agencies focused on outcomes for Māori may be able to assist other agencies to engage with tikanga: Te Puni Kōkiri and Te Arawhiti. Te Puni Kōkiri is the government’s principal policy advisor on Māori wellbeing and development.61 Te Arawhiti supports Crown engagement with Māori and works in multiple ways towards strengthening Treaty partnership foundations.62 Te Arawhiti also administers a Treaty provisions oversight group, which could be better placed than the LDAC to identify tikanga issues and which we discuss below.
• 9.52 While both Te Puni Kōkiri and Te Arawhiti have important roles, their ability to assist agencies is also limited. Given that each agency has its own strategic direction, supporting other agencies’ development of policy and legislative proposals is not their primary focus.63 The ability of Te Arawhiti and Te Puni Kōkiri to contribute to policy proposals will also be affected by how early in the process their input is sought or queries are raised.

⁵⁸ Legislation Design and Advisory Committee “LDAC operating model” (24 April 2020) <ldac.org.nz>.

59. Providing this dispensation to the LDAC (which now includes a mix of public service and external members), see Office of the Attorney-General “Adjustment of Legislation Design and Advisory Committee” (Cabinet Legislation Committee paper, 1 October 2018) at [6.2]–[6.3]; Cabinet Legislation Committee Minute “Adjustment of Legislation Design and Advisory Committee” (1 October 2018) LEG-18-MIN-0127 at [7]–[8]. See too Office of the Attorney-General “Remodelling the Legislation Advisory Committee” (Cabinet Legislation Committee paper, 5 March 2015) LEG (15) 7 at [29].
60. Legislation Design and Advisory Committee “Engaging with LDAC” (8 October 2021) <ldac.org.nz>; Legislation Design and Advisory Committee “LDAC operating model” (24 April 2020) <ldac.org.nz>.

⁶¹ Te Puni Kōkiri | Ministry of Māori Development <www.tpk.govt.nz>.

⁶² Te Arawhiti | The Office for Māori Crown Relations <www.tearawhiti.govt.nz>.

⁶³ See generally: Te Puni Kōkiri | Ministry of Māori Development “Our vision, purpose, role and values” (6 July 2022)

<www.tpk.govt.nz>; Te Arawhiti | The Office for Māori Crown Relations “Tēnā koutou katoa” <www.tearawhiti.govt.nz>.

We understand that, not uncommonly, Te Arawhiti and Te Puni Kōkiri are asked during interagency consultation on proposals for their “tikanga input” on policy that has already been developed.

• 9.53 Process issues such as this could be corrected and we go on to suggest important ways in which Te Puni Kōkiri and Te Arawhiti each may continue to contribute to facilitating tikanga engagement. However, we also consider that the burden of supporting public sector engagement with tikanga issues should not rest solely upon the shoulders of the “Māori” agencies. Process aside, there remains a larger issue of principle — that is, the proper fora for tikanga advisory input to avoid any perception of Crown capture and to maintain a level of independence and accountability outside of the Crown. Government officials need external pathways to receive community-grounded tikanga guidance directly from holders of the relevant expertise who remain accountable to their communities.

The Treaty provisions oversight group

• 9.54 As noted, Te Arawhiti administers a Treaty provisions oversight (TPO) group made up of officials from different agencies. The TPO group has similarities with the LDAC but is more newly established and has a narrower focus. It is focused on Treaty compliance, with a role in reviewing draft Bills and advising on relevant provisions.64 The group marks a step in the direction of past recommendations made by Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal that Bills should receive Treaty scrutiny.65
• 9.55 Although the TPO group is not presently tikanga-focused, the hosting of this group within Te Arawhiti perhaps advantageously positions the group to seek tikanga guidance, make the right connections and identify relevant issues. Already, this group has been trialling an approach in which it works alongside the LDAC. External relationships with iwi and hapū continually being built by Te Arawhiti may enable the TPO group to facilitate consideration of tikanga issues that arise as legislation is developed. Alongside Treaty issues, it might be a forum for identifying tikanga matters of concern and guiding agencies on how to address them, even if the group did not itself house all the necessary expertise.
• 9.56 Countering this, in likelihood, the TPO group’s expertise and composition will also differ from that which might be expected of a specialist tikanga group. Combining functions runs the risk that neither is done well. The TPO group is also subject to the reservations already identified in relation to government agencies. It comprises selected officials, and there remains a fundamental issue of whether making a tikanga advisory role a matter for Crown officials is the best approach.

Establishing a tikanga expert advisory group

• 9.57 In this section, we consider whether a new expert advisory group on tikanga should be established and what its purpose and functions might be. We also discuss options for how the group could be established.

⁶⁴ Cabinet Office Cabinet Manual 2023 at 128.

65. Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He Aha I Pērā Ai? The Māori Prisoners’ Voting Report (Wai 2870, 2019) at 35.

Is a new tikanga-focused group needed?

• 9.58 According to the LDAC Guidelines, a new public body should only be created if no existing body “possesses the appropriate governance arrangements or is capable of properly performing the necessary functions”.66 As we explored in the previous section, existing agencies and cross-agency groups could play a greater role in facilitating tikanga engagement during policy and legislative development. Of these, the Te Arawhiti- administered TPO group may be the most suitable and able to adapt. However, no existing body appears ideally suited to the task of providing agencies developing policies and legislation with tikanga-focused guidance and support and steering their engagement on tikanga issues. Revising an existing body’s governance arrangements or capability may also disrupt or be incompatible with its existing purposes.
• 9.59 For these reasons, it may soon be necessary to have a group made up of Māori who are knowledgeable in tikanga that is able to advise agencies. However, before establishing any new tikanga-focused group, it will also be essential to gauge the support of Māori and closely involve Māori in developing and considering a range of options. Before selecting any option, Māori should be involved in discussing the appropriate form, purpose and functions of any future group. We suggest this should include consulting widely with iwi and hapū.
• 9.60 Much more work would be needed to explore a range of possible options. We therefore confine ourselves to preliminary observations on possible options for what we call a tikanga expert advisory group. As we discuss these options, we have left open a number of matters that will benefit from Māori involvement in deciding on the right way to move forward. We first consider some potential purposes and functions, and criteria essential to the success of a tikanga expert advisory group. For the purpose of stimulating discussion, we then review two options for convening a group. They are:

(a) A further cross-agency group, to be serviced and funded by an existing agency or agencies. Group members could include tikanga experts from outside government alongside senior officials knowledgeable in tikanga. The group would have a specialised tikanga focus.

(b) A tikanga expert group informed by the model of Te Mātāwai, which is a Crown- affiliated but independent Māori entity established to support Māori language use.

• 9.61 Each of these options would have greater independent expert standing than existing options and would provide a more specialised focus on tikanga issues. Since any such body’s primary purpose would be to advise officials, it would need to have the trust and confidence of officials as well as Māori. Accordingly, both of the mooted options seek to balance the need to retain an element of Crown connection (so that agencies have comfort and confidence in being able to engage at an advisory level and share information) with the need to access external expertise and maintain accountability to Māori communities.

66. Legislation Design and Advisory Committee Legislation Guidelines: 2021 Edition (September 2021) at 104; and see further questions and considerations for those proposing to establish a new government-funded body at 104–109. These include whether or why it is needed (could an existing body, modified if needed, take on the function?) and what type of body by reference to a list of types.

Tikanga expert advisory group purpose and functions

• 9.62 If a new tikanga expert advisory group is established, we see the following criteria being essential to its success:

(a) The group would be established to enable tikanga experts to communicate about tikanga with public agencies.

(b) It is essential that the group is Crown-funded. However the group is established, success would depend on receiving adequate funding for service and support.

(c) At the same time, it must retain some degree of separation from the Crown and have an appropriate mandate from Māori. This can be achieved through its membership and appointment processes.

(d) It should have the ability to consider regional variations in tikanga.

(e) Its purpose would be to provide advice on tikanga-related issues that may arise during policy development and legislative drafting.

(f) While the group may be a forum to which the already-established officials’ groups could refer tikanga-related matters, it ideally would be involved as early as possible in policy development.

(g) The group should be able to provide guidance to agencies on who else they should consult.

• 9.63 Terms of reference could provide for tikanga expert advisory group members to draw on their personal expertise and knowledge of tikanga Māori, Māori governance entities and Māori communities to:67

(a) advise agencies on:

(i) the consistency of any legislative or policy proposal with tikanga concepts;

(ii) the relevance of tikanga-based approaches to their policy design; and

(iii) how to include appropriate references to tikanga in policy or legislation;

(b) advise agencies on how to engage and consult with Māori on tikanga-focused aspects of their legislative or policy proposals;

(c) develop generic guidance on engaging with tikanga, consulting with other tikanga experts as appropriate; and

(d) provide advice and opinions on topics or matters relating to tikanga referred to it from time to time, either generally or in relation to specific projects.

• 9.64 At a minimum, the group would have a role in reviewing developing legislation (including in its policy phase). There may be a case for a wider focus — for example, to include major policy or operational initiatives that do not involve legislation. However, including non- legislative matters would enlarge the scope of the group’s work and may be better managed within individual agencies.

67. Compare Legislation Design and Advisory Committee <www.ldac.org.nz>; Legislation Design and Advisory Committee Legislation Guidelines: 2021 Edition (September 2021) at 4; Te Aka Matua o te Ture | Law Commission “Māori Liaison Committee: terms of reference” (undated) <www.lawcom.govt.nz>.

• 9.65 There may be benefits in the tikanga expert advisory group developing an affiliation with the LDAC or TPO officials’ groups, given its similar focus. This could be achieved through a memorandum of understanding. It would help to avoid duplication of efforts and ensure that the new body has links with established processes for reviewing policy and drafting proposals. The LDAC and/or TPO group could also potentially function as a filter, referring matters for tikanga expert advisory group consideration where appropriate. While this might help to manage the workload of the tikanga expert advisory group, it might also have the disadvantage of preventing policy proposals from being considered at an early stage.

Option One: a third cross-agency officials’ group that is tikanga-focused

• 9.66 To establish a new tikanga expert advisory forum, one option is to convene another cross-agency group. To ensure that a proportion of the group’s membership is familiar with internal policy and government processes, in part its membership could include senior Māori officials drawn from across government. A further quota of members expert in tikanga and the law might then be appointed from outside the public service to make up the group’s remainder. The LDAC provides a model for convening such a group and also shows the potential for processes to be put in place enabling input from other external experts beyond the group’s standing members.
• 9.67 In some ways, establishing a third officials’ group alongside the LDAC and the TPO group seems duplicative. However, it would have the benefit of being tikanga-focused and bringing together senior officials and others with tikanga expertise. One argument weighing against this approach is that it may suffer from the same perception of being officially captured, compared to a group retaining a mandate directly from Māori with ongoing accountability by its members to Māori communities. However, a composite membership — with some members from within government and others drawn from outside — may work in part to counter this perception.
• 9.68 Such a group would need to be serviced and supported by a government agency. There are options for hosting the group, which include Te Puni Kōkiri and/or Te Arawhiti. A group could be co-convened and jointly funded by both of these agencies, reporting to the Minister for Māori Development and/or the Minister for Māori Crown Relations.
• 9.69 We have also reflected on the potential for Te Aka Matua o te Ture | Law Commission to make either interim or ongoing contributions as a host or supporting agency. Reasons include the Commission’s status as an independent Crown entity, enabling a degree of separation from government. The Commission’s statutory remit to take and keep the law of New Zealand under review in a systematic way is also relevant and includes the statutory obligation to take te ao Māori (the Māori dimension) into account.68 However, a role which the Commission undertook previously in reviewing introduced legislation for the then Legislation Advisory Committee (now the LDAC) was disestablished for reasons including the resource-intensive nature of the work.69 These experiences make us cautious. If a tikanga expert advisory group with a role reviewing tikanga-focused

⁶⁸ Law Commission Act 1985, ss 5(1)(a), 5(1)(b) and 5(2)(a).

69. See Office of the Attorney-General “Remodelling the Legislation Advisory Committee” (Cabinet Legislation Committee paper, LEG (15) 7, 5 March 2015) at [12].

legislative provisions and policies were to be established, it must be durable. It must also have well-established te ao Māori connections.

Option Two: a statutory board informed by Te Mātāwai

• 9.70 A second option, placing more emphasis on the importance of directly involving Māori communities, could be to model the tikanga expert advisory group on the approach of Te Mātāwai: a Māori language revitalisation initiative.70 Established in 2016 by Te Ture mō Te Reo Māori | Māori Language Act 2016, Te Mātāwai is an independent Board of Māori expert members.71 Its functions include providing strategic leadership for the public sector and greater Aotearoa to promote Māori language use in homes and in the community.72
• 9.71 Te Mātāwai Board members are each appointed for a three-year term. Numbering in total

13 members, the Board has seven members chosen by iwi, four te reo tukutuku representatives representing the interests of four clusters of Māori language organisations and two members (including a co-chair) appointed by the Minister for Māori Development.73 With most of the membership chosen by iwi and Māori language stakeholder organisations,74 Te Mātāwai is constituted in a way that is Māori-led and iwi- based, which helps to establish its legitimacy. A similar approach could be taken to a tikanga expert advisory group.

• 9.72 A majority of iwi-appointed members providing an iwi-based mandate and accountability would be a main feature of a tikanga expert advisory group established on such a model. Other expert representatives might contribute more generic tikanga, mātauranga, te reo Māori and legal expertise.
• 9.73 Similarly to Te Mātāwai, the group could be associated with Te Puni Kōkiri or Te Arawhiti for administrative purposes, following the model of a statutory board.75 Like all public bodies, there would be standard, compulsory accountabilities such as those provided for by the Public Audit Act 2001, the Public Records Act 2005 and the Official Information Act 1982.76 As Te Mātāwai illustrates, such a board may still be an independent entity.

KUPU MĀORI IN LEGISLATION

• 9.74 The final matter we address in this chapter is the way in which legislative drafting engages tikanga. The first reference to a tikanga concept was made in general legislation in the Resource Management Act 1991, referring to kaitiakitanga.77 Since then, other tikanga concepts such as “whāngai”, “whānau” and “wāhi tapu” have been written into

⁷⁰ Te Mātāwai <tematawai.maori.nz>.

⁷¹ Te Mātāwai “The Board” <tematawai.maori.nz>.

⁷² Te Mātāwai “Māori language revitalisation” <tematawai.maori.nz>.

⁷³ Te Mātāwai “The Board” <tematawai.maori.nz>.

⁷⁴ Te Kāwanatanga o Aotearoa | New Zealand Government “Te Mātāwai” (1 November 2021) <www.govt.nz>.

75. Legislation Design and Advisory Committee Legislation Guidelines: 2021 Edition (September 2021) at 107: a statutory board means a body corporate established by or under written law to perform or discharge any public function under the supervisory charge of a Ministry or organ of state.

⁷⁶ Legislation Design and Advisory Committee Legislation Guidelines: 2021 Edition (September 2021) at 108.

77. “It was the first genuine attempt to import tikanga in a holistic way into any category of the general law”: Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 18.

legislation.78 These kupu Māori are, as Tai Ahu identifies, one step towards “the use of Māori as a language of substantive law” — that is, “the language used in any kind of legal instrument to produce a legal outcome or create a legal relationship”.79 The importance for policy makers and drafters of choosing kupu Māori carefully and realising that tikanga will influence the statutory interpretation of kupu Māori cannot be overemphasised.

• 9.75 Some of the drafting issues that arise link back to matters canvassed earlier in the chapter. Many of our remarks and suggestions made earlier will have a bearing on some of the issues confronting drafters. Addressing them will contribute to certainty and clarity at the drafting stage. For example, the fact that kupu Māori can have many meanings may raise fears of uncertainty about how they will be interpreted. Different hapū and iwi may also interpret words or concepts in varying ways based on their own tikanga. As envisaged above, a tikanga expert advisory group might assist with these challenges by reviewing draft legislation incorporating kupu Māori or tikanga concepts. It may be able to address queries that arise during the drafting process and assist in finding the right approach or form of words. The procedural guidance for policy makers we discuss earlier in the chapter may also be useful in prompting early identification of the relevance of tikanga and encouraging officials to grapple with issues that arise prior to policy approval. This will increase confidence in a reflective approach having been taken and greater policy clarity.
• 9.76 While the processes we have already discussed will assist in ensuring tikanga is properly considered in legislation, challenges remain. One issue is how much legislative definition is required or proper for a tikanga concept. Whereas legislation needs to speak to everyone, tikanga concepts may mean different things to different people, and some will have no knowledge of them at all. Detailed definitions or drafting can lessen criticism that the law is unclear. However, as Ahu writes, kupu Māori definitions given in English risk losing cultural nuances and “ascribing inadequate and artificial meanings to Māori concepts”.80 There is a strong argument against legislation setting the parameters of cultural concepts: a “definition that is too descriptive is likely to inappropriately codify the content of the concept”.81
• 9.77 Drafters therefore confront a challenge of how to strike the right balance in their use of definition sections. There has not been a consistent drafting approach to defining kupu Māori in legislation. Only some existing legislative definitions provide that kupu Māori are to be interpreted consistently with tikanga.82 More recently, some new approaches are being tried, such as in relation to the freshwater management regulatory mechanism Te

78. Tai Ahu “Te reo Māori as a language of New Zealand law: the attainment of civic status” (LLM Dissertation, Te Herenga Waka | Victoria University of Wellington, 2012) at 13 and 50; see also Catherine J Iorns Magallanes “The use of tangata whenua and mana whenua in New Zealand legislation: attempts at cultural recognition” (2011) 42 Victoria University of Wellington Law Review 259 at 262 (whose terminology of “pepper-potting” Ahu adopts).
79. Tai Ahu “Te reo Māori as a language of New Zealand law: the attainment of civic status” (LLM Dissertation, Te Herenga Waka | Victoria University of Wellington, 2012) at 50.
80. Tai Ahu “Te reo Māori as a language of New Zealand law: the attainment of civic status” (LLM Dissertation, Te Herenga Waka | Victoria University of Wellington, 2012) at 94.
81. Tai Ahu “Te reo Māori as a language of New Zealand law: the attainment of civic status” (LLM Dissertation, Te Herenga Waka | Victoria University of Wellington, 2012) at 95.
82. See for example Resource Management Act 1991, ss 7(a) and 2(1) defining “kaitiakitanga”; compare the “kaitiakitanga” definition replaced on 17 December 1997 by Resource Management Amendment Act 1997, s 2(4); and compare for example “taonga”, which remains undefined in the Property (Relationships) Act 1976, s 2.

Mana o te Wai that is part of the National Policy Statement for Freshwater Management 2020.83 Implementation processes have allowed iwi and hapū to develop their own statements of the meaning of Te Mana o te Wai, each describing the concept according to their own tikanga.84 This is an example of the government trialling new ways to accommodate tikanga.

• 9.78 We make some brief observations below about incorporating kupu Māori into legislation, which could be considered for inclusion in any expanded Cabinet guidance on tikanga.
• 9.79 First, to use a Māori word or phrase in an otherwise English text can be a powerful tool and reflects a purposeful drafting choice. When kupu Māori are used in legislation, it should always be presumed that this was meant to enable their meaning to be explored and their interpretation to be developed in Māori ways. Kupu Māori in legislation should produce tikanga-connected outcomes. As Ahu contends, tikanga should play a greater role in determining the meaning of Māori words.85
• 9.80 Accordingly, kupu Māori should be reserved for situations when a Māori meaning is intended. As a corollary, simply grafting kupu Māori onto policy otherwise written through a non-Māori lens may be problematic. It would be mistaken to think that kupu Māori can be used as a cosmetic gloss on policies without changing their substance.
• 9.81 Agencies are likely to need to ask themselves deeper policy questions about the intended meaning and application of kupu Māori and tikanga concepts. For example, clarifying policy intentions will be useful where there may be different Māori and non-Māori understandings of concepts. “Taonga” or “mana” are examples of tikanga concepts with a popular understanding that is more limited or colloquial than their tikanga meaning.86 Agencies may also wish to consider and clarify a tikanga concept’s purposes in different contexts, such as a concept’s intended application in circumstances not involving Māori.
• 9.82 In light of the above and as a general measure, the Legislation Act 2019 could be amended to either require or establish a presumption that kupu Māori are to be interpreted consistently with tikanga. This would be one means of providing clearer guidelines for the statutory interpretation of Māori text.87
• 9.83 There are further options for development than this short discussion of legislative issues permits. We have focused on interpreting the meaning of Māori words.
• 9.84 There remains a larger issue of the meaning that tikanga might bring to English legal language as the common law develops. At other times, legislative actions may engage tikanga in ways that are not self-evident. For example, while Crown apologies written into

83. Manatū mō te Taiao | Ministry for the Environment National Policy Statement for Freshwater Management 2020 (August 2020, amended February 2023) at [1.3].
84. Our Land and Water Te Mana o te Wai Guidelines for Mana Whenua: National Policy Statement for Freshwater Management 2020 (25 February 2022) at 11. See too: Our Land and Water Te Mana o te Wai: A Factsheet for Hapū and Iwi (February 2022, Factsheet 1).
85. Tai Ahu “Te reo Māori as a language of New Zealand law: the attainment of civic status” (LLM Dissertation, Te Herenga Waka | Victoria University of Wellington, 2012) at 95.
86. Mihiata Pirini and Anna High “Dignity and mana in the “third law” of Aotearoa New Zealand” (2021) 29 New Zealand Universities Law Review 623.
87. Tai Ahu “Te reo Māori as a language of New Zealand law: the attainment of civic status” (LLM Dissertation, Te Herenga Waka | Victoria University of Wellington, 2012) at 69.

Treaty settlement enactments have no legal effect from a non-Māori legal standpoint,88 an apology that restores mana can have tikanga significance. As state law meets tikanga, these matters may arise. Lastly, while instances of dual language legislation remain occasional at present, in the future te reo Māori could become a more regular language of statutory enactment.89 To close the chapter, we discuss an example of this, showing how legislative language can be important as a nuanced way of communicating tikanga.

Te Kāhui o Matariki Public Holiday Act 2022: an Act engaging with tikanga

• 9.85 Te Kāhui o Matariki Public Holiday Act 2022 (Te Kāhui o Matariki) provides an example of a tikanga-centred policy and legislative process. The legislation establishes an annual public holiday to acknowledge the rising of the constellation Matariki, which marks the Māori new year. Te Kāhui o Matariki brings mātauranga Māori (Māori knowledge) and tikanga into the rhythms of Aotearoa New Zealand’s regular life. It is an example of tikanga considerations positively influencing both the drafting process and the completed legislation. It also gives an indication for the future of how mātauranga and tikanga-based legislation that addresses matters of importance to Māori might be achieved. We focus our discussion on four related features:

(a) Te Kāhui o Matariki exemplifies a legislative process and a completed Act sustaining direct connections with Māori knowledge experts and mātauranga.

(b) The decision to provide for this public holiday in a principal Act was consistent with a tikanga approach and allows mātauranga and tikanga relating to the holiday to be more fully understood.

(c) Departures from orthodox drafting enabled mātauranga to be shared while acknowledging and respecting boundaries. Te Kāhui o Matariki holds space for mātauranga and tikanga, respecting their mana and the mana of the Matariki Advisory Group (who contributed to drafting the Act).

(d) Reo Māori usage helps to communicate mātauranga.

Connection with knowledge experts

• 9.86 Enacted in both te reo Māori and English, Te Kāhui o Matariki was drafted with contributions from seven mātauranga experts who formed the Matariki Advisory Group.90 The Matariki Advisory Group provided a statutory statement on the meaning and significance to Māori of Matariki, which is the first substantive section in the Act. It also set dates for a 30-year period on which Matariki should be observed, based on the Māori lunar calendar, te maramataka. Preparation of the statutory statement by the Matariki Advisory Group reflects “Māori rangatiratanga over mātauranga Māori”.91 Its direct

88. Tai Ahu “Te reo Māori as a language of New Zealand law: the attainment of civic status” (LLM Dissertation, Te Herenga Waka | Victoria University of Wellington, 2012) at 61.
89. See for example: the Preamble to Te Ture Whenua Maori Act 1993; and for dual language enactment in entirety, Te Ture mō Te Reo Māori 2016 and Te Kāhui o Matariki Public Holiday Act 2022. See too Tai Ahu “Te reo Māori as a language of New Zealand law: the attainment of civic status” (LLM Dissertation, Te Herenga Waka | Victoria University of Wellington, 2012) at 77 and generally.
90. Minister for Māori Crown Relations and Minister for Workplace Relations and Safety “Matariki Advisory Group: establishment, appointments and terms of reference” (Cabinet paper, 2 July 2021).
91. Minister for Māori Crown Relations and Minister for Workplace Relations and Safety “Matariki Advisory Group: establishment, appointments and terms of reference” (Cabinet paper, 2 July 2021) at [9].

incorporation into Te Kāhui o Matariki closely connects the Act with both the Matariki Advisory Group and mātauranga.

The decision to establish a separate Act

• 9.87 The decision to establish Te Kāhui o Matariki as a principal Act contrasts with an alternative and equally legally effective approach: establishing a Matariki holiday by consequentially amending the Holidays Act 2003. The decision regarding the Act was partly influenced by the intention that the new public holiday would, like public holidays for Anzac Day and Waitangi Day, become a shared heritage and taonga for Māori and non-Māori alike.92 Incidentally (yet more importantly from a tikanga perspective), the stand-alone Act also enables a broader narrative, context and perspective to be communicated. Te Kāhui o Matariki does more than the legally effective minimum. In the Act, the correct understanding about Matariki is as important as creating a public holiday to mark its observance. In this indirect way, Te Kāhui o Matariki has taken a tikanga- consistent approach. It allows the traditions and tikanga at the heart of Matariki to be shared and centred in ways that a simple consequential amendment to the Holidays Act would not have achieved.

Modifying drafting conventions

• 9.88 In Te Kāhui o Matariki, departures from established drafting conventions have facilitated the Matariki Advisory Group statement about mātauranga and tikanga. Section 3, which shares the meaning and significance of Matariki to Māori, takes the place of a customary purpose clause. The statement begins with a karakia. It next foregrounds the importance of understanding that Matariki traditions vary among iwi and hapū.93 Following this acknowledgement of tribal variance, shared principles and intentions guiding the celebration are centred by identifying guiding principles and a list of tikanga values.94 In these ways, the statement about how Matariki can be celebrated focuses on how tikanga Māori traditions relating to Matariki may be respected and protected at the same time as they are being shared.
• 9.89 The section stating the significance of Matariki also respects mātauranga in more nuanced ways. By contrast to putting this text in a Preamble, which might have been another option, the position of the statement sets it apart without risk of legal reinterpretation. It is marked by a different typeface and preceded by saying that “[t]he Matariki Advisory Group (established by the Government) has explained the meaning and significance of Matariki to Māori as follows”.95 Drafting choices such as these are indicative of how those responsible for the legislation have endeavoured to safeguard both tikanga and the Crown by indicating boundaries around this provision and who is speaking.

⁹² Compare Anzac Day Act 1966; Waitangi Day Act 1976.

93. See particularly Minister for Māori Crown Relations and Minister for Workplace Relations and Safety “Matariki Advisory Group: establishment, appointments and terms of reference” (Cabinet paper, 2 July 2021) at [19]: “in-depth, specific cultural knowledge, expertise and understanding of Te Ao Māori and the pūrākau and mātauranga Māori associated with Matariki and Maramataka (the Māori calendar)” and “the ability to consider regional variations in traditions”.
94. Compare Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [1.3]–[1.4] and [1.94]. See Appendix 1.

⁹⁵ Te Kāhui o Matariki Public Holiday Act 2022, s 3.

Being enacted in te reo Māori

• 9.90 Not least, being written in Māori adds to the sense of Te Kāhui o Matariki bringing mātauranga to life. Reo Māori became significant in conveying nuances when drafting the new law. For example, regarding the observance day, the simplest direct translation into Māori — Te Rā o Matariki | Matariki Day — would have turned focus towards the day rather than the constellation of stars and a time at which the stars are seen in the sky. Instead, the language chosen is “Te Rā Aro ki a Matariki” | “Matariki Observance Day”: a day that heeds or turns towards Matariki.96 The Māori text contributes in these subtle ways to sharing tikanga and mātauranga.
• 9.91 Having Te Kāhui o Matariki on the statute book is significant for these ways in which both the drafting process and the legislation have expressed tikanga. It is a precedent showing how, with care, proper ways can be found to protect and acknowledge the respective needs and priorities of tikanga and state law makers. Te Kāhui o Matariki reflects the responsibility felt by those crafting and contributing to the legislation for correctly striking this balance and continuing to safeguard mātauranga and tikanga while sharing them with others.

CONCLUSION

• 9.92 This chapter has explored core aspects of public sector engagement with tikanga. As our review of the issues reinforces, further work is required to build the tikanga capability of the public sector to ensure timely and adequate consideration of tikanga issues and to improve tikanga-connected drafting practices. The issues must be seen as interconnected. Together, the matters reflected on in this chapter will work in combination to support better outcomes.
• 9.93 As public organisations engage with tikanga, missteps will be damaging. Still, public officials must not be paralysed by the challenges facing them. Recognising that there are institutional imperfections, Associate Professor Nicole Roughan writes:97

... Val Napoleon argues that, when it comes to the practice of Indigenous laws, communities should not get stalled by institutional imperfections or gaps in capacities. Provided there is caution and careful awareness of past failures and their lessons, that may be as apt for an emerging genuine and general common law as it is for the regenerating Indigenous legal orders that Napoleon’s work supports. The institutions, tools and practices that already exist (and those yet to be developed) will be imperfect forms for realising the interlegal interactions of state law and tikanga. They will prove unwieldy and controversial, they will be contested and criticised and, at times, they may lead to outcomes that fall short on any number of measures of legitimacy or justness.

⁹⁶ Te Kāhui o Matariki Public Holiday Act 2022, s 5.

97. Nicole Roughan “Interlegality, interdependence and independence: framing relations of tikanga and state law in Aotearoa New Zealand” (paper presented to Te Aka Matua o te Ture | Law Commission, 2023) at [5.40]; see further Appendix 3.

• 9.94 However, rather than a roadblock, Roughan regards this as a process of navigation. To borrow a further phrase from her, “institutionalising humility” may perhaps be the most valuable commodity as systems engage with one another.98 Expanding on her meaning, Roughan proposes processes where both parties jointly determine their “rules of engagement”, set in place restraints that acknowledge power imbalances and police clear boundaries regarding what is separated and what is shared.99 We suggest that it is worthwhile reflecting on how the value of humility can be embedded and practically demonstrated by agencies when engaging with tikanga.

98. Nicole Roughan “Interlegality, interdependence and independence: framing relations of tikanga and state law in Aotearoa New Zealand” (paper presented to Te Aka Matua o te Ture | Law Commission, 2023) at [5.2], [5.12] and [5.43]; see further Appendix 3.
99. Nicole Roughan “Interlegality, interdependence and independence: framing relations of tikanga and state law in Aotearoa New Zealand” (paper presented to Te Aka Matua o te Ture | Law Commission, 2023) at [5.2], [5.12] and [5.43]; see further Appendix 3.

CHAPTER 10

Conclusion

• 10.1 In 2001, the Study Paper Māori Custom and Values in New Zealand Law concluded with the imagery of new growth and change:1

Tungia te ururoa, kia tupu whakaritorito, te tupu a te harakeke

Burn off the overgrowth, so that the new shoots of flax bush may grow.

• 10.2 Since then, we have seen greater, more genuine recognition of tikanga by state law than had occurred in the preceding 160 years. However, we are still in a process of transition, both in terms of the evolution of state law and building understanding of tikanga outside of Māori communities. In our present Study Paper — based on the advice of our experts, scholarly work of tikanga jurists, and the expressions of tikanga and application of tikanga principles found in more than 800 briefs of evidence — we have provided an account of tikanga as a system of norms. Consistent with a mātauranga-centric approach, we commenced our analysis from within the wharenui, noting its connections with the marae ātea. We have identified that tikanga is a cogent integrated system of values, principles and norms that continues to regulate the lives of Māori and can contribute generally to the law of Aotearoa New Zealand. We demonstrated how this tikanga framework can be used to solve concrete legal problems. We then traced the evolution of state law from rejection of the existence of tikanga through to recognition of tikanga as informative of the law and a source of law.
• 10.3 We have also responded to some ongoing concerns about state law interaction with tikanga and what it should look like. We have identified the general principles governing common law treatment of tikanga and the emergent categories of tikanga-related common law. We have recommended strategies for tikanga engagement and for the development of judicial and public agency processes that will help preserve both the integrity of tikanga and assist in the principled development of state law. We have stressed the importance of adopting an informed tikanga lens approach to all law making that engages with tikanga. We have confidence that tikanga can provide the required boundaries, alongside the common law method, to enable appropriate state law and tikanga interaction.
• 10.4 Throughout this Study Paper, underlying all of its thought, we have had in mind the tukutuku process and the values imbued in that process explained in our introduction. Tukutuku is a way of picturing the interaction between tikanga and state law and describing values associated with such a process to guide future engagement. The tukutuku process involves two people positioned on either side of a lattice panel, working

¹ Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (SP 9, 2001) at 96.

to bind or lash together the panel’s vertical stakes (kākaho) and horizontal rods (kaho). Metaphorically, if tikanga were viewed as the vertical stakes and state law as the horizontal rods, the interaction that is occurring is an incremental process of, one stitch at a time, lashing together these diverse legal norms. In Chapter 1, we foreshadowed this as a way of describing how state actors and Māori may work together within the state law space.

• 10.5 However, to realise this, much more work is needed. The engagement of both common law and statute with tikanga continues to evolve at a rapid pace. The principles and processes for engagement are not yet settled and are being tested every day, whether in terms of the common law, statute law or policy making. There remain significant risks that tikanga may be adversely affected by state law, particularly if and where state law continues to assume the primary responsibility for defining and developing tikanga- related law. Tikanga and tikanga institutions remain especially vulnerable to the machinery of the state, and there remain concerns that the coherence of state law may be adversely affected by the unfettered incorporation of tikanga. All of this emphasises the need for care and manaakitanga by state institutions in the interpretation and application of tikanga. In this paper overall we have therefore adopted a modest, incremental approach

— a slow weave.

• 10.6 We consider that there is legitimacy in this course. It seeks to live up to the demand made in Te Aka Matua o te Ture | Law Commission’s first tikanga Study Paper that any genuine commitment to te Tiriti o Waitangi | Treaty of Waitangi will involve recognising tikanga, while at the same time expressing the necessary caution when promoting changes to state law.2
• 10.7 We acknowledge that there are different pathways towards this recognition. For example, Associate Professor Nicole Roughan identifies the potential for a “genuine common law” and what she imagines as a genuine interaction between two legal systems by “operating both a domain of interdependence between state law and tikanga and fora for contesting its boundaries around a core of independent operation of tikanga”.3 Dr Carwyn Jones refers to a model in which contending normative orders encounter each other and engage in a negotiation. He argues that “the legitimacy of any normative order should not be assumed but, rather, must always be justified”.4
• 10.8 Others question how meaningful engaging within the state legal system can be. For example, Natalie Coates asks:5

Should [Māori] attempt to carve out a small space within the whare (house) of the state legal system if the whenua (ground) and foundations upon which it is built are defective?

• 10.9 Ani Mikaere answers this question by arguing that although carving out a small space within the whare of the state legal system may be better than nothing, that project should

² Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 95–96.

3. Nicole Roughan “Interlegality, interdependence and independence: framing relations of tikanga and state law in Aotearoa New Zealand” (paper presented to Te Aka Matua o te Ture | Law Commission, 2023) at [7]. For Roughan’s paper, see Appendix 3.
4. Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand and Māori Law (University of British Columbia Press, Vancouver, 2016) at 47.
5. Natalie Coates “The recognition of tikanga in the common law of New Zealand” [2015] New Zealand Law Review 1 at 30.

not distract Māori from an ultimate tino rangatiratanga goal.6 Annette Sykes similarly argues that a hybridised system is still state law centred and that the goal should be “having a tikanga system of justice based on our values that work for our people”.7 Moana Jackson also took the view that those who are redefining Māori rights and sourcing them in the common law are concerned only with capturing Māori concepts in a way that is consistent with their law.8

• 10.10 While there is not scope within this paper to adequately respond to these challenging arguments, it is important to acknowledge them and to emphasise that what we say here does not preclude ongoing development and change. Other future pathways are not closed by the approach we have recommended, which seeks chiefly to preserve the coherence and independence of tikanga at a time when the legal landscape around it is actively shifting, unsettling the ground.
• 10.11 We close with another way of viewing matters, offered by pūkenga Tā Pou Temara from whom we sought advice. Explaining that it is not a widely known matter, Temara introduced to us the concept of “te ihonui”, identifying it as a liminal middle space:9

Te Ihonui is the line that runs straight down the middle of the house. It is both tapu and noa, neither one nor the other. In Mātaatua tradition, the body of the dead lies on this line, at the back of the house. Rua Hepetipa of Maungapōhatu used his knowledge of the ihonui line to lay food on. It is on this line that food can be taken.

Te Ihonui begins with the pou tāhū at the front of the house and ends with the pou tūārongo at the rear of the house. It is a space that stretches from the ground or floor to the tāhū of the house. The tāhū is the embodiment of Ranginui, and the ground or floor refers to Papatūānuku. Te Ihonui is like an invisible veil that separates the taranui which is reserved for manuhiri and the taraiti of the house, the prerogative of the tangata whenua. In the tikanga of engagement the manuhiri and tangata whenua are protected and restricted by tapu. It is when they cannot come to an agreement that both sides may invoke the ihonui and move to the centre of the house, sometimes in a literal sense, but often in [a] figurative sense, to find a solution. Te Ihonui is a liminal space and is a safe space for negotiation and the achievement of a solution.

• 10.12 Te ihonui therefore represents a domain of unbounded potential, an inclusive space where the sides of a whare come together to discuss issues, to negotiate unresolved tensions and seek a pathway through the challenges that confront us. Those challenges are not always small. The outcome may be elusive or uncertain. However, the challenge of weaving state law and tikanga together in a legitimate, authentic and coherent way starts by building an understanding of tikanga that is accessible to all New Zealanders.

⁶ Ani Mikaere “Tikanga as the first law of Aotearoa” (2007) 10 Yearbook of New Zealand Jurisprudence 24 at 26.

7. Annette Sykes “The myth of tikanga in the Pākehā law” (2021) 8 Te Tai Haruru Journal of Māori and Indigenous Issues 7 at 28.

⁸ Moana Jackson “Changing realities: unchanging truths” (1994) 10 Australian Journal of Law and Society 115 at 116.

⁹ Pou Temara, personal communication (1 June 2023).

INDEX

Tikanga concepts

In this Study Paper the following tikanga concepts are important. The index offered here is not exhaustive. However, it will direct readers to some key tikanga concepts that we have focused on. To assist readers in finding concise summaries and definitions of the concepts, these are indexed in bold.

aroha 3.121–124

and koha 3.133

and responsibilities 3.115, 3.140, 4.6, and see illustrative examples at 4.20–22 and 4.25 (in context of disputed burial)

4.36–38 and 4.43 (to whānau taonga)

4.55, 4.58 and 4.61–62 (in relation to contractual breach)

4.73 and 4.79 (in mana moana context)

4.92, 4.94–96 and 4.102–103 (in surrogacy context)

in pūrākau 2.24

in a system of norms 3.16

atawhai 3.121–122

and care of children 4.109 and koha 3.133

and rangatiratanga 3.122

and responsibilities 3.115, 3.123, 3.127 in a system of norms 3.16

ea 3.63–64, 8.78

and koha 4.111

and maintenance 4.81

and process to achieve 3.64, 4.44

and utu to achieve 3.49, 3.67, 3.70

in action 3.69

in pūrākau 2.23, 2.35

judicially considered 5.59, 8.95

kaitiaki and kaitiakitanga 3.116–119, 3.123–125

and mana 3.84, 3.123, 3.125, 4.58, 4.74, 4.124, 6.46

and mauri 3.52, 4.78, 8.96–97

and responsibilities 3.123–126, 4.6, and see illustrative examples at

4.37 and 4.42–43 (to whānau taonga)

4.61 and 4.70 (in relation to contractual breach)

4.74 (arising from different take)

4.79 (in mana moana context)

4.130 (in rāhui context) and tapu 4.76

and whakapapa 3.149

and whanaungatanga 3.42, 3.124, 4.37, 4.56, 4.72, 4.121

in legislation 6.51, 7.3, 9.74 in NZLC SP9 3.17

in pūrākau 2.21, 2.35

in a system of norms 3.16

judicially considered 7.4, 7.17, 7.19–20, 8.85–86, 8.96–97

karakia 3.141–43

and tapu 3.130, 3.143

and wairua 3.143

and whakanoa 3.105, 4.110

and whanaungatanga 3.143

in court proceedings 7.33, 7.35, 7.45

in legislation 9.88

in pūrākau 2.33–34

kawa 3.128–131

and marae ātea 2.42–43 and pōwhiri 2.43, 3.132–135

and tapu 3.96

and whakanoa 3.107

facilitating tikanga 3.16, 3.127, 3.131, 3.144, 8.78–79

in action 3.145–147

in jural or policy context 3.144, 7.126, 8.98–100, 9.14–16

in pūrākau 2.28, 2.33, 2.35

kōrero tuku iho

mōteatea 4.6

pepeha 7.45

pūrākau 2.6, 2.17, 2.18–35, 4.9, 4.31

waiata 4.6, 7.20

whakataukī and whakatauākī 4.6, 4.68, 4.115, 7.20, 8.103

kotahitanga 2.57–58

and responsibilities 3.115, 4.6, and see illustrative examples at 4.21–23 (in context of disputed burial)

4.97, 4.99 and 4.103 (in surrogacy context)

4.120, 4.124, 4.130–131 (in rāhui context)

and wharenui 2.55, 2.57–58

mana 3.71–86, 8.77–79

aspects or forms 3.74–76, and see

mana atua 3.74, 3.79–80, 4.39

mana moana 3.80, 4.74–4.86, 4.123

mana tamaiti 6.53, 7.50, 7.52–53, 7.58

mana tangata 3.74, 3.79–80, 4.17, 4.38, 4.57, 4.98, 4.122

mana tupuna 3.74, 3.79, 4.17, 4.38, 4.57, 4.98, 4.122

mana wāhine 3.75, 4.98

mana whenua 3.74, 3.79–80, 4.57, 5.54, 5.57–59, 7.3–4, 7.14, 7.17–20, 8.56, 8.99

and authority 3.13, 3.86

and kaitiakitanga 3.84, 3.117–118, 3.125

and kawa 3.131

and manaakitanga 3.84, 3.120

and marae 1.14

and mauri 3.52, 3.59

and muru 3.139

and pōwhiri 3.132–134

and rāhui 3.138

and rangatira or rangatiratanga 3.122, 8.87

and responsibilities 3.77–78, 3.81–83, 3.115, 3.123, 3.127, 4.17 and see illustrative examples at

4.22–23 and 4.32 (in context of disputed burial)

4.38, 4.43 and 4.45 (custodianship of whānau taonga)

4.58 and 4.61 (in relation to contractual breach)

4.79 (in mana moana context)

4.99 and 4.103 (in surrogacy context) 4.124–125, 4.130 and 4.132–133 (in rāhui context)

and take 3.67, 3.83, 4.57, 4.74, 4.123

and taonga 4.39, 7.69

and tapu 3.87, 3.90, 3.98 and Treaty settlements 9.84 and tuku 1.31, 1.37

and utu 3.62, 3.69

and wellbeing 7.51

and whakamā 3.85, 7.29, 8.101

and whakapapa 3.31, 3.80–81, 3.149

in action 3.108–109, 3.111–112

in arbitration 8.144

in Cabinet Circular 9.31 in NZLC SP9 3.17

in legislation 6.47, 6.66

in pūrākau 2.21, 2.23, 2.35 in a system of norms 3.16

judicially considered 5.42, 5.59, 7.51–52, 7.157, 8.84–89

of tikanga 8.71, 8.107–109, 9.81, 9.85

manaakitanga 3.120, 3.123–124, 3.126–127

and mana 3.84, 3.120, 3.123, 4.99, 4.124–125

and mauri 4.102

and muru 3.140

and pōwhiri 3.134

and rāhui 4.130–131 and surrogacy

and responsibilities 3.16, 3.42, 3.115, 3.120, 3.123–124, 3.126–127, 4.6, 6.46 and see illustrative examples at

4.20–22 and 4.25 (in context of disputed burial) 4.36–37 and 4.43 (custodianship of taonga)

4.55–56 and 4.61–62 (in relation to contractual breach)

4.73 and 4.79 (in mana moana context)

4.92, 4.94–96, 4.99 and 4.102–103 (in surrogacy context)

4.120 and 4.130–132 (in rāhui context) and state institutions 10.5

and whānau taonga 4.37–4.38

and whanaungatanga 3.123–124, 4.20–22, 4.25, 4.36–37, 4.43, 4.55–56, 4.61–62, 4.73,

4.79, 4.92, 4.94–96, 4.99, 4.102–103, 4.120, 4.130–132

and wharenui 2.45

in Cabinet Circular 9.31 in Māori society 1.115

in a system of norms 3.16

judicially considered 8.71–72, 8.107–110, 8.153

mauri 3.49–59, 8.77

and kaitiakitanga 3.52, 4.42

and mana 3.82

and rāhui 3.136

and responsibilities 3.52–53, 3.82, 3.86, and see illustrative examples at 4.42 (whānau taonga), 4.60 (damaged whenua), 4.78 (in mana moana context), 4.102 (in surrogacy context)

and taonga 4.42, 7.69

and tapu 3.87–88, 3.90, 3.98, 4.129

in action 3.54–59

in pūrākau 2.20, 2.35

in a system of norms 3.16 in legislation 6.66

judicially considered 5.24, 7.9, 8.87, 8.96–97

muru 3.69, 3.139–140

and responsibilities 3.140

and restorative justice 3.69, 3.139 in early laws 6.18

judicially considered 8.95

noa 3.71–72, 3.101–105, 8.77–79

and a degree of freedom 3.101, 3.104–105, 4.77

and karakia 3.105, 3.143, 4.110

and kawa 3.16, 3.96, 3.131

and pōwhiri 3.102, 3.135

and rāhui 3.138

and tangihanga 4.18

and tapu 3.97, 3.102, 3.113 and te ihonui 10.11

and whakanoa 3.99–100, 3.107, 3.138, 4.18, 4.23, 4.101, 4.110, 4.128

in action 3.113

in pūrākau 2.23, 2.35

in a system of norms 3.16

pōwhiri 3.132–135

and mana 3.132, 3.134

and manaakitanga 3.134, 4.22

and tapu and noa 3.102, 3.135

and tono 4.26, 4.29

and whanaungatanga 3.45, 3.132–133 in court proceedings 7.34

rāhui 3.111–3.112, 3.136–138, 4.135

and kaitiakitanga 4.130

and mauri 3.51, 3.53, 3.136

and responsibilities 3.138, 4.121, 4.130–131

and tapu and noa 3.96, 3.136–138, 4.126–128, 4.131, 4.137–138

and utu 4.133

in action 3.111–112

tapu 3.71–72, 3.87–89, 3.90–100, 8.77–79

and childbirth 4.100, 4.110

and death 4.18, 4.22–23, 4.28, 4.31, 4.126, 4.135, 4.138

and karakia 3.143

and kawa 2.42, 3.130–131

and mana 3.87, 3.98

and mauri 3.96, 4.129

and noa 3.97, 3.99, 3.101, 3.105–107, 3.113, 4.101

and ōhākī 4.45–46, 4.51

and pōwhiri 2.43, 3.102, 3.135

and rāhui 3.111–112, 3.136–138, 4.126–129, 4.131, 4.135, 4.137

and taonga 4.40, 4.42, 7.69 and te ihonui 10.11

and wāhi tapu 7.3, 7.13, 7.167–168, 8.88–89

and whakapapa 3.31, 4.59, 4.76, 7.171

in legislation 7.3, 7.167–168. 9.74 in NZLC SP9 3.17

in pūrākau 2.21, 2.23, 2.34–35 in a system of norms 3.16

judicially considered 7.13, 8.88–89

tukutuku 1.25, 1.27–31, 2.49, 10.4

and poutama design 1.26

utu 3.49, 3.60–63, 3.65–68, 8.78

and muru 3.139

and rāhui 3.136–137

and responsibilities 3.126–127

and tukutuku 1.31

in hypothetical examples

4.24, 4.30 and 4.33 (in context of disputed burial)

4.49 (conflicting ōhākī and whānau taonga) 4.63–65 (in relation to contractual breach)

4.87 (mana moana responsibilities)

4.105 and 4.111 (in surrogacy context)

4.132–133 and 4.136 (breach of rāhui and assault) in NZLC SP9 3.17

in pūrākau 2.23, 2.35

in a system of norms 3.16, 3.49 judicially considered 8.95

wairua 3.18–20

and karakia 3.143 and marae ātea 2.42

and wharenui 2.60, 3.18–20

whakapapa 3.22–3.35, 3.45–47, 8.77, 8.79

and basis of relational interests or a tikanga claim 3.30–31, 3.110, 5.8 and defining the scope of tikanga 3.148–3.150

and first step in enquiry 4.8

and infertility or whare ngaro 4.92, 4.94, 4.108

and kaitiakitanga 3.149, 8.97

and mana 3.48, 3.73, 3.80, 3.108, 4.123, 8.84

and rangatiratanga 8.87

and succession to whāngai 7.150–151 and surrogacy 4.91, 4.116

and surrogacy responsibilities 4.96, 4.117

and tapu 4.59, 4.76

and tikanga expertise 7.148 and whānau taonga 4.35, 4.39

and whanaungatanga 3.37, 4.15–16, 4.20–21, 4.36–37, 4.55–56, 4.72–73, 4.79, 4.119–121

and wharenui 2.55–56, 3.7, 3.21

in action 3.45–47

in Cabinet Circular 9.31 in legislation 6.53, 7.50

in Māori society 1.8, 1.12, 1.15

in pūrākau 2.10, 2.21, 2.35 in a system of norms 3.16

judicially considered 5.57, 7.19–20, 7.51–53, 7.171, 8.84, 8.87, 8.89–92, 8.95, 8.145–146

whanaungatanga 3.22, 3.36–43

and extended connection 3.37–38, 4.92–94, 4.120

and kaitiakitanga 3.124

and karakia 3.143

and mana 3.80

and pōwhiri 2.43, 3.45, 3.132–133

and property interests 5.8, 5.25, 5.43

and rāhui 3.138

and rehabilitation 7.30

and responsibilities 3.37, 3.41–43, 3.115, 3.123–124, and see illustrative examples at 4.20–22 (in context of disputed burial)

4.43–46 (custodianship of taonga)

4.61–63 and 4.68 (in relation to contractual breach)

4.79 (in mana moana context)

4.92 and 4.103 (in surrogacy context)

4.130 (in rāhui context) and surrogacy 4.92–97

and trusteeship 5.43, 7.153–154, 7.157

and whakapapa 3.37, 3.148–149, 4.16, 4.36, 4.55–56, 4.72–73, 4.120–121

and whānau taonga 4.37 and whāngai 7.60

and wharenui 2.55

in action 3.45–47

in Cabinet Circular 9.31 in legislation 6.53, 7.50 in Māori society 1.15

in NZLC SP9 3.17

in pūrākau 2.21, 2.35

in a system of norms 3.16

judicially considered 5.25, 5.43, 7.12, 7.20, 7.41, 7.51–52, 7.64, 7.153–154, 7.157, 8.87, 8.89,

8.95

wharenui 2.2–8, 2.26–64, 8.75–76

and an ao Māori world view 2.2–3, 2.13, 2.36, 8.75–76

and connection 2.59–60

and kotahitanga 2.57–58

and manaakitanga 2.45

and marae ātea 2.7, 2.41–44

and mātauranga or knowledge 2.2–3, 2.13, 2.36, 2.52–53, 2.62–63, 10.2

and pūrākau 2.27–29, 2.31–32, 2.35, 2.39

and tikanga values 2.50–60, 2.64

and tukutuku 1.28, 2.49

and wairua 3.18–21

and whakapapa 2.55–56, 3.7, 3.148–150

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TE AKA MATUA O TE TURE | LAW COMMISSION APPENDIX 1 – CONTENTS 1

Mahuru | September 2023 Te Whanganui-a-Tara, Aotearoa Wellington, New Zealand

Pūrongo Rangahau | Study Paper 24

Appendix 1:

Tikanga

Professor Wiremu Doherty

Distinguished Professor Tā Hirini Moko Mead Professor Tā Pou Temara

Contents

SECTION ONE: KAUPAPA MĀORI 3

Background 3

The Ranga Framework 4

Mātauranga Māori 6

Mātauranga Māori and the Ranga Framework 7

Kaupapa Māori theory 7

Ranga Framework: Kaupapa Māori theory, generic knowledge strand and mātauranga Māori strand 8

Ranga Framework: Kaupapa Māori theory, mātauranga Māori and mātauranga ā-iwi 9

Whānuitanga, hōhonutanga me te māramatanga: Professor Mead 16

Explanation of the Ranga Framework 18

Whakapapa 22

SECTION TWO: TE WHARE 25

Whare 26

Ngā kete 27

Ngā wāhanga o te whare 28

So what is tikanga? 39

SECTION THREE: TIKANGA AS A SYSTEM – FOUNDATIONS OF TIKANGA 46

Whanaungatanga 48

Whakapapa 49

Mauri 51

Mana 53

Mana whenua 53

Mana wahine 54

Mana tāne 54

Muru 54

He hohou te rongo 55

Rāhui 55

Tapu 56

Noa 58

Kotahitanga 59

Ea 62

Matemateāone 62

Utu 63

Manaakitanga 63

Kaitiaki 65

Rongo 66

Kawa 66

Karakia 67

SECTION FOUR: TIKANGA AS LIVED 68

Pōwhiri 70

SECTION FIVE: EXAMPLES OF TIKANGA ELEMENTS 72

He hohou te rongo 72

Pōwhiri 73

Breach of tapu 74

Rāhui 75

BIBLIOGRAPHY 78

SECTION ONE

Kaupapa Māori

BACKGROUND

• 1.1 The purpose of this paper is to provide an understanding of core elements of tikanga Māori in general terms, as well as in the more specific context of its relationship with what might be described as state law. It is important to note that considerable work has already been undertaken regarding tikanga and its use within the legal system of Aotearoa New Zealand. Rather than repeating those aspects of tikanga that have already been explored, this paper will provide a different lens from which to consider tikanga.
• 1.2 Fundamental to any discussion of tikanga is the necessity to appreciate its placement and functioning within te ao Māori. Understanding tikanga requires a journey through the Māori world – one that outlines the knowledge systems, values and beliefs and that locates tikanga into its natural environment. To try and build an understanding of tikanga outside of that framework runs the risk of it becoming de-contextualised and abstract and where its authentic meaning becomes distorted.
• 1.3 The natural environment for tikanga is mātauranga Māori (Māori knowledge) and mātauranga ā-iwi (tribal knowledge). Tikanga is complex and applies to all things within a Māori world view and must be located within mātauranga Māori and mātauranga ā-iwi. In placing tikanga within mātauranga Māori and mātauranga ā-iwi, its purpose and intent become clear. This paper will introduce the notion of intent and performativity. Introducing the idea that tikanga speaks to the intent of a concept and being careful to separate the performativity that is conducted to ensure the intent of tikanga is maintained as a separate element, this idea will be explained more fully throughout this paper. A core pathway to reveal the intent and performativity of tikanga is language. A closer examination of te reo Māori reveals many Māori terms are in fact compound words that, when unpacked, provide insight into the meaning intended in key terms.
• 1.4 Given the importance that mātauranga Māori plays in developing an understanding of tikanga, an in-depth view of mātauranga Māori is provided along with the relevant tikanga concept. This section will outline, through Kaupapa Māori theory, a framework to unpack mātauranga Māori, introducing the idea that, while mātauranga Māori can host core values and principles, it cannot express their application, since this is instead through the application of mātauranga ā-iwi. Understanding the interface between mātauranga Māori and mātauranga ā-iwi provides the rationale for tribal variance that will be seen within the application and performativity elements as they relate to tikanga. Outlining the connection between mātauranga Māori and mātauranga ā-iwi draws attention to the fact Māori are not homogeneous but rather are a collective of tribal communities each with their own

application to the values and principles that reside with mātauranga Māori. While the intent that sits within tikanga will more than likely be able to be described consistently within mātauranga Māori, the application, or performativity, will not.

• 1.5 The first section of this paper will look at the politics of knowledge, stating that, when viewing knowledge, we are applying a set of values and principles to understand and interpret and what we are looking at needs to be understood so we do not unwittingly view te ao Māori through the values and principles that are not Māori.
• 1.6 Following this section, an overview of the whare will be provided as an illustrative example to build an understanding of te ao Māori, noting the knowledge system at work and outlining the cosmological world view.
• 1.7 Section 3 will provide an account of the fundamental principles that underpin tikanga – an explanation of what it is, with examples provided, and finally connecting it back to the whare to show where the practice and concepts are located within the whare.
• 1.8 The final section of the paper will focus on a series of case studies to illustrate tikanga in operation.
• 1.9 This section of the paper will provide an overview of mātauranga Māori, mātauranga ā- iwi, Kaupapa Māori theory and the Ranga Framework.
• 1.10 The Ranga Framework is a theoretical framework that explains the relationship between mātauranga Māori, mātauranga ā-iwi and Kaupapa Māori theory.
• 1.11 Historically, when we look at the early writings on Māori, we see that early recordings of Māori knowledge taken from tribal districts were later confused when sections of differing tribal accounts were combined, altering what was once a true tribal component of knowledge. This resulted in a series of muddled stories that became termed ‘myths and legends of the Māori’. These versions had lost their true tribal context; they had become de-contextualised. The explicit link to a particular territory of people occupying the sites these accounts were based on became obscure and confused; they were removed from the people and landscape they were intended for. This ‘de-contextual’ knowledge has significantly contributed to what is now often termed ‘mātauranga Māori’. Presenting the idea that, while mātauranga Māori holds the values and principles for mātauranga Māori, it does not hold the application of these principles and values – instead, they are held within mātauranga ā-iwi.
• 1.12 When properly located within their environment, historical accounts form the basis of mātauranga ā-iwi. This is knowledge that is described within its own context and is a lived reality. It has not been confused by unknowingly drawing from other tribal knowledge. Making the distinction between mātauranga Māori and mātauranga ā-iwi will help deal with the notion that each tribe will have its own nuances and application to tikanga. Again, while the intent will be similar, the application will not.

THE RANGA FRAMEWORK

• 1.13 The Ranga Framework presents, in diagrammatic form, generic knowledge (knowledge that is not Māori) and mātauranga Māori as strands that simply exist and have been represented as horizontal strands and mātauranga ā-iwi existing vertically.
• 1.14 Before unpacking the model further, below is an explanation of where and how I came to this model, and in doing so, I provide an example of analysing words to help build an

understanding to their meanings. When examining the term mātauranga, we see it is a compound word – ‘mātau’ and ‘ranga’ (this will be explained more fully following the Ranga Framework), i.e., ‘ranga’ being ‘strand’. Within the Ranga Framework, we have horizontal and vertical strands interwoven creating a ‘raranga’ – weave effect. Extrapolating this concept of raranga wider, it connects to harakeke (flax). Harakeke, within te ao Māori and mātauranga Māori, is of the elder children of Tāne:

Tāne - Huna

Harakeke Kōuka Tikapu Tōī

• 1.15 Harakeke was born into a world that was ‘broken’ – the siblings Tangaroa and Tāne were in constant conflict. Harakeke ultimately helped mediate the conflict by deliberating placing themselves at the interface of waterways and land to ‘stay’ the encroachment of Tangaroa into Tāne’s newly formed domains by way of erosion. Harakeke was able to achieve this by bonding into strongly connected units, whereby clusters with the youngest at the centre with the parents surrounding their children as the cluster spread outwards strongly bound together as a unit, connecting firmly to other tightly bound clusters, provided the environment to build the resilience required to overcome turmoil and conflict. Where reference to children of a person who has passed as pā harakeke is deliberate and intentional. It is drawing on the lessons learned by examining the actions of Harakeke in mitigating the conflict and turmoil between Tāne and Tangaroa. By being strongly connected, we can overcome great levels of challenge and hardship often experienced when losing a parent. Returning to the Ranga Framework, it is with this understanding of the function of Harakeke to overcome conflict and challenge that I used the term ‘ranga’, representing the weaving together of ideas demonstrated through the vertical and horizontal strands and connecting to the base word ‘ranga’ seen within mātauranga.
• 1.16 I have designed this framework to show that mātauranga Māori, mātauranga ā-iwi and Kaupapa Māori theory are distinct but inseparable entities, each of which is required to ensure the survival of the Māori language, knowledge and culture. The framework describes an active relationship in the placing of these concepts. In doing so, the framework introduces the idea of generic knowledge. Generic knowledge is used to describe knowledge that does not originate from Māori. Located within these strands are Pākehā epistemologies and philosophies. This model is premised on each strand (generic knowledge, mātauranga Māori, mātauranga ā-iwi and Kaupapa Māori theory) containing a knowledge base that has its own set of values and principles.
• 1.17 The Ranga Framework illustrates the interconnection of the strands. Mātauranga Māori is a horizontal strand that moves from left to right. Situated above mātauranga Māori is the strand generic knowledge. Between mātauranga Māori and generic knowledge is Kaupapa Māori theory. Moving vertically is the strand mātauranga ā-iwi, intersecting Kaupapa Māori theory as it meets mātauranga Māori.

Diagram 1. Ranga Framework

MĀTAURANGA MĀORI

• 1.18 Mātauranga Māori is defined as Māori knowledge. It is a term that places emphasis on Māori histories, knowledge and language; it refers to the Māori way of thinking, doing, and acting (Mead, 1997; Smith, 1997). Mātauranga Māori bridges both traditional and contemporary Māori knowledge curriculum, pedagogy and philosophy. It is through mātauranga Māori that histories and knowledge within Māori are expressed.
• 1.19 Mātauranga Māori encompasses the core values and principles that apply to all Māori. While the core values and principles are located here, their application is not. The application of these values and principles is filtered through mātauranga ā-iwi. Each iwi has their own specific sense and use of these core values and principles that connect them with their unique environment. This tribal application cannot be applied elsewhere, to another tribe, as they will have their own application that links them to their environment and iwi. Since the applications cannot be located within broader notions of

mātauranga Māori, it is presented in the Ranga Framework as de-contextualised knowledge.

MĀTAURANGA MĀORI AND THE RANGA FRAMEWORK

• 1.20 The deliberate placing of mātauranga Māori on a horizontal plane is to illustrate that this knowledge is de-contextualised. It is disconnected from its context. While it can host and express the values that are critical for a notion of Māori knowledge, language and culture, it cannot express the differences that occur from district to district. There is a danger that an assumption may be drawn from mātauranga Māori that Māori are a homogeneous body and Māori knowledge is one set of ideas and practices. mātauranga Māori provides Māori with a platform to speak generically. As the deep, esoteric explanations of concepts reside with tribal knowledge, mātauranga Māori needs mātauranga ā-iwi. Access to the deeper interpretations is further elucidated through Kaupapa Māori theory that connects mātauranga Māori to mātauranga ā-iwi. Kaupapa Māori theory creates a bridge that permits a different set of applications for the principles and values in mātauranga Māori to occur in mātauranga ā-iwi.

KAUPAPA MĀORI THEORY

• 1.21 Kaupapa Māori theory is a political instrument that takes account of the unequal power relations that exist between Māori and Pākehā. It critically responds to the processes of colonisation, which have been embedded in ‘taken for granted’ practices and ideas. Kaupapa Māori theory provides a space outside assimilation, acculturation, exploitation, domination of Māori by Pākehā and Pākehā knowledge hegemony.
• 1.22 Kaupapa Māori theory describes the transformational shifts required to respond to unequal power relations. The transformational shifts required and explored under the concept of Kaupapa Māori theory are taken from the tradition of critical theory, using Māori and non-Māori theoretical tools (Smith, 1997). Critical theory underpins Kaupapa Māori theory because it focuses on emancipatory outcomes and provides an approach to a range of challenges facing Māori, reification of science over culture and the interpretation of mātauranga Māori through Pākehā perspectives.
• 1.23 In explaining the need for Kaupapa Māori theory, Smith uses the analogy of “shadow paintings” of tools on the garage wall, while in the university/academic environment, we have an array of western tools hanging on the wall at our disposal. From time to time, when we are working on specific Māori issues, the available tools do not quite fit and therefore he argues the need to add specific “Māori theoretical tools” to the wall – the best tools to get the job done (Smith, 1997).
• 1.24 By using specific Māori theoretical tools, Kaupapa Māori theory asserted the validity and legitimacy of Māori knowledge, language, culture and practice as ‘taken for granted’. In this sense, Kaupapa Māori theory, both in its theoretical and practical dimensions, legitimised the space for mātauranga Māori (Smith, 1997).
• 1.25 Historical accounts in New Zealand have tended to view Māori history from a non-Māori perspective. Historical accounts have tried to understand Māori through Pākehā perspectives or lenses. From this position, Māori are viewed from a non-Māori perspective in an attempt to comprehend the Māori world.
• 1.26 Elsdon Best found it difficult to rationalise Tūhoe history from his perspective. During the early stages of his writing, he would rely on the Pākehā lenses to understand elements of Tūhoe epistemology and, because he was unable to comprehend this knowledge, he sought to marginalise it, diminishing it as an absurdity (Best, 1972: 19).
• 1.27 Marie Battiste and James (Sákéj) Youngblood Henderson (2003: 36) highlight the dilemma of attempting to utilise a non-indigenous theoretical base to explain indigenous knowledge – a quandary created when Eurocentric philosophical perspectives or realities helped deliberately craft a mysticism around indigenous knowledge that distances the outsider from indigenous peoples and what they know.
• 1.28 Kaupapa Māori theory provided the opportunity to create a series of Māori lenses to view and describe Māori. This perspective clarified and intensified the focus, highlighting that Māori are not a homogeneous group. Māori are an eclectic grouping of tribes that have unique stories and histories. Mātauranga Māori is a summary of tribal knowledge that has been collectively called Māori. Kaupapa Māori theory provided the space to build the lenses required to view mātauranga Māori and mātauranga ā-iwi. Mātauranga ā-iwi has always existed, and Kaupapa Māori theory created the space to allow the transformational shifts that need to occur when moving between these various knowledge systems.
• 1.29 Applying the lenses created in Kaupapa Māori theory enabled a sharper focus so that mātauranga Māori could ‘visualise’ mātauranga ā-iwi. Kaupapa Māori theory enabled a Māori understanding of the term ‘Māori’. For Māori, the term ‘Māori’ does not always imply a homogeneous approach; instead, whichever iwi resides within the district you are in is taken as ‘Māori’. Māori operate in a world of diverse realities, and what is taken as Māori differs from iwi to iwi (Rangihau, 1975: 232).
• 1.30 Kaupapa Māori theory has made it possible to describe Māori without leaving a Māori context that was not readily applicable from a non-Māori world view.

RANGA FRAMEWORK: KAUPAPA MĀORI THEORY, GENERIC KNOWLEDGE STRAND AND MĀTAURANGA MĀORI STRAND

• 1.31 Kaupapa Māori theory is located horizontally. It deliberately stratifies the strand of generic knowledge from the strand of mātauranga Māori. Kaupapa Māori theory provides a political buffer between these strands to ensure that mātauranga Māori is not subsumed by generic knowledge. This ensures the values and principles located in generic knowledge are not merged or transported across to define mātauranga Māori. Placed in this position, Kaupapa Māori theory creates a barrier to ensure the principles and values of generic knowledge are not used when engaging with mātauranga Māori. By doing this, Kaupapa Māori theory provides the space to begin building an awareness of a new set of principles and values (e.g. whakapapa, manaaki, aroha, whaikōrero, karanga and many others) to be used when engaging with mātauranga Māori. Simply transporting the values and principles used in generic knowledge and applying these to mātauranga Māori will not work, as these values and principles do not fit with mātauranga Māori. To engage with the principles and values of mātauranga Māori requires a new set of lenses to view them.
• 1.32 The political space that Kaupapa Māori theory creates allows for re-conscientisation to occur when moving from one set of paradigms to another. Re-conscientisation occurs by creating a new lens to observe the principles and values required to successfully engage

with mātauranga Māori. Creating a new lens reduces the risk of Māori being viewed through a lens created for generic knowledge, where assumptions or judgements are made about Māori that deny or overlook Māori concepts and realities.

RANGA FRAMEWORK: KAUPAPA MĀORI THEORY, MĀTAURANGA MĀORI AND MĀTAURANGA Ā-IWI

• 1.33 Kaupapa Māori theory as it applies to mātauranga Māori and mātauranga ā-iwi is to ensure the application of the principles and values in mātauranga Māori are not universally applied to all iwi. While the principles and values of what is called mātauranga Māori are largely consistent across Māori groups, the application is not.
• 1.34 To ensure this point is not overlooked, Kaupapa Māori theory provides a buffer to ensure these principles and values are not applied generically across iwi. As people develop their knowledge from the level of mātauranga Māori into mātauranga ā-iwi, the lens that was required in mātauranga Māori is given a sharper focus to examine the application of the mātauranga Māori principles and values in their specific environmental context.
• 1.35 When considering the relationship between mātauranga ā-iwi and mātauranga Māori, the design of the Ranga Framework centres Kaupapa Māori theory as a buffer to ensure the application of principles and values from one tribal perspective are not applied elsewhere and within another tribal context or setting. The engagement through Kaupapa Māori theory is to reduce the possibility of a hegemonic approach that makes a certain iwi- centred understanding a ‘Māori’ understanding. To engage with mātauranga Māori and mātauranga ā-iwi, it is critical that each is understood as an opportunity to view the other.
• 1.36 Simply applying a lens that is used in generic knowledge to view mātauranga Māori will not work because each of these two strands has a distinctive set of values and principles that are used when interpreting the knowledge that is found in the respective strands. Again, as a space-maker, Kaupapa Māori theory creates the distinction between mātauranga Māori and generic knowledge for these lenses to be accessed prior to engaging with mātauranga Māori – ultimately, allowing a transition between mātauranga Māori and generic knowledge.

Moving from left to right is generic knowledge

Kaupapa Māori establishing the space between mātauranga Māori and generic knowledge

Diagram 2. Ranga Framework – mātauranga Māori, mātauranga ā-iwi and generic knowledge

Mātauranga ā-iwi

• 1.37 Mātauranga ā-iwi is tribal knowledge. Tribal knowledge is defined as the relationship between the tribe and its land base. Mātauranga ā-iwi is knowledge specific to an iwi and its rohe. It is the exchange between the rohe and the iwi that provides the context for mātauranga ā-iwi. As the iwi engages with and describes its environment, the basis for mātauranga ā-iwi is established. The application of the principles and values in mātauranga Māori occurs, though each iwi has its own process that links their rohe and people together.
• 1.38 Each tribe has their own versions of knowledge that define the application of the values and principles in mātauranga Māori. An in-depth study of mātauranga Māori produces mātauranga ā-iwi. This is not to negate or undermine the value of mātauranga Māori; rather to explain and better express the depth and breadth of mātauranga Māori. Mātauranga Māori is premised on mātauranga ā-iwi – this is where the deeper explanations, meanings and signposts are found to the many questions raised within mātauranga Māori. The interaction the tribe has with its environment, expressed using its language, shapes and forms the epistemology of that tribe. The link that is created here establishes the context for mātauranga ā-iwi to exist.
• 1.39 By connecting the iwi and their landscape, mātauranga ā-iwi produces contextual knowledge. This differs from mātauranga Māori, which, as an amalgam of numerous tribes with their numerous land bases, makes it difficult to connect with a particular geographical location. Such a generic approach, in mātauranga Māori existing outside its tribal context, produces de-contextual knowledge. Valid and comprehensive descriptions of Māori processes cannot be provided within mātauranga Māori, as these are located within mātauranga ā-iwi. An example of this is the formal welcoming principle pōwhiri. All Māori use this principle of action; however, the application of this principle differs markedly from iwi to iwi. The variance cannot be understood within the framework of mātauranga Māori.
• 1.40 What is required is an iwi explanation to provide the rationale as to why a particular process was used. Explaining the application of pōwhiri within an iwi context will provide a rationale linked to that iwi and its region. My own iwi, Tūhoe, does not allow pōwhiri to take place after nightfall; other iwi do. This deviation occurred early in Tūhoe history when the tribe was still known as Ngā Pōtiki. A Ngā Pōtiki marae was expecting the return of a food-gathering party, but unbeknown to the expectant marae people, the group had been killed. The marauders knew the marae would be expecting the slain group’s return and waited until nightfall to enter the marae. The marae, seeing a group returning on nightfall, assumed it was the food-gathering party returning and took no precautions. The marae was attacked and destroyed. Since that time, Tūhoe no longer allow pōwhiri to occur at night. The relationship with the environment and the people of Tūhoe have shaped and adapted the principle of pōwhiri.

Whakapapa

• 1.41 The connection between the people and the tribal environment (rohe) is managed through the term ‘whakapapa’ (genealogy). Te Urewera is the territory that Tūhoe occupy, and through whakapapa, Tūhoe genealogically connect to Te Urewera. Te Urewera is the land base that builds the identity for Tūhoe. It is the interaction Tūhoe have with their land base that established Tūhoe as a distinct grouping of people, different from other tribes. It is the connection to the land base that provides the platform for Tūhoe to build their identity; this is the tūrangawaewae (place of standing), this is the Tūhoe comfort zone. It is within the space, place and environment of Te Urewera that Tūhoe gain their identity that is unique to Tūhoe. This is the context for mātauranga ā-iwi.
• 1.42 To illustrate this on the Ranga Framework, mātauranga ā-iwi is shown as a vertical strand. The base is situated in the tribal lands that the tribe occupies and emerging from here until it connects with Kaupapa Māori theory.
• 1.43 The knowledge that informs the application of the principles and values expressed in mātauranga Māori are found here. The rationale is expressed in the relationship that the tribe has with its tribal environment. The applications of the principles and values have their context defined by the rohe. The purpose and reason for the values and principles is defined here as knowledge. Within the context of the tribal lands, this knowledge strand is contextual knowledge; it is expressed within its own environment as opposed to mātauranga Māori, which is de-contextual, operating outside of its context. Within this strand, a more authentic understanding of Māori is reached – it defines Māori as a tribal grouping with subsets of hapū (subtribes) and whānau (families).
• 1.44 The mātauranga ā-iwi strand is carefully placed vertically with the base located into the tribal landscape, emerging exclusively to intersect with mātauranga Māori through the

Kaupapa Māori theory strand. Within my Ranga Framework (Diagram 1), space has been created for other vertical strands to be added that emerge from their tribal rohe.

mātauranga ā-iwi illustrated as a vertical band with its foundation situated in rohe providing the context for mātauranga ā-iwi to exist in.

Diagram 3. Ranga Framework – mātauranga ā-iwi

• 1.45 The term ‘whakapapa’ is commonly used to describe genealogical connections between people. However, my argument is that, from a mātauranga ā-iwi perspective, whakapapa maps epistemologies (including tribal concepts, principles, ideas and related practices) and locates them within a particular context. Whakapapa will map the inception of a concept, identifying the reason and purpose for the idea, and track its changes that have occurred to date. Whakapapa links people and the landscape together within and through concepts or ideas.
• 1.46 To more comprehensively understand the impact of whakapapa, the relationship between the past and present is fundamental to any discussion. To describe the past is to state ‘i ngā rā o mua’ (the days that hang in front of [me]). Māori are walking backwards into the future, the days that have passed hang in front and the future is behind because it cannot be seen or easily predicted. When analysing a concept by reference to whakapapa, the temporal order of events that have occurred to form that concept or meaning are laid out ‘in front of you’ to provide the historical context showing the purpose and reason the concept, idea or principle exists and how this relates to the iwi and rohe.
• 1.47 To link a practice or concept to an iwi or rohe requires an intimate understanding of the people and land they occupy. If concepts cannot be linked to the iwi and/or rohe, it is likely the practice or concept is not indigenous to the area but rather imported.
• 1.48 When the concept of whakapapa is applied to knowledge, it creates the connection to the tribal lands (rohe) and to the individual. Whakapapa indicates the rationale behind the different tribal practices by revealing the sequential order of events required for tribal knowledge – a lineal frame that helps explain why the practice was created and how it was established will be shown.
• 1.49 Whakapapa describes the evolution of mātauranga ā-iwi from inception through to the current agreed practice for the iwi. Mātauranga ā-iwi must have a whakapapa that links it to the rohe and the iwi for it to be termed mātauranga ā-iwi. This link not only provides the evidence to support iwi ownership of a particular practice, it also places the learner and knowledge into context. Through whakapapa, three important elements – people, land and knowledge – are linked together, providing the context for each to exist. This is mātauranga ā-iwi. It is contextual knowledge.

Identity and tūrangawaewae

• 1.50 The final component to be explained using the Ranga Framework is identity. I have located identity at the base of the Ranga Framework under iwi. Identity is deliberately placed here to illustrate that, when environment, people and knowledge are drawn or linked together, identity is fully understood.
• 1.51 As whakapapa defines a working relationship to enable links between people, environment and knowledge, identity provides a structure to locate and connect mātauranga ā-iwi to its people and environment. These elements effectively coalesce to build the understanding required for identity. By doing so, the foundational base for the Ranga Framework – tūrangawaewae – is created.
• 1.52 The literal translation of tūrangawaewae is a person’s ‘place of standing’. Through tracing your genealogical whakapapa links, connection is made to your rohe that forms the basis of tūrangawaewae. The term tūrangawaewae has a physical and cognitive element to it. It defines the physical connection to a space and place illustrated as a ‘place of standing’. The cognitive position is best described as a ‘comfort zone’ or a person’s point of view. This is also the place one cognitively and/or physically returns to when challenged or feeling uncomfortable in order to re-gather one’s thoughts. In this sense, tūrangawaewae establishes the base to enable the whakapapa connections to occur and the links to appropriate knowledge or mātauranga ā-iwi.
• 1.53 Tūrangawaewae is achieved when a person can define their identity by linking themselves to the wider people of the tribe, their environment and the tribal knowledge base.

Situated beneath Rohe is Identity, supporting and informing tūrangawaewae

Diagram 4. Ranga Framework – identity

Summary

• 1.54 In summary, the Ranga Framework is a diagrammatic representation of relationships. It enables us to explain the conceptual connections between various ideas and therefore their meanings. We have placed mātauranga Māori and generic knowledge forms horizontally, both as de-contextual knowledge. Separating each of these strands is Kaupapa Māori theory providing an intermediary to ensure the values and principles from generic knowledge forms are not hegemonically applied to mātauranga Māori. Mātauranga ā-iwi operates vertically. It has its base firmly situated within its rohe and to form its context: this is contextual knowledge. As mātauranga ā-iwi operates vertically, it eventually connects to the mātauranga Māori strand, where again the Kaupapa Māori theory strand has been deliberately placed to ensure tribally held practices and processes are not hegemonically applied to other iwi as a Māori practice. Nestled within the rohe are the hapū and whānau.
• 1.55 Mātauranga Māori explains and expresses Māori histories, Māori ways of knowing and Māori processes. Mātauranga Māori is the Māori way of thinking acting and achieving. Mātauranga Māori enables explanations of perspectives from within a Māori environment. Māori processes can be expressed within a Māori context without having to leave the

Māori conventions and stepping into a Pākehā context and therefore expressing generic knowledge strands to explain what Māori were expressing. Mātauranga Māori moved Māori processes away from being unsympathetically marginalised as simple myths and legends and instead towards an expression of the lived realities of Māori.

• 1.56 In this framework, mātauranga Māori is described as transitioning horizontally from left to right, encompassing different tribal groupings of Māori. This body of knowledge constitutes the exoteric versions of Māori processes and ideologies. This body of knowledge is de-contextual because, as already explained, it operates outside of the tribal context of Māori.
• 1.57 Running vertically is mātauranga ā-iwi, tribal knowledge. This operates with its basis situated in the tribal context and intersects with the horizontal field of mātauranga Māori. This knowledge form is contextual; it is premised on the tribal knowledge forms that are unique to the differing tribal identities. Within this field, the answers to questions that mātauranga Māori poses can be answered. It is here the different versions of Māori protocol and processes are rationalised, explained and located to the tribal entities. It is by full engagement and participation within the tribe that informs the tribal knowledge forms, producing an environment where elements are lived as opposed to learned. There is no substitute for people being full participants in the world and generating meaning. It is from here tikanga can be examined, outlined and explained.

Diagram 5. Ranga Framework – multi-, Māori- and iwi-centric

WHĀNUITANGA, HŌHONUTANGA ME TE MĀRAMATANGA: PROFESSOR MEAD

• 1.58 Widely acclaimed expert on mātauranga Māori, Distinguished Professor Sir Hirini Moko Mead outlines three distinct elements that must be understood and applied by learners wishing to develop expertise in mātauranga Māori.
• 1.59 Firstly, in regard to whānuitanga (width), students must be able to comprehend a great range of ideas and content as it applies to Māori. Secondly, students must be able to demonstrate a deep understanding across a range of this content, expressed as hōhonutanga (depth). Lastly, and perhaps most importantly, students must be able to understand what it is they are observing, described as māramatanga (understanding). Taking the three key concepts – whānuitanga, hōhonutanga and māramatanga – and applying each of these concepts to the Ranga Framework, we can see an alignment and consistency – how each validates the other and how these concepts of principles, expressed differently, reveal a remarkable level of consistency.

Whānuitanga

• 1.60 A broad holistic approach to the subject is required to fully comprehend the extent of what it is you are doing. This is represented horizontally in the mātauranga Māori and generic knowledge forms strands where a broad approach is required in building the foundation of what it is you are about to study in depth.
• 1.61 Similarly, the concept of whānuitanga has been applied to the mātauranga ā-iwi strand, where the application of this concept is consistent in that a wide understanding is required to build a fuller comprehension of mātauranga ā-iwi. A broad approach is required in understanding the different subsets of knowledge that exist within the different hapū and whānau and that, when combined, this creates mātauranga ā-iwi.

Diagram 6. Ranga Framework – whānuitanga, hōhonutanga

Hōhonutanga

• 1.62 After establishing the depth of what it is that is explored, an in-depth analysis of this data is required. To fully comprehend this data, a deep critical analysis is required, which is expressed as hōhonutanga. By exploring the depth and breadth of data, an understanding will begin to emerge. Hōhonutanga is illustrated vertically in the same manner as mātauranga ā-iwi.

Diagram 7. Ranga Framework – māramatanga

Māramatanga

• 1.63 By exploring the width and depth of knowledge and analysing its content to rationalise the relationships between the differing notions, a clear understanding can begin to emerge. This is māramatanga – it has become clear. Within the Ranga Framework, māramatanga is situated in the same place as identity. The clarity – māramatanga – achieved in understanding mātauranga ā-iwi is also required in establishing identity, which is why both elements are situated together.

Diagram 8. Ranga Framework – Mead application

EXPLANATION OF THE RANGA FRAMEWORK

• 1.64 To conclude this section of the paper on mātauranga Māori and in reference to the Ranga Framework, we reflect back to a point raised previously in explaining the deliberate use of the term ‘ranga’ and reinforce here the concept of analysing the language to highlight the clues and signposts that sit there to help inform our understanding of concepts.
• 1.65 The abstract framework is purposely designed to show the strands interlinking, where mātauranga Māori and mātauranga ā-iwi intersect with each other. Purposeful selection of the strands was intended to align with the terms used and further describe the cognitive developmental stages in Māori. The term ‘ranga’ is the Māori name for ‘strand’ that appears consistently through the following terms:

Rangatahi Youth

Rangahau Research Mātauranga Knowledge

Rangatira Chief/Leader

Ranga

• 1.66 The term ranga (strand) is intentionally selected to describe the fusion of mātauranga Māori and mātauranga ā-iwi, Kaupapa Māori theory and generic knowledge forms. As illustrated above, the term ranga appears consistently when describing youth, knowledge, research and leadership, where inherent within Māori knowledge was the requirement of a special kind of leadership.
• 1.67 An explanation of these terms is provided below to show the correlation to the framework. It also illustrates that, by knowing the language, it is easier to translate the deeper, more authentic processes that are embedded in Māori terms.

Rangatahi

• 1.68 The term ‘rangatahi’ has two key components to it. The first is ‘ranga’ or strand; the second is ‘tahi’ – one or singular – therefore, expressing the notion of a singular strand. When applied to youth, it encapsulates the early developmental stages of egocentrism – the idea that the circumstances that inform or shape you are developed by the influences that surround you. This becomes your truth and understanding of the world. Any ideologies that deviate from this set of truths and understandings are incorrect. Parents may reflect on this when their children begin school in that the teacher becomes the all- providing oracle of all matters, the possessor of all knowledge – “But my teacher said ...” as they begin the process of learning material from a different home environment.
• 1.69 What is inherent in rangatahi is the development of a solid base to build wider understandings that will occur later in life. The term has been used to describe youth. However, a more informed or sophisticated interpretation of the term describes a person’s engagement with a new concept. The learning that occurs here is what is referred to as rangatahi in that it is not associated with a particular age insomuch as the idea that people learn and engage with new ideologies daily, and they will therefore transition seamlessly in and out of a state of rangatahi.

Rangahau

• 1.70 As a person becomes comfortable in what it is they have learned, they begin exploring more widely and confidently where, initially, aspects that do not fit with what they perceive to be correct are not as quickly dismissed as being incorrect. They begin to explore and examine new ideologies. The term ‘rangahau’ is a translation of this. The term ‘ranga’ (strand) remains consistent with the addition of ‘hau’ being the concept of new space or enter and wind, in that there is space where wind occurs. To further explain this abstract term, if there is ‘space’, there is room to view ideas more openly.
• 1.71 Drawing out of the term rangahau is the creation of new strands, and when applied to rangatahi, it infers a movement from the singular strand that is inherent in rangatahi. The term rangahau is used to describe the notions of research. The exploration and analysis of data are displayed here. However, it is critical that the foundation and understandings acquired in rangatahi are secure to provide the basis for comparison and analysis. One

cannot progress from rangatahi if a sound understanding has not been established, building the maturity that is required to explore and analyse ideologies that may at times challenge what it is we consider to be true. Only when this occurs does the person begin to engage with rangahau, where again it is not limited to a particular age but rather is a state of being that people will continually move in and out of.

Mātauranga

• 1.72 As the person continues in their cognitive development, moving in and out of both rangatahi and rangahau, a wider appreciation begins to develop, culminating in a state of clarity that is reached by knowing and understanding. This process is captured in the term ‘mātauranga’, where the term ranga this time is prefaced with mātau simply translated as ‘know’ or ‘knowing’, which is reached by a clarity of understanding.
• 1.73 Applying mātauranga to the previous examples of rangatahi and rangahau, the developmental stages become clear. Moving from the singular thought through exposure to other ideologies leads to an understanding being reached in knowing, being clear and moving towards an informed state of being. As the person develops and becomes aware and can examine, analyse and accept other ideologies, awareness and understanding are reached, which is described as mātauranga (knowledge).
• 1.74 To be mātau on a particular issue is to be clear in your understanding. This level of clarity is achieved when a sound foundation is established and clarified through the processes of rangatahi and rangahau. Central to this idea is identity – in order to build and develop, one must know intimately one’s position and place, described in Māori as tūrangawaewae (place of standing), both physical and cognitive, as the two are inextricably linked. This is a concept that is explored later in this paper. A person can be mātauranga and rangatahi at the same time. The process is not linear or binary; rather, it is a state of praxis that involves reflexivity and reflection, supporting the notion made by Graham Smith (1997: 65-67) of simultaneous engagement occurring.
• 1.75 Most people operate and engage within and across these three stages, moving freely between rangatahi, rangahau and mātauranga, where each informs and builds the understanding that ultimately produces mātauranga. When each of these processes is applied, clarity of thought and understanding is achieved. As the development occurs in the exposure to new strands (rangahau), viewed through the understandings achieved in the singular strand of rangatahi, an understanding through praxis is achieved termed as mātauranga – knowing, understanding the strands.

Rangatira

• 1.76 Emerging out of this process is the term used to describe and refer to leadership – rangatira. A point raised earlier in this section alluded to knowledge informing a particular kind of leadership expressed in the meaning of the term rangatira. Again, the term ranga remains consistent, this time used in conjunction with ‘tira’, the Māori term to describe a union of people. A leader is a person who must be able to connect and unite the differing strands (ranga) inherent in a grouping of people they are leading. Tribal leaders must be able to connect the various sections of knowledge located and held by the various families that constitute hapū, who collectively are termed ‘iwi’.
• 1.77 For the person to organise and command a grouping of people, there must be an ability to weave together the many strands (ranga) everyone has. The rangatira must be able

to weave together the varied forms of people’s understandings to unite under a common thread – the weaving together of ideologies to form an epistemology.

• 1.78 Diagram 9 illustrates a model of Māori epistemology in action. This is a key element to development and provides fluid movements between each of the stages as new ideologies are experienced. There is not a prescribed set of time that must be spent in each stage; this process maps the cognitive pathway that one takes to understand. Alluded to here in the term rangatira is the idea of excellence – to weave together the various ideas of a collective of people requires a level of mastery. Taking this notion and applying rangatahi as novice, rangahau as fledgling, mātauranga as knowledgeable and rangatira as mastery maps the cognitive stages that occur when we learn something new.

Rangatahi
Rangatira
Tohunga
Rangahau
Mātauranga

Diagram 9. Ranga model

• 1.79 The diagram further outlines the whakapapa of learning from rangatahi through to rangatira where there is synergy and movement between all these stages. At times, the rangatira reverts to the point of engagement rangatahi. Contingent upon the forum or situation, this will dictate who takes on the responsibility of teacher or student. This relationship is interchangeable in Māori. Located in the centre of the diagram is the term ‘tohunga’ – an expert in their particular field. ‘Tohu’ means ‘instruct’ or ‘give direction’. The expectation can be surmised that, to be able to provide guidance or instruction, a person needs an intimate/in-depth knowledge base that cannot be easily matched or surpassed by others, save for a select few. Tohunga is the term given to people who are highly skilled and respected in their field of practice and expertise.
• 1.80 Before we move on to the next section of this paper, we focus on some key terms. As already illustrated, the naming of the Ranga Framework was deliberate by intentionally making the connection to the wider purpose Harakeke has played within mātauranga Māori and mātauranga ā-iwi. Through an analysis of terms, subtle clues or directions are

provided to connect both purpose and function. These are woven together to help illustrate multiple layers of thinking and expression – the deeper meanings that sit within these concepts and that words (to Māori at least) are more than simply vehicles for expression. Rather, they are connected to a higher order of knowledge and broader set of philosophical underpinnings. To keep the focus on tikanga, those terms used to help express and define tikanga will be explored here.

WHAKAPAPA

• 1.81 While this term has already been explained as it relates to the Ranga Framework, it is a key critical component that connects ‘all’ things. A statement often made within te ao Māori is that everything is connected and that Māori view things holistically. This sentiment describes the function of whakapapa. In analysing the word, it has the base notion of raupapa – to simply lay things out in the order of events as they occurred. As is captured in the commonly applied use of the term as it applies to genealogies, it maps the descendants connecting in order from eldest to youngest through the generations.
• 1.82 When applying whakapapa to knowledge, it will map and track concepts, ideas from inception to implementation, noting events that have occurred that alter the practice, as in the example of Tūhoe pōwhiri, in that whakapapa maps epistemologies.
• 1.83 When applying the ‘principle’ of whakapapa to tikanga, it will help map the establishment of the tikanga and in doing so speak to the intent and purpose of why that particular component of tikanga was established, illustrating the performativity required to ensure that particular element of tikanga is maintained.
• 1.84 Whakapapa links people, environment and knowledge together, and in doing so, the intent and purpose of ideas and practice become visible.
• 1.85 While whakapapa will map the processes and interactions that occur between the three elements of people, environment and knowledge, it is tikanga that determines how the rules are applied. Whakapapa is the binary that creates bonds and coherence – all things must be able to be connected. Taking the meaning of whakapapa to explain the sequential order of events, what is important to note is that these events do not exist mutually exclusive of each other – they are in fact related and expressed through another concept known as ‘mauri’.
• 1.86 This is also a complex term – mauri applies to all things. However, in applying the process of analysing the word, we can see that it too is a compound word: ‘ma’ – sentence particle or sentence starter, followed by ‘uri’ – related, drawing out the wider meaning ‘to be related’. Returning to the sequential order of events outlined in whakapapa, mauri ensures these ‘events’ do not exist in ways that are mutually exclusive. The meaning of the term mauri is to remind us to look to the connections that bind us.
• 1.87 We see this similar notion of ensuring things are connected when we examine terms used for ‘ngahere’, the term for forest. Again, we see here the word is a compound word: ‘nga’
  • plural, and ‘here’ – connections. The naming of the forest is deliberately reminding us we have a connection to the forests that must never be forgotten. When we drill down into the names of trees, we see this concept of connection re-occurring as in the naming of the large tree ‘kauri’. Again breaking the word down, ‘ka’ ¬– sentence particle or sentence starter, followed by ‘uri’ – related. The naming of this tree is reminding us we are related. Taking this sentiment from kauri and ngahere, we see there is a deliberate

point being made with respect to the connection created by Tāne in the creation of flora that we must not forget.

• 1.88 When we look at ‘pirita’, the term for supplejack, we begin to see subtle clues that are designed to help guide us throughout our lives. This vine grows from a particular spot and spreads out, taking hold of others that are in its path whereby it will spread to a tree, take hold there, then continue to spread to the next neighbouring tree or fern, take hold and continue on. When we analyse the name, we see this intent captured in the name, ‘piri’ – connect, and ‘ta’ – together, taking the wider meaning of the word to mean we must maintain a connection with each other and our surrounds. When we look at the name of the berry this vine produces, called ‘kareao’ consistent again in the fact it is a compound word: ‘kare’ – wave, ripple or emotion, and ‘ao’ – world or environment. This is a metaphor or example of how to live our life and overcome challenges – if we are strong in our connections to each other and our environment, we will overcome the physical waves and emotional challenges that we will inevitably encounter throughout our lives.
• 1.89 Continuing this theme that connects us to our environment is the term ‘ahikā’. This is a concept that has been used to describe the occupation and rights of people to land. The term is consistent in that it is a compound word: ‘ahi’ – fire, and ‘ka’ ¬– burning. In that, occupation is described as that one’s presence must be maintained and being seen to assert one’s rights.
• 1.90 The base concept is drawn from the use of ‘puku tawai’ – a fungus that grows on tawai trees. It absorbs water and continues to grow until it becomes too heavy and falls to the ground, where it has a consistency like soap. This fungus was collected and dried and used when the iwi was getting ready to move to another location to stay, largely stipulated on the availability of seasonal food or shelter from inclement weather. Within these earlier settlements, the art of maintaining a fire was paramount, noting that this was before modern fire-lighting techniques were available. So the practice of ‘tamou i te ahi’
  • banking down the fire in the evening so the embers were still smouldering for the morning, and terms such as ‘te umara i te ahi’ ¬– the general sentiment meaning do not be frivolous with fuel for the fire were all created. There is clearly an entire body of knowledge here as to how to keep the fire burning.
• 1.91 The fires within these communities never went out, and great skill and knowledge were used to maintain these fires. When the community were getting ready to relocate to the next settlement, an ember was taken from the fire and placed into the now-dried puku tawai (that has a similar resemblance to polystyrene). The ember would smoulder and melt its way into the dried puku tawai. Taking note to be sure the fungus was smouldering, the fungus was then buried, paying attention that the depth was sufficient to ensure no air could reach the smouldering fungus, suffocating it.
• 1.92 The spot where the puku tawai was buried was noted. When the community returned to the settlement the following season, they would prepare dry kindling in the fireplace and retrieve the puku tawai buried the previous season, whereupon re-exposing it to air, it would continue to smoulder. The ember from last season’s fire would then be used to start the fire that would burn continuously for this season, hence the name ‘ahikā’.
• 1.93 The purpose for providing the Ranga Framework here was to show that three distinct knowledge forms – generic knowledge, mātauranga Māori and mātauranga ā-iwi – exist and that we need a structure to safely navigate our way through them to ensure we do not unwittingly apply values and principles of non-Māori to express Māori. Similarly, we

do not take tribal understandings and hegemonically apply them to Māori. By using the tools that Kaupapa Māori provides, we see how concepts from a dominant knowledge system are used to maintain their dominance. This is important to understand when engaging with tikanga – what must be firmly established is that the values and principles that are used are from mātauranga Māori and mātauranga ā-iwi and not generic knowledge.

• 1.94 As described earlier on in this paper, tikanga must be viewed within its natural environments of mātauranga Māori and mātauranga ā-iwi. When taking this position, what becomes apparent is there are two distinct components at play with regard to tikanga: intent and performativity. Intent is the element that is universal and can be located within mātauranga Māori. This is more than likely to be consistent across all Māori, as shown using the earlier example of pōwhiri, where the intent here speaks to the responsibility tangata whenua have in welcoming and hosting their manuhiri. Tikanga directs that manuhiri must be welcomed by tangata whenua. The application of this tikanga is what I describe as the performance required to meet the conditions expressed within the intent. The binary that whakapapa provides in connecting people, environment and knowledge together will map the relevant way that connects that group of people to their environment and knowledge system. Likewise, through whakapapa again and as was shown in the pōwhiri example of Tūhoe shared earlier, changing the performativity can be done to adapt and better align with current environmental conditions whereby the change can safely occur – you are not changing the intent that tikanga speaks to, you are simply changing the performativity that is conducted to meet the conditions expressed within the intent.
• 1.95 Contemporary examples of this can be seen today with the emergence of COVID-19 into our communities. As a result of the current health implications, it is no longer safe to hongi. Not engaging in this component of pōwhiri does not mean that tikanga has been diminished or set aside. Rather, you are simply adapting a component within the performance to ensure safety while maintaining its intent.
• 1.96 To this end, COVID-19 has provided numerous examples of how culture and cultural practices have shifted, seamlessly and without conflict or compromise, to accommodate environmental conditions or challenges. As we have seen with tangihanga, the intent that must be adhered to in farewelling our tūpāpaku has not changed. We continue to mourn and celebrate them. However, the way in which we do so now has shifted because of the environmental challenges brought about by COVID-19 and the requirement that the performance be changed.
• 1.97 By applying the principles of whakapapa, we can track the concept from its inception, outlining the intent and purpose of why a particular element was created, and map the components required to meet that particular component of tikanga. With whakapapa linking people, knowledge and landscape together, a narrative is created that sits within the landscape to be seen and heard.
• 1.98 By establishing a framework to ensure the lenses that have been crafted through Kaupapa Māori theory are used to analyse tikanga, this protects us from importing non- Māori ideas to understand tikanga. This cognitive shift is critical to ensure the fuller understanding required for tikanga is achieved.

SECTION TWO

Te Whare

• 2.1 In brief, the Ranga Framework is presented as a framework that highlights three distinct communities: generic knowledge as a description of non-Māori knowledge; mātauranga Māori as a description of Māori; and mātauranga ā-iwi, which is implied by Māori who use the term Māori. Each of these strands is separated with the theoretical concept of Kaupapa Māori theory.
• 2.2 The purpose of presenting this model is to draw attention to the politics of knowledge and lessons learned within the education communities to have mātauranga Māori acknowledged as its legitimate knowledge system, expressed through its knowledge, language and culture. The Ranga Framework presents generic knowledge as the knowledge that is learned and taught from a non-Māori space – this is knowledge drawn on Pākehā principles, values and ideas.
• 2.3 What is important is that the values and ideas presented in the generic knowledge strand are not used or dragged across to understand or explain mātauranga Māori. Kaupapa Māori theory provides a mechanism to safeguard this from happening. By deliberately representing Kaupapa Māori theory as a strand that separates generic knowledge from mātauranga Māori is to show it as a buffer, highlighting that we cannot simply import the ideas and thinking learned through generic knowledge to unpack and analyse mātauranga Māori. Instead, what is required is time to either learn or see the precepts drawn from mātauranga Māori.
• 2.4 Similarly, the Ranga Framework also separates mātauranga Māori from mātauranga ā-iwi. Drawing attention to mātauranga Māori are the general precepts that underpin the knowledge, language and culture of Māori. While the precepts are hosted within mātauranga Māori, the application does not reside here. In fact, it is located within each tribal area.
• 2.5 The application of the general precepts using whakapapa connects people individually to their collectives, expressed through whānau, hapū and iwi. It also connects people to their knowledge system, outlining the inception of ideas, marking the changes occurring in the natural evolution of knowledge and finally connecting the people and knowledge to their region through marae, rivers, mountains and sites of significance. Importantly, whilst these three elements are noted, they must be all present in the application of the precepts of knowledge, language and culture. Located within here is tikanga – this is its natural environment.
• 2.6 The Ranga Framework provides a theoretical structure outlining the various layers that must be navigated when viewing tikanga. A general statement could be made that people who have no understanding of tikanga have a starting point from within the generic knowledge strand, and those who are users of tikanga engage from the rohe and mātauranga ā-iwi strands. Importantly, those who have no understanding of te ao Māori will access tikanga through a theoretical structure, and those who use it every day apply it from a ground-up approach, connected to their iwi.

WHARE

• 2.7 If we take the approach outlined by Distinguished Professor Sir Hirini Mead (Mead, 2003: 305), that mātauranga Māori is a knowledge system in which tikanga operates, an understanding of this knowledge system is required to fully understand tikanga. Visible examples of this knowledge system in operation are seen within marae, particularly in wharenui. Not only are these houses the repository of this knowledge system, but their very creation is also drawn explicitly from the very system of knowledge. Through the whare, we see presented a cohesive model in how all things within te ao Māori function and relate to each other. The whare provides a cohesive model of how the connected world of te ao Māori connects with everything and functions.
• 2.8 To fully explain where whare come from within the knowledge system, a summarised version of the creation of the known world to Māori is provided. Note that there are multiple versions to this account of the early histories of Māori – provided here is a truncated and more commonly accepted version.
• 2.9 The primordial parents of all Māori are Ranginui and Papatūānuku – respectively, Sky Father and Earth Mother. The story begins with both lying tightly in an embrace with their 70 children tucked between the spaces. As the siblings continued to grow, they quickly filled the small spaces available. The cramped conditions resulted in polarising views among the siblings – some, led by Tūmatauenga, wanting to kill the parents to create more space, and others, led by Tāwhirimātea, wanting the status quo to remain. Watching these two polarising views take a firm hold was one of the younger siblings, Tāne, who adopted the view that the status quo cannot remain nor can the killing of the parents ever be accepted. He proposed a compromise to separate the parents. While not fully supported by the siblings, it was agreed to be the best solution.
• 2.10 This feat was eventually achieved by Tāne, after observing his older siblings’ failed attempts where they braced their feet firmly onto their mother and were bent at the waist, nestling their backs against their father and pushing. The last attempt was made by Tāne who decided upon a different approach by nestling his back into his mother, bracing his feet up against his father and pushing out. Eventually, the parents slowly began to separate, with Tāne placing poles between them to keep the two separated. Having achieved this, it was the first time the siblings were able to stand tall, as is reflected in the name Te Aotūroa,1 commonly now used to describe the world we live in now, ‘the world of standing tall’.

1. Interesting to note, Te Aotūroa is referring to the world of standing tall. When someone is sick, they are referred to as tūroro, ‘standing’ prostrate as in laying down, or tūpāpaku, standing shallow. Originally, people were buried seating in the foetal position, knees bent to the chest with arms bound around the bent knees and lowered into the ground.

• 2.11 Having successfully separated their parents, the discussion then turned to securing knowledge for the siblings to live by. Observing these events was the creator, Io Matua- Kore, from his residence at te Toi-o-ngā-rangi. Within this cosmology, at each level, there were 12 levels of consciousness, otherwise termed ‘heavens’ – the creator of all things residing at the uppermost level, named te Toi-o-ngā-rangi. A messenger was dispatched to Te Aotūroa to convey the message from Io Matua-Kore requesting a journey be made to seek the baskets and stones of knowledge from te Toi-o-ngā-rangi and for these to be taken back to Te Aotūroa. Contained within these vessels of knowledge were the entire knowledge systems known – Io Matua-Kore wanted these to be made accessible to Te Aotūroa.
• 2.12 Once again, there was a split between the siblings. One faction strongly viewed this quest to be undertaken by the older siblings, Whiro-te-tipua and Uru-te-Ngangana, who set forth immediately travelling by way of te Taepatanga. This rash decision was soon to be found wanting as this pathway did not reach te Toi-o-ngā-rangi, leaving Whiro short of the destination. The second faction took a more consultative approach, eventually settling on Tāne. Within the considered approach, attention was given to establishing where the vessels of knowledge should be stored and made accessible. With help from one of the older siblings, Tāwhirimātea (who was responsible for creating the winds) helped take Tāne to a level above this level, Rangi-Tamaku, where Tāne saw the whare (house) belonging to Tūmatauenga, Te Roroku-o-te-rangi. He immediately took this whare as the prototype complex in which to store the baskets and stones of knowledge.
• 2.13 With Tāne bringing to Te Aotūroa the concept of whare from Rangi-Tamaku, it now successfully linked Te Aotūroa to the 12 levels that now each had whare located on them. It was through this link that Tāne made his ascent. Located to the side of the tāhuhu (ridge pole) of each whare was a hole to allow the smoke to exit – this hole is called ‘te pūmotomoto’. It was through here that Tāne made his ascent, referred to as ‘te Aratiatia’. Tāne would enter the whare and climb through the pūmotomoto of each whare as the portal connecting to the level above, emerging onto the next level, entering the whare there and exiting through the pūmotomoto until he arrived at te Toi-o-ngā-rangi.

NGĀ KETE

• 2.14 Upon arriving at te Toi-o-ngā-rangi, Tāne was given the kete – kete uruuru matua/aronui, kete uruuru rangi/tipua and kete uruuru tau/tawhito – and two stones – Hukātai and Rehutai. Contained within these vessels was the entire knowledge used by the creator to create the known universe. Having performed the appropriate rituals of purification and readiness, Tāne made the descent back to Te Aotūroa again, climbing through the pūmotomoto and exiting the door of the whare to enter the pūmotomoto of the next whare until arriving back onto Te Aotūroa, where the kete and kōhatu were placed into the whare constructed back on Te Aotūroa, called Whare-Kura.
• 2.15 This whare is said to have been built by Rua-te-pupuke – the ancestors responsible for creating the practice of whakairo. The primary function of Whare-Kura was to hold the kete and kōhatu. The three kete each held a particular classification of knowledge. Kete uruuru matua, also called kete aronui, contained all the knowledge and practices pertaining to virtuous behaviour. This housed all knowledge pertaining to good in the centre of the rear wall of the wharenui, called te poutuarongo.
• 2.16 The second kete, te uruuru rangi/tipua, also known as kete tuauri, held all knowledge about rituals and associated practices. This kete was stored within the roro of the house. This pou is found in the front wall of the house as you enter through the door.
• 2.17 The last of the kete is kete uruuru tau/tawhito also called kete tuatea. Elements considered malevolent were housed within this kete in the poutokomanawa of the house. This pou is the centre pole that connects to the tāhuhu normally midway through its length.
• 2.18 The creation of whare is attributed to Tāne as a result of the activities performed in accessing the kete and kōhatu from te Toi-o-ngā-rangi and bringing them back to Te Aotūroa via the pūmotomoto. An interesting analogy to point out here is that pūmotomoto is also the name given to the fontanelle cap found in newborn babies. I can remember a particular practice of early care of children was the placing of a coin to see how the cap was closing as the child aged – a practice my grandmother was furious with. While this cap is still open, it is accessing information the child will require as it grows. Similarly, through the pūmotomoto, Te Aotūroa accessed knowledge. It is also through the pūmotomoto the child accesses knowledge it requires. Placing a coin there would disrupt the connection to the environment and people the child was accessing information from.
• 2.19 The knowledge system Mead (2003) refers to was packaged into three receptacles and two stones accessed from the creators of our known universe and stored in bespoke buildings for us to access and learn from. The entire construction of the whare drew on the very knowledge that was held within the kete and demonstrated symbolically how this knowledge was accessed.
• 2.20 As has been noted earlier, the kete were stored within the three main central pou that stand directly in the centre of the building, with the poutuaroro being immediately to your right as you enter the house, the poutokomanawa standing in the centre of the whare and the poutuarongo located in the centre of the rear wall of the whare. How the building is constructed is also an example of the knowledge system, where parts are placed and decorated, and help show and map where the knowledge was accessed from as well as the elements of knowledge itself.

NGĀ WĀHANGA O TE WHARE

• 2.21 To help illustrate this, let’s view the house from the outside. We will see it will be named after a significant person, event or object in the community. When you are facing the whare, you will see two vertical panels standing at the edges of the whare. These panels are called ‘amo’ (see Figure 1), a shortened name for ‘kaiamo’, meaning pallbearer, in the sense they are carrying the loved ones who have passed who are associated to the whare. All facets of life were performed in and around the whare. The area directly in front of the whare is referred to as the ‘ātea’ – this is the formal ground where formal protocols of welcome are conducted and significant meetings for people are held. It is also here where rituals of celebrating and farewelling loved ones are conducted. A key part of the whare is to hold the memory and account of all the people who are associated with the whare, where metaphorically the amo are referred to as the pallbearers for those associated with the whare.
• 2.22 At the apex of the building is a carved figure normally with piercing eyes on high alert. This is the ‘koruru’ (Figure 1), who is a sentry keeping a vigilant guard for the people residing within the building. Descending on an angle on either side of the koruru are two barge boards meeting the amo. These are referred to as the ‘maihi’, and the parts that extend beyond the amo are referred to as ‘raparapa’. The front of the house is built to resemble a person with outstretched arms in a welcoming gesture, the koruru being the face, the maihi the arms and amo the feet and body, with the raparapa being the fingers, outstretched in welcome ready to host its visitors and guests.
• 2.23 Moving into the veranda of the whare we first enter the mahau, sometimes referred to as te mahau-a-Māui-Tikitiki-a-Taranga. Here, we will see the door – ‘tatau’ – and the window
  • ‘matapihi’. Normally, the tatau is to the left of the front wall as you face the house, with the matapihi to the right as you face the house. Within the mahau, directly below the matapihi is where loved ones lay in state during the tangihanga process, surrounded by the immediate loved ones of the deceased. Not often seen now, but at times in the evenings, the casket was passed through the matapihi into the house to lay with the living members of the tribe and before dawn was passed back through the matapihi to lay back on the mahau for the day. The matapihi is the entry for those that have passed on. You will notice during pōwhiri – the process of welcoming visitors onto the marae – the matapihi is open. To have it closed is seen as a slight and not respecting the ancestors of the visiting group.
• 2.24 The tatau is the entry for us, the living. This too must be open while pōwhiri is taking place on the marae. Surrounding the door, are ‘whakawae’ – carved pou (see Figure 4). Standing on either side of the door at the top of the door where the lintel is found is the ‘pare’. Both the pare and the whakawae are symbolic. A close examination of the whakawae will show there is a figure that is repeated on each pou. This represents the intergenerational network of people and leaders who will appear as one leader passing another ready to assume the role. This is captured in the saying ‘mate atu he tetekura, ara mai he tetekura’ – as one leader dies, another is ready to take their place. The pare is important – generally, when examining the pare, there will be a figure located at the centre. Emerging from between the legs will be a thread that splits and flows to each outer edge of the pare. Here, you will see two figures, and upon close inspection, you will find the thread that comes from between the legs of the central figure ends in the mouth of the figures that are located on the outer edges of the pare (see Figure 3). This is in reference to the actions of Māui-Tikitiki-a-Taranga in his attempt to gain immortality in his conquest to enter and kill Hine-nui-te-pō.
• 2.25 Hine-nui-te-pō is the daughter of Tāne. Following the successful location of kete and kōhatu into Whare-Kura, Tāne then turned his attention to creating human life. Shaping from the earth, he carved the form of the female element and, through the knowledge acquired in the kete and help from Io Matua-Kore, was successful in bringing to life Hine- ahu-one – female shaped from earth. Shortly thereafter, they had a child called Hine- tītama. When she came of age, Tāne took her as his lover. As their relationship developed, she repeatedly inquired as to who was her father. Tāne remarked: “Look to the walls of the house, there you will see your father.” Upon hearing this, Hine-tītama realised that her lover was indeed her father. In her embarrassment, she remarked to Tāne: “I will leave this realm of Te Aotūroa and relocate to Rarohenga and there await our offspring to ensure they safely make passage when they pass from this world into the next. There I will take the name Hine-nui-te-pō.”
• 2.26 It is there where Hine-nui-te-pō resides to this day, awaiting our time of passing to ensure we are guided safely from this world into the next world. Symbolically, she is located on the pare to signify as we enter the whare that we are moving into the world and realm of our ancestors. Upon entering the whare, we are entering the portal that connects us to worlds and levels of consciousness. An example of this is seen when you look at the poupou that adorns the walls of the whare. At times, it looks as though the figure is too large for the poupou, that it does not fit. The outer edges of the mouth are cut off – this is deliberate, as it is done to demonstrate these figures are looking into our world through a matapihi. The parts that are left off are obstructed by the edges of the matapihi they are looking through to us (see Figure 5). Demonstrated within the pare are our continued attempts to prolong life, where the figures that emerge from between the legs of Hine- nui-te-pō are representing death, and the ends that are within the mouths of the figures at the edges of the pare are demonstrating we are nowhere near overcoming death – we are merely nibbling at the outer margins of overcoming death.
• 2.27 Another interesting point to look at here that reinforces the understanding of multiple worlds is seen in the description of the craving experienced by pregnant mums. This is described as ‘kumama’. My kuia explained it as the baby knows it is about to take a trip and is storing provisions for its journey. When our loved ones are in their final days, this notion of craving appears again, where it too is called kumama. Again, according to my kuia, they know they are about to leave and are making provisions for their journey into the next world.
• 2.28 As we enter through the tatau, the poutuaroro is immediately to your right and located at the centre of the front wall connecting the floor to the tāhuhu. The pou placed along this wall and the rear wall are referred to as ‘epa’. Directly in front, you will see the poutokomanawa. Sometimes, there is another pou behind the poutokomanawa in the larger houses – this pou is called ‘te poumataaho’ (see Figure 6). Continuing to the back wall and located at the centre is the poutuarongo.
• 2.29 The tāhuhu begins in the mahau – commonly seen here are two figures standing feet to feet, representing Ranginui and Papatūānuku. However, as you enter the whare, the adornments on the tāhuhu are a series of repetitive koru designs where the pattern continually repeats itself, emerging from the roro of the house and disappearing out the ‘tuarongo’ – back wall of the house (see Figure 6). The repetitive design here is intentional. It is to demonstrate there was a time before us and there will be a time after us, whereby we are responsible for the time we currently exist within.
• 2.30 Represented through the tāhuhu is Ranginui. The rafters – termed ‘heke’ – are referred to as the children of Papa and Rangi, flowing from the tāhuhu landing on to the poupou. The poupou is a collection of the key ancestors that pertain to the people of the whare. The poupou is connected to the ground, completing the connection to Ranginui, represented as the tāhuhu connecting through his offspring, represented as the heke, connecting to the poupou, being the ancestors of the people of the whare, where it is at their feet we sit and sleep.
• 2.31 The side of the house immediately to your left as you enter is referred to as ‘te taraiti’. This is where the hosts of the house will position themselves with the leader locating themselves in the immediate corner. The opposite side is referred to as ‘te taranui’, being the larger section of the whare that is given to the visitors, where normally within the corner of the taranui side is where the leader of the visiting group will position themselves.

These two corners of the whare govern the speaking order within the whare, starting at te taraiti, flowing in order around the whare and ending in the taranui corner.

• 2.32 Moving to the outside of the whare, onto the marae ātea, is where the formal welcoming processes are conducted through the pōwhiri process. As you face the whare, normally to the right will be seating referred to as ‘te paepae’. However, in some marae, you will see the paepae located on the left. The placing of the paepae is governed by the amo. Represented on the right-side amo is Tūmatauenga and Tāne facing the house, and Rongomatāne is represented on the left side amo facing the whare. The representation of Tūmatauenga and Tāne in the amo is drawing the recognition of the unpredictability of human nature captured by Tūmatauenga, accompanied by Tāne, where thought and consideration are drawn from. The marae ātea is where public debate and disputes are settled. As the amo oversees the activity that occurs here, within the whare is the realm of Rongomatāne, which sets a tone of peace and harmony. Where debates are held outside and resolved, upon entering the house, Rongomatāne dominates. Discussion and debate can continue here but is mediated by Rongomatāne.
• 2.33 Symbolically, we are located at the feet of our ancestors – the ancient ones will be represented in carvings, and the more recent will have pictures hung between the poupou. Connected to the poupou are the heke, represented as the children of Rangi and Papa, where the heke connect to the tāhuhu, representing Ranginui. Completing this connection are the poutuaroro, poutokomanawa and poutuarongo connecting Rangi to Papa, with us located between them. The term ‘pakiwaitara’ is worth noting here. Unfortunately, over time, it has been used to simply mean stories with an implication of no real worth. However, on closer inspection, the word is a compound word: ‘paki’, meaning story, and ‘waitara’, meaning wall of the house. The term is referring to content that is drawn from the walls of the whare.
• 2.34 The house is not only symbolic in that it is given by the gods, but it also contains the knowledge from them on how we should live our lives. This requires that great care must be taken to protect and maintain this knowledge and those who choose to access it. It was understood knowledge was power and care needed to be taken to ensure those that accessed it and use it were appropriately instructed on the duty of care required. An example of this is seen on the poupou. Here, you will see a ‘mokomoko’ (lizard), either carved on the chest, tongue or sitting within the mouth of figures – this is done to represent the spoken word. It can be used for good to make people feel great and also can be used to tear them down, where it was likened to a ‘ngārara’ (creature). Important to note here is the belief that, once a word has been uttered, it cannot be unsaid – the notion of ‘sorry’ does not exist. Given the high stakes, everything here is bound within tapu – not in the sense that people cannot access it, but rather strict rules of access are required to be followed and learned. Use and care of these processes must be adhered to at all times, stipulated by tikanga. Embedded in all tikanga is tapu. The application of tikanga on the marae is referred to as ‘kawa’, defined by Professor Sir Pou Temara as practice wrapped in tapu (Wānanga 30 June 2022: Te Whare Wānanga o Awanuiārangi). Further, Professor Sir Pou Temara continues that all tikanga must be underpinned by a connection to the gods – “all tikanga must be underpinned by Iho Atua” (Wānanga 30 June 2022: Te Whare Wānanga o Awanuiārangi) – as is represented in the creation of whare.
• 2.35 Everything that occurs within the whare and on the marae is governed by tikanga, kawa and tapu. An example of this at work is pōwhiri. Tikanga stipulates that manuhiri (visitors)

must be welcomed through ritual and protocol. It is a process that requires visitors to reflect and remember every person they have known who has passed and similarly every person those people have known who has passed. Very quickly, the permutations go back to the beginning of time and must be brought forward to meet all those who are presently being ‘carried’ by the amo of the whare (every person who has passed and who is associated to the whare) the visitors are about to appear in front of. This drawing of the ancestors to the fore is initiated through the karanga, performed by kuia2 who are pulling forward in strands those who have passed. As the vessels that carry life and as demonstrated by Hine-nui-te-pō who guides us to the next life, this role is solely conducted by a woman. As the visiting group proceeds to the front of the whare, the pause that occurs here is to reflect on all those you have known who have passed and in doing so bringing them forward to meet those who are represented in the whare: ‘ko mātau te urupā o rātau mā’ – ‘we carry the burial grounds of our loved ones with us’. Once settled in the arranged seating, the role shifts from women to men to conduct whaikōrero. The opening speakers will begin closest to the house. The flow of the speaking order is important, referred to as ‘te ia o te kōrero’. If the kawa is pāeke, all the tangata whenua speak, followed by manuhiri, starting with the person seated furthest from the whare, following in order to the closest to the whare, taking the analogy that the whaikōrero comes off the whare and must return to the whare. If the kawa is tau-utuutu, i.e., tangata whenua, manuhiri alternate until all speakers have completed, and the last speaker must be from tangata whenua, thus returning the speaking back to the house. Tikanga determines all visitors must be welcomed through pōwhiri. Kawa is how it is conducted. Pāeke and tau-utuutu are clear examples of kawa. Others may not be so noticeable, taking the position expressed earlier by Professor Sir Pou Temara that being kawa is a set of rules bound by sacred conditions expressed as tapu. He then states that it must have the support of the people to enforce them and be practised and used every day – meaning there has to be a shared understanding of how kawa is performed on the marae.

• 2.36 Again, Professor Sir Pou Temara points out the whare has a single room – there are no elevated sections or separate rooms. It is open and on the same level where everyone can see each other to support the singular collective of ‘kotahitanga’ (unity). This notion of kotahitanga is a fundamental component of te ao Māori – it speaks to the collective being united and being one. This unity of purpose and togetherness is expressed through whakapapa that maps and identifies the connections that bind iwi together.
• 2.37 Whakapapa too is an important component. Like tikanga, it permeates everything within te ao Māori. Whakapapa, as it pertains to people, maps the current and historical genealogical generations of families to each other across the tribe. It provides a complete network of familial connections, linking past to present and creating a singular point of reference for the iwi to unify the iwi. This builds a shared understanding of the origins of the collective. There is a shared understanding of the historical accounts that were performed by ancestors that collectively create a historical account of the tribe. There must be a collective acceptance of the version of accounts, particularly when these accounts track back to the creation of the known world. When we map and track the exploits of our ancestors’ whakapapa, it helps establish a chronology of events and

² Drawn from the words ‘kua kūtia te mate mārama’ – no longer menstruating/have gone through menopause.

practices that are critical to mapping the knowledge systems of the iwi. Here, whakapapa maps the epistemology of the collective. It maps when a particular practice occurred, where it occurred and who the pivotal participants were – concerning where, drawing in the third important component of whakapapa, through its chronology of events, noting where it links the people and the practices of the people to the landscape and in doing so to the people. Three key components are connected through whakapapa – people to each other, people to knowledge and people to their landscape. In the process, we note the significant sites where incidents occurred and map how each of these events has been wrapped into the knowledge system for the collective iwi. Whakapapa is the binary that helps maintain the connectivity of all things within te ao Māori. Through whakapapa, a shared understanding is mapped and presented.

• 2.38 The notion of a shared understanding is important. Tikanga too sits within this concept in that tikanga needs to be accepted and acknowledged by the collective. Rules that must be followed upon entering in and out of the whare strictly follow the tikanga rules that the collective iwi have decided and maintain. The concept of the whare provides the collective, iwi, hapū and whānau the facility to demonstrate the processes and practices of tikanga as they pertain to the operating and use of the whare complex. The entire system that dictates the use of the whare and the wider marae complex is governed by tikanga. Dr Turuhira Hare3 commented that tikanga helps determine who does what when the collective meet on the marae. It provides an existing framework that is understood and accepted by the collective, removing the room for personal vested interests to be drawn into who should do what on the marae. Through tikanga, it outlines what needs to be done and how it is to be done and even provides guidance as to who is most appropriate to conduct the rituals that must be done. In doing so, through tikanga, people’s behaviour and demeanour are moderated, including identifying if you are the one breaching tikanga and drawing negative attention to the iwi.
• 2.39 An important point to note when entering whare and marae is that there is a different world view and notion of time here. The concept of past and present differs. The past is the days that hang in front – i ngā rā o mua. We need to look back into the past to inform our present, to help inform our future as the days that are yet to descend – i ngā rā e heke mai nei. Examples of our children growing can be taken from the earlier cosmological accounts, where they are either going to follow Tūmatauenga, Tāwhirimātea or Tāne. As they prepare to leave home, some cannot wait, following the traits displayed by Tūmatauenga. Some may not leave home, following instead the traits of Tāwhirimātea, while the majority will not want to leave but understand that, to continue to grow, they must follow the traits set by Tāne. While these activities that were performed by ancestors and the gods occurred many centuries and millennia in the past, those actions and those who performed them are described as living the actions still alive today, and the individuals are treated as if they are still alive today. When contentious issues arise, they are taken to the marae to resolve, taken to allow the thoughts and influence of those who made decisions in the past to help inform the decisions that must be made for today. This notion of time positions ancestors of the past and their actions as living members of the collective. The actions and practices of the ancestors form the guidelines for tikanga in action today. Where the performativity of the tikanga has changed, it is mapped and

³ Meeting held at te Whare Wānanga o Awanuiārangi on 30 June 2022.

recorded through whakapapa. Within the whare, the construction and processes used are the exemplars for tikanga.

• 2.40 When viewing pōwhiri through the lens of key ancestors who shaped and informed our tikanga today and who are called forward to witness the activity that unfolds on the marae, this certainly makes you mindful while you are performing the duties that are required to be done and as accountabilities change. They are here to ensure we continue to practise the protocols correctly, further adding to the point of ensuring the tikanga and kawa of the marae are also maintained and performed correctly.
• 2.41 I have witnessed first-hand contentious issues being put to one side so as not to interfere with the tikanga and kawa functions of the marae. In November 2009, a 36-year-old key community figure was violently struck and killed. As I attended his tangihanga, seated on the paepae two along from me was the father of the man who struck the victim, killing him. The speaker before me spoke on his behalf, delivering his apologies for the actions of his son. Because of tikanga, this exchange was able to take place. Knowing the victim and his family personally, while they were understandably upset, allowed this exchange to occur. Uncomfortable as it must have been for the father of the accused and his family, they understood, like everyone assembled, the responsibility to observe tikanga and kawa of the marae. There were hundreds assembled on the marae that day. From what I observed, the family of the accused were welcomed and hosted as everyone followed and adhered to the tikanga of the whare, marae and tangata whenua charged with the responsibility of maintaining the correct conduct and procedures.
• 2.42 As Chief Executive of a Māori organisation, I ensure staff have unlimited leave for tangihanga. There is no stipulation of closeness to the deceased. If they think they need to attend, they attend. All that is asked from the institution is the work that was required to be done during the period of absence is done and managed. While there is a real risk this can be abused, what helps mediate this risk is the concept that those who shaped and informed tikanga are present today. There is an obligation through tikanga that we must be seen to be present at tangihanga. As a leader of an organisation, under tikanga, I am required to attend tangi where staff members have passed (let alone this being the right thing to do). As is expected at times, I have been held to account for not caring enough for their loved ones during the pōwhiri process. Having tikanga and kawa allows for challenging conversations to occur – it helps set the rules that govern the behaviour.
• 2.43 At times, changes are required to the order of events that occur when entering marae. To explain this, I present the view that tikanga is not changing – rather, it is the performativity. I describe tikanga as having two elements: intent and performativity. While I cannot think of a time we would change the intent of tikanga, taking the view of Professor Sir Pou Temara that tikanga is underpinned by the gods would further suggest we would never change the intent. However, the performativity we must. Otherwise, we become fixed, locked and unable to evolve and be responsive. An example of this (also described in Section 1) can be seen very early on in pre-Tūhoe history where an early ancestor attacked a war party and changed their appearance to resemble the slain war party and waited until dusk to visit the marae the war party was from. As was expected, the marae assumed the party entering was the war party that had departed earlier. By the time they realised the deception, it was too late and the marae was attacked and fell. From this point forward, it was agreed pōwhiri within Tūhoe would not occur in the dark (Personal communication, 1995, John Tahuri, Mahue Tawa: Rotorua).
• 2.44 Critical to the functioning of the marae are the people represented in the whare. These are the key identities who connect to the families and ultimately on to the iwi. Today, many of us no longer live in our marae as we once did. Instead, they have become places to hold significant events on and meeting places for the hapū and iwi. While many do not live within or near our marae, the responsibility to be present is still important. One must be seen to be present at events pertaining to the iwi. A concept still used today to describe connection and commitment is ahikā. This is explained in Section 1 of this paper and revisited and elaborated here.
• 2.45 The concept and term are taken from an old practice from a time when families would move from one settlement to another, driven by either weather or the availability of seasonal foods. During these times, fires were lit and kept alight for the duration of the stay within each settlement. There was a science to keeping fires alight at night by ‘tamou’ (banking), where the ash was taken smothering the glowing embers before going to sleep. In the morning, the ash was carefully removed, re-exposing the embers again to air. Dried kindling and fuel were supplied to the fire, and it would continue to burn. Terms such as ‘umara i te ahi’ (don’t be frivolous with fuel for the fire) noted the importance of maintaining fuel to ensure the fires could be kept alight the entire duration of stay. However, when it was time for the families to move, the fungus that grows on tawai was harvested. The fungus called ‘puku tawai’ would continue to grow until falling to the ground after becoming too heavy (see Figure 6). The puku tawai absorbs the water and sap from the tawai, and being waterlogged, it is heavy. While wet, it resembles a large bar of soap and is very dense and slippery, and it is taken and dried (see Figure 7). When it is dried, it resembles polystyrene and is very light. The now dried puku tawai is taken and placed into a hole at least a metre deep, where an ember from the fire is placed onto the puku tawai. Immediately it begins to smoulder, melting and embedding itself into the puku tawai. The puku tawai is then buried, taking great care to make sure the hole is airtight. The place is marked and will remain there until the families return the following season. Upon return, the puku tawai is dug up and placed into the fireplace, whereupon with re-exposure to air it will begin to smoulder. With dried kindling, the remaining puku tawai will flame back to life. The fire from the previous season has started the fire for this season that will continue to burn the entire duration of the stay, and the fire from the previous season was started from a puku tawai from its previous season. This illustrates the analogy captured in the term ahikā being a reference to someone’s currency to claim occupation of land in times when occupation could be taken to nowadays being referred to as someone’s currency to adopt leadership functions for the hapū and iwi.
• 2.46 Implicit in the concept of ahikā and being seen as playing your part in the upkeep and functioning of the whare and marae is the notion of obligation. As members of a collective, we each have an obligation as individuals to ensure we are supporting the collective. A key part of this obligation is to ensure connections are maintained and enhanced – connection to each other, to the past, to the environment, to the knowledge system and to the gods. Through the practice of whakapapa, the familial connections to the whare are maintained and mapped over time. What is required by kaikaranga and whaikōrero is to draw the whakapapa connections to the visiting group and our purpose of the meeting. Maintaining the connection to the practice required to conduct affairs on the marae reduces the risk of people forgetting or changing processes because of not knowing.
• 2.47 The system of obligation is best explained using the term ‘matemateāone’. There is no direct English translation to this term – it speaks to servitude and obligation. As a

descendant of Te Urewera and raised within Te Urewera, I have a yearning to continually return. Having my ‘pito’ (umbilical cord) placed within a tree along with others of the family physically connects me to my landscape where I must ensure I am present to continually remind the environment of Te Urewera that it is still of value to me and that I still need it to survive. If I do not maintain a connection to Te Urewera, it will think it is no longer needed or valued, and in doing so, the mauri of Te Urewera will die. To ensure this does not occur, I continue to harvest food, rongoā, be present and engage in practices to ensure the physical connection and familial connections are maintained and not lost.

• 2.48 While the practices of ahikā and matemateāone describe the physical connection to space and place, it also refers to the cognitive connection to the thought processes used within the marae and whare. While many issues are not taken to the marae to be dealt with, the processes in which they are addressed, however, still follow the conditions expected on the marae or within the whare.
• 2.49 An example of this was seen when an employee was being investigated for suspected serious fraud, serious enough to merit the involvement of the Serious Fraud Office. In the early stages of the investigation, a well-regarded elder and leader of the tribe accompanied me to meet with the individual to make sure the individual was OK. It was to determine if what was being accused did in fact happen and for them to let us know if so, so we could help and work through it. We were given an assurance everything was in order, which we subsequently discovered was not the case.
• 2.50 This individual belonged to a neighbouring tribe. The fraud resulted in the institution being out of pocket of a substantial sum of money as well as significant reputational damage. It was agreed by the governance entity of the institution that a delegation of myself and another senior leader of the iwi associated with the institution who also had iwi affiliations to the accused attend the next scheduled meeting of the accused’s tribal governance entity. As we prepared to enter the room, the elder and leader accompanying me outlined our tactic saying it was to be a low-key approach. I would respond to the mihimihi at the beginning and he would address the purpose. It was worth mentioning that, by this stage of the case, that fraudulent behaviour had been discovered. What was not known was the extent of the consequences, and as such, the Serious Fraud Office had formally opened a file and was investigating.
• 2.51 Upon entering, we saw seated around the room 30 of the iwi and community leaders, including the spouse of the accused and many close familial connections to the accused. The room was full of tension and uncomfortably silent for a large group within a confined space. Once seated, we were addressed and welcomed as per tikanga. The leader who accompanied me was positioned just behind me while I responded to the mihimihi. As I was sitting, he pulled himself to the table, looked at the 30 leaders seated around the table and room and said: “You owe me [stating the quantum of money that was lost], I want my money back’!”
• 2.52 Papers were being shuffled and suddenly spots became very interesting, drawing many eyes to unseen points of interest directly in front of where they sat. After several minutes, the elder who welcomed us stood, following tikanga, and thanked us for coming and letting them know what we wanted and asked they be given time to discuss and come up with a response. The meeting immediately broke for dinner and we were invited to join. We did so briefly and then returned to the institution, with me learning a whole new meaning to low-key approaches. Several weeks later, a formal request was made to the

tribal leaders of the governance entity of the institution requesting an audience. This was granted with the meeting date set.

• 2.53 The iwi of the accused arrived and was hosted by the governance leaders who were also the iwi leaders. The purpose of the meeting was in response to the point raised in a low- key manner to them previously. The neighbouring iwi arrived and apologised for the harm that had been done to the institution, stating they did not hold the iwi of the institution to account for any of the behaviour of the individual or the actions we had taken and needed to take to work our way through the case. They were clear they wanted the process to continue through the legal system without damaging the relationship at the iwi-to-iwi level. The leaders from the institution supported and thanked the approach, stressing that, while the individual was a member of their tribe, the institution did not hold them to account and did not blame them for their actions. The iwi of the institution was clear to point out they did not want the actions of the individual to cause harm to the iwi-to-iwi relationship. To cement this commitment, a pounamu taonga was presented (see Figure 8), named by the neighbouring iwi under the processes of he hohou i te rongo.
• 2.54 This pact stands firm today. The shift from the individual to the iwi was seamless. My governance leaders immediately responded by engaging the iwi. Our first task was to notify the iwi of what we wanted, in a low-key manner of course. Then the neighbouring iwi, as they requested, met to discuss at length their response. While the fraud was committed by an individual not representing the iwi they belonged to, it was the institution who raised it to an iwi issue. Being Māori, it did not want harm to the iwi the person belongs to via an unintended consequence. I am pushing the boundaries a little here in raising the issue as one of the unsaid outcomes of he hohou te rongo is that it is never to be raised publicly again, having been sealed in agreement and a commitment of all parties.
• 2.55 Another example of he hohou te rongo being used was when my great-grandfather arranged the marriage of a niece, known as pākūhā, during the 1930s. Several years into the marriage, after having children, the husband started abusing his wife. The hapū turned to my great-grandfather to deal with it, as he had arranged the marriage. As the years went by, the abuse continued, with the final straw being, in a fit of anger, the husband was heard to have said he would “eat their children”. At this point, a delegation from the hapū arrived on my great-grandfather’s doorstep seeking redress. This now required my great-grandfather to find an acceptable pounamu heirloom to address the slight to the hapū of his niece on behalf of the hapū of the husband. Having to source the heirloom and present it in front of both hapū of the wife and husband raised the abuse that was happening in the family into the community, where, if people were unaware of the actions of the husband prior, they were now, drawing on the weight of public opinion to help curb the behaviour. Additionally, the couple and their children were now required to live with my great-grandfather and my great-grandmother as an added measure – perhaps to ensure my great-grandfather did not have to search for another pounamu heirloom.
• 2.56 We see again the concepts drawn from tikanga in the placing of rāhui – restricting access for some time to a particular site. In December 2019, Whakaari White Island erupted, tragically killing 22 people, with two bodies never recovered. Immediately, the iwi placed a rāhui over the region. It was humbling to see this adhered to by the entire community – Pākehā, Māori and commercial entities alike. Where I live is directly opposite the river mouth meeting the sea. It is a popular swimming spot and right next to this is the boat ramp. During the period of the rāhui, no one swam, and despite the heat of a very warm December, no fishing vessels, commercial or private, moved. As Chair of the Economic

Development Agency for the three local councils, I could see first-hand the cost this was having on the commercial industries that relied on access to the sea, and yet, despite the financial burden, it was honoured. In fact, during meetings with councils over this period, before the rāhui was put in place by the iwi, it was expected. In fact, local agencies were waiting for the communication to come from the iwi.

• 2.57 A commonly performed waiata composed by Mihi-ki-te-kapua is a good example of a rāhui not being followed. The song Taku Rākau was written as a result of Mahia, the son of Mihi-ki-te-kapua and Hikawai, being killed in the Pāpuni district in 1819, resulting in a rāhui being imposed over the area. At the time, Mihi-ki-te-kapua and Hikawai’s people relocated to Maungapōhatu to live. After a year, Hikawai and his people wanted to return home to their lands in the Pāpuni and Ruakituri region. The issue was that Mihi-ki-te-kapua was still grieving for their son, remarking: “Taihoa e hoki koi kai koutou i ngā para o taku tamaiti” – do not return yet, you may unwittingly eat the remains of my son. Unfortunately, Hikawai and his people did not listen to the plea of Mihi-ki-te-kapua, who subsequently travelled through Tūhoe to raise a war party to avenge the breaching of her rāhui. An interesting point to note here is that her marriage to Hikawai of Kahungunu was arranged by her father Te Āihurangi as a tatau pounamu to settle the disputes between Kahungunu. Unfortunately, Hikawai was killed as people rallied to the call of Mihi-ki-te-kapua. During these battles, she composed the waiata Taku Rākau as a morale booster to ensure those answering her call did not become despondent, drawing a comparison to the rākau kahikātoa, being a hardwood used for the creation of taiaha (not to be mistaken for kahikatea), and drawing reference to the shark that continues to fight with its dying breath, meaning to fight similarly to ensure the land is not left alone.

Taku rākau ē

Tau rawa ki te whare Ka ngaro a takahi ē

Te whare o te kahikātoa He ngau whakapae ē

Hei whakapae ururoa e hau mau nei Kei waho kei te moana

Kāore aku mihi ē

Aku tangi mo o koutou Mau puku ko te iwi ē

Ka mowai tonu te whenua E takoto nei

(Mihi-ki-te-kapua composition, circa 1820s)

• 2.58 I know of a local iwi dealing with an interesting situation concerning an incident that occurred in the 15th century. The incident unfolded with a key leader of the iwi at the time being accused of causing the untimely death of members of the tribe who hatched a plan to leave the individual marooned on an island to die. Having been left marooned, the tribe miscalculated the resourcefulness of the individual, who made it back to shore before his would-be incarcerators. Upon facing them, he uttered a saying that was to be the punishment for iwi in their attempt to kill him.
• 2.59 Five centuries after that incident, the tribe is now meeting to address the words that were said and placed as a punishment to the iwi. The current leaders of the iwi have begun tracking through history to review the treatment the tribe has received and incidents that have occurred over time as being connected to the punishment delivered by the ancestor in the 15th century. The episode speaks to the notion of time being different here. While the incident occurred five centuries ago, the actions are still felt today, and while the iwi are yet unresolved as to what they will do, the general sentiment is that sufficient time has passed to meet the punishment served over the iwi. It is now time to move on from the statement left over by the tribe as a millstone – the sentence has been served and met, and it is now time to move forward.
• 2.60 This section of the paper was presented here to provide an overview for whare and marae as the complex that houses tikanga and kawa. These houses were created by the gods and reinforced by the continual use of the ancestors as anchor points for us. They hold the ancestral memory of the tribe, connecting our practice to the ancestors and ultimately to the gods. To understand what tikanga is, we have to explore the history and knowledge systems of te ao Māori.

SO WHAT IS TIKANGA?

• 2.61 To conclude this section of the paper, the word tikanga simply means to ‘be correct’. Puhi Iopata4 defines tikanga as the set of rules that defines all that is correct in the Māori world. It ensures the processes that are required to engage with the marae are followed correctly. It outlines the accurate way in which areas of work must follow and the order schools of learning must adhere to. It sets the guidelines for all things. Inherent within tikanga are the values and beliefs of Māori. Through tikanga, the connection to the activities and processes established by ancestors are continued. These rules are laid down by the elders and leaders and must be followed by the iwi.
• 2.62 Tikanga is a set of guidelines that ensure we remain connected – to our past, each other, our knowledge system, our beliefs and our environment. It establishes our ‘world order’. Through te ao Māori, a different world view is described. It describes the past as the days that ‘hang in front’ – ‘i ngā rā o mua’ – where we focus on the past to help inform our decisions for the present – ‘ināianei’ – and help inform the days that are yet to descend upon us – ‘i ngā rā e heke mai nei’. This concept of looking to the past to inform the present is important – it connects us as people to our known world, and tikanga provides the rules of how we navigate this world correctly.
• 2.63 The connection to the known world of Māori is through Rangi and Papa, where all genealogical things of Māori are drawn from and are connected to. By following the genealogical descendants of Rangi and Papa through their children of Tāne, we are connected to the forests, flora and fauna. Similarly, through Tangaroa to the seascape, through Tāwhirimātea to the environmental winds and through the other siblings to the components that they are charged with creating or protecting. In maintaining these connections to the known Māori world, the connection to our world order is established where, through tikanga, the rules are expressed as the rituals and protocols that must be

⁴ Meeting held at te Whare Wānanga o Awanuiārangi on 30 June 2022.

followed. This ensures we do not forget the connections that we as people have to our entire natural world.

• 2.64 Maintaining a connection to our natural world is maintaining a connection to each other. Immediately, when we introduce ourselves, we will geographically locate ourselves: “Ko Pūtauaki taku maunga. Ko Ōhinemataroa taku awa.” Next, we will make known our familial connections: “Ko Mataatua taku waka. Ko Toroa te tangata.” This is followed by the collective I associate to: “Ko Ngāti Awa te iwi”. This is done to allow those that are present to draw their own geographic, familial and collective connections to you and to build a connection from their physical and cognitive spaces and places to connect us together. The key function here is demonstrating a connection between each other and ultimately to all things within te ao Māori. Returning again to the imagery of the whare, we see this concept of maintaining connections to all things reinforced and illustrated.
• 2.65 The decision to use whare as an example to illustrate tikanga is deliberate. It is premised on the early cosmological accounts of Tāne and/or Tāwhaki acquiring knowledge from te Toi-o-ngā-rangi. Having acquired the receptacles of knowledge from the creator, it was then stored in whare to be accessible. While how this was achieved and by whom is unclear (some present Tāne while others present Tāwhaki), there is an acceptance that knowledge accessed from the atua was stored in whare.
• 2.66 Taking the position that whare held knowledge accessed from the atua, we have presented whare as the anchor point and our ‘ground zero’ of knowledge and subsequently tikanga that emerges out from mātauranga, whereby the rules in accessing, storing and recording knowledge were early examples of tikanga. Deliberately located in the whare are examples that connect us to our past, carefully constructed to express the examples of how we connect to Ranginui expressed as te tāhuhu – Papatūānuku – the very base the whare sits upon. Connecting Ranginui and Papatūānuku are the heke representing the children of Ranginui and Papatūānuku. Connecting these atua to us are our ancestors of more ‘recent’ times portrayed as poupou. Deliberately, it is at their feet we sit and locate ourselves.
• 2.67 We metaphorically sit within the embrace of our parents. It is to them we turn for guidance. As with our parents, they are the conduit to the time before we arrived on this earth, and through us the children, we are the conduit for them into the future when they leave Te Aotūroa and become tūpāpaku and take up the place along the walls of our whare as poupou. That is deliberately portrayed as peering into this world from another world.
• 2.68 Not only do the whare connect our cosmological accounts to the present, but it illustrates our connections to worlds beyond the world we live in. As explained in Section 1 of this paper, reinforcing this concept are the repetition designs visible on the tāhuhu – there is no clear beginning or end, and the patterns simply exit either end of the whare, demonstrating there is a time before us and there is a time after us and we are simply here in this moment in time – a moment in time that is connected to the past, present and future.
• 2.69 The whare is the portal that connects us to past and present worlds outside the physical worlds. Through the whare is the example of how we are to live in a connected world. Recorded through whakapapa, we can map the evolution of how knowledge within whare has been presented visually and used through the rituals of practice captured through the pōwhiri process.
• 2.70 Within te ao Māori, often the comment is made that Māori think and act holistically – that you cannot pull an element out on its own and examine it to truly understand it. Getting the full understanding of the concept requires it to be located in its holistic environment
  • it needs to sit alongside all other elements that operate within te ao Māori. Demonstrated through the construction of whare is an example of how the Māori world view can exist and operate effectively. The construction and naming of parts and functions of the whare are deliberate and model how the holistic world of te ao Māori operates and functions.

Figure 1. The space to the left of the house (the right-facing side of the whare) is where the paepae is located. (Image: Wiremu Doherty, 4 March 2017: Te Whaiatemotu Marae, Ruatāhuna)

Figure 2. Within the mahau, represented on the tāhuhu, here are Rangi and Papa. (Image: Wiremu Doherty, 4 March 2017: Te Whaiatemotu Marae, Ruatāhuna)

Figure 3. The pare. Note the central figure representing Hine-nui-te-pō. In moving into the whare, we are entering another world, a world that connects us to our gods and ancestors. (Image: Wiremu Doherty, 4 March 2017: Te Whaiatemotu Marae, Ruatāhuna)

Figure 4. Whakawae. Note the repetitive figure. (Image: Wiremu Doherty, 4 March 2017: Te Whaiatemotu Marae, Ruatāhuna)

Figure 5. Poupou. Note the mouth and shoulders do not fit onto the panel, demonstrating these ancestors are looking into this world from another world and what we see is framed through the matapihi they are looking through. (Image: Wiremu Doherty, 4 March 2017: Te Whaiatemotu Marae, Ruatāhuna)

Figure 6. Note the tāhuhu and the repetitive design as it connects to the poutuarongo in the centre of the rear wall. As this is a larger house, behind the poutokomanawa in the foreground is the poumataaho (Image: Wiremu Doherty, 4 March 2017: Te Whaiatemotu Marae, Ruatāhuna)

Figure 7. Puku tawai wet, ready to be collected.

Figure 8. Puku tawai dried, ready for burning.

(Image: Wiremu Doherty, 2002).

Figure 9. Taonga presented to an institution as part of he hohou te rongo.

SECTION THREE

Tikanga as a system – foundations of tikanga

• 3.1 The description of whare has been provided in Section 2 to show where mātauranga is drawn from and created within te ao Māori. As noted, captured within whare is a demonstration of the creation of the known world and all knowledge associated with the establishment of it. Displayed within the whare are detailed accounts of where knowledge was drawn from and how it operates within our day-to-day lives as a lived knowledge system. Carefully folded into the application of mātauranga is tikanga – examples of how it is expressed and used will be provided in this section of the paper. The key foundational principles of tikanga in operation showing the linkage to mātauranga that connects to the whare will be provided here.
• 3.2 Illustrated through whare is the creation of the known world to Māori. All the knowledge that is used and applied within te ao Māori is drawn from the examples expressed within the whare. Mapped here is the entire world – inanimate, animate, human and non-human. All is mapped carefully showing the linkages to all things. Captured within its construction is a recorded account of the creation of the known world, with Ranginui represented as the tāhuhu of the whare and the heke representing the children of Rangi and Papa. Connected to the poupou are the more ‘recent’ ancestors associated to the whare. At their feet is where we are located as the living. The feet of the poupou are grounded in Papatūānuku, connected to Ranginui through poutuaroro, poutokomanawa, poumataaho and poutuarongo, as illustrations of the pou that Tāne used to separate Ranginui and Papatūānuku.
• 3.3 The examples expressed through the whare when defined and explained are the bases for the knowledge system of mātauranga that operates within te ao Māori. It is not only symbolically that we place ourselves at the feet of our ancestors – it is from them we draw our points of truth that define mātauranga. The house is more than a house – it is a living entity. As expressed earlier, there is a different notion of time at play here. The ancestors represented in the whare are ‘alive’ – their presence and activity that has shaped the knowledge system that we live by are assembled here to hold us to account. Being located at their feet, we are accountable to them and we are required to ensure the practice and performance of mātauranga are correct. Having the authors of the known world present changes the accountabilities.
• 3.4 Tucked within mātauranga is tikanga. As stated earlier in this paper, tikanga is simple and complex. Simply, tikanga guides us to be true and correct in our application of

mātauranga. Its application, however, is not simple. – it is complex and requires a different lens as stated within the Ranga Framework to view mātauranga. Tikanga exists and is interwoven into all things of mātauranga – it speaks to a set of relationships that must be maintained and an obligation to remain connected to all things. Connection to all things as demonstrated within the whare must be maintained – connection to each other, to living and non-living, to past and present, to the environment, eventually drawing linkages to the gods.

• 3.5 While tikanga is embedded into all things, there are some key fundamental principles of tikanga. To further explain what tikanga is, a summary of the foundational (or fundamental) principles of tikanga will be provided, accompanied with an explanation that links the practice to mātauranga and to the whare.
• 3.6 The following concepts will therefore be covered in this section:
  • Whanaungatanga
  • Whakapapa
  • Mauri
  • Mana
    • Mana whenua

• Ahikā
  • Mana wahine
• Mana tāne
  • Muru
  • Hohou te rongo
• Tapu
• Noa
• Kotahitanga
• Ea
• Matemateāone
  • Utu
  • Manaakitanga
    • Pakiwaitara
  • Kaitiaki
  • Rongo
  • Kawa
  • Karakia

WHANAUNGATANGA

• 3.7 The notion of things being connected is important to te ao Māori. Through whanaungatanga, the relational connectedness is mapped and noted. This concept reminds us we must be aware there are relational elements that exist between things that must be understood and referenced. The representation provided by the whare here shows the entire Māori world view is connected. Mapped through the tāhuhu as Rangi; the heke, the children of Rangi and Papa; the poupou, as the ancestors; with us positioned deliberately at their feet demonstrates what our whanaungatanga to our past, ancestors, gods, and elements created by the gods are to us.
• 3.8 When manuhiri arrive and are welcomed onto the marae, there are linkages drawn here to make the connections. Through the karanga, the first linkages are drawn to those that have passed and are represented in the whare, calling them forward to meet and welcome the loved ones that the visiting manuhiri bring forth with them. This is in reference to that we each carry with us our loved ones, while it may be the memory only. Within this context, they are treated as though they are present and are among us. Through the karanga process, our loved ones are called forward to meet and are assembled around us so that, when we eventually meet our counterparts of today, our loved ones have connected. Through whaikōrero, connection to the purpose of the event you are attending and the people that are assembled must be made. To not do so is to fail the fundamental function of the whaikōrero. It is more than giving a speech – the name indicates what is required: ‘whai’ – connect/follow; ‘kōrero’ – speech. The connections that must be made here are to those of the house, living and present, to those assembled living and present. As presented in Section 1 of this paper, the deliberate naming of the ngahere is a reminder that we have a relationship to that section of our environment. This is again represented through Tāne being the originator of rākau and later people through Hine-ahu-one where, through these familial connections, we are related.
• 3.9 A key part of people coming together is the notion of whaka-whanaungatanga – the process of getting to know each other – while through the pōwhiri process, this is done to draw connections to the ancestors associated to the whare. Nevertheless, when we meet, we must do this. Here, you will hear people reference their mountain, river, marae and significant ancestor, tribe and subtribe. This is being done to allow us to geographically locate who we are meeting and cognitively understand where they are from through iwi, hapū and ancestors. This allows us to begin to draw connections between each other to form the whanaungatanga/link that is required. Tikanga here requires whaka-whanaungatanga to be undertaken when we meet each other.
• 3.10 While it is important we make the linkages between us as people, it is also important it is done when we enter the lands and territory of someone for the first time, where the process of te uruuru-whenua must be performed. This process requires us to introduce ourselves to the landscape and people associated with the territory. Acknowledging the territory and lands is largely conducted through pōwhiri now. At times during the pōwhiri process, we will hear speakers referring to the whare, wharekai, marae and significant sites in their whaikōrero – this is an indicator the speaker is visiting for the first time.
• 3.11 The importance of maintaining the relational components with our environment is as equally important as maintaining relationships with each other and our ancestors. This is reinforced by the points raised in the first section of this paper regarding the deliberate naming of the realm of our forests as ngahere. This compound word was intentionally

selected by our ancestors in that it reminds us we are connected to forests and must ensure we never forget that we are connected. The connections that the name ngahere is referring to are the descendants of Tāne that are located within our forests where, through the genealogies of ‘their’ creation through Tāne, we are connected. This is further mapped through the naming and actions of the plants. The naming of kauri again is reminding us we are related; the actions of pirita through its function within the ngahere demonstrate we need to be connected as is forecast by its name, ‘connect as one’. The deliberate and intentional use of names for components within the ngahere demonstrates whanaungatanga links needed to be made to the environment, our landscapes and seascapes so that connections can be maintained. The terms ahikā, matemateāone, mana, kaitiaki and mauri all speak to components of maintaining connections to landscape and seascapes. These specific terms will be covered later in this section of the paper.

• 3.12 Through whanaungatanga, the work of noting the relational intent tikanga does is seen. A point made previously in this paper is that there are two components of tikanga that must be understood: intent and performativity. Through whanaungatanga, the intent of ensuring all things within te ao Māori are connected and understood is the primary function of whanaungatanga. Examples of this are seen through the pōwhiri, mihimihi when groups meet, whaka-whanaungatanga and karakia. The primary function of these processes is to ensure relevant connections are made.

WHAKAPAPA

• 3.13 Whakapapa maps the sequential order of events. With regard to people, whakapapa maps the genealogical layers that exist in families. Through whakapapa, the connections to each other within the community are recorded and noted. It is through whakapapa that the concept of whanaungatanga is recorded and mapped. An important component of whakapapa is that someone can maintain all the familial connections of the collective to ensure there is a record of who is related to whom and how. As well as maintaining the connections to people who are present today within the collective community of the whānau, hapū and iwi are also the connections to ancestors who have passed, ultimately drawing connections all the way back to Ranginui and Papatūānuku.
• 3.14 Whakapapa ensures the connections to each other and to past members of the families are recorded and noted.
• 3.15 In addition to noting the familial connections within the genealogical tables of who is related to whom, their traits, personality and activities they were involved in are also noted and mapped. While this helps in retaining the vast number of names (and particularly when similar names are used through the generations) and the personality and traits they engaged in to help differentiate them, it also helps with keeping the memory of them alive. Mapped through whakapapa is the sequential order of events as they occurred with regard to the practices of the collective, cumulatively recorded as the knowledge system for the iwi. Important events are noted, and who and what part they played is recorded and expressed through whakapapa as the layering of when it occurred, where it occurred and who was involved is noted and recorded. When these events are recorded and noted, they help provide the rationale for why a particular process was done.
• 3.16 Through whakapapa, connections are made to people, activities and places. Genealogically, whakapapa links the past and present of the iwi. Through the activity that

occurs, the lessons and the learnings are cognitively recorded through whakapapa. Mapping the evolution of practice and processes over time, it records what the practice was, notes the changes that have occurred and why it was changed and then establishes the new process moving forward. An example of this is seen in the changes Tūhoe have made to their pōwhiri process noted earlier as a result of the marae falling to the attack of the war party entering the marae at dusk. Tūhoe no longer allow pōwhiri to occur at night. Location is also noted, as well as noting what occurred and where it occurred. The marae that fell as a result of the dusk attack is noted within the Tūhoe records of history. Similarly, we see again an example of this in the naming of Whakatāne. While versions differ within the region as to who performed the task of securing the Mataatua waka properly, nevertheless, as a result of that action, the phrase “kia whakatāne au I ahau” was uttered – give me the strength of a man. From that incident, the name we now use for the town was uttered for the first time.

• 3.17 While whanaungatanga notes the importance of ensuring all elements are connected, whakapapa records and demonstrates how the connections are made. The rationale that defines what parts of the house fit together are made through whakapapa. From the tāhuhu as Rangi and the heke as the children of Rangi and Papa connected to the poupou, whakapapa links them. The familial connections that authored the known world connected through the poupou are the recent and more local ancestors represented to ensure the connection to Rangi and Papa is not lost. Deliberately hung between the poupou are those who are associated with the whare who have passed. They are hung here as they now reside in the world that the ancestors, represented through poupou, live within. They have now joined the realm of our ancestors. They are who will be referred to when hosting visitors onto the marae and who we meet when we enter the whare.
• 3.18 The importance of whakapapa is seen at play within karanga and whaikōrero during the pōwhiri process. Within the karanga process, the appropriate links must be made to the welcoming group to connect them to those iwi and hapū connections of the marae. If the kaikaranga from the marae is not aware of the iwi and hapū connections of the manuhiri, it is the role of their kaikaranga to notify the marae and the kaikaranga from the marae who is assembled among them. This is also for the benefit of the speakers who will follow conducting whaikōrero. During the karanga, exchanges are made to those that have passed of both groups – they are called upon to be present. An important component of the whaikōrero process is whakapapa links must be acknowledged and commented on. If the purpose is a tangihanga, the familial connections of the person lying in state must be made and drawn to the group that is visiting. If there have been members of the visiting group who have recently passed, they too will be mentioned here.
• 3.19 With regard to tangihanga, whakapapa determines who can speak and who can’t speak. Direct relatives of the deceased are not allowed to perform karanga or whaikōrero. These groups are termed ‘kirimate’. The tikanga component that is operating here is connected to the notion that, once a word has been uttered it cannot be ‘un-uttered’ – the concept of sorry does not exist here, hence the use of mokomoko on poupou to represent the spoken word. Within this instance, tikanga stipulates those that are closely related to the deceased do not speak as they will not be in the appropriate frame of mind to speak and the risk of them saying something that is inappropriate is greatly increased. To safeguard this from occurring, tikanga prohibits close relatives from speaking or performing karanga. An interesting issue that is unfolding now is how close is close? In some places, the decision of three generations separation is sufficient distance, while some who are

distantly related but in fact are very close to the deceased and are equally impacted by their passing should not speak either.

• 3.20 Through whakapapa again, the order of who should perform whaikōrero and karanga is decided. Generally, it is the tuakana – the eldest – who are required to perform the duties of whaikōrero and karanga. Typically, while your parents are still alive, you do not perform either of these duties – to be seen to do so would be seen to be belittling the importance of your parents. While this is not so rigidly held to now, the sentiment still remains that the performance of these two duties is not undertaken lightly and they are important functions that must be performed correctly for the iwi.
• 3.21 With regard to the performance of the karanga, strictly speaking, those that can still produce whakapapa were forbidden through tikanga. To explain this requires a breakdown of the terms used to define females, explained to me by my kuia. Young girls were referred to as ‘tamāhine’. As they moved into adolescence, they were referred to as ‘kōtiro’ (they are looking), as is suggested by the word ‘tiro’. When they have found what they are searching for, they are wāhine (females that are carrying), as suggested by the words ‘waha’ and ‘hine’. This is until they become ‘kuia’ – kua kūtia te mate mārama (they no longer menstruate). It is therefore those who are no longer able to bear children who were to perform the duties of the karanga. The tikanga concept that is at play here is to ensure that the next generation is not put at risk by exceptions taken to what someone has said in performing karanga. This concept is taking the view that words uttered in anger can cause harm. While the anger will be directed at the individual performing karanga, the impact is to their children. To ensure the child-rearing parts of women were not exposed to this risk, through tikanga, therefore, only kuia were permitted to karanga.
• 3.22 The wider view or fundamental role of tikanga is to ensure connection is maintained with all things – each other, past and present, all elements of the environment – animate and inanimate. Whanaungatanga highlights the fact things must be connected; whakapapa shows and maps how things are connected.

MAURI

• 3.23 While whanaungatanga and whakapapa note and detail the connections that are made with all things, mauri speaks to the distinctive nature all things have. All things have mauri, animate and inanimate. Through mauri, the unique nature of elements is recognised. Another way of expressing mauri is using whakapapa. Within whakapapa, elements are ordered in the sequential order of events that created them. However, these elements are not mutually exclusive of each other – they do not exist within a vacuum. As is identified by whanaungatanga, all elements must be connected. Mauri is the component that connects and binds all elements together. As is suggested and forecasted with the name, it is reminding us we are related.
• 3.24 Captured within this term is also the purpose of each element. By way of explanation and as noted earlier in this paper, descendants of Te Urewera have a responsibility to maintain a physical presence and be seen to draw resources from Te Urewera. If they do not, the mauri of Te Urewera will die. It will think it is no longer of value or importance to its people and therefore of no importance. There is an obligation being referred to here. While mauri describes the distinctive character of all things, it also notes the importance of what we are required to do to enhance and support the mauri of all things. That is, we must be

present and be seen to be engaging in all manner of practice and processes of te ao Māori.

• 3.25 Another anecdote from my kuia with regard to accessing the rongoā qualities from the rākau within Te Urewera was that no rākau was given gifts of healing all things. Each rākau had been given a component – to give all the gifts to the one rākau would potentially create the risk of that rākau becoming arrogant. Each rākau therefore had an important part to play, and collectively they all held the solutions to heal our ailments.
• 3.26 As my kuia aged and her eyesight began to fail, I was tasked with sourcing the relevant plant matter she required. I was given strict instruction to first introduce myself to the rākau, state my purpose and outline what the ailment was and who it was for before I harvested what I was after. To not do this was to upset the mauri of the rākau. Again, an example from my kuia illustrated this: if someone was to come up behind us unannounced and yank out a clump of hair, our body becomes startled and angry – we are not mauri tau, we are angry. However, if we make ourselves known and explain what we are going to do, the other party is prepared and less likely to be startled and become angry. To my kuia, simply plucking leaves and removing bark unannounced to the rākau will produce a similar result we experience as people – the rākau needed to be informed of our presence and asked for permission to ensure the mauri of the rākau was aligned to what we were requiring.
• 3.27 The traditional processes of gathering kererū also noted that the element of the mauri of the bird needed to be catered for. This process started from the very outset before gathering parties departed by not stating they were going to hunt or get kererū. To say they are going to hunt is to invoke the actions of ‘pūhore’ – very closely aligned to the idea of ‘counting one’s chicken before they hatch’. To state we are going to hunt is being presumptuous. Rather, we should state that we are going in the hope we will be provided with kererū gifted to us by Tāne. You would refer to ‘te matau manu’, inferring you are hopeful. While the kererū are fat and ready to be gathered, they are referred to as ‘whaturua’, where the concept here is that, through the rituals of starting the season, the request is made to Tāne to make available the ‘body’ of the bird, and the mauri therefore remains within the ngahere to continue to grow and reproduce. Strict protocols of disposing of the feathers of birds that were dispatched were required. If kererū were to see their feathers scattered and blowing around in the wind, they would depart and never return: ka heke ngā manu ki Tiritiri – the birds will depart for Tiritiri never to return.
• 3.28 Captured within the mauri of the kererū and rākau were a set of processes that must be maintained. In maintaining the processes required to harvest kererū and rongoā, we demonstrate the importance of needing them to support our lives and, in doing so, maintaining the mauri of the kererū and rākau.
• 3.29 As stated previously, mauri speaks to the purpose but it can also be placed onto things by tohunga for certain periods of time. Objects through karakia by tohunga can be given a particular purpose that must be honoured by all. Rāhui pou are examples of this. These were physical indicators that a series of extraordinary conditions have been put in place over the region and/or territory the pou is indicating (the concept of rāhui is covered more fully below as we look at the concept of mana). The mauri initiated here by tohunga is prohibiting access to resources or restricting access for a period of time.
• 3.30 Returning to the imagery of the whare, where we are located as the living within Te Aotūroa is deliberate. Through us, we maintain the connection to all things – past, present,

animate and inanimate – whereas through whanaungatanga, we need to note the connections; through whakapapa, we state the connections; and through mauri, we ensure the distinctive nature of all is seen and used.

MANA

• 3.31 Here, we will look at the following:
  • Mana whenua
  • Mana wahine
  • Mana tāne
  • Muru
  • He hohou te rongo
  • Rāhui
• 3.32 The concept of ‘mana’ speaks to authority that is granted by the collective. The connection to the collective is mapped through whanaungatanga and whakapapa. Through this, collective authority is granted to the order in which processes are conducted and events are to be supported, through to the elevation of people to maintain order for the collective. The individuals who are afforded the will and support of the people will be those recognised as holders of the knowledge required to maintain the integrity of the knowledge and processes of the people. To explain this concept, we look at six subsets of ‘mana’ to draw and illustrate the expressions and intent that sit behind the concept of mana.

Mana whenua

• 3.33 This area of mana refers to those that have power and authority to access and occupy land.
• 3.34 Within Tūhoe, reference is made to land from Toi and Pōtiki; the authority is drawn from Tūhoe – ‘na Toi rāua ko Pōtiki te whenua, na Tūhoe te mana’. While our connection to the land is drawn from Toi and Pōtiki, it is the actions of Tūhoe that have gained the will and support of the collective in granting him the mana and authority. The obligations required by mana whenua were to be present upon the lands, reinforcing the importance the land played in providing sustenance for the wellbeing of the people. Inherent within mana whenua is the obligation of the collective to maintain a connection to the area where they are residing, ensuring the maintenance of the knowledge systems of te ao Māori are used, followed and adhered to. If the presence is not seen to be maintained, it can be usurped by others. Reinforcing the connection the collective have to the land is done through the naming of sites, rivers, ridgelines, hills and mountains. The narrative contained within these names will be who was involved, what occurred and why. This all adds to completing the narrative that explains the connection of the collective to the land that gives them the mana to reside and draw from the available resources located there. The detailed accounts that are retold through the narratives are those that are maintained and captured through whakapapa.
• 3.35 An example of this is captured in the naming of the site Tarapounamu. Living in the early 1700s was an ancestor, Tamatea-kaitaharua. Tamatea was gathering kererū with the use of a ‘tao’ – a long spear made from young tawa. Fastened to the end was a sharpened

greenstone point as a blade, referred to as ‘tara’. This name was taken from the sharp spikes found on the spine of the tuatara, hence the name, tara. The tara point of the tao is said to have broken off and become lodged into the kererū. Tamatea, not wanting to lose his prized greenstone blade, pursued the kererū from within Te Urewera all the way out to the coast where he eventually dispatched the bird on the slopes of Pūtauaki mountain located within the Whakatāne region. Since this incident, Tarapounamu has been used to refer to this peak within Te Urewera.

• 3.36 As covered in Section 2 of this paper, the concept of ahikā was used to describe one’s occupation over a piece of land. To maintain mana whenua, it required people to be present and actively seen on the land – the analogy drawn from the term ahikā is taken from the concept one must be present to keep the fires alight.

Mana wahine

• 3.37 Mana wahine, speaks to the authority and importance of women and the roles and functions that are performed and maintained by them. A fundamental function of tikanga is to ensure all things are connected, practised and maintained intact for the future generation. Of vital importance is to prepare as best we can the foundations for the next generation. A key part of this is wāhine. Through the language again we see the importance given to wāhine. The womb of a human is referred to as ‘kōpu’ or the ‘nohohanga tamariki’; for animals, it is referred to as ‘ewe’. The distinction made here is to elevate the sanctity of the human body to that of non-human. Again, we see this in use of the word ‘slim’ or ‘skinny’: the land is referred to as ‘tūpuhi’; people are referred to as ‘whīroki’. Through mana wahine, the distinctive roles and purpose of wāhine are described and made visible.

Mana tāne

• 3.38 Similarly, mana tāne speaks to the important elements required by men to perform and maintain in accordance with the knowledge system of te ao Māori. An important component of mana tāne is to support and enhance the mana wahine and vice versa. Captured in the distinction of mana wahine and mana tāne is the importance of the two elements: one is not more important than the other, they are of equal importance. Each is required to ensure the survivability of the iwi to ensure the collective continues to flourish. Insights again are seen here when we view the language, as in the descriptors ‘hine’ and ‘tāne’. To explain this concept, we once again return to the lessons and examples demonstrated through rākau. The term given for pollen is ‘nehu’ – taking the wider view, that pollen is technically the sperm of plants. In returning to the terms for male and female in Māori, we see ‘tāne’ drawing the inference that the role of the male is ‘ta i te nehu’ – to implant nehu – and ‘hine’ as ‘hi ake i te nehu’ – meaning to draw in the nehu.

Muru

• 3.39 We turn now to look at the authority that is granted by the collective through mana to claim reparation for a transgression that has been committed through the concept of muru. When muru is undertaken, it is an example of someone or an entity applying their authority over another to seek compensation. This can be through the removal of rights over land, coveted hunting spots and/or a payment of some kind to be made. The enforcement of decisions made through muru required the support of the collective to serve and maintain. It also required those that had transgressed to accept they had indeed broken rules, otherwise dispute and conflict would result.

He hohou te rongo

• 3.40 Folded neatly into muru is the element of seeking redress for the wrongdoing and settling the issue, and allowing the collective to continue to live and move on from the incident was the desired outcome. More explicitly, the concept of conflict resolution is best captured in the construct of ‘he hohou te rongo’ – to find or make peace. When he hohou te rongo is required, a transgression of mana has occurred. The best outcomes sorted through he hohou te rongo were ones that were binding into the next generation – marriages were sought as a good outcome between conflicting groups. Through the union of the marriage and future children, the responsibility of both parties was required to ensure the raising of the children was done in accordance with the knowledge systems of te ao Māori. Each party now had a responsibility and a duty of care for the children.
• 3.41 The two examples supplied earlier resulted in the communities agreeing a transgression had occurred. In the case of the arranged married, the community had decided the father was failing in his duty to appropriately care for his wife and children. The mana of the wife and the children had been broken here. Therefore the community intervened, requiring my great-grandfather to sort out the issue. As he had arranged the marriage, it was his responsibility to seek a way forward.
• 3.42 As in the incident of the neighbouring tribe, through association, the individual who had transgressed their tribe felt it necessary to come forward to ensure the actions of the individual did not unwittingly create an issue between the two tribes. Both of these cases were committed by individuals. However, the impact of their actions was felt by the collective in that the collective now required a course of action to be taken.
• 3.43 In the examples of he hohou te rongo provided, it was not only the mana of an individual that needed care, it was the mana of the collective. While the breach of mana is conducted by the individual, it is the collective that the person is associated to that is held responsible.

Rāhui

• 3.44 When a significant incident has occurred, the region will have a rāhui imposed. A rāhui is a restriction with certain conditions that must be followed and adhered to.
• 3.45 To impose rāhui requires an authority to firstly impose it and secondly to have it enforced or recognised. The rāhui is a set of conditions that will be imposed for a set period as in the scenario supplied earlier when Whakaari erupted, resulting in multiple fatalities. A rāhui was placed on activity within the sea and coastlines, and gathering of food was prohibited while the conditions of the rāhui were in place. This will only work if those imposing the rāhui have the mana and authority to impose rāhui. Within the Whakaari incident, the rāhui was imposed by Ngāti Awa. Ngāti Awa are the recognised mana whenua of the region with the authority to impose the rāhui – they did, and everyone respected and followed it.
• 3.46 The example provided earlier of Mihi-ki-te-kapua is an example of a rāhui not being followed. As a result of her son being killed in a particular area, she imposed a rāhui on the area while she mourned the loss of her son. This was adhered to for a while, where the issue contested was the duration of the conditions imposed. Ultimately, with her in- laws returning to conduct activity in the area, her son was killed while she was still grieving, resulting in a war party being raised to avenge the transgression of her rāhui. Imposing

rāhui requires mana – if you did not have the mana, you could not enforce the conditions of the rāhui, therefore failing to impose it.

• 3.47 In returning to the whare, we see the mana of the whare is upheld by the collective who give voice to the histories stored and represented in the whare. Again, the placement of us as the living at the feet of our ancestors connected to the cosmology of the known world of te ao Māori is deliberate. It reminds us we have an obligation to maintain the appropriate practices and relevant knowledge drawn from the walls of the house, the pakiwaitara. It is through us, the living, that we give expression to the knowledge and systems represented in the whare. The mana of the whare and the collective is maintained and enhanced by the collective adhering to it, using it and ensuring it is accessible to the future generations who will in time assume the leadership roles within the collective for their generation.

TAPU

• 3.48 While whanaungatanga, whakapapa, mauri and mana all speak to ensuring a connection to all elements is achieved and maintained, tapu is the regulator of the actions in maintaining the connections. To not perform the relevant practices and processes stipulated by the knowledge system of te ao Māori is to breach tapu. All things within te ao Māori have tapu. This concept speaks to the action required to be conducted to maintain the intent and purpose of the functions within te ao Māori. Tapu speaks to the sanctity that is required to be adhered to and followed in conducting the procedural elements in maintaining tikanga. To not follow the appropriate processes required by tikanga is viewed as breaking the rules. Such a breach is considered tapu, and if not addressed appropriately, consequences can befall those responsible.
• 3.49 The application of tikanga through the pōwhiri process is described as kawa (this concept is covered in more detail later in this section). Professor Sir Pou Temara describes kawa as a set of processes wrapped in tapu. To not follow the procedures stipulated through pōwhiri is considered tapu – you are breaking the rules that have been put in place to maintain the intent. As a regulator, tapu is considered as the enforcer to ensure the appropriate procedures are followed. The procedures will have been acknowledged and recognised by the collective, reinforced by those individuals who have been granted the mana to lead and determine what is appropriate and what is not. At a very recent tangi, an incident occurred where an individual attempted to speak but was not seated appropriately in order on the paepae. He was seated in the second row where he was challenged by Professor Sir Pou Temara to desist as his actions were in breach of the kawa. We were located on the manuhiri side, with Professor Sir Pou Temara challenging the speaker. In support of Sir Pou, the kaikaranga from the tangata whenua of the marae stood, and together, the person was ordered from the marae. The actions of the individual in this instance were seen as an attempt to breach the kawa of the marae – an action considered tapu and needing to be stopped.
• 3.50 Sites that are considered tapu can still be accessed as long as the appropriate processes have been followed. Generally, burial places are considered tapu. People can enter these places safely as long as they adhere to the appropriate protocols. For example, we must not take food into these places, and upon leaving, we must ensure we have cleansed ourselves with water to ensure the residual effects of the people laid to rest do not ‘latch’ onto us and interfere with our mental state. The sites people are buried in are considered

sacred and not to be disturbed. Places where people have been killed are also deemed tapu and require protocols to be performed over the area to remove the tapu. This entails karakia and a cleansing of the site to ensure there are no residual effects left by the wairua (living soul) of the person departing this world where they can do harm to unassuming people travelling through the area later.

• 3.51 At times, part of the process would require restrictions to be imposed for a set period of time through the practice of rāhui. Through rāhui, restrictions could involve no access to the resources from a particular region for a period. Where someone has been killed, the restrictions are imposed as a mark of respect to the person and their family, and when sufficient time has passed to mourn the person appropriately, the rāhui is lifted, therefore removing the tapu placed over the area.
• 3.52 The processes and procedures conducted on the marae and within the whare are tapu. As stated by Professor Sir Pou Temara, kawa is procedures wrapped in tapu. Furthermore, the accountabilities are increased when operating within the whare, as the authors of the knowledge systems and processes are present and ‘alive’ here, waiting to hold us to account if we falter in conducting the current order of events.
• 3.53 Through tapu, regulations can be imposed over an area, people and objects. When this has occurred, there are strict processes and procedures that must be followed.
• 3.54 When my kuia was young, she would be asked by her father to select and harvest the various plants for rongoā, as he eventually became blind. During these periods, she was not to speak to anyone or deviate from her task until it was complete, as she was operating under the laws of tapu until she had secured what it was she had been sent to achieve.
• 3.55 When tapu has been placed over a site, to access it must include addressing the appropriate karakia and process in order for safe access. Walking unannounced into a marae that is not ours is considered tapu; we cannot turn up and simply knock on the door and enter – the appropriate processes of pōwhiri must be engaged and applied in order for us to meet the people, past and present, associated to the marae correctly.
• 3.56 Tapu operates where strict processes are required and if not followed – unknowingly or otherwise – harm will befall those responsible. Therefore, great care is taken to ensure this does not occur. This does not mean the procedural processes cannot be changed – they can. However, they require those that have been granted mana and require the will of the collective to agree for the purpose of change, in doing so understanding why the current process was initiated, with an agreed rationale to change the current practice. This can be seen in the example provided earlier in this paper of Tūhoe adapting pōwhiri to no longer allow its occurrence at the onset of nightfall.
• 3.57 When an item is considered tapu, care must be taken to ensure food is not brought near it, as food is seen as the opposite of tapu, being considered ‘noa’ (this concept is explained more fully next). At times, food is used to remove tapu from a thing or site. When my grandfather built our home – it was considered a modern intervention in the 1930s – rainwater could be collected from the roof of the house for potable water. This was a cause for concern, as food cannot be lifted above a person’s head. I’m not sure how my koroua overcame this issue, but many karakia were performed at our home to ensure no harm would come to pass.

NOA

• 3.58 As noted above, tapu operates where strict processes are required, and not adhering to these processes will result in harm. Noa is the opposite – it is considered safe, with no issue occurring if processes are not maintained. The concept of noa speaks to a state of calm and safety within the collective. In a state of noa, there is general acceptance and no polarising views at play and no requirement to be mindful of strict protocol procedural issues that need to be maintained. Food is considered as an element that can make things that are tapu noa – this is important as it is too difficult to live in a constant state of tapu.
• 3.59 An example of this is seen at every pōwhiri. At the beginning of the process, manuhiri and tangata whenua are tapu until we go through the process of meeting each other. This requires our ancestors meeting first, followed by us – the culmination and cumulative actions of our ancestors. The final component of this process is to share a meal. The sharing of food here is required to ensure the conditions of tapu are removed so we can return to the relative safety of noa and calm.
• 3.60 This is seen again when the whenua (placenta) of a newborn baby is returned to be buried in the tribal lands as a way of physically connecting them to their significant space and place. Where the whenua is buried, a hāngī stone is placed directly on top of it and is also buried. As the whenua is part of the human body, it is considered tapu, and therefore where it is buried becomes tapu. The hāngī stone is placed on top of the whenua to nullify the tapu, thereby making the place noa.
• 3.61 Food and things used in the preparation of food were considered elements that could return things to a state of noa. Strictly speaking, the last meal shared with the collective after a person has been laid to rest was to welcome the wharemate – those who have stayed with the body night and day for the duration of the tangi – back into the world of the living. This is because, while they are performing the functions of the wharemate, they are considered to be in the world of those that are passed and were not to share food with people of the living during this process, instead eating in the middle of the night, secluded away from the general public. The last meal of the day of the funeral was considered a celebration to welcome them back into the living, removing the requirement of eating in seclusion and conditions of tapu, to return them back to a state of noa.
• 3.62 While within a state of noa, the conditions and processes required by tikanga still needed to be maintained and adhered to, as in the case of completing the pōwhiri process. While the collective could relatively go about their regular activity freely, the conditions stipulated by tikanga and maintained through tapu still needed to be followed. By following the processes within the whare, elements are moved from tapu to noa and from noa to tapu. The conditions that need to be maintained to ensure tapu is not broken are mapped within the whare and so too are the processes in removing tapu to return to a state of noa. Generally speaking, Tāne and Tūmatauenga are the guiding principles that are used on the ātea of the marae. It is from Tāne that all manner of knowledge is drawn, and from Tūmatauenga, the unpredictability of human nature. Since we have no idea what someone is going to do next, the unpredictability of people is represented through Tūmatauenga. Within the whare, it is considered the realm of Rongomaraeroa – the god responsible for peace. All practices required to ensure peace is achieved are the responsibility of Rongo. While a state of noa is different to a state of peace, nevertheless, the two go hand in hand. Upon entering the whare, you are required to offer sanctuary under the conditions of Rongo. To fail to do so is considered tapu, as you are breaching

one of the fundamental operational conditions of the whare and in doing so moving from a state of noa to tapu. To return to a state of noa will require meeting the conditions of maintaining the conditions of Rongo to again return the whare to a state of noa.

• 3.63 The process of he hohou te rongo, muru and utu (this is covered further on) are mechanisms to return the collective back to a state of noa by seeking a resolution to the transgression that has occurred. What is important here is that transgressions must be seen to be addressed and those responsible held to account. To not do so would result in factions forming within the collective, threatening the very notion of maintaining a connected community and producing a state that is not noa. Therefore, transgressions need to be seen to be addressed to ensure there is an acceptance within the collective and in doing so produce a state of noa.

KOTAHITANGA

• 3.64 This notion of kotahitanga is a fundamental component of te ao Māori. Kotahitanga speaks to the collective, of being one, ensuring the connections that bind the collective iwi are important, captured and expressed through whakapapa. Whakapapa is an important component. It too, like tikanga, permeates everything within te ao Māori. Whakapapa, as it pertains to people, maps the genealogical generations of families to each other across the tribe and historically to the ancestors that link to the tribe.
• 3.65 The notion of kotahitanga also speaks to the single truth of understanding the origins of the collective. Here, kotahitanga speaks to the shared understanding of the historical accounts that were performed by ancestors that collectively create a historical account of the tribe. There must be a collective acceptance of the version of accounts, particularly when these accounts track back to the creation of the known world. When we map and track the exploits of our ancestors, whakapapa helps establish a chronology of events and practices that are critical to mapping the knowledge systems of the iwi. Here, whakapapa maps the epistemology of the collective. It maps when a particular practice occurred, where it occurred and who the critical participants were.
• 3.66 This draws in the third important component of whakapapa. Through its chronology of events, it notes where it links the people and the practices of the people to the landscape and in doing so to the people. Three key components are connected through whakapapa: people to each other and to the ancestors who passed; people to their landscape, noting the significant sites where incidents occurred; and through this mapping how each of these events has been wrapped into the knowledge system for the collective iwi. Whakapapa is the binary that helps maintain the connectivity of all things within te ao Māori. Through whakapapa, a shared understanding is mapped and presented.
• 3.67 The notion of a shared understanding is important. Tikanga too sits within this concept in that tikanga needs to be accepted and acknowledged by the collective, where the rules that must be followed upon entering in and out of the whare strictly follow the tikanga rules that the collective iwi have decided upon and maintain. The concept of the whare provides the collective, iwi, hapū and whānau with the facility to demonstrate the processes and practices of tikanga as they pertain to the operating and use of the whare complex. The entire system that dictates the use of the whare and the wider marae complex is governed by tikanga.
• 3.68 In a wānanga held at Te Whare Wānanga o Awanuiārangi on 30 June 2022, Dr Turuhira Hare commented that tikanga helps determine who does what when the collective meet on the marae. It provides an existing framework that is understood and accepted by the collective, removing the room for personal vested interests to be drawn into who should do what on the marae. Through tikanga, it outlines what needs to be done and how it is to be done and even provides guidance as to who is most appropriate to conduct the rituals that must be done.
• 3.69 While whakapapa links people to space and place and the evolution of the knowledge system, whanaungatanga speaks to the relational matters that must be maintained to ensure there is a connected collective. A point made earlier is that tikanga speaks to a set of relational processes that must be practised to ensure all is connected. Kotahitanga speaks to this essential concept – that fundamentally tikanga speaks to the notion of maintaining a connectedness between all things.
• 3.70 When we look at the whare, it is an example of this – the very nature of its creation and how it is constructed model this connection to all things within te ao Māori. The late composer Dr Hirini Melbourne composed a widely sung waiata illustrating the critical work the whare does to connect us, not only as a communal meeting space, but also points to the knowledge folded into the construction of the whare as examples and guides to help maintain the intent of being connected.1

Ko Ranginui e tū ake nei, hei tuanui Ranginui stands above us, a roof Ko Papatūānuku e takoto nei hei whāriki Papatuanuku lies beneath us, a mat

Ko te reo me ngā tikanga hei tāhuhu Language and tikanga forming the ridgepole Ko te iwi hei poutokomanawa And the people the main support

Ko te whare whakahirahira o te iwi e This is the most important house of the people Hei whakairi i nga tūmanako Is for hanging the hopes

I ngā wawata i ngā moemoeā The aspirations and the dreams

Ko tēnei te wā o te wao nui tūtakitahi This is a time of the forest to meet as one Ko tēnei ko koe ko Tānewhakapiripiri This is you, Tane whakapiripiri

• 3.71 Taking the theme used by the late Dr Melbourne, we see the different sections of the whare are described as each playing a critical component in showing and modelling important elements from te ao Māori. The main ridge pole, the tāhuhu, being referred to as Ranginui and Papatūānuku as the mat at our feet help build the analogy of the house representing our entire world where we as people are safely nestled between Ranginui – tāhuhu and Papatūānuku – papa/whāriki, expressed using our imagery and concepts as the rules determining processes and rituals. Dr Melbourne, however, uses the analogy that te reo Māori and tikanga are the tāhuhu of the house. Similarly, when analysing the tāhuhu, we see it has a repetitive design where there is no beginning or end. This is intentional – it reminds us that there is a time before us and there will be a time after us and that we are here simply for this time.

¹ Approval has been given from the late Dr Melbourne’s family to use the waiata.

• 3.72 Continuing with the theme captured in Dr Melbourne’s composition, we see the main support pole of the whare, the poutokomanawa – described as the collective people, is fitting and profound in that it is the poutokomanawa that connects to the tāhuhu – Ranginui and Papatūānuku. with ‘Papa’, drawing out the meaning that it is through our whakapapa we trace our connections to our past and ultimately the creators of our world. This house is a physical representation of connecting people assembled in the house to the ancestors represented in the carved pou connected to the representation of the atua Māori through the heke of the house that ultimately connects to Ranginui. It is within the presence of the ancestors and atua and creators of our known universe that the aspirations and desires of the people are presented and shared, where Dr Melbourne draws the analogy that the house is made of elements from all parts of the forest. The reference here is to the house being a conduit and a facility for the people to meet as one.
• 3.73 The imagery and themes used in this song help highlight the deeper meanings that sit within whare. Using whare as a concept to explain tikanga is natural and fitting. It is natural in the sense that the very practices undertaken to seek the agreement of the collective to build and then who to represent in its construction are all governed by tikanga. It is fitting in that the building of these complexes can only be achieved by an agreement of the collective hapū and iwi. The important point to make here about tikanga is that it has to be accepted by the collective – the will of the people through iwi and hapū.
• 3.74 Tikanga is in everything – it covers all elements of te ao Māori, a point made by Dr Turuhira Hare at a wānanga held at Te Whare Wānanga o Awanuiārangi on 30 June 2022: “I find it hard to explain and define tikanga as it is in everything I do.”
• 3.75 About the whare, it is the combined efforts of the collective in wanting a whare that is important to ensure the physical labour required to erect these buildings is available. Secondly, it requires the collective minds of the iwi to come together to agree on what particular events and accounts of the iwi. At times, neighbouring iwi will be represented in the whakairo, tukutuku and heke that will adorn the building; so too through the names of the complex and buildings.
• 3.76 Continuing the theme of the collective, an important feature to note here, mentioned by Professor Sir Pou Temara at the same wānanga in June, is that the wharenui is a single- room building, one that everyone from the collective can enter and be in the presence of the atua and ancestors that performed the historically important deeds for the collective. There is no hierarchy here, as described by Professor Sir Pou Temara – all are welcome and have access. By its mere nature, the single room represents the importance of the collective being able to meet as a collective of their time and being able to see the important feats of the ancestors through to the atua that collectively created the known world to te ao Māori.
• 3.77 Therefore, the construction of the whare, the purpose of the whare and the practices that occur within the whare are expressions of maintaining a connected entity to ensure we have kotahitanga.

EA

• 3.78 The concept of ‘ea’ speaks to conditions being met and issues resolved. Within the concepts of he hohou te rongo, muru and utu, the agreed-to decisions that have been determined through these processes are considered as ea.
• 3.79 Contained within this principle is an obligation and speaks to an action that is required. At a meeting held in Rotorua on 28 May 2022, Professor Taiarahia Black recounted an event of his childhood that demonstrates the notion of ea in operation. Professor Black’s father was a member of the 28th Māori Battalion that was constituted during the Second World War. Upon his return, he settled in Kawerau with his wife and his mother to raise his family. One evening, the Chaplain of the 28th Māori Battalion Canon Wi Huata, the Company Commander Pita Awatere and a tribal leader, also a member of the Battalion, John Rangihau called upon the Black family. Professor Black vividly remembers the immediate transformation of his dad back to a soldier of the Battalion in seeing his Commander and Minister. The Commander immediately went to Professor Black’s grandmother seated in the kitchen, lowering himself to his knees and apologising to the kuia who had lost sons to the campaigns of the 28th Māori Battalion. After a few moments, Professor Black’s grandmother said: “Kua ea” – enough, it is settled. The Commander acknowledged, as the leader of the Battalion, he had a duty of care for those under his command and was apologising to the mother of men he had lost through active service.
• 3.80 With regards to the issues that were settled through the process of he hohou te rongo, the act and the taonga that were presented were considered sufficient recompense for the transgression that had occurred. Hence, settling the affair is another expression of ea. In the earlier section covering noa, the action required to be seen by the collective in addressing issues when accepted by the collective is also another expression of ea. The amount of time a rāhui is imposed over an area is determined by the length of time required for the incident to be sufficiently acknowledged and the agreed-to time served. This is considered ea.

MATEMATEĀONE

• 3.81 There is no direct translation for this concept of matemateāone. One component of it refers to the pursuits of the ancestor Māui-Tikitiki-a-Taranga in his efforts to gain immortality by attempting to kill Hine-nui-te-pō. In his failed attempt, Hine-nui-te-pō is said to have stated to Māui: “As a result of your actions you will from here ever after be born and perish; ka mate a ao ne koe – you will continue to die from here evermore.” However, the concept is much more – it speaks to the notion of obligation and servitude.
• 3.82 An expression of this term is the yearning one has to return to a place or to reconnect with people they have not seen for a while. The concept of giving your best to host your manuhiri is another expression. Within the whare, the left-hand side as you enter is referred to as the taraiti – this is where the hosts of the whare assemble. The right-hand side of the whare is called the taranui – this is the larger side of the whare given for the use of manuhiri.
• 3.83 This concept is there to remind and reinforce the maintenance of connections – connections to each other and connections to the environment. As mentioned previously in the explanation of mauri, the connection to the landscape must be maintained to ensure the mauri of the landscape is sustained and endures. Descendants of Tūhoe must maintain

a presence within Te Urewera. As an individual, I have a responsibility to my collective to ensure I play my part in being present on the landscape, continue to practise the processes of entering the ngahere and continue to draw support through food and medicinal components. In maintaining these processes, I am showing the ngahere it is still of importance and value to me. If I do not do this, its mauri dies. To ensure this does not occur, I need to be present. Similarly, in being present and maintaining the practices, I am exposing my children to the knowledge, processes and commitments required here so that, in their time when I am no longer of Te Aotūroa, they will continue to fulfil the requirements in keeping the connections alive. This concept is another expression of matemateāone.

• 3.84 At its core, it speaks to the notion of needing to be cared for and to care. The physical connections of returning whenua (placenta) and pito (umbilical cord) to the tribal lands was a way of physically connecting us to our tribal lands and the people that are resident there. Through this concept, the obligation of care is expressed – to care for and nurture each other, to maintain a connection to the environment and to continue to practise the systems of te ao Māori.

UTU

• 3.85 The concept of utu is the action undertaken for reciprocity. The outcomes achieved and agreed upon through the processes of he hohou te rongo, muru and pākūhā can be viewed as utu being taken. When utu is being undertaken, the other elements of mana and ea need to also be considered. To extract utu requires mana, both on behalf of the collective that is making the demand and similarly from those being made to make payment. If those making the demands don’t have the wherewithal to enforce their demands, the likelihood of it being enforced is low. The collective making the demands needs to be able to enforce them. When we look at Mihi-ki-te-kapua feeling aggrieved her in-laws were returning to the lands, her son had been killed before she had stopped grieving his loss and she raised a war party to seek retribution. The act of seeking retribution here is considered an example of utu, as Mihi-ki-te-kapua had the wherewithal to raise a war party. Being willing to take up arms to defend her course of action made it possible for her to seek utu. Without the will and support of the people, she would not have been able to achieve the outcomes she desired.
• 3.86 With regard to ea, the retribution being sought needs to be sufficient in that the reprisal is accepted by the collective in fulfilling the utu. Where utu has been taken, the reasons why and how it was claimed are noted and recorded into the history of the people. If these incidents are significant, they will be represented within the whare, either through the action itself or by identifying primary individuals responsible. Where the collective has had to make payment of kind, this is folded into the historical accounts of the collective and more than likely discretely folded into the imagery of the whare.

MANAAKITANGA

• 3.87 The concept of manaakitanga speaks to an obligation to ensure we show a duty of care to all things, to each other, to the environment, to the knowledge system, to the past and to the gods. While whanaungatanga and whakapapa speak to maintaining connections, this concept speaks to the notion of care and compassion. Through manaakitanga, we

must demonstrate a level of care, and the underlying function of the pōwhiri process is that we must host our manuhiri.

• 3.88 Great care is taken to ensure every effort is expended to ensure visitors are well cared for during the duration of their stay. To not care for your manuhiri is seen as a slight, not only to those who are present but to all who associate with the marae, including those past and present. This is a situation no one wants to see, least of all be the cause of. To ensure the marae is able to fulfil the requirements of manaaki requires the will and support of the people. The marae requires the collective to be present and knowledgeable in maintaining the kawa of their marae. There are many tasks at play here. People are required to ensure the protocols in entering the facilities are adhered to, and hunters and food gatherers need to be mobilised to secure food to feed the manuhiri. All these tasks require the collective to function as a cohesive unit.
• 3.89 The maintenance of a cohesive unit operating within the marae requires leaders in various roles working together to ensure the manuhiri are cared for under the conditions of manaaki. While the manuhiri are engaged in the rituals outlined by the kawa of the marae, the wharekai is busy preparing the meals that will follow and leaders are deciding what will be served immediately following the conclusion of the processes on the marae or within the whare. Timing is important – you do not want the manuhiri waiting around to be fed. Pressure is on those leading in the wharekai to ensure a meal is ready as soon as manuhiri have completed the protocols, and even more important is that there is enough food for all. Often, within some wharekai, as people are getting ready to depart, the following statement is made: “kare i puta mai te ihu o te poaka” – we are yet to see the nose of the pig to be served. This sentiment is shared to acknowledge the hosts in ensuring food was plentiful throughout the duration of the stay.
• 3.90 A duty of care is needed by the tangata whenua to ensure the marae has people present and able to fulfil the requirements of manaakitanga. Ensuring the protocols stipulated through kawa are known requires the collective to regularly and frequently gather. This concept speaks to a commitment of servitude to maintain and be present at such events

– you have to be seen among the collective. The responsibility of the collective is to ensure the appropriate processes and practices of tikanga are adhered to and maintained. Every effort must be done to ensure the processes and rituals outlined in kawa through tikanga are regularly performed to ensure people remain current with the practices.

• 3.91 A core component of the whare is to provide a space where the collective can host and perform the functions of manaaki. The coming together as one to perform this task reinforces the concept of kotahitanga – being united and connected to each other, to the past, to the landscape and to the knowledge that resides among the iwi.
• 3.92 Through manaakitanga, the notion of care – for one another, for the histories that relate to the collective, to ensure the processes and rituals that have been laid down by the ancestors are maintained and performed and to ensure the collective can access the knowledge – is what explains the provenance of the collective. Uniting and connecting these elements is the concept of whakapapa, the binary that connects all – people to people, people to ancestors, people to knowledge and people to landscape.
• 3.93 Not only does the whare provide the facility to conduct principles of manaaki to manuhiri but it also demonstrates a duty of care is also required to ensure the processes and knowledge stored there are cared for. Stored within the walls of the house are the

detailed accounts and activities performed by the ancestors. The term ‘pakiwaitara’ is used to describe stories from te ao Māori. It’s fair to say these stories have been loosely generalised as myth and/or legend – simpleton stories to entertain children and not to be taken too seriously. However, when analysing the term pakiwaitara, we see that it too is a compound word: paki (story) and waitara¬ (from the wall of the house). When we pause and reflect on this, it is describing stories that are taken from the wall of the house – these are the escapades and activities that the collective has agreed are important enough to

be captured and represented in their whare, where we can be assured these are not mere myth or legend. These are in fact accounts of ancestors that have been recorded as important events that must be remembered by the iwi and told to future generations. The analogy of selecting a book from a shelf of a learned library comes to mind here when a story is selected from the wall of the house to be told to reinforce a point or simply to be told to ensure the next generation know the accounts are stored here.

• 3.94 The term matemateāone also implies a duty of care is required to ensure we are present to manaaki the land and environment so that we are demonstrating what is provided for us here is valued to safeguard its mauri from dying. Through manaaki, we are required to demonstrate a duty of care to show the importance of valuing what is offered from the land and wider environment.
• 3.95 By expressing our continued reliance on the environment and accessing the accounts that are stored within the whare via pakiwaitara and detailing the accounts of the ancestors shared and retold to ensure they are retained, we are completing the obligations of manaakitanga. As expressed through matemateāone, the obligation to be present and serve to support the collective maintaining its connections through whanaungatanga, bound by whakapapa to ensure kotahitanga is achieved, is to manaaki the wellbeing of the collective.

KAITIAKI

• 3.96 Kaitiaki speaks to the obligation of guardianship to maintain a duty of care for process, people and environment. A kaitiaki can take the form of a person, a creature or an object. This concept, like the other principles, works to support mana, mauri, tapu, whakapapa, whanaungatanga and matemateāone. With regard to mana, those individuals who have mana granted as experts in a particular area of practice by the collective are considered kaitiaki – as guardians to ensure the practice and knowledge they are knowledgeable in is maintained and passed on to the next generation.
• 3.97 The role of the kaitiaki is to protect and ensure the appropriate processes and procedures are used when entering spaces and areas kaitiaki are located. The concept of kaitiaki speaks to the spiritual world view of te ao Māori. This is a world that presents the view that those who have physically passed from this world maintain their essence or spirit – they are considered to still be alive among us and present. Since their physical presence is no longer present, their presence and influence has not changed from when they were alive.
• 3.98 People who are considered to have kaitiaki are termed ‘kikokiko’. A kikokiko can be anything and is considered to be your spiritual guardian. Again, returning to the lessons shared by my kuia, animals that were drawn to people were clues to what a person’s kikokiko could be. Interestingly, many will not know what their kikokiko is. However, those that are drawn to cats have a high likelihood of having cats, for example. An early indicator

you have invoked someone’s kikokiko is through dreams – if you dream you have been bitten by a cat, the chances are you have upset someone who has a cat as a kikokiko.

• 3.99 The role and function of kaitiaki were to ensure the spiritual elements were maintained and, where procedural elements were required, were performed correctly. Through kaitiaki, the connection to the spiritual components was maintained and supported.

RONGO

• 3.100 Arguably, rongo is not considered a principle of tikanga. Rather, it is a function. Rongo is a state of peace and calm that is achieved through the principles of ea, noa and mauri. As noted earlier, when explaining noa, Rongomaraeroa was responsible for notions of peace and goodwill and was responsible for the behaviour within the whare. This realm was considered the domain of Rongomaraeroa, which required peace to be maintained within the whare. The use of the term rongo within the concept of he hohou te rongo is deliberate. Again, this state is providing guidance when conflict occurs to seek the pathway that leads to achieving rongo.
• 3.101 When elements of ea, noa and mauri have been achieved or are operating, it is considered to maintain notions of rongo.

KAWA

• 3.102 The description provided by Professor Sir Pou Temara of kawa being a set of rules bound in tapu is a good explanation. Kawa and tikanga are two linked concepts. Kawa is derived from tikanga, which is the set of rules defined by tikanga. Where kawa is seen to operate is within the processes and procedures of entering marae. The purpose or intent for entering the marae is consistent with Māori. The consistent components here for all Māori is that there will be two groups coming together – manuhiri and tangata whenua. Each will acknowledge the ancestors of both groups, and procedures of karanga, whaikōrero and hongi will occur. This is directed by tikanga. The how of these elements is guided by kawa.
• 3.103 Region to region will differ on how they will perform the tasking of bringing the two groups together. Clear examples of kawa are seen within the order whaikōrero is conducted. Some regions start with tangata whenua, exhausting their speakers first and then handing the ‘rākau’ – the speaking function – to the manuhiri to work through their speakers. This process is referred to as pāeke. Other regions prefer to alternate – tangata whenua begin, then alternate to manuhiri, where the only condition here is that tangata whenua must open and close the speaking. Where it looks like the manuhiri have more speakers than the tangata whenua, the tangata whenua will pass the rākau to the manuhiri to exhaust their speakers and return to the tangata whenua to complete the whaikōrero duties. This process is referred to as tau-utuutu. These two methods in performing the functions of whaikōrero are examples of kawa.
• 3.104 Both Distinguished Professor Sir Hirini Moko Mead and Professor Sir Pou Temara describe kawa as a set of rules that are bound by sacred conditions expressed as tapu. Professor Sir Pou Temara to expresses kawa as a set way of doing things that has the support of the people to enforce it and is to be practised and applied into everyday events. Kawa defines the rules of engagement, where Distinguished Professor Sir Hirini Moko Mead explains a transgression of kawa is punishable.

KARAKIA

• 3.105 Karakia are the incantations that are conducted in accordance with tikanga. Through karakia, connections are made to the gods and significant ancestors to seek guidance, protection or help. The art of karakia is connected to the kete uruuru rangi or uruuru tipua or kete tuauri where this kete is stored within the poutuaroro of the house, located in the centre of the front wall as we enter the whare.
• 3.106 The performance of karakia is conducted by a tohunga specialist trained in the arts, drawn directly from the kete uruuru tipua. Through karakia, connections are made directly to the gods and the authors responsible for creating the known world of te ao Māori. A key function of karakia is to connect to the wairua. The concept of wairua speaks to another world in operation around us, as outlined in the creation of the whare by Tāne. He ascended to other worlds to access the kete of the wānanga, and through the construction of poupou, looking into us seated within the whare illustrates this other world. Finally, through the concept of kumama, an awareness and an understanding of another world was understood by te ao Māori. It is through karakia that connections are made to these worlds. Because of this, karakia was considered a tapu practice – one that required the utmost care to ensure the procedural matters were conducted correctly.
• 3.107 All practices within te ao Māori required karakia – seeking guidance to ensure positive outcomes are achieved and ensuring all manners of protection are sought and wellness to all is requested.

SECTION FOUR

Tikanga as lived

• 4.1 This section of the paper will focus on examples and expressions that show tikanga operating today as a lived component. It will show the connection to the inception of concepts and processes that are used today in the application of tikanga. In demonstrating tikanga in operation today, a recap of where we are with what is tikanga is provided here first.
• 4.2 The word ‘tikanga’ simply means to be correct. Puhi Iopata (Wānanga, Te Whare Wānanga o Awanuiārangi, 30 June 2022) describes tikanga as the set of rules that defines all that is correct in the Māori world. It ensures the processes that are required to engage with the marae are followed correctly, it outlines the accurate way in which areas of work must follow and the order schools of learning must adhere to and it sets the guidelines for all things. Inherent within tikanga are the values and beliefs of Māori. Through tikanga, the connections to the activities and processes established by ancestors are continued. These rules are laid down by the elders and leaders and must be followed by the iwi.
• 4.3 In its simplest definition, tikanga is a set of guidelines that ensure we remain connected – to our past, each other, our knowledge system, our beliefs and our environment. It establishes our ‘world order’.
• 4.4 Through te ao Māori, a different world view is described. It describes the past as the days that ‘hang in front’ – ‘i ngā rā o mua’ – focusing on the past to help inform our decisions for the present – ‘ināianei’ – and help inform the days that are yet to descend upon us – i ngā rā e heke mai nei. This concept of looking to the past to inform the present is important – it connects us as people to our known world, and tikanga provides the rules for how we can navigate this world correctly.
• 4.5 The connection to the known world of Māori is through Rangi and Papa, where all genealogical things of Māori are drawn from and are connected to. By following the genealogical descendants of Rangi and Papa through the children of Tāne, we are connected to the forests, flora and fauna. Similarly, through Tangaroa to the seascape, through Tāwhirimātea to the environmental winds and through the other siblings to the particular components that they are charged with creating or protecting. In maintaining these connections to the known Māori world, the connection to our world order is established. This is where, through tikanga, the rules are expressed as the rituals and protocols that must be followed, ensuring we do not forget the connections that we as people have to our entire natural world.
• 4.6 Equally as important as maintaining a connection to our natural world is maintaining a connection to each other. Immediately when we introduce ourselves, we will

geographically locate ourselves: “Ko Pūtauaki taku maunga. Ko Ōhinemataroa taku awa.” Next, we will make known our familial connections: “Ko Mataatua taku waka. Ko Toroa te tangata.” This is followed by the collective I associate to: “Ko Ngāti Awa te iwi.” This is done to allow those that are present to draw their own geographic, familial and collective connections to us, to build a connection from their physical and cognitive spaces and places.

• 4.7 Again, we see this concept repeated in the deliberate naming of the placenta as ‘whenua’ and land also as ‘whenua’. When the child is born, the placenta connected through the ‘aho’ to the parent is taken and buried within the ancestral lands. Firstly, this is done to return the placenta to the whenua – it has completed its task in sustaining life while in the womb. It is now time to return it to the whenua – earth, who now takes on the role of the placenta. Secondly, by returning the placenta to the whenua, it physically connects the child to its landscape to enable the child to build their cognitive connection to their landscape. Later, when the remaining umbilical cord detaches from the newborn, this is also taken and placed within a tree or some place safe within the tribal lands. Here again we’re returning the thread that connected the child while in the womb to the mother, and the placenta (whenua), having served its purpose, is now to be returned to the land to physically connect the child to the tribal land and to ensure the child, when grown, will never forget or lose their love and connection to their tribal lands.
• 4.8 During pregnancy, we also see reference to interesting concepts that refer to awareness of a time and place before we arrive in the present and of a place when we ultimately die and pass from this world. This notion is captured within the word ‘kumama’. Kumama describes the unborn child collecting food provisions for the journey it knows it is about to embark on. This manifests itself in the mother as food cravings, as the unborn child is seeking that particular food to sustain them on their journey into this world. Interestingly, we see this concept again when a person is about to pass from this world. They too crave a particular food or taste. Again this is referred to as kumama, as the person knows they are about to embark on a journey and they too are making provisions to sustain them on the next stage of their journey as they pass from this world.
• 4.9 This notion of another time and space is also seen within the wharenui. Poupou, within our wharenui, often have the image running off the edges of the poupou. One may think the artist made an error on their dimensions where the image does not fit onto the timber selected for the carvings. Rather, what is being portrayed here is that the carved ancestor is looking through a window from another world. The ancestor is framed by the window.
• 4.10 When we connect this idea to the notion pakiwaitara (paki – story; waitara – wall of the house) where our records of history are recorded in our wharenui, the term pakiwaitara itself has a more profound meaning, certainly more than a mere myth or fairy tale that it is often referred to as. We can extrapolate from the term pakiwaitara in that they are stories taken from the wall of the house and in that the histories captured in the poupou and the tukutuku panel are being referred to here – it is the histories that are important. The notion of time is different here – it is not linear. The ancestors that are portrayed in the poupou are still relevant and maintained as though they are still very physically present in the here and now. We are still accountable to them to ensure we maintain the processes and practices they practised and, in some instances, created.
• 4.11 It is within this world that tikanga operates and guides us to be tika – correct in our purpose, true in our purpose and true in our actions.
• 4.12 The following is an account of the pōwhiri process. Captured within the processes and practices here are good examples of tikanga at work, guiding and directing the function of pōwhiri. It is in maintaining tikanga that the process of pōwhiri is undertaken.

PŌWHIRI

• 4.13 The protocols that are used and performed when entering the wider complex where whare are located are determined by tikanga, termed pōwhiri. The process of pōwhiri is a concept that is performed by all Māori. While some of the processes may differ from tribe to tribe, the intent or purpose as to why the protocols are conducted are largely consistent.
• 4.14 There will be a host, termed tangata whenua, waiting to welcome and host the visitors, termed manuhiri. The visiting group, which is termed an ope, will assemble at a designated gateway leading onto the marae ātea, the term used to describe the courtyard in front of the whare. At this stage, the visiting group is led by the females of the group, performing the karanga. This is a concept that is only conducted by women. The cue for the visiting ope to proceed onto the marae ātea is given by the kaikaranga for the tangata whenua who, when seeing the visiting ope is ready to enter the ātea, will call to the visiting group using the oratory skills of karanga. Once the initial call is made by the tangata whenua, the manuhiri kaikaranga will respond and in doing so slowly lead the visiting group on the ātea. Within the karanga, details about the meeting are stated and acknowledged. If the purpose of the meeting is for a tangihanga, reference is made to the person and states whakapapa connections. The manuhiri will introduce who they are, which iwi and hapū are present within the ope, and reference to any organisation that may be present is also made here. Regardless of the purpose of the meeting, through the karanga, the ancestors that hang on the house, those that are represented in whakairo, photos that hang within the whare, those that have laid in state on the marae, are remembered and called forward to be present. Similarly, all the loved ones of those assembled are called to and welcomed. Again, we can deduce the role of the karanga by analysing the name, ‘ka’ – to and ‘ranga’ – weave, extrapolating the wider meaning that the karanga weaves and connects us to our past and present.
• 4.15 After the karanga exchange, the ope will be assembled directly in front of the house where the group will pause and remember those who have passed. Here, there is a change in that the women have led the ope onto the marae, led by the karanga of the tangata whenua. This is the transition from leading to playing a support role of the whaikōrero, which is led and conducted by men. This again is dictated by tikanga. Once seated in the designated seating, the front row is exclusively for men, in particular, those who are going to speak. This is an exchange that, like karanga, follows strict rules and order. The speaking is started by the tangata whenua where the flow and order of speaking are as important as who speaks. An easy way of determining the speaking order is to think of the speaking order resembling a stream where the flow starts from the whare. Normally, the tangata whenua first speaker will be sitting closest to the whare where the kōrero flows from the house to the first speaker and continues moving away from the house, concluding with the tangata whenua speaker sitting furthest from the whare where the speaking is then transferred to the manuhiri to respond. Here, the flow starts from the furthest speaker from the house and travels back towards the whare where the last speaker for the manuhiri is the person sitting closest to the whare. This model presented here is termed ‘pāeke’. A variant of this is ‘tau-utuutu’ where the tangata

whenua speak first, the manuhiri speaker replies and so forth. This interchange continues until all the manuhiri have spoken. This process will start and finish with the tangata whenua.

• 4.16 A key concept that is managed through tikanga here is ensuring every effort is made to safeguard the future generation. This concept draws directly from the notion that the spoken word cannot be undone – once a statement is made, it cannot be undone or unspoken. Connected to this idea are some words that can be used to heal and make people feel great and similarly can be used to cause harm. This is a world view that believes words have power and utterances can cause harm, particularly when emotions are running high – which is often the case during pōwhiri. Coupled with this, it is the marae ātea where debate and challenge are encouraged to settle affairs. While not ideal, physical altercations are known to have taken place here. While the safety of those assembled is important and care is taken to ensure people are safe, the greatest efforts are taken to protect future generations. Here, we see that karanga was to be conducted by kuia – the term is about ‘kua kūtia te mate mārama’ – the monthly cycle ceases to occur. This is where only females who have gone through menopause were permitted to karanga to safeguard someone taking offence and, through the spoken word, jeopardising the future children that the women could bear. Again, this is reinforced by women not conducting whaikōrero – only men perform this ritual of pōwhiri.
• 4.17 Concluding every whaikōrero, traditional songs or chants were performed termed ‘mōteatea’. As outlined by Professor Black, these are compositions composed hundreds of years ago, capturing the mode and tone of the collection of their times. What is interesting to note here, is that these songs are performed on the ātea. In examining the word we find ‘mō’ (¬for) – for the ātea.

SECTION FIVE

Examples of tikanga elements

• 5.1 To conclude this paper, the illustrative examples of tikanga that have been provided will be presented here again. The purpose of doing this is to provide a more detailed account of each of the incidents and the breaches of tikanga that have occurred and how, through tikanga, these incidents were resolved.

HE HOHOU TE RONGO

• 5.2 An example of he hohou te rongo occurring in recent times was seen when an employee in a tertiary provider committed fraud that was investigated and successfully convicted by the Serious Fraud Office. What was interesting in this case was how the iwi of the convicted person approached the founding iwi of the tertiary institution where the fraud occurred. The iwi had no connection to the activity of the person convicted of fraud, other than simply being the iwi the person belonged to. Nevertheless, the iwi of the individual still felt they had an obligation through tikanga to approach the founding iwi of the institution to ensure the iwi-to-iwi relationship was not marred by the actions of the individual. Despite the iwi not being aware of the actions of the individual committing fraud, the iwi recognised there was a responsibility within tikanga required of them as being the collective the individual belonged to. The iwi were demonstrating their commitment to their individual tribal members. A delegation of leaders from the individual’s iwi formally notified through tikanga their intention to arrive and present a pounamu taonga as a tatau pounamu to hohou te rongo between the two iwi.
• 5.3 Upon arrival, the delegation was welcomed in accordance with tikanga where the taonga was presented and subsequently named. It is important to note here that, when the tatau pounamu was undertaken, the investigation was still in the early stages and the full extent of what had occurred was yet to be revealed. In fact, at this time, conviction was not even considered a potential outcome. What was paramount to the iwi of the individual was that no harm be done to the iwi-to-iwi relationship. This taonga sits within the institution’s boardroom along with other taonga that have been gifted to the institution.
• 5.4 This example has been shared here as an illustration to show that concept of he hohou te rongo is still being practised today. The example that follows is one that occurred in the early 1930s, where the responsibility of the collective and individual is consistent and can be seen clearly.

Historical examples of he hohou te rongo

• 5.5 In the 1930s, my great-grandfather arranged the marriage of a niece, known as pākūhā. Because it was my great-grandfather who arranged the marriage to a husband from a neighbouring iwi, he had become responsible for the couple. Several years into the marriage after the children had been born, the husband started abusing his wife. The hapū turned to my great-grandfather to deal with it as he had arranged the marriage. As the years went by, the abuse continued, with the final straw being, in a fit of anger, the husband was heard to have said he would “eat their children”. At this point, a delegation from the hapū arrived on my great-grandfather’s doorstep seeking redress. This now required my great-grandfather to find an acceptable ‘pounamu’ heirloom to address the slight to the hapū of his niece on behalf of the hapū of the husband. Having to source the heirloom and present it in front of both hapū of the wife and husband raised the abuse that was happening in the family into the community, where, if people were unaware of the actions of the husband prior, they were now, drawing on the weight of public opinion to help curb the behaviour. Also, the couple and their children were now required to live with my great-grandfather and my great-grandmother as an added measure, perhaps to ensure my great-grandfather did not have to search for another ‘pounamu’ heirloom.
• 5.6 Because it was my great-grandfather who arranged the marriage, it was his responsibility to address the behaviour and support the couple with their children to ensure the elements of whanaungatanga were maintained.

PŌWHIRI

• 5.7 As explained earlier in this paper, pōwhiri is an example of tikanga. It outlines the conditions in which tangata whenua address and welcome manuhiri. The conditions of welcoming and hosting manuhiri through pōwhiri must be followed and adhered to. Also stated previously in this paper is the comment that pōwhiri helps mediate people’s behaviour and allows personal opinions to be put aside to ensure the tikanga is maintained and welcoming to manuhiri.
• 5.8 I have witnessed first-hand contentious issues being put to one side so as not to interfere with the tikanga and kawa functions of the marae. In November 2009, a 36-year-old key community figure was violently struck and killed. As I attended his tangihanga, seated on the paepae two along from me was the father of the man who struck the victim, killing him. The speaker before me spoke on his behalf, delivering his apologies for the actions of his son. Because of tikanga, this exchange was able to take place. Knowing the victim and his family personally, while they were understandably upset, allowed this exchange to occur. Uncomfortable as it must have been for the father of the accused and his family, they understood, like everyone assembled, the responsibility to observe tikanga and kawa of the marae. There were hundreds assembled on the marae that day. From what I observed, the family of the accused were welcomed and hosted as everyone followed and adhered to the tikanga of the whare, marae and tangata whenua charged with the responsibility of maintaining the correct conduct and procedures.
• 5.9 The people in attendance during the pōwhiri may not have agreed to having in attendance the family of the young man who killed the person lying in state on the marae. However, the principle of following and adhering to tikanga was more important. The next example is an occasion of what can happen when someone tries to breach the rules of pōwhiri.

BREACH OF TAPU

• 5.10 This incident occurred at a recent tangihanga in Whakatāne when a person who was not seated on the paepae attempted to speak. Normal practice dictates that, before the ope is welcomed onto the marae, the women will decide who will respond to the call (respond
  • as in this instance, we were manuhiri) and the men will decide who will speak and in doing so identify who will open and who will close, with the closing speaker laying down the koha.
• 5.11 On this occasion, as the person lying in state was a well-known figure locally and nationally and had been involved in many national discussions and debates, the ope was very large
  • there were nine speakers. We were all seated in order of speaking. Professor Sir Pou Temara was the sixth speaker, followed by District Court Judge Hemi Taumaunu, then me and concluded by our closing speaker. However, after Professor Sir Pou Temara had delivered his whaikōrero, an individual leapt up from the row of seats behind us, bringing forward with him a chair and proceeded to sit on the chair to speak. He completely ignored the requests for the paepae to stop as he was not seated within the paepae and was breaking the order of speaking that is stipulated by the kawa of the marae.
• 5.12 Two things were being challenged and broken here: the kawa of the marae and tapu. As stated previously within this paper, Professor Sir Pou Temara described kawa as a set of principles wrapped in tapu. Within all marae, there is a strict order of speaking. The tangata whenua start with the person seated nearest the whare, and this flows in order moving away from the whare until such time as those identified by the tangata whenua have all spoken. The rākau metaphorically describing the speaking now transfers to the manuhiri to speak.1 Here, the speaking will begin with the person seated furthest from the whare, proceeding in order with speakers seated closer to the whare. The analogy here is that the whaikōrero comes off the house and flows away as it moves through the tangata whenua and must circle back to the whare as it starts with the manuhiri speaker seated furthest from the house and flows back to the whare, ending with the last speaker seated closest to the whare.
• 5.13 To disrupt this order is a serious breach of protocol, as it is seen as interfering with the orderly flow of speakers. Secondly, having this protocol helps mediate the behaviour of people in attendance to ensure only those that should speak do so and stops people who get swept up in the occasion and decide to speak out of turn. What tikanga is mitigating here is the spoken word as it is considered tapu in that a spoken word cannot be unspoken.
• 5.14 As illustrated previously in this paper, mokomoko can be found carved into the mouth, tongue and chest of poupou. This is to represent the spoken word as a ngārara mokomoko to my tribe (and many others) – one of our most powerful guardians that can be used to heal or do harm. Therefore, the risk of someone saying something out of character because emotions are running high is a risk tikanga that ensures we do not do.

1. Described here is pāeke, where all the tangata whenua speak and then all the manuhiri speak. The other speaking order is tau-utuutu – this is where, consistent with pāeke, the tangata whenua open, then the speaking alternates between tangata whenua and manuhiri until all the manuhiri have spoken and the last speaker returns to the tangata whenua to close.

• 5.15 Returning to the tangihanga in Whakatāne, seated two seats away from me, I could feel Professor Sir Pou Temara vibrating with rage. At first, he asked the speaker to desist – who was now seated in his chair in the middle of the ātea, left leg folded with his left ankle resting on his right leg just above the knee, leaning back and proceeding to speak about Prince William and Prince Harry – no relevance at all to the person lying in state, simply issues that were of concern to him.
• 5.16 Upon Professor Sir Pou Temara’s request, the speaker turned slightly towards us, indicating that he had heard. However, he continued on. At this stage, Professor Sir Pou Temara was reminding the person that they were in breach of our tikanga and kawa of this marae and to please desist. The speaker continued. Having exhausted all rational means, as a last resort, Professor Sir Pou Temara stood and struck the seated speaker several times with his tokotoko. Upon this action, the kaikaranga from the marae stood from her seat at the foot of the left-hand amo of the house as you face it and added her voice for the speaker to desist and also leave the marae immediately. A very burly young man, who clearly could have physically removed the speaker, approached him and respectfully and quietly addressed the seated speaker: “Sir, you have been asked to leave immediately, please do so.” Thankfully, the out-of-turn speaker, now standing and holding his chair, complied and left.
• 5.17 Returning to his seat, Professor Sir Pou Temara instructed District Court Judge Hemi Taumaunu seated between us that he could now speak, and things returned to normal. After Judge Taumaunu spoke, I was the next speaker. Having made an opening statement in my whaikōrero, I was about to place my right foot to the left and then step to the right to place my tokotoko. I glanced down, and emerging from within the grass looking directly at me was a large mokomoko. Quickly, I shifted my weight to my left foot and stepped that way instead to where the mokomoko walked forward a short way, stopped and turned to look at me, eerily making direct eye contact with me. My brain and mouth were doing two different things at this time – it was important I did not whati (put the brakes on) my kōrero, but I was seriously concerned with the mokomoko. It watched me for most of the duration of my kōrero; it would walk ahead, stop and look directly at me for a period of time, then turn its head, walk forward, stop and look directly at me, until it disappeared under the concrete pad that the wharenui was built on and where, in the mahau (veranda) of the house, the body was lying in state. What is amazing is that no- one else saw it. I was expecting to hear sounds of alarm of people seated behind me. Afterwards, in sharing the kōrero with Professor Sir Pou Temara, he informed me he had seen it as well.
• 5.18 I don’t think it was coincidence at all that the strongest of our talismans showed up after the incident of the person trying to breach our kawa.

RĀHUI

• 5.19 Contemporary use of rāhui is becoming more frequent, and from my local experience, it is being followed and adhered to. In December 2019, Whakaari erupted, tragically killing 22 people, with two bodies never recovered. Immediately, the iwi placed a rāhui over the region, and this was respectfully adhered to by the entire community – Pākehā, Māori and commercial entities alike. During the period of the rāhui, no-one swam, despite the heat of a very warm December, and no fishing vessels, commercial or private, moved. The

entire commercial and recreational use of the moana and river was adhered to by the community.

• 5.20 As Chair of the Economic Development Agency for the three local councils, I could see first-hand the financial cost this was having on the commercial industries that relied on access to the sea. Despite this, the rāhui was honoured. In fact, during meetings with councils over the period before the rāhui was put in place by the iwi, it was already expected, and local agencies were waiting for the communication to come from the iwi. A few points worth noting here – the local government agencies were expecting the iwi to impose the rāhui and were waiting for it, and the second critical component to note is who was imposing the rāhui. If the person(s) do not have the support of the people, there is a high chance the conditions of the rāhui might not be followed. In this instance, it was the leaders of the iwi who initiated the rāhui, which was honoured without question.

Historical example of not following or adhering to rāhui

• 5.21 A commonly performed waiata composed by Mihi-ki-te-kapua is a good example of a rāhui not being followed. The song Taku Rākau was written as a result of Mihi-ki-te-kapua and Hikawai’s son Mahia being killed in the Pāpuni district in 1819. This resulted in a rāhui being imposed over the area. At the time, Mihi-ki-te-kapua and Hikawai’s people relocated to Maungapōhatu to live. After a year, Hikawai and his people wanted to return home to their lands in the Pāpuni and Ruakituri region. The issue was that Mihi-ki-te-kapua was still grieving for their son, remarking: “Taihoa e hoki koi kai koutou i ngā para o taku tamaiti”
  • do not return yet, you may unwittingly eat the remains of my son. Unfortunately, Hikawai and his people did not listen to the plea of Mihi-ki-te-kapua, who subsequently travelled through Tūhoe to raise a war party to avenge the breaching of her rāhui. An interesting point to note here is that her marriage to Hikawai of Kahungunu was arranged by her father Te Āihurangi as a tatau pounamu to settle the disputes between Kahungunu. Unfortunately, Hikawai was killed as people rallied to Mihi-ki-te-kapua’s call. During these battles, she composed the waiata Taku Rākau as a morale booster to ensure those answering her call did not become despondent, drawing a comparison to the rākau kahikātoa, being a hardwood used for the creation of taiaha (not to be mistaken for kahikatea), and drawing reference to the shark that continues to fight with its dying breath, meaning to fight similarly to ensure the land is not left alone.

Taku rākau ē

Tau rawa ki te whare Ka ngaro a takahi ē

Te whare o te kahikātoa He ngau whakapae ē

Hei whakapae ururoa e hau mau nei Kei waho kei te moana

Kāore aku mihi ē

Aku tangi mo o koutou Mau puku ko te iwi ē

Ka mowai tonu te whenua E takoto nei

(Mihi-ki-te-kapua composition, circa 1820s)

• 5.22 The last example provided here is the term ahikā. The purpose of re-illustrating ahikā is that it is a great example of how lessons and cases are drawn from the environment to shape and inform our practice and our knowledge system.
• 5.23 The term is consistent in that it is a compound word: ‘ahi’ – fire, and ‘ka’ ¬– burning. Occupation is described as that one’s presence must be maintained and being seen to assert one’s rights. The base concept is drawn from the use of ‘puku tawai’ – a fungus that grows on tawai trees. It absorbs water and continues to grow until it becomes too

heavy and falls to the ground, where it has a consistency like soap. This fungus was

collected and dried and used when the iwi was getting ready to move to another location, which was largely stipulated by the availability of seasonal food or shelter from inclement weather.

• 5.24 Within these earlier settlements, the art of maintaining a fire was paramount. This was before modern fire-lighting implements were available. The practice of ‘tamou i te ahi’ – banking down the fire in the evening so the embers were still smouldering for the morning, and terms such as ‘te umara i te ahi’ ¬– the general sentiment being do not be frivolous with fuel for the fire were all created. There is in fact an entire body of knowledge here as to how to keep the fire burning.
• 5.25 The fires within these communities never went out, and great skill and knowledge were used to maintain these fires. When the community were getting ready to relocate to the next settlement, an ember was taken from the fire and placed into the now-dried puku tawai, which has a similar resemblance to polystyrene. The ember would smoulder and melt its way into the dried puku tawai. Taking note to be sure the fungus was smouldering, the fungus was then buried. Particular attention was given to ensure the depth was just right so that no air could reach the smouldering fungus, suffocating it.
• 5.26 The spot where the puku tawai was buried was noted. When the community returned to the settlement the following season, they would prepare dry kindling in the fireplace and retrieve the puku tawai buried the previous season, whereupon re-exposing it to air, it would continue to smoulder. The ember from last season’s fire would then be used to start the fire that would burn continuously for this season, hence the name ‘ahikā’.
• 5.27 This helps illustrate that one’s connection to the land is linked to the ever-eternal smouldering puku tawai, where it requires fuel and air from the land to ensure it stays alight.

Bibliography

Battiste, M., & Henderson, J. Y. (2003). Protecting indigenous knowledge and heritage. Saskatoon, Canada: Purich.

Best, E. (1972). Tūhoe: The children of the mist. Wellington, New Zealand: A. H. & A. W. Reed

Mead, H. (2003). Tikanga Māori: Living by Māori values. Wellington, New Zealand: Huia Publishers & Te Whare Wānanga o Awanuiārangi.

Mead, L. (1997). Ngā aho o te kakahu mātauranga: The multiple layers of struggle by Māori in education. Unpublished PhD thesis, The University of Auckland, Auckland, New Zealand.

Rangihau, J. (1975). Being Māori. In M. King (Ed.), Te ao hurihuri: The world moves on (pp. 165- 175). Wellington, New Zealand: Hicks Smith.

Smith, G. (1997). The development of kaupapa Māori: Theory and praxis. Unpublished PhD thesis, The University of Auckland, Auckland, New Zealand.

TE AKA MATUA O TE TURE | LAW COMMISSION APPENDIX 2 – CONTENTS 1

Mahuru | September 2023 Te Whanganui-a-Tara, Aotearoa Wellington, New Zealand

Pūrongo Rangahau | Study Paper 24

Appendix 2:

Kei raro i ngā tarutaru, ko ngā tuhinga o ngā tupuna | Beneath the herbs and plants are the writings of the ancestors

Tikanga as expressed in evidence presented in legal proceedings

Natalie Coates

Horiana Irwin-Easthope

Contents

INTRODUCTION 3
SCOPE AND METHODOLOGY 5
ACKNOWLEDGEMENTS 9
SECTION ONE: WHAT IS TIKANGA? 10
SECTION TWO: CHARACTERISTICS OF TIKANGA 14

Underpinned by mātauranga Māori 14

Based on fundamental guiding principles 14

Universal principles, variable application 17

Tikanga in practice 20

Tikanga is pragmatic and has capacity to change 24

The application of tikanga is contextually dependent 26

The use of pūrākau and kōrero 27

Transmission of tikanga 33

Tikanga can be implicit 39

SECTION THREE: OTHER CONCEPTUAL FRAMEWORKS 42

Difference between kawa and tikanga 42

Te iho matua 43

Te kauae runga and te kauae raro 44

SECTION FOUR: CENTRAL TIKANGA PRINCIPLES 45

Whakapapa 45

Whanaungatanga 64

Tapu and noa 68

Mana 95

Manaakitanga 142

Utu and ea 145

Mauri 159

Kaitiakitanga 162

Movement of taniwha 173

SECTION FIVE: THE ENVIRONMENT 175

Connected to the spiritual world 176

Central to identity 179

Source of sustenance 181

Interconnected in nature 184

Informs where Māori lived 186

The seasons and the maramataka 188

Provides markers and tohu 190

Specific rules develop around it 193

Requires sustainability 196

Impact of environmental decline 198

SECTION SIX: SOCIAL ORGANISATION 200

The importance of the collective 200

The marae 202

The relationship between whānau, hapū and iwi 206

Hapū as significant rights holders 217

The flexibility of social organisation 220

Traditional tribal structures are enduring 225

Collective decision making 228

Tuakana/teina 230

Rangatira 232

Tohunga 234

APPENDIX: NUMBER OF BRIEFS REVIEWED AND SOURCES 238

Introduction

In Māori intellectual tradition, the law is not a series of rules that one lives under, nor can anyone rise above it, our people simply lived with it like we live with the land. Tikanga is completely intertwined with all aspects of day-to-day living.

In the hundreds of years prior to 1840 the common land mass that made up the islands of Te Ika a Māui and Te Waka a Māui was occupied by a number of distinct Iwi and Hapū polities. Each polity exercised its own mana and lived according to its tikanga secure in the uniqueness it had developed over centuries. Just as the common land mass of Europe was occupied by a number of distinct polities exercising their authority and living according to their law so Iwi and Hapū did the same. They were recognised and constitutionally regulated polities.

Dr Moana Jackson1

1. This statement by the late Dr Moana Jackson speaks to both the nature of tikanga and its integral place within the lives of Māori. It was made in the context of affidavit evidence in the High Court case of R v Tamati Mason.2 Māori have long utilised courts and forums such as the Waitangi Tribunal to make claims, assert rights and attempt to rectify wrongs. In doing so, evidence has been brought to these forums that contains expressions of tikanga Māori and its nature.
2. This Report synthesises and maps some of these expressions of tikanga through an examination of evidence presented to courts and the Waitangi Tribunal. We have entitled this Report using a whakataukī – Kei raro i ngā tarutaru, ko ngā tuhinga o ngā tūpuna (Beneath the herbs and plants are the writings of the ancestors). This whakataukī has been taken from the Waitangi Tribunal’s report Ko Aotearoa Tēnei.3 It was used by the Waitangi Tribunal in the context of the relationship of Māori with the environment. The Tribunal emphasises that “[M]atauranga Māori is present in the environment; in the names imprinted on it; and in the ancestors and events those names invoke.”4 We have used this whakataukī to also emphasise that the exercise we have undertaken has been to shine the light on kōrero that, to our knowledge, has not been synthesised in one collection before. The kōrero in this Report is not new. To the contrary, in most cases, it is intergenerational. However, it has been somewhat out of sight, at least as it has been conveyed in the evidence. Our task was to look beneath the herbs and plants. The kōrero of the ancestors was there.

¹ R v Tamati Mason [2012] NZHC 1361, Affidavit of Moana Jackson (24 April 2012) at [22] and [34].

² R v Tamati Mason [2012] NZHC 1361.

³ Ko Aotearoa Tēnei (the Wai262 report); Waitangi Tribunal, 2011, p.103.

⁴ Ko Aotearoa Tēnei (the Wai262 report); Waitangi Tribunal, 2011, p.237.

3. This Report is intended to inform the broader piece of work being undertaken by the Law Commission led by Commissioner Whata, namely the review of the role of tikanga Māori in relation to New Zealand law. This broader piece of work has the following brief:5

Te Aka Matua o te Ture | Law Commission will produce a detailed study paper that examines tikanga Māori and its place in Aotearoa New Zealand’s legal landscape.

Tikanga Māori has been steadily gaining recognition in the courts and in statutes. Te Kōti Mana Nui has recently affirmed that tikanga Māori may be a source of enforceable rights and interests and is relevant to developing the common law. Tikanga is also expressly recognised, in various ways, in many Acts of Parliament. Despite this, understanding of tikanga Māori, what it is, and where and how it should be applied in these contexts is limited.

The object of the study paper is to address these important questions. To this end, the study paper will give an explanation of tikanga Māori, including an account of what it is and where it comes from, grounded in mātauranga Māori. The paper will also “map” tikanga Māori as a system of law, drawing on, among other sources, expressions of tikanga in the courts and Waitangi Tribunal. Finally, the paper will look at the interface between tikanga Māori and institutional law, including the common law and legislation, with a view to providing a principled framework for engagement.

The planned paper will build on the Study Paper, Māori Custom and values in New Zealand Law, published by Te Aka Matua o te Ture in 2001.

4. We note that work is also being undertaken by Te Whare Wānanga o Awanuiārangi to support the Law Commission paper. As we understand it, the Wānanga work draws on the tikanga expertise of the Wānanga and provides an additional framework for conceptualising tikanga.

⁵ https://www.lawcom.govt.nz/our-projects/tikanga-maori

Scope and methodology

1. The process at the outset was to develop the scope of the task and the methodology to analyse expressions of tikanga in legal proceedings.
2. In terms of the time period selected, whilst evidence from some historical cases has been examined (i.e. from the mid-20th century),1 the majority of evidence reviewed has been sourced from cases and Waitangi Tribunal inquiries from the mid-1980s to the present day. It is acknowledged that this Report does not include the rich and valuable evidence of tikanga that would have been present in earlier cases and particularly prevalent in courts such as the Native Land Court. The time period was limited primarily to make the project manageable but also to capture relatively contemporary understandings and expressions of tikanga.
3. Evidence was sourced from the Waitangi Tribunal, the Environment Court, the High Court, the Court of Appeal and the Supreme Court (noting that the Court of Appeal and Supreme Court are appellate jurisdictions, but relevant evidence presented to those Courts was also reviewed). We understand that evidence from the Māori Land Court and Family Court was also reviewed by other teams. That analysis is not included in this Report.
4. The evidence reviewed from these contexts necessarily needed to be focused. The authors initially identified and collated an index of leading cases and Waitangi Tribunal inquiries relevant to tikanga Māori in the Waitangi Tribunal and the courts. The final list of cases and Tribunal inquiries selected was a collaborative exercise following engagement with Commissioner Whata, peer reviewers and judges. A representational cross-section of cases and inquiries covering a broad array of subject matter and themes was sought. We have included, as an appendix, the number of briefs reviewed and their source (i.e. Waitangi Tribunal inquiry or case).
5. Access for the evidence given for the court cases was requested, and permission was largely granted by the relevant parties. Non-confidential evidence from the Waitangi Tribunal was sourced through the publicly available Waitangi Tribunal database.
6. Following receipt of the evidence, the respective teams at Whāia Legal and Kāhui Legal completed a review for relevance. In that regard, a team approach was taken to reviewing the evidence. The authors and reviewers are all Māori and are versed in kaupapa Māori research methodologies and briefing evidence of this nature and in tikanga Māori more generally. Sessions were held at the outset of the research process alongside the reviewers and Commissioner Whata to ensure consistency of approach for the review (including the initial relevance review).

¹ For example, In re Bed of Whanganui River [1958] NZMAC 2/59.

7. Not all evidence sourced was deemed relevant. For example, some of the evidence sourced and provided for Environment Court cases was technical in nature (i.e. Western science evidence). In other situations, the evidence was brief and did not necessarily address matters of tikanga. The authors and reviewers were mindful of the way in which kōrero has been expressed through the evidence. It is not always the case that relevant tikanga kōrero is ‘signposted’ in a Western sense. This does not mean the kōrero is not relevant to this exercise; often it was.
8. There are a range of deponents whose evidence is drawn from in this Report. The deponents include, but are not limited to, pūkenga, legal academics and those whose lived experience framed their kōrero (acknowledging that there are overlaps in these groupings of deponents). We have taken an inclusive approach to the evidence and, if relevant (i.e. if the evidence included matters of tikanga), it has been included in the analysis contained in the Report. We have not sought to limit the evidence included based on the experience or whakapapa of the deponents.
9. Once relevance was assessed and confirmed, the evidence itself was reviewed to identify contemporary expressions of tikanga Māori. This was collated in table form, identifying the relevant case or Tribunal inquiry and deponent alongside key parts of the evidence. The key parts of the evidence were then grouped into themes before this report was drafted.
10. The authors and reviewers also discussed, and have been mindful of, the particular context and setting in which the evidence has been provided. In some cases, the setting is adversarial (i.e. the High Court in particular cases) and in some it is less so (i.e. the Waitangi Tribunal). Ultimately, the approach taken was to extract expressions from the evidence as presented, and in highly contested cases, we have also reviewed the transcript and notes of evidence for further evidence that has come through as a result of cross-examination. We have endeavoured to provide a fair and balanced account of these expressions of tikanga.
11. A reality that the authors and reviewers were cognisant of was the distinction between tikanga Māori and tikanga that was iwi or hapū specific. Although this Report maps themes that span across iwi, we were conscious to ensure that the iwi/hapū voice was not lost. The centrality of this voice can particularly be seen through the specific examples and application of tikanga principles that are woven through the Report. We also chose to identify the iwi of the deponents that we named so that their comments are given an iwi/hapū context. Our approach to iwi identification was that we generally drew on the iwi identified by deponents in their primary evidence. Where iwi/hapū affiliations were not provided, where possible, the authors inserted the iwi that the deponent has previously identified with in other contexts through our own research. The iwi that are listed after witness names therefore do not purport to represent their only iwi connections.
12. We note that the authors of this Report and some of the reviewers have been directly involved in a number of the cases that were reviewed. Where that was the case, evidence review and report drafting was allocated to those who were not directly involved in the case.
13. In some quotes, macrons were not used. For consistency and accuracy of written te reo Māori, macrons have been used throughout the entire Report (including in quotes that did not use macrons in the original source).
14. We explicitly note the following limitations with this Report:

• ● In accordance with its purpose, this Report does not posit a way forward for the interface between tikanga and New Zealand law. That is a task beyond the scope of simply bringing together and mapping expressions of tikanga Māori from a range of different court and Tribunal contexts.
• ● We were unable to review all potential evidence from all cases and/or Tribunal reports. For example, in respect of the Tribunal, only a narrow snapshot of the vast array of reports and evidence that have touched on tikanga since its inception was reviewed.
• ● A relatively narrow time period was also chosen. Apart from the odd exception, cases and reports were generally drawn from between the mid-1980s until the end of 2021. Given the parameters of the project and time constraints, it was simply not possible to review everything or even the majority of possibly relevant evidence. The approach taken, as set out above, was intended to be the best possible cross-section of materials based on the time and resource available in this context. Given this Report only scratches the surface of a rich array of tikanga evidence, we would encourage more work to be done in this space.
• ● Given the adversarial nature of some contexts in which evidence was provided, another limitation is that evidence was inevitably context specific and directed towards particular matters. The evidence provided was not designed to provide a systemic and whole explanation of tikanga and its internal working and logic. Constructing this Report was a process of pulling together multiple comments and statements from witnesses. This inevitably means that this is not a full account and there will be gaps in content coverage. We did not seek additional sources beyond the evidence we reviewed to fill gaps. There is also no substitute for reading the evidence in full and in context.
• ● An inherent difficulty in attempting to map and explain tikanga is translating te reo Māori concepts into English. However, given that almost all of the evidence was provided in English, this was a challenge that the deponents rose to. We have therefore drawn directly on their words and explanations.
• ● We acknowledge that there is inherent overlap in the kōrero presented in this Report. In that regard, there is overlap between a number of sections, and judgement has been exercised in determining both the sections included in this Report and how the kōrero is reflected within the sections. Some kōrero has been reflected across more than one section if it was considered appropriate to do so.
• ● Finally, there is a further difficulty in attempting to map a living, breathing, complex system of law onto the written page. Tāmati Kruger (Ngāti Koura, Ngāti Rongo, Ngāi Tūhoe) reflects this difficulty in his evidence when he says: “Practising tikanga and kawa is an inherently experiential and spiritual part of Te Ao Māori. It is difficult to commit an account of tikanga to writing because, as I’ve mentioned, Māori traditions are predominantly aural and practical.”2 Although we consider there is value in undertaking this process, it inevitably results in an artificiality in terms of some of the

2. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [40].

distinctions that we have drawn, particularly between what are highly overlapping concepts and principles. Painting broad brushstrokes on a page is not the same as seeing tikanga in its full multi-dimensional reality.

15. All of these limitations should be kept in mind in the context of reviewing this Report.

Acknowledgements

1. It was an honour and a privilege to be able to read through the expressions of tikanga reflected in the evidence. There were many witnesses who are well-known rangatira, tohunga and leaders of their whānau, hapū and iwi and in te ao Māori. A number of them have now passed on. We acknowledge the taonga that all witnesses have left in their kupu (words) and mātauranga (knowledge).
2. This Report was completed by Whāia Legal and Kāhui Legal (led by Horiana Irwin-Easthope and Natalie Coates). Solicitors at both Whāia Legal and Kāhui Legal assisted with the review of evidence and analysis as part of the core legal team. Horiana and Natalie would like to acknowledge and thank Kate Tarawhiti, Josie Te Rata, Adair Houia-Ashwell, Rahera Douglas, Annelise Samuels, Ella Young, Toni Love, Rāhuikura Eruera and Tamahou Thoms (all of Whāia Legal and Kāhui Legal). We would also like to acknowledge the work of Morgan Dalton-Mill (clerk to Whata J) and Emma Sidnam, Tāneora Fraser and Briar Peat (Law Commission staff).

SECTION ONE

What is tikanga?

• 1.1 Tikanga is described variably by witnesses as the “right”,1 “normal”,2 “appropriate”3 or “correct”4 way that Māori do things.5 Margaret Kawharu (Ngāti Whātua Ōrākei) in her evidence refers to an account by Reverend Manuhuia Bennett (Te Arawa) who says tikanga or custom was the “right person, doing the right thing, in the right way”.6
• 1.2 Tikanga is explained by Tā Hirini Moko Mead (Ngāti Awa) and Tā Pou Temara (Tūhoe) in a joint statement as follows:7

Tikanga is the first law of Aotearoa. It is the law that grew from and is very much embedded in our whenua (land).

Tikanga Māori came to the shores of Aotearoa with our Māori ancestors, starting with Kupe and those on board the waka (canoe) Matahourua. In some traditions, tikanga merged with that already present. Tikanga operated effectively for around a millennia before Pākēha arrived.

Tikanga is the Māori “common law”. It is a system of law that is used to provide predictability and are templates and frameworks to guide actions and outcomes.

The term ‘tika’ means ‘to be right’. Tikanga Māori therefore means the right Māori way of doing things. It is what Māori consider is just and correct.

Tikanga Māori includes all of the values, standards, principles or norms that the Māori community subscribe to, to determine the appropriate conduct.

1. Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence by Kura Paul-Burke (22 December 2016) at [4.1]; Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Dr Korohere Crossley Bishop Lloyd Ngāpō Evidence (3 October 2020) (English translation) at [9].
2. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Dr Korohere Crossley Bishop Lloyd Ngāpō Evidence (3 October 2020) (English translation) at [9].
3. Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence by Kura Paul-Burke (22 December 2016) at [4.1].
4. Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence by Kura Paul-Burke (22 December 2016) at [4.1].
5. Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence by Kura Paul-Burke (22 December 2016) at [4.1].
6. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Margaret Anne Kawharu (2 June 2020) at [20].
7. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [22]. This statement and the evidence formally produced by Tā Hirini and Tā Pou was endorsed at a hui of experts that also included Te Ripowai Higgins, Kura Moeahu, Professor Rawinia Higgins, Associate Professor Peter Adds, Che Wilson, Mohi Apou and Tamahou Rowe.

Tikanga is therefore comprised of both practice and principle. That is, it includes both the rules (what you should and should not do) as well as the principles that inform the practical operation and manifestation of the rule.

The customs or rules of tikanga are acknowledged when they are maintained by the people and are observed in fact.

• 1.3 Dr Moana Jackson (Ngāti Kahungunu, Ngāti Porou), discussing tikanga as the ‘first law’ quoting Ani Mikaere (Ngāti Raukawa, Ngāti Porou), explains:8

Iwi and Hapū also developed a law that grew out of the stories and the culture that developed here. Ani Mikaere of Ngāti Raukawa has called the resulting tikanga the ‘first law’ of this land ... it developed from philosophies to do with the sacred and the interrelatedness of whakapapa as well as from precedents and custom. It recognised the need for sanctions but stressed ethics and sought reconciliation rather than punishment.

...

In Māori intellectual tradition, the law is not a series of rules that one lives under, nor can anyone rise above it, our people simply lived with it like we live with the land. Tikanga is completely intertwined with all aspects of day-to-day living.

• 1.4 Margaret Kawharu (Ngāti Whātua Ōrākei) points to Tā Hirini Moko Mead’s (Ngāti Awa) explanation of tikanga as embodying “a set of beliefs and practices associated with procedures to be followed in conducting the affairs of a group or an individual. These procedures are established by precedents through time, are held to be ritually correct, are validated by usually more than one generation and are always subject to what a group or an individual is able to do ...”9
• 1.5 Other variations that deponents used when describing tikanga include:
  • “the customs employed by Māori when engaging in certain activities”;10
  • the “foundation of social order” and “the expression of the values that ensured strong and resilient communities”;11
  • “a level of Māori ethics and what is acceptable to keep order in a hapū or iwi setting”;12
  • the regulator of “the spiritual and physical relationships between Māori and the natural world”;13
  • “a values-based system that regulates the maintenance of tangata whenua societal law, order and authority”14 that “recognises the importance of and regulates

⁸ R v Tamati Mason [2012] NZHC 1361, Affidavit of Moana Jackson (24 April 2012) at [17] and [22].

9. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Margaret Anne Kawharu (2 June 2020) at [21].
10. Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence by Kura Paul-Burke (22 December 2016) at [4.1].

¹¹ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A63 Ella Henry at [32].

12. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Dr Korohere Crossley Bishop Lloyd Ngāpō Evidence (13 October 2020) (English translation) at [9].
13. Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence by Kura Paul-Burke (22 December 2016) at [4.1].
14. Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Joint Affirmation of Jacinta Arianna Ruru and Mihiata Rose Pirini (14 September 2020) at [32].

relationships between people, between people and their environment, and between the natural world and the spiritual world”;15

• “the values and standards left by our ancestors to guide our conduct and way of doing things. Tikanga has some broad values and meanings but it means what is right, what is correct, what is fair for the best interests of the people and environment as they cannot be separated”;16
• “appropriate human conduct in accordance with the principles, values and ideologies of the affiliated group for their circumstances of the time”;17
• a Māori belief system that has “rights and responsibilities based on a natural order and steeped in a spiritual psychological and emotional bond between people and their rohe”;18 and
• “a system of values which indicates how we should behave in certain situations” which is “fluid and ever evolving”.19

• 1.6 Tāmati Kruger (Ngāti Koura, Ngāti Rongo, Ngāi Tūhoe) explains tikanga Māori broadly as being:20

[a] set of binding principles, beliefs and traditions practised collectively by Māori whānau, hapū and iwi since time immemorial. The word tika means ‘correct’, ‘just’, ‘decent’ and ‘honourable’ i te reo Māori, and so tikanga is considered ideologically as the right way to do things, which accordingly guides and constrains all aspects of Te Ao Māori and Māori life including social relationships and ceremonies, moral behaviour, economic activity and so on. There are consequences for breaching tikanga, which are generally proportionate to the particular transgression.

• 1.7 Tāmati Kruger (Ngāti Koura, Ngāti Rongo, Ngāi Tūhoe) in a different statement of evidence says:21

Tikanga is the customary practices, attitudes, and regulation of behaviour of people. Tikanga is applicable and is accountable in terms of its general practice of that marae and that hapū. It is the connection between the cultural identity and the language of the people and their cultural practices.

• 1.8 He goes on to say, “The very basis of tikanga is to avert evil and its consequence. When one designs tikanga that is what you are designing, a method of aversion of evil and its consequences. Further, it is designed to attract and keep prosperity. Those are its two main functions.”22

15. Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Joint Affirmation of Jacinta Arianna Ruru and Mihiata Rose Pirini (14 September 2020) at [33].

¹⁶ Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit of Awhina Evelyn Waaka (21 November 2013) at [4].

17. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith (2 June 2020) at [31].
18. Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tamati Waaka (4 January 2017) at [19].

¹⁹ Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit of Justin Owen Ian Puna (11 August 2020) at [8].

20. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [38].

²¹ Clarke v Takamore [2009] NZHC 901; [2010] 2 NZLR 525, Affidavit of Tāmati Kruger (31 July 2008) at [4].

²² Clarke v Takamore [2009] NZHC 901; [2010] 2 NZLR 525, Affidavit of Tāmati Kruger (31 July 2008) at [36].

• 1.9 Paul Meredith (Ngāti Maniapoto) says, “While tikanga may be fluid, it is not a matter of personal whim. Tikanga draws on precedent to determine appropriate action.”23 Meredith refers to the whakataukī, “Ehara i te mea poka hou mai: nō Hawaiki mai anō.”24 “It is not a new thing done without proper cause: It has come to us all the way from Hawaiki.”25

23. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith (2 June 2020) at [40].
24. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith (2 June 2020) at [40].
25. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith (2 June 2020) at [41].

SECTION TWO

Characteristics of tikanga

UNDERPINNED BY MĀTAURANGA MĀORI

• 2.1 Joseph Davis (Ngāti Hei) explains that “Mātauranga Māori informs tikanga (what is right) and kawa (protocol)”.1
• 2.2 Apirana Mahuika (Ngāti Porou) describes mātauranga as “a system for acquiring knowledge, and the training of the intellect to achieve a high level of scholarship and the gaining of the wisdom to give scholarly expressions to what has been learnt”.2 He goes on to say:3

The key to Mātauranga Ngāti Porou is tikanga, or in English terms, culture. In culture or tikanga we find all those elements that are essential to life, namely, the rules and regulators about norms of behaviour and respect for people and property, rules of lore out of which arises systems of law, moral codes of behaviour and justice, sets of values systems, political and economic systems and religions and spiritual sanctions.

BASED ON FUNDAMENTAL GUIDING PRINCIPLES

• 2.3 A number of witnesses referred to tikanga as having key underlying principles. For example, Paul Meredith (Ngāti Maniapoto) says “that while the expression of tikanga Māori may differ across regions and develop over time, there are several underlying values and principles that inform the broader system of tikanga Māori”.4 Alongside “principles”, the terms “values” and “ideologies” were also commonly referred to.5
• 2.4 Different principles are emphasised by witnesses.6 These include:

¹ Wilson v Waikato Regional Council [2021] NZEnvC 131 Statement of Evidence of Joseph Davis (28 August 2020) at [112].

² Ko Aotearoa Tēnei, Wai 262, #G4 Apirana Mahuika at [10.1].

³ Ko Aotearoa Tēnei, Wai 262, #G4 Apirana Mahuika at [10.2].

4. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith (2 June 2020) at [33]–[34].
5. See Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Margaret Anne Kawharu (2 June 2020) at [22]; Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [10] and [58]–[59]; Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Joint Affirmation of Jacinta Arianna Ruru and Mihiata Rose Pirini (14 September 2020) at [31]–[40].
6. For example, Tāmati Kruger in Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [58]–[59] referenced whanaungatanga, manaakitanga, mana, tapu and noa, utu and ea; Tamati Waaka in Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073,
   • whakapapa;7
   • whanaungatanga;8
   • tapu9 and noa;10
   • mana;11
   • manaakitanga;12
   • utu and ea;13
   • mauri;14 and
   • kaitiakitanga.15

Statement of Evidence of Tamati Waaka (4 January 2017) at [95] referenced tikanga as being founded on whakapapa, mana and tapu and David Wilson Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, brief of evidence of David Wilson (13 October 2020) at [51] indicated that tikanga principles include manaakitanga, whanaungatanga, whakapapa, kaitiakitanga and mana; Paul Meredith in Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith (2 June 2020) at [33]–[34] lists whanaungatanga, mana, tapu, utu and kaitiakitanga; Professor Ruru and Mihiata Pirini in Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Joint Affirmation of Jacinta Arianna Ruru and Mihiata Rose Pirini (14 September 2020) at [38] referred to Hon Justice Sir Williams writing extra-judicially suggests whanaungatanga, mana, tapu, utu and kaitiakitanga are five core principles in Joseph Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law” [2013] WkoLawRw 2; (2013) 21 Waikato Law Review 1.

7. See Whakapapa section [4.1]–[4.50]. See also Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tamati Waaka (4 January 2017) at [95]; Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Notes of Evidence p.1151.
8. See Whanaungatanga section [4.51]–[4.66]. See also Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [58]–[59]; Ngāti Whātua Ōrākei Trust v Attorney- General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith (2 June 2020) at [33]–[34]; Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Joint Affirmation of Jacinta Arianna Ruru and Mihiata Rose Pirini (14 September 2020) at [38].
9. See Tapu and noa section [4.67]–[4.155]. See also Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tamati Waaka (4 January 2017) at [95]; Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [58]–[59]; Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith on behalf of the plaintiff (2 June 2020) at [33]–[34]; Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Joint Affirmation of Jacinta Arianna Ruru and Mihiata Rose Pirini (14 September 2020) at [38].
10. See Tapu and noa section [4.67]–[4.155]. See also Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [58]–[59].
11. See Mana section [4.156]–[4.255]. See also Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tamati Waaka (4 January 2017) at [95]; Ngāti Whātua Ōrākei Trust v Attorney- General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith (2 June 2020) at [33]–[34]; Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Joint Affirmation of Jacinta Arianna Ruru and Mihiata Rose Pirini (14 September 2020) at [38].
12. See Manaakitanga section [4.256]–[4.265]. See also Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [58]–[59].
13. See Utu and ea section [4.266]–[4.325]. See also Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [58]–[59]; Ngāti Whātua Ōrākei Trust v Attorney- General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith (2 June 2020) at [33]–[34]; Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Joint Affirmation of Jacinta Arianna Ruru and Mihiata Rose Pirini (14 September 2020) at [38].

¹⁴ See Mauri section [4.326]–[4.329]. Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [37].

15. See Kaitiakitanga section [4.330]–[4.371]. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith (2 June 2020) at [33]–[34]; Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Joint Affirmation of Jacinta Arianna Ruru and Mihiata Rose Pirini (14 September) 2020 at [38].

• 2.5 These principles are explained and explored in separate sections in the Report.
• 2.6 Tā Hirini Moko Mead (Ngāti Awa) and Tā Pou Temara (Tūhoe) describe how these “fundamental concepts are intertwined and cannot be defined in isolation or translated by a simple English word”.16 They exist in an interconnected matrix. A similar point is made by David Wilson (Te Ākitai Waiohua, Ngāti Te Ata) when he emphasises that you cannot just take one tikanga principle out and ignore the others.17
• 2.7 Rahera Ohia (Ngāti Pūkenga, Ngāi Te Rangi, Waitaha) illustrates this point in the various principles that she draws upon to assert interests in an area of the takutai moana: “... the combination of whakapapa (genealogy), mana whenua (authority over our lands), mana moana (authority over our harbours and seas), ahikāroa (what Mr Smallman has called the fires of occupation), kaitiakitanga (stewardship), rangatiratanga (authority), whanaungatanga (social responsibility), and wairua (spiritual connection) point strongly to a relationship for all of Ngā Pāpaka ō Rangataua with the tāhuna that was never able to be extinguished”.18
• 2.8 This is also illustrated in how Te Rua Rakuraku and Donald Kurei (both Te Whakatōhea, Ngāti Ira) describe their relationship with the takutai moana:19

In te ao Māori, there are fundamental tikanga values that guide our relationship to the takutai moana. They are embedded into the notions of authority like mana motuhake, mana whakahaere, mana taketake that secure our ahi kaa to any place; space or waterway and inform the practices of kaitiakitanga, aroha tētahi ki tētahi and manaaki that sustain our ways of life and the continuing mutual survival of the realms of Tangaroa and the realms of Tāne Mahuta.

• 2.9 In a different context, Tā Pou Temara (Tūhoe) says that “the social institutions of hapū; marae and whānau and the Ira Tangata roles and responsibilities were never developed or practiced in a vacuum ... they were seen to operate within a hierarchy of values of respect and continuity where Te Ao Tūroa and Te Ira Atua that set the framework of obligations for which humankind would operate”.20 This statement illustrates the multi- dimensional connection between key informing values and principles that are informed by the natural and spiritual world and that manifest themselves in how people and communities behave.
• 2.10 Tāmati Kruger (Ngāti Koura, Ngāti Rongo, Ngāi Tūhoe), when referring to disagreements between families about where someone should be buried, says, “In these situations Māori refer to some main concepts. These concepts assist to form a conclusion rather than be determinative of the conclusion.”21

16. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [30].
17. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, brief of evidence of David Wilson (13 October 2020) at [51].

¹⁸ Re Reeder on behalf of Ngā Pōtiki [2021] NZHC 2726, Affidavit of Rahera Aroha Ohia (7 July 2020) at [16].

¹⁹ Re Edwards [2021] NZHC 1025, Joint affidavit of Te Rua Rakuraku and Donald Kurei (21 January 2022) at [20].

²⁰ Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [16].

²¹ Clarke v Takamore [2009] NZHC 901; [2010] 2 NZLR 525, Affidavit of Tāmati Kruger (31 July 2008) at [40]–[41].

UNIVERSAL PRINCIPLES, VARIABLE APPLICATION

There are common and shared values which underpin law across the whole country in terms of Māori law ... there are some variations in procedure but the basic values or what our people call whakamārama tōtika or the jurisprudence is essentially the same.

Dr Moana Jackson22

• 2.11 Tāmati Kruger (Ngāti Koura, Ngāti Rongo, Ngāi Tūhoe) considers certain principles to be universally significant to Māori and that tikanga and kawa can be justified by reference to these underlying philosophies and values.23 He explains that there are, “local variations of customary practice (ideology) but not philosophy”.24 Kruger refers to marae practices as an example. However, Kruger considers there is a limitation on the extent to which there are local variations and indicates that this does not extend to “seminal matters such as the importance of whenua and the mana that comes from there and the duty expected of its people to the whenua”.25
• 2.12 Tā Hirini Moko Mead (Ngāti Awa) and Tā Pou Temara (Tūhoe) also accept that the “values and principles that underlie tikanga are common among Māori. They are universally accepted and are a constant. The practice and the manifestation of these principles in particular contexts can vary between different iwi, hapū and whānau.”26
• 2.13 Te Kahautu Maxwell (Te Whakatōhea, Te Whānau-ā-Apanui, Ngāi Tai, Ngāti Awa, Tūhoe, Ngāti Porou, Ngāti Maniapoto) explains:27

Tikanga must have a base or a tūrangawaewae for it to stand up to the tests of validity. Tikanga is derived from the pakiwaitara, the creation stories a power delegated from the gods to the ancestors. The fact that tikanga has its origins with the gods gives it validity and tapu sanctity. For example, when Ngā Tama a Rangi held a wānanga (counsel) to separate their parents, this was the first example of a wānanga. When the sons of Rangi debated whether to separate their parents or not, this was the first example of whaikōrero. During this separation of Ranginui (Sky father) and Papatūānuku (Earth mother) it is said that Papatūānuku cried out in pain and bade farewell to Ranginui; this was the first example of karanga. The fact that these practices have their genesis in the creation stories is validation. The people validate tikanga, the marae, the hapū and the iwi. lwi validate tikanga by adhering to the rule and practicing the tikanga in their own particular way that is unique to their iwi and their region.

22. R v Tamati Mason [2012] NZHC 1361, Notes of evidence taken before the Hon Justice Heath on pre-trial application – 3 May 2012 at 2.
23. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [58]–[59].
24. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (4 December 2020) at [26].
25. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (4 December 2020) at [26].
26. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [31].

²⁷ Re Reeder on behalf of Ngā Pōtiki [2021] NZHC 2726, Affidavit of Te Kahautu Maxwell (7 August 2020) at [104].

• 2.14 There were a number of witnesses that described tikanga as varying between different hapū and/or iwi.28 This was particularly recognised in the context of creation and arrival narratives. For example:
  • Rereata Makiha’s (Te Mahurehure, Te Aupōuri, Te Arawa) evidence talks about Kupe’s arrival in Aotearoa.29 He indicates that the kōrero of the iwi and hapū of Hokianga is that ‘Kupe’ was not one person but several and included wāhine. Makiha acknowledges that other iwi may have different traditions and stories around wāhine navigators.30
  • Rima Eruera (Muriwhenua, Te Rarawa, Ngāti Kuri) says that there are many versions as to where Kupe landed and that he believes the one that says he landed in the region of Murimotu, on the tail of Māui’s fish.31
  • Leonie Pihama (Te Ātiawa, Waikato-Tainui, Ngā Māhanga a Tairi) also recognises that there are a range of iwi stories that speak to the origins or creation of humanity and that she refers to but one of the many.32
  • Chris Winitana (Ngāti Tūwharetoa), on behalf of the Tūwharetoa Māori Trust Board, does not dispute other contrasting kōrero that others had about how geothermal came to be; rather, he emphasises the Tūwharetoa kōrero of its origins.33
  • Mason Durie (Ngāti Kauwhata, Rangitāne) acknowledges that there is not a consistent view between tribes as to the creation stories and atua.34 However, he recognises that there are common denominators that surpass the tribal and dialectical differences.35
• 2.15 Maui Solomon’s (Moriori) evidence explains the difference between tikanga Moriori and tikanga Māori.36 He describes Moriori as having a distinctive set of customary beliefs and value systems that evolved in isolation in the islands and differ to that of Māori.37 He goes on to describe the Moriori custom of peace to explain why Moriori didn’t fight back when other iwi invaded. Whether they should maintain this peaceful custom was the topic of discussion, debate and ultimately decided by consensus. According to their own custom, this did not mean they were relinquishing mana over their lands (in contrast with take raupatu as Māori know it).38

28. Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence by Kura Paul-Burke (22 December 2016) at [4.1]. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, brief of evidence of David Wilson (13 October 2020) at [47].

²⁹ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A71 Rereata Makiha at [5]–[8].

³⁰ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A71 Rereata Makiha at [9].

³¹ Muriwhenua Land Report, Wai 45, #F23 Rima Eruera p.5.

³² Mana Wāhine Kaupapa Inquiry, Wai 2700, #A19 Leonie Pihama at [11].

33. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Statement of Evidence of Chris Winitana (4 June 2017) at [23]–[24].

³⁴ Ko Aotearoa Tēnei, Wai 262, #K14 Mason Durie at [2.1].

³⁵ Ko Aotearoa Tēnei, Wai 262, #K14 Mason Durie at [2.1].

³⁶ The Fisheries Settlement Report, Wai 307, #A9 Maui Solomon at [2.4].

³⁷ The Fisheries Settlement Report, Wai 307, #A9 Maui Solomon at [2.4].

³⁸ The Fisheries Settlement Report, Wai 307, #A9 Maui Solomon at [4.2]–[4.3].

• 2.16 In relation to the tikanga of the various tītī islands:
  • Dr Te Maire Tau and Pat Hutana (both Ngāi Tahu) say that “the principles of the islands are the same, but the particular expressions of them differ among islands”.39
  • Michael Skerrett (Ngāi Tahu) says that, “although there are minor variations between the islands, the associated tikanga is generally consistent”.40
  • Lesley Rewi (Ngāi Tahu) states “the underlying values of ‘tikanga’ remain the same, but may vary to suit individual islands resource availability, geography, number of whānau attending in a season”.41
  • Paul and Natalie Karaitiana (Ngāi Tahu) acknowledge that “Tikanga do vary from island to island” in relation to the tītī islands. They provide the following example where “one tupuna was put off/stripped of his right to go on Horomamae [one of the tītī islands] by his peers, for wrongfully treating his wife, most likely physical violence and/or his adultery. This was about 1840s/50s.” However, they had “not heard of that being practised on other islands, although there is common understanding about other things, such as no fire arms ...”42
• 2.17 Dr Moana Jackson (Ngāti Kahungunu, Ngāti Porou) explains that “Māori law was and is the law common to Māori, and although there have always been some Iwi variations there was also always a distinct and evolving set of conventionally approved means of ensuring acceptable behaviour. It was a construct of social order and dispute resolution within and between Iwi, Hapū and whānau that was accepted and recognised as a legal system.”43
• 2.18 The extent to which tikanga is variable between iwi was contested in the Ngāti Whātua Ōrākei High Court litigation.44 Evidence from certain witnesses from Marutūāhu and Te Ākitai Waiohua emphasises that tikanga has variation between iwi.45 For example, Korohere Ngāpō (Marutūāhu, Ngāti Tamaterā, Ngāti Maru, Ngāti Pāoa) explains:46

There is no one universal tikanga when it comes to whenua. While the concepts of tuku, take, mana whenua and ahi kā etc are well known, how they operate in practice has tribal variation. For the Marutūāhu people, our tikanga recognises shared whenua and marae, even in our “heartland” or “core areas”. This reflects our history, for example, intergenerational intermarriage to maintain strategic alliances between the Marutūāhu

39. Re Tipene [2016] NZHC 3199, Affidavit of Sandra Helen Cook (30 October 2014), Annexure: Memorandum of meeting with Dr Te Maire Tau/Pat Hutana (12 October 2014) at [26].
40. Re Tipene [2016] NZHC 3199, Affidavit of Sandra Helen Cook (30 October 2014), Annexure: Questionnaire – Customary Marine Title Application by Michael Skerrett (undated) p.63; Re Tipene [2016] NZHC 3199, Affidavit of Michael Skerrett (31 July 2015) at [6].
41. Re Tipene [2016] NZHC 3199, Affidavit of Sandra Helen Cook (30 October 2014), Annexure: Questionnaire – Customary Marine Title Application by Lesley Rewi (undated) p.106.
42. Re Tipene [2016] NZHC 3199, Affidavit of Sandra Helen Cook (30 October 2014), Annexure: Questionnaire – Customary Marine Title Application by Paul and Natalie (Pohio) Karaitiana (undated) p.14.

⁴³ R v Tamati Mason [2012] NZHC 1361, Brief of Evidence of Moana Jackson (10 January 2005) at [91].

⁴⁴ See Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843.

45. See Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, brief of evidence of Walter (Wati) Ngakoma Ngamane (13 October 2020) at [32]; and Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, brief of evidence of David Wilson (13 October 2020) at [45]–[47].
46. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Dr Korohere Crossley Bishop Lloyd Ngāpō Evidence (3 October 2020) (English translation) at [14]. Also see Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Morehu Anthony Dean Wilson (13 October 2020) at [44] for a similar sentiment.

tribes and shared settlements and seasonal harvesting kāinga. We recognise that other iwi have a different tikanga. One is not superior or inferior – they are different.

• 2.19 In contrast, evidence from witnesses for Ngāti Whātua Ōrākei disagree, asserting that there is universal tikanga, particularly in relation to whenua. Tāmati Kruger (Ngāti Koura, Ngāti Rongo, Ngāi Tūhoe) says:47

I disagree. All iwi refer to the land as Papatūānuku, our mother. This is not simply aspiration or poetry. The connection of tikanga to land stems from the view that land is a living person and entity, it is our origin and our point of return. Everything that iwi are comes from their land and from their place. That is universal tikanga.

• 2.20 According to Charles Tawhiao (Ngāi Te Rangi) for Ngāti Whātua Ōrākei, to say there is no commonality between iwi is too extreme:48

Tikanga is not completely unique to each hapū or iwi. If there was no commonality among these ideas we could not have functioned as a Māori society. We have to have shared ideas of how the universe came to be and of what is right in order to interact with each other.

• 2.21 Margaret Kawharu (Ngāti Whātua Ōrākei) accepts that tikanga can be determined according to what is appropriate in particular circumstances and that it was well known that tikanga differs between groups.49 However, she agrees with an observation made by David Wilson for Te Ākitai Waiohua that, where there is uncertainty, we should turn to guiding principles, including concepts of mana, whanaungatanga, kaitiakitanga and manaakitanga.50

TIKANGA IN PRACTICE

• 2.22 There are many examples of specific tikanga-based practices in relation to:
  • the gathering of harakeke;51
  • eeling;52
  • hunting kererū;53
  • fishing;54

47. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (4 December 2020) at [25].
48. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Charles Wahia Tawhiao (4 December 2020) at [36].
49. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Margaret Anne Kawharu (4 December 2020) at [3].
50. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Margaret Anne Kawharu (4 December 2020) at [3].

⁵¹ Ko Aotearoa Tēnei, Wai 262, #H11 Benjamin Hippolite at [11].

⁵² Ko Aotearoa Tēnei, Wai 262, #H11 Benjamin Hippolite at [13] and [15].

⁵³ Ko Aotearoa Tēnei, Wai 262, #H11 Benjamin Hippolite at [32]–[34].

54. Ko Aotearoa Tēnei, Wai 262, #H11 Benjamin Hippolite at [37]–[42]; The Fisheries Settlement Report, Wai 307, #A13 Michael Bradley at [7]–[8] and [10]–[13]; The Fisheries Settlement Report, Wai 307, #A22 P Ricky, H Te Hau and H Christy at [2]–[3]; The Fisheries Settlement Report, Wai 307, #A30 Te Whānau ā-Nuku and Te Whānau ā-Kahurautao; The Fisheries Settlement Report, Wai 307, #B8(c) Apirana Mahuika at [3]–[4]; The Fisheries Settlement Report, Wai 307,
    • transplanting kaimoana;55
    • gathering tītī;56
    • preparing pōhā/rimurapa kelp bags;57
    • navigation;58
    • preparation of rongoā;59
    • weaving;60
    • harvesting of tohorā;61
    • harvesting of koinga shark;62
    • marking the first ikura;63
    • cutting down rākau for tokotoko;64 and
    • tangihanga.65

• 2.23 Rikirangi Gage (Te Whānau-ā-Apanui, Ngāti Porou) explains the rituals or tikanga in relation to the moki (a particular fish). This includes that:66
  • it must not be cooked on the beach;
  • it must not be beaten with a stick;
  • it must not be eaten raw;
  • the first moki caught must be sacrificed to Rehua or Tangaroa;

#B10(a) A Chadwick p.3; Muriwhenua Fishing Report, Wai 22, #B30 Reverend Harold Petera; Muriwhenua Land Report, Wai 45, #F31 Rapata Romana p.4; Tainui Hapū v Waikato Regional Council, ENC Auckland A063/2004, Statement of Evidence of James (Tex) Rickard (undated) at [12]–[13]; Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Desmond Tatana Kahotea (28 October 2016) at [8]–[8.17]; Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Primary statement of evidence of Barrie William Wilkinson for Te Rūnanga o Ngāti Whakaue ki Maketu Inc. and Te Arawa Takitai Moana Kaumatua Forum (22 December 2016) at [16]–[25].

⁵⁵ Ko Aotearoa Tēnei, Wai 262, #H11 Benjamin Hippolite at [47]–[50].

56. Ko Aotearoa Tēnei, Wai 262, #H11 Benjamin Hippolite at [99]; Ko Aotearoa Tēnei, Wai 262, #H10 Puhanga Tupaea at [47]–[48].
57. Re Tipene [2016] NZHC 3199, Brief of Evidence of David Armstrong (31 August 2015), Exhibit marked DA-27, Submission from Rakiura Māori Land Incorporated by Harold Ashwell; Re Tipene [2016] NZHC 3199, Brief of Evidence of David Armstrong (31 August 2015), Exhibit marked DA-55, Wai 27, #J-10 Evidence of Henare Rakiihia Tau, David Higgins, Trevor Howse, Peter Ruka and Barry Brailsford.
58. Ko Aotearoa Tēnei, Wai 262, #H10 Puhanga Tupaea at [60]–[61]; Mana Wāhine Kaupapa Inquiry, Wai 2700, #A71 Rereata Makiha [4]–[13].
59. Ko Aotearoa Tēnei, Wai 262, #H11 Benjamin Hippolite at [69]; Ko Aotearoa Tēnei, Wai 262, #H10 Puhanga Tupaea at [62]–[74].

⁶⁰ Ko Aotearoa Tēnei, Wai 262, #H10 Puhanga Tupaea at [76]–[97].

⁶¹ The Fisheries Settlement Report, Wai 307, #B10(a) A Chadwick p.2.

⁶² Muriwhenua Fishing Report, Wai 22, #B57 Niki Kanara, Piri Paraone and Ratima Petera at [4].

⁶³ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A67 Ngahuia Murphy at [24]–[25].

⁶⁴ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A62 Moe Milne at [19].

⁶⁵ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A62 Moe Milne at [72].

⁶⁶ Re Edwards [2021] NZHC 1025, Affidavit of Te Kou Rikirangi Gage (21 February 2020) at [115].

• it would be hung by the tail as the head is regarded as sacred; and
• no food is to be taken on board when fishing for the moki.

• 2.24 Many discuss their tikanga in respect of the ocean and kaimoana, including:
  • you do not eat on the rocks;67
  • you do not take kete that have been used for cooked food to food-gathering areas or you urinate on the kete prior to going to the waahi mātaitai kai as a safety measure;68
  • you should not shout or swear at waahi mātaitai kai69 nor should you yell or scream on the rocks generally while gathering kaimoana;70
  • you should not break shells on the rocks;71
  • you should not open or eat shellfish while people are still in the water diving;72
  • you should karakia before and after the gathering of kaimoana;73
  • you should always face the sea and never turn your back to the waves;74
  • women are not allowed near the sea or kaimoana-gathering areas during menstrual cycles;75
  • the first catch is always given back to Tangaroa;76

67. Re Edwards [2021] NZHC 1025, Affidavit of Te Kou Rikirangi Gage (21 February 2020) at [122]; Affidavit of Hetaraka Biddle (20 February 2020) at [107]; Affidavit of Pepper Hudson (20 February 2020) at [16]. The following affidavits also note you should not drink on the rocks: Affidavit of Marjorie Huingapani Kurei (20 February 2020) at [44]; Affidavit of Pepper Hudson (20 February 2020) at [16]; Affidavit of Toni Cherie Ngoungou-Martin (20 February 2020) at [20]; Affidavit of Kayreen Tapuke (20 February 2020) at [68].
68. Re Edwards [2021] NZHC 1025, Affidavit of Te Kou Rikirangi Gage (21 February 2020) at [122]. Mimi was discussed extensively in the evidence, with some saying that mimi on hands and equipment (or other body parts) was a way of reconnecting with Tangaroa (see Affidavit of Hetaraka Biddle (20 February 2020) at [109]; Affidavit of Pepper Hudson (20 February 2020) at [16]; Heremaia Warren (21 February 2020) at [152]–[154]; Affidavit of Arapeta Mio (14 April 20202) at [36]; Affidavit of Kayreen Tapuke (20 February 2020) at [68]; and Affidavit of David Peters (24 July 2020) at [11]).

⁶⁹ Re Edwards [2021] NZHC 1025, Affidavit of Te Kou Rikirangi Gage (21 February 2020) at [122].

70. Re Edwards [2021] NZHC 1025, Affidavit of Hetaraka Biddle (20 February 2020) at [107]; Affidavit of Pepper Hudson (20 February 2020) at [16]; Affidavit of Marjorie Huingapani Kurei (20 February 2020) at [44]; Affidavit of Pepper Hudson (20 February 2020) at [16]; Affidavit of Toni Cherie Ngoungou-Martin (20 February 2020) at [20]; Affidavit of Te Ringahuia Hata (29 January 2020) at [96].
71. Re Edwards [2021] NZHC 1025, Affidavit of Marjorie Huingapani Kurei (20 February 2020) at [44]; Affidavit of Pepper Hudson (20 February 2020) at [16]; Affidavit of Toni Cherie Ngoungou-Martin (20 February 2020) at [20].
72. Re Edwards [2021] NZHC 1025, Affidavit of Te Kou Rikirangi Gage (21 February 2020) at [122]. See also Affidavit of Hohepa Te Kahika (20 February 2020) at [30]. Te Kahika notes that he was told that leaving a dead shell was “saying to those beds ... you’re going to be depleted so they move”.
73. Re Edwards [2021] NZHC 1025, Affidavit of Hetaraka Biddle (20 February 2020) at [93]; Affidavit of David Peters (24 July 2020) at [11]); Affidavit of Kayreen Tapuke (20 February 2020) at [67] and [68]; Affidavit of Toni Cherie Ngoungou- Martin (20 February 2020) at [20].

⁷⁴ Re Edwards [2021] NZHC 1025, Affidavit of Kayreen Tapuke (20 February 2020) at [68].

75. Re Edwards [2021] NZHC 1025, Affidavit of Te Ringahuia Hata (29 January 2020) at [96]; Affidavit of Marjorie Huingapani Kurei (20 February 2020) at [44]; Affidavit of Pepper Hudson (20 February 2020) at [16]; Affidavit of Toni Cherie Ngoungou-Martin (20 February 2020) at [20]; Affidavit of Kayreen Tapuke (20 February 2020) at [68].

⁷⁶ Re Edwards [2021] NZHC 1025, Affidavit of Te Ringahuia Hata (29 January 2020) at [96].

• you should refrain from sexual intercourse with your partner before collecting kaimoana;77 and
• if gathering in the morning, you should not “brush your hair, bathe, or shower” because of “te tapu o te tangata”.78

• 2.25 Heremaia Warren (Te Whakatōhea) discusses specific tikanga relating to a fishing ground, Hāmama, in Ōpōtiki. He notes that, the first time he went to this ground to fish, his Nan explained to him that she would call him in to shore with his fish using a karakia called an umere.79 Warren also observes that there is a special type of fishing tool, the pekapeka, for catching fish at Hāmama, which is made from the tānekaha tree.80
• 2.26 Marjorie Huingapani Kurei (Ngāi Tamahaua hapū) discusses the tikanga around crayfish, noting that it would always be cooked for women first, which was part of a tradition that applied to a number of delicacies from the moana. This tikanga reflects the status of women, the fact women are responsible for the bulk of the workload at the marae in terms of food gathering and maintenance of gardens as well as women being whare tangata, the holders of whakapapa.81
• 2.27 Kayreen Tapuke (Ngāi Tamahaua hapū) states, “The rocks of niania and kina closest to the beach are left for the elders of Ōpape. That way, kuia, kaumātua, and those who are less able have easier access to those kai moana.”82
• 2.28 These types of customs and rules are considered a key and integral part of tikanga. As Rikirangi Gage (Te Whānau-ā-Apanui, Ngāti Porou) notes:83

tikanga are in place to focus on the caring for the mauri (life force) of the waahi mataitai kai and to ensure various kaitiaki and descendants of the owners of the food gathering areas are alerted to any dangers.

• 2.29 Gage’s words are reiterated further in the evidence, with many noting that the above tikanga exists to ensure the protection of people and the environment.84
• 2.30 Te Ringahuia Hata (Ngāti Patumoana) adds to these sentiments, stating that the above protocols “are seen as acts of respect and kindness and appreciation to Tangaroa,

77. Re Edwards [2021] NZHC 1025, Affidavit of Kayreen Tapuke (20 February 2020) at [68]. This is a tikanga concerning tapu and noa. It is practised in order to protect a person before they collect kaimoana.

⁷⁸ Re Edwards [2021] NZHC 1025, Affidavit of Kayreen Tapuke (20 February 2020) at [68].

⁷⁹ Re Edwards [2021] NZHC 1025, Affidavit of Heremaia Warren (21 February 2020) at [71].

⁸⁰ Re Edwards [2021] NZHC 1025, Affidavit of Heremaia Warren (21 February 2020) at [67]–[69].

⁸¹ Re Edwards [2021] NZHC 1025, Affidavit of Marjorie Huingapani Kurei (20 February 2020) at [35]–[39].

82. Re Edwards [2021] NZHC 1025, Affidavit of Kayreen Tapuke (20 February 2020) at [68]; Karen Mokomoko reiterated these sentiments, noting that a Mokomoko tikanga is that mussels are not to be taken from the rocks that can be easily accessed by walking or swimming as these should be left for whānau who are unable to access deeper waters (see Affidavit Karen Stefanie Mokomoko (30 January 2020) at [109].

⁸³ Re Edwards [2021] NZHC 1025, Affidavit of Te Kou Rikirangi Gage (21 February 2020) at [123].

84. Re Edwards [2021] NZHC 1025, Affidavit of Marjorie Huingapani Kurei (20 February 2020) at [44]; Affidavit of Pepper Hudson (20 February 2020) at [16]; Affidavit of Toni Cherie Ngoungou-Martin (20 February 2020) at [20]; Affidavit of Kayreen Tapuke (20 February 2020) at [68]; Affidavit of Hetaraka Biddle (20 February 2020) at [93] and [109]; Affidavit of Heremaia Warren (21 February 2020) at [143]–[155], which explains that specific tikanga was to ensure the safety of people (no yelling or running when on the rocks and always facing the sea so you can see incoming waves), while other

tikanga was to protect the kaimoana (not using metal tools as the shells may be damaged and returning rocks to the original position to maintain the animal’s environment).

Hinemoana and Papamoana to ensure a good catch or bountiful harvest. Cultural reciprocity is an important value we practice as we understand that if we look after Tangaroa, he in turn will look after us.”85

TIKANGA IS PRAGMATIC AND HAS CAPACITY TO CHANGE

• 2.31 The capacity for tikanga to change and evolve over time is well recognised.86 Dr Moana Jackson (Ngāti Kahungunu, Ngāti Porou) says, “Māori law and whakamārama tōtika is not static.”87
• 2.32 Wira Gardiner (Ngāti Pikiao, Ngāti Awa, Te Whakatōhea, Te Whānau-ā-Apanui) explains that, “Our ancestors did not expect their behaviour and practice to be cast in stone and to be unchanging. Our traditional concepts have evolved and need to be considered in current times.”88
• 2.33 Michael Bradley (Rangitāne, Waitaha, Rapuwai, Ngāti Mamoe, Ngāti Kuia, Ngāti Apa, Ngāti Tumatakokiri, Ngāti Wairangi, Ngāi Tara Pounamu, Ngāti Rarua, Te Ātiawa, Ngāti Tahu) refers to traditional methods of fishing that could be improved with technology without losing their roots in traditional practices.89
• 2.34 Paul Meredith (Ngāti Maniapoto) says “tikanga is characteristically dynamic and receptive to change. It is this ability of tikanga to change, and the fact that it is socially constructed as a matter of regional tribal practice rather than by a central governing body, that accounts for some variations among tribes.”90 Although Meredith recognises this capacity to evolve, he sees there being “tāhuhu of tikanga” and “structure” and “precedent” that guides the evolution of tikanga.91
• 2.35 Tāmati Kruger (Ngāti Koura, Ngāti Rongo, Ngāi Tūhoe) explains, “Tikanga is a result of our never ending struggle to deal with life and its predicaments. Tikanga is our attempt to practice what we preach and believe. It is imperfect because we are imperfect but it has been practiced and adapted and practiced and adapted over thousands of years.”92 Kruger goes on to say, “Tikanga is practiced in its living and evolved form and is never set in stone. It is sufficiently flexible to provide people with a means to deal with almost any set of circumstances.”93

⁸⁵ Re Edwards [2021] NZHC 1025, Affidavit of Te Ringahuia Hata (29 January 2020) at [96].

86. See Ko Aotearoa Tēnei, Wai 262, #G4 Apirana Mahuika at [10.2]; The Fisheries Settlement Report, Wai 307, #A13 Michael Bradley at [44].
87. R v Tamati Mason [2012] NZHC 1361, Notes of Evidence (3 May 2012) p.14. Whakamārama tōtika is explained by Dr Jackson as the “basic values” (see Notes of Evidence, p.2).
88. Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Reply Evidence by Harawira Tiri Gardiner (17 February 2017) at [4.3].

⁸⁹ The Fisheries Settlement Report, Wai 307, #A13 Michael Bradley at [44].

90. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith (2 June 2020) at [37].

⁹¹ Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Notes of Evidence p.1116.

⁹² Clarke v Takamore [2009] NZHC 901; [2010] 2 NZLR 525, Affidavit of Tāmati Kruger (31 July 2008) at [34]–[35].

⁹³ Clarke v Takamore [2009] NZHC 901; [2010] 2 NZLR 525, Affidavit of Tāmati Kruger (31 July 2008) at [67].

• 2.36 Paul Meredith (Ngāti Maniapoto) provides an example where a tapu was put on a road for five months but it was found this was quite impractical and people needed to use the road, so the time was reduced to five weeks.94 Peter Adds (Te Ātiawa) says this demonstrates “tikanga is flexible”.95
• 2.37 Tā Hirini Moko Mead (Ngāti Awa) and Tā Pou Temara (Tūhoe) recognise that “tikanga has a flexible dimension to it [and that] like all law, it is not static and can evolve over time and adapt to new situations”.96 They refer to how tikanga developed as a consequence of European contact, including the influence of Christianity, and that can be clearly seen in the creation of faiths such as the Ringatū and Rātana churches.97 They state:98

Importantly, however, when a new matter or issue arises for resolution, recourse is always had to the fundamental principles that underlie tikanga as well as drawing on historical precedent and how tikanga has been recognised in similar situations.

• 2.38 Haami Te Whaiti (Ngāti Kahungunu ki Wairarapa, Ngāi Tumapuhia) says, “The nature of customary interests is flexible and fluid, and able to adapt to changing circumstances, including the many and profound changes Ngāti Kahungunu have had to deal with since 1840 ... Customary interests continued to evolve after 1840, including when whānau or hapū moved to lands they had not previously occupied as a result of war, land loss, or other upheaval.”99
• 2.39 Kihi Ngatai (Ngāi Tukairangi) sets out that the changing nature of tikanga is also seen at different levels in te ao Māori. He says, “Tikanga can change. Individual hapū can lead that change for their own whānau, or the iwi can lead that change for hapū. The key is that changes are made by consensus, and it becomes accepted when the people adopt that new practice and begin to apply it.”100
• 2.40 Hauata Palmer (Ngāi Te Rangi) similarly reiterates, “Tikanga is dynamic and evolving. Its validity comes from the hapū. Its validity also comes from being evolutionary over generations. From a practical point of view, tikanga in very simple terms is really a plain common-sense thing that is adopted by hapū as it suits them.”101 Palmer exemplifies the evolving nature of tikanga in his discussion of cremation and tikanga:102

A good example of this evolutionary change I speak about is the practice of cremation. Today, cremation is a more common occurrence for whānau that choose to farewell their loved ones in such a way, more so than in times gone by. This is particularly the case where whānau must bring loved ones that have passed away home from overseas. However, it is not a practice that our tikanga has suited. Our tikanga has more commonly envisaged the

⁹⁴ The Wairarapa ki Tararua district inquiry, Wai 863, #4.11 Paul Meredith p.37.

⁹⁵ The Wairarapa ki Tararua district inquiry, Wai 863, #4.11 Peter Adds p.38.

96. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [32].
97. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [32].
98. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [33].

⁹⁹ The Wairarapa ki Tararua district inquiry, Wai 863, #J43 Haami Te Whaiti at [60].

¹⁰⁰ Re Reeder on behalf of Ngā Pōtiki [2021] NZHC 2726, Evidence of Kihi Ngatai (7 July 2020) at [47].

¹⁰¹ Re Reeder on behalf of Ngā Pōtiki [2021] NZHC 2726, Evidence of Hauata Palmer (6 July 2020) at [6].

¹⁰² Re Reeder on behalf of Ngā Pōtiki [2021] NZHC 2726, Evidence of Hauata Palmer (6 July 2020) at [8]–[10].

tupāpaku (deceased body) being called on to the marae and lying in state, with kaikōrero offering up karakia, speaking to the tupāpaku, and bidding farewell. However, more and more our people are discussing the change where rather than a coffin is brought onto our marae, an urn is brought on, and our speeches bidding farewell to loved ones is simply to an urn containing ashes. This is not simply one conversation either. We kōrero and wānanga the topic from time to time. Eventually enough people become comfortable with the shift and the tikanga changes through action.

Cremation is not entirely foreign to our tupuna. The mōteatea Tamarangi sings of the loss of Tamarangi, whom upon his death at the battle of Te Tokitoki was placed on a pyre at Ranginui besides Te Tahuna o Rangataua to be cremated, lest his body be taken by the enemy and decimated.

Understanding that at times our tupuna have undertaken this practice can give some comfort that we are not departing far from the values that our tūpuna have laid down. That said, where our people collectively agree, we move as one, and all things are possible.

• 2.41 Apirana Mahuika (Ngāti Porou) describes that, when they made changes to tikanga, they did it in a way that did not compromise tikanga and guaranteed the continuity of tikanga from one generation to another.103 He emphasises that Ngāti Porou needed to be in control of cultural adaptions because it is they who have whakapapa, who live and practise the tikanga and its values, who have knowledge of it and how effective it can be in their lives.104
• 2.42 David Williams (Pākehā), in discussing tikanga Māori, notes: “Māori custom law has never been static. It has always been flexible to need and circumstances and capable of adaptation, including adopting newforms and practices. At the same time, flexibility and a willingness to adapt should not be confused with such fluidity or malleability as to enable changes to take place without regard to underlying values and fundamental principle ... Māori processes will always contextualise disputed issues within the framework of fundamental values rather than merely announce the application of a rule.”105

THE APPLICATION OF TIKANGA IS CONTEXTUALLY DEPENDENT

• 2.43 David Wilson (Te Ākitai Waiohua, Ngāti Te Ata) provides an example of when a hui is held in a “contested area” and explains that it can be almost impossible to arrange who the speakers in a whakatau or pōwhiri are in advance. He goes on to say:106

When we turn up on the day and see who is there, everyone usually understands who has the mana to do the whaikōrero and the order we go in. It is based on various considerations like mana, whakapapa, seniority, the purpose of the hui, who is attending, where the pōwhiri is being held, whether one can speak te reo and sometimes even ability to deliver whaikōrero. We all work collectively to figure it out. So although all iwi have similar welcoming customs – in Tāmaki, outside of the marae context, who has the mana to stand and speak in a place is not always a given.

¹⁰³ Ko Aotearoa Tēnei, Wai 262, #G4 Apirana Mahuika at [10.2].

¹⁰⁴ Ko Aotearoa Tēnei, Wai 262, #G4 Apirana Mahuika at [10.14].

¹⁰⁵ Re Edwards [2021] NZHC 1025, Affidavit of David Vernon Williams (30 July 2020) at [20] and [25].

106. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, brief of evidence of David Wilson (13 October 2020) at [49].

• 2.44 In a similar vein, the joint evidence of Tā Hirini Moko Mead (Ngāti Awa) and Tā Pou Temara (Tūhoe) states, “Decisions about mātāpono (principles) are always subject to variables such as concepts, practices, and values, as relevant to the circumstances.”107

THE USE OF PŪRĀKAU AND KŌRERO

• 2.45 It was common for evidence to refer to sources such as pūrākau (stories),108 whakataukī (proverbs),109 whakapapa recitations (genealogy),110 karakia (ritual chants/prayers),111 mōteatea (laments)112 and waiata.113
• 2.46 These sources are used for a number of purposes, including:114
  • passing down knowledge of tikanga;115
  • understanding place, obligations and connections;116
  • making sense of protocols and guiding behaviours;117

107. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [19].
108. See Mana Wāhine Kaupapa Inquiry, Wai 2700, #A17 Ani Mikaere; The Fisheries Settlement Report, Wai 307, #B8(b) Kakapaiwaho Kururangi Tibble p.2.
109. See Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith (2 June 2020) at [40]–[41].

¹¹⁰ See Ko Aotearoa Tēnei, Wai 262, #G4 Apirana Mahuika at [10.14].

111. See Ko Aotearoa Tēnei, Wai 262, #E3 Wayne Ngata at [4.8.3] p.33; Muriwhenua Land Report, Wai 45, #A6 Miraka Szászy p.1 and p.4.

¹¹² See Ko Aotearoa Tēnei, Wai 262, #E3 Wayne Ngata at [3.2.11].

¹¹³ For example, see Ko Aotearoa Tēnei, Wai 262, #P3 Haami Piripi at [8] where be begins with the creation story.

¹¹⁴ The Fisheries Settlement Report, Wai 307, #B8(b) Kakapaiwaho Kururangi Tibble p.2.

115. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [35]–[36].
116. See Ko Aotearoa Tēnei, Wai 262, #A30 Laly Haddon. Also see Apirana Mahuika’s evidence in The Fisheries Settlement Report, Wai 307, #B8(c) at [3]–[4] where he uses Ngāti Porou pūrākau, haka and waiata as evidence to demonstrate the significant relationship Ngāti Porou have with the moana. Mahuika says that fishing traditions and their historical significance are embedded in Ngāti Porou history – the story of their tipuna Māui and his canoe Nukutaimemeha resting in petrified form on Maunga Hikurangi. He also provides Ngāti Porou haka and waiata that attest to their long-held fishing tradition – “Hara mai ki rato o Waiapu, Kia kite koe Te Awemapara, E te paripari Ti hei Taruke”. Maunga Hikurangi was a beacon and navigational point for deepsea fishermen. Donald Ati Kurei in his Affidavit dated 19 February 2020 at [6] in Re Edwards [2021] NZHC 1025 shared a waiata that had been composed to retain the history of Ngāti Ira raupatu boundaries. Also from Re Edwards [2021] NZHC 1025, see the Affidavit of Hetaraka Biddle (20 February 2020) at [121]; the Affidavit of Arapeta Mio (Ngāi Tai) (14 April 2020) at [6]–[20], which discusses Ngāi Tai’s association with the coastline by recounting the whakapapa and travels of their ancestor Manaakiao and the events that occurred prior to the arrival of the Tainui waka; the Affidavit of Tā Hirini Moko Haerewa Mead, Dr Hohepa (Joseph) Mason and Te Kei (O Te Waka) Wirihana Merito (19 May 2020) at [39]–[69], which discusses the origins of Ngāti Awa at length and includes

the kōrero regarding key people from whom Ngāti Awa descend and their travels, including Māui and Tiwakawaka, Toi Te Huatahi, Awanuiārangi I, Irakewa, and the arrival of the Mataatua waka and Wairaka, Awanuiārangi II, Te Tokotoru a Paewhiti, Te Heke o Te Rangihouhiri; the Affidavit of Tama Te Waiwhakaruku Hata (14 February 2020) at [40]–[42]) where he composed “Te Ripa o Waiōweka” so that the mountains, rivers, sacred places, treasures and placenames of Ngāti Ira would never be lost; and see Affidavit of Te Ringahuia Hata (21 February 2020) at [88] where she notes that haka and waiata are composed about the raupatu losses from colonisation. In particular, she notes the waiata mōteatea Tērā Te Pō Pango, which depicts the traditional raupatu whenua boundary of Ngāti Ira within Whakatōhea.

117. Ko Aotearoa Tēnei, Wai 262, #H10 Puhanga Tupaea at [19]–[33] and [39]–[45]. Puhanga Tupaea’s evidence refers to several stories or kōrero to make sense of certain protocols or symbols in relation to gathering kai, transplanting kaimoana, tuatara, navigation, rongoā and weaving.
     • being a mechanism for enhancing a relationship;118
     • describing the characteristics of a collective;119
     • explaining natural phenomena and making sense of the world;120
     • as part of a tikanga practice (for example, preparation for and collection of kai); and121
     • establishing a claim over whenua.122

• 2.47 As Wayne Ngata (Ngāti Porou) explains:123

Mōteatea are for us; the summaries of our existence, the expression of our histories, the exultations of our deeds, the commentaries on our lifes meanderings, the outpourings of our feelings. They are in effect with Reo Māori, what makes us Māori.

• 2.48 Ngata uses three examples of mōteatea to illustrate how they are repositories of history and knowledge and are more than merely theoretical but practical guides on how to live.124 They are personal to each iwi and hapū and define the relationship between people and the land, natural resources, atua and tūpuna.125
• 2.49 Nigel Te Hiko (Raukawa, Waikato-Tainui, Ngāti Tūwharetoa, Ngāti Kauwhata, Ngāti Tukorehe, Ngāti Raukawa ki te Tonga) explains how mōteatea can demonstrate the history and feelings of the people.126 He explains:127

What we did this morning when we sang our mōteatea showed the length and breadth of the mamae that we are suffering, in particular to the mamae of the loss of the land to us.

Although we have come to a resolution with the Crown, there is still this hurt and this mamae, within the iwi. And so, when we sung E pā tō hau you need to understand from

118. As explained by Wayne Ngata in Ko Aotearoa Tēnei, Wai 262, #E3 Wayne Ngata at [4.8.3] p.33, the kōrero, karakia, mōteatea and tahu enhance the Ngāti Porou relationship with Paikea: “It is not some airy fairy spiritual things but real and pragmatic in that these determine how we utilise the resource of the sea and this relationship.”
119. See Muriwhenua Fishing Report, Wai 22, #B30 Reverend Harold Peters at [2] uses a whakataukī to describe the characteristics of Ngāi Takoto with reference to the natural world. The whakataukī “He iti pioke o Rangaunu he au tona” refers to the pioke (a small variety of shark) found in Rangaunu. As it moves, it leaves behind a wake that is disproportionately large for its size.

¹²⁰ Re Edwards [2021] NZHC 1025, Affidavit of Anna-Marei Kurei (19 February 2020) at [66].

¹²¹ Re Edwards [2021] NZHC 1025, Affidavit of Marjorie Huingapani Kurei (20 February 2020) at [21].

122. For example, Rima Eruera’s evidence in the Muriwhenua Land Report, Wai 45, #F23 intertwines whakapapa, kōrero, whakataukī and pūrākau to seek to establish a foundation for the Muriwhenua claim that they have mana whenua over Muriwhenua land taken in the pre-1834 transactions; Tāmati Kruger in Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [138]–[139] refers to the matakitenga shared by Titahi with Te Kawau to establish that Ngāti Whātua Ōrākei had mana atua, mana tangata and mana whenua

when the prophecy was made; Charles Tawhiao in Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Charles Wahia Tawhiao (2 June 2020) at [37]–[42] refers to well-known Ngāi Te Rangi whakataukī and a Ngāti Whātua Ōrākei tauparapara as support for mana whenua in a rohe; Re Edwards [2021] NZHC 1025, Affidavit of Tā Hirini Moko Haerewa Mead, Dr Hohepa (Joseph) Mason and Te Kei (O Te Waka) Wirihana Merito (19 May 2020) notes that the Ngāti Awa rohe as described by Te Hurinui and Ngāti Awa in the 1922 petition to Parliament regarding Crown confiscation of land is commemorated in the mōteatea Te Kupu a Te Hurinui (at [108]–[110]); Affidavit of Mandy Mereaira Hata (5 August 2020) at [3]; Affidavit of Te Rua Rakuraku (19 February 2020) at [61].

¹²³ Ko Aotearoa Tēnei, Wai 262, #E3 Wayne Ngata at [3.2.11].

¹²⁴ Ko Aotearoa Tēnei, Wai 262, #E3 Wayne Ngata.

¹²⁵ Ko Aotearoa Tēnei, Wai 262, #E3 Wayne Ngata.

¹²⁶ The Wairarapa ki Tararua district inquiry, Wai 863, #4.11 Nigel Te Hiko p.87.

¹²⁷ The Wairarapa ki Tararua district inquiry, Wai 863, #4.11 Nigel Te Hiko pp.87–88.

our perspective why we sang that particular waiata. That particular waiata was composed on the very whenua we are talking about, namely the Pouakani. It is composed by a koroua

– one of our koroua, who climbed the mountain there. Titiraupenga, and he looked across the land and he saw his land that had been taken. We had lost our land and he lamented and he cried for the loss of this lands. So when we sing E pā tō hau we are carrying generations of mamae and it becomes very difficult for us to alleviate that mamae unless we get it out there in the open.

And when our koroua was on top of Titiraupenga looking over his lands he passed away. He died up there. His whangaunga Te Rangiamoa then wrote / composed this waiata in his memory seeing all the pain that he was going through for the loss of his people and for the loss of his lands.

• 2.50 An example of one of the stories told in evidence to illustrate the connection of people to whenua is Tamati Waaka’s (Te Whānau-ā-Apanui, Ngāi Tai, Te Whakatōhea, Ngāti Awa, Ngāti Pūkeko, Tūhoe) account of the death of a tupuna by the name of Kino. Waaka explains that Kino was a warrior of Te Whānau-ā-Apanui who was about to be killed by Tamahae.128 Kino requested that he be killed on his own land, a request that Tamahae consented to. Waaka explains that Kino wanted to die on the land that he had a connection to. Tamahae understood the value of this tikanga.129
• 2.51 Paraone Gloyne (Raukawa ki Wharepūhunga) talks about using these types of sources to illustrate particular iwi interests in an area:130

... because I am a composer of kapa haka I’m constantly looking at the old mōteatea, waiata, haka, and things like that. All of the kōrero that comes out of that area [the particular area in dispute] is Raukawa kōrero, not Wairarapa.

• 2.52 Miraka Szászy’s evidence (Ngāti Kuri, Te Aupōuri) draws on a number of language features, including kōrero tuku iho, karakia and poroporoaki, which she weaves into her evidence as part of claiming guardianship rights of her people to Te Rerenga Wairua, although she recognises it also as a national taonga.131 Szászy commences her evidence with reference to their spiritual origins that reside in other realms, including Matangireia and Rangiatea-te-tuahu-o-to-Matakanakana.132 She goes on to reference their spiritual homeland of Hawaiki, the connection to Papatūānuku (the earth mother) and the legend of Māui who fished up Aotearoa from the depths of the ocean and her forebears who lived on the “tail of the fish of Māui” for centuries.133 Szászy then describes the arrival of Kupe and his dedication of Te Reinga as being the place from where spirits of the dead depart from the spiritual world.134 She explains:135

128. Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tamati Waaka (4 January 2017) at [46].
129. Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tamati Waaka (4 January 2017) at [46].

¹³⁰ The Wairarapa ki Tararua district inquiry, Wai 863, #J21 Paraone Gloyne at [2.5].

¹³¹ Muriwhenua Land Report, Wai 45, #A6 Miraka Szászy p.1.

¹³² Muriwhenua Land Report, Wai 45, #A6 Miraka Szászy p.1.

¹³³ Muriwhenua Land Report, Wai 45, #A6 Miraka Szászy p.2.

¹³⁴ Muriwhenua Land Report, Wai 45, #A6 Miraka Szászy pp.3–4.

¹³⁵ Muriwhenua Land Report, Wai 45, #A6 Miraka Szászy p.4.

To this day, the wake of his departing canoe can still be seen – a stretch of white foam leading out to sea all the way to Manawatawhi, the main island of the Three Kings. The same phenomenon is described by our people as “the meeting place of two lovers, Rehua and Whitirea” – the children of the Tasman Sea (the male) and Pacific Ocean (the female). Hence also the ancient saying “Papaki tū ana ngā tai o Rehua, o Whitireia”.

• 2.53 Similarly, Anna-Marei Kurei (Ngāti Ira) explores the connection of Ngāti Ira to the takutai moana through use of waiata, pakiwaitara and whakatauākī.136 Kurei begins her evidence by identifying the whakataukī Ngā Tamāhine a Te Whakatohea as an acknowledgement of the mana moana and mana motuhake of Ngāti Ira and the strong connection Te Whakatōhea have over Ōhiwa and Waiotahe.137 Kurei then discusses a Te Whakatōhea waiata, Te Tapu o Muriwai, which refers to the rohe moana of Te Whakatōhea and is a historical record of the significant sites, stories and whakapapa relationships with neighbouring iwi.138 Kurei analyses each line of the waiata to highlight the key areas and points of interest for the mana moana of Te Whakatōhea.139 Kurei notes the importance of pūrākau and other forms of storytelling such as pakiwaitara and whakataukī for transmitting scientific knowledge, history, whakapapa and social norms to successive generations.140 She notes further that “pakiwaitara hold valuable messages surrounding tikanga practices especially those concerning morals and ethics”.141
• 2.54 Whaimutu Dewes (Ngāti Porou, Ngāti Rangitihi) uses various pūrākau to illustrate that Māori “were not confined to fishing inshore alone but also the depths beyond”. He refers to mōteatea that record the use of seine nets for deep-sea species through the use of specially built waka called waka tua.142
• 2.55 Tā Hirini Moko Mead (Ngāti Awa), Dr Hohepa Mason (Ngāti Awa, Ngāti Pūkeko) and Dr Te Kei Merito (Ngāti Awa, Ngāti Pūkeko, Ngāti Rangataua, Ngāti Hokopū, Ngāi Tamapare) use a well-known whakataukī regarding a Ngāti Awa ancestor to demonstrate the connection of Ngāti Awa to Whakaari, stating:143

¹³⁶ Re Edwards [2021] NZHC 1025, Affidavit of Anna-Marei Kurei (19 February 2020) at [3].

¹³⁷ Re Edwards [2021] NZHC 1025, Affidavit of Anna-Marei Kurei (19 February 2020) at [9] and [10].

¹³⁸ Re Edwards [2021] NZHC 1025, Affidavit of Anna-Marei Kurei (19 February 2020) at [12]–[65].

139. Re Edwards [2021] NZHC 1025, Affidavit of Anna-Marei Kurei (19 February 2020) at [66]–[75]; Hemaima Mariana Hughes (Ngāti Ira) notes in her affidavit dated 30 January 2020 at [36] the significance of kapa haka for transmitting history and whakapapa, noting that “the history of Ngāti Ira, traditional boundaries, battle sites, waahi tapu, marriage alliance, significant events and our relationships to the land, sea and other people is intrinsically woven into compositions that have passed down through generations”. In particular, Hughes identified the waiata Karoro a Tamatea – Na Ngāti Ira, which is a waiata that speaks of Ngāti Ira.

¹⁴⁰ Re Edwards [2021] NZHC 1025, Affidavit of Anna-Marei Kurei (19 February 2020) at [66].

¹⁴¹ Re Edwards [2021] NZHC 1025, Affidavit of Anna-Marei Kurei (19 February 2020) at [75].

142. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Principles for the Allocation of Quota: Report for the Māori Fisheries Commission at 14 and

15. For example, Dewes includes the pūrākau of Māui fishing up Te-Ika-a-Māui as well as the pūrākau of Ruatapu and Paikea. In the latter pūrākau, Ruatapu planned to kill his brothers by casting them into the sea from the fishing ground Te Huripureiata, where no land could be seen. Paikea escaped by climbing aboard a whale who brought him ashore. See also Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Principles for the Allocation of Quota: Report for the Māori Fisheries Commission; Exhibit A Apirana Mahuika Ngā Tikanga Māori e pa ana ki a Tangaroa (22 November 1991) at Appendix A.

143. Re Edwards [2021] NZHC 1025, Affidavit of Tā Hirini Moko Haerewa Mead, Dr Hohepa (Joseph) Mason and Te Kei (O Te Waka) Wirihana Merito (19 May 2020) at [117].

There is also a well-known Ngāti Awa whakatauki connected to Whakaari. An ancestor of Ngāti Awa, Te Tahi-o-te-rangi, was suspected of causing floods on the lowland crops by his magic. Therefore, the people abandoned him on Whakaari. As their canoes disappeared from sight, Te Tahi summoned some friendly sea monsters, one of which carried him back to the mainland shore. When the sea monsters proposed that they overturn the canoes of the malefactors, Te Tahi uttered the following saying:

Waiho mā te whakamā e patu. Waiho hai kōrero i a tātau kia atawhai ki te iwi – Leave them for shame to punish. Let us acquire fame by being merciful.

• 2.56 In a different context, Tā Hirini Moko Mead (Ngāti Awa) and Tā Pou Temara (Tūhoe) use a story from Tūhoe to explain and illustrate the operation of the concept of “hara”:144

One day a kuia (elderly woman) went and visited a family.

When the kuia got to the home, the dog of the family that she was visiting attacked her. The dog drew blood from her leg and tore her flesh.

The owners of the dog rushed outside, took the dog away and then tended to the injuries of the kuia.

It was a hara on behalf of the dog owners for the dog to have attacked the kuia. The shedding of blood is significant as it meant there was a transgression of tapu (as blood is sacred). The offence also resulted in mana became [sic] imbalanced.

The owners of the dog knew that they had committed a hara and that there had been a breach of tikanga.

In response, they went to their waka huia (treasure box) and brought out a pounamu (greenstone) that had significant value. They gave this to the kuia as compensation for the hara.

The kuia had every right to impose a muru (ritual plundering and restorative justice process that entails the redistribution of wealth). However, she accepted the pounamu as payment for the wrong that had been committed.

This meant that the issue became ea (satisfied, settled, mana rebalanced).

• 2.57 They draw on this story as an example of the successful resolution of a hara and explain the relevance of the story to the case before the Court in Ellis.145
• 2.58 Associate Professor Khylee Quince (Ngāpuhi, Te Roroa, Ngāti Porou, Ngāti Kahungungu) draws on the metaphor of ‘te pā harakeke’ to explain the relationship between the child and their whānau:146

The traditional metaphor for this characterises the child as the unprotected tender central shoot of the harakeke or flax bush – exposed by the outer blades – in contravention of the assumed “pā harakeke” or village of the flax bush that represents the healthy and functional family group. The healthy harakeke is stabilised by a root system representing values and practices of aroha (love/compassion), manaakitanga (care/responsibility for others), wairuatanga (nurture of the spirit) and whanaungatanga (kinship obligations). The survival and flourishing of the child is dependent upon the group as a whole – as it is with the central and outer leaves of the plant.

144. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [60].

¹⁴⁵ Ellis v R [2022] NZSC 114.

¹⁴⁶ Solicitor-General v Heta [2018] NZHC 2453, s 27 report by Khylee Quince (18 September 2018) p.9.

• 2.59 Various witnesses for Te Whakatōhea in the takutai moana claim context employ language features and techniques to illustrate their connection to land and sea:
  • Te Riaki Amoamo (Te Whakatōhea, Ngāti Patumoana, Ngāti Ruatakenga) discusses the tauparapara Maruhia Atu, which introduces Whakatōhea and references an important pūrākau regarding the rāhui the Whakatōhea ancestor Muriwai placed on Te Moana-nui-ā-Toi following the drowning of her two sons at sea.147
  • Mandy Mereaira Hata (Ngāti Ruatakenga) presents her evidence using the whakataukī “Ngāti Rua ki uta, Ngāti Rua ki tai – Ngāti Rua upon the land, Ngāti Rua beside the sea” to show how Ngāti Rua have kept and maintained their connection to the takutai moana.148
  • Hetaraka Biddle (Ngāi Tamahaua hapū) references the whakataukī “Ko au te moana, ko te moana ko au – I am the sea and the sea is me” to demonstrate that the takutai moana is part of the identity of Ngāi Tamahaua.149
  • Eru Koopu (Te Whakatōhea, Te Whānau-ā-Apanui, Ngāti Awa) begins his evidence with Tārawa’s arrival to Whākatohea and how this arrival is reflected in the name of Ōpōtiki. Koopu recounts:150

Tārawa arrived on his canoe, Ara Umauma. He swam ashore. Here is a saying, a proverb for that.

He painga, he painga. He painga ratou.

That refers to Paerata. Those are the hills that look down onto the Waiotahi beach. I te utanga mai o Tarawa ka puta mai te pātai.

Ma hea koe i tae mai.

Na Tarawa te whakautu. I runga i te Araumauma me te awhina mai o ngā tāhanahana, ngā pōtiki.

Koinei nga pōtiki.

Haramai te ihi te wehi te tapu. Haumi ē hui ē, manaakitia Ōpōtiki e.

• Koopu explains that this is the kōrero behind the name Ōpōtiki, which reflects the tāhanahana (small fish) that helped Tarawa arrive ashore.151
• Kayreen Tapuke and Toni Cherie Ngoungou-Martin (Ngāi Tamahaua hapū) both discuss the significance of karakia for Ngāi Tamahaua.152 Tapuke notes the use of karakia for a number of commemorative events, to lay down and lift rāhui and to provide safety and protection of people and places.153 Ngoungou-Martin notes:154

¹⁴⁷ Re Edwards [2021] NZHC 1025, Affidavit of Te Riaki Amoamo (3 August 2020) at [7.6].

¹⁴⁸ Re Edwards [2021] NZHC 1025, Affidavit of Mandy Mereaira Hata (5 August 2020) at [3].

¹⁴⁹ Re Edwards [2021] NZHC 1025, Affidavit of Hetaraka Biddle (20 February 2020) at [120].

¹⁵⁰ Re Edwards [2021] NZHC 1025, Affidavit of Eru Koopu (21 February 2020) at [5]–[10].

¹⁵¹ Re Edwards [2021] NZHC 1025, Affidavit of Eru Koopu (21 February 2020) at [5]–[10].

152. Re Edwards [2021] NZHC 1025, Affidavit of Toni Cherie Ngoungou-Martin (20 February 2020) at [18] and [19]; Affidavit of Kayreen Tapuke (20 February 2020) at [45], [46], [49] and [51]–[64].

¹⁵³ Re Edwards [2021] NZHC 1025, Affidavit of Kayreen Tapuke (20 February 2020) at [51]–[64].

¹⁵⁴ Re Edwards [2021] NZHC 1025, Affidavit of Toni Cherie Ngoungou-Martin (20 February 2020) at [18] and [19].

Karakia is an essential part of Ngāi Tamahaua tikanga. The faith of Ngai Tamahaua is Ringatū faith, so this is reflected in our karakia. The whānau would karakia morning and night, before entering the sea for fishing or shellfish gathering, or before going hunting. Everything was protected by karakia. Wharekawa taught us this.

Today a lot of practices, including those to with the coast and the moana, are preceded by karakia. The karakia link us to our land, our waters, our kaumatua, our tīpuna, our spiritual selves. They help us keep safe when we are out diving and collecting kai. The karakia keep us grounded and remind us of the places that we cannot go, as a result of it being a sacred site or because of rāhui. We have been raised to take note of these things and to respect them.

• Te Rua Rakuraku (Te Whakatōhea, Ngāti Ira) discusses the significance of karakia for Ngāti Ira:155

By virtue of our whakapapa connections to our whenua and moana, we have exercised our right of mana whakahaere to ensure that the wellbeing of the moana is maintained. The power of karakia is special to us as Māori, but more specifically, us of Ngāti ira and it is an integral custom for us.

As stated above, the moana is and remains to be a place that is respected. We have always been taught to give thanks for what the moana provides in terms of kai, safety, leisure, and rongoā. The moana allows us as a hapū to be able to facilitate karakia and church services.

Our kai gatherers have always done karakia before going out to sea. He tikanga tēnei nō mai ra anō. I also remember as a child when we travelled and stayed at the Trust Board farm, we would have Ringatū ‘karakia moata’ (5am) to set the order of day right before the men would go out for the day or week fishing.

I also know that it is still a common practice of our fisherman and kaimoana gatherers to karakia before going out to sea, and to thank the moana when they were successful in gathering kai. These are ongoing unsevered obligations of authority and reciprocity that we have to protect the integrity of the ocean territories and foreshore that we have inherited.

• Further, Rakuraku says, “Karakia is one of the most important protection mechanisms we have. We live and breathe by this Tikanga. It is through practices like karakia, waiata, rāhui etc. that we have maintained our mana motuhake to Whakaari.”156

TRANSMISSION OF TIKANGA

• 2.60 It was generally accepted that mātauranga Māori (and therefore tikanga) is passed on through oral tradition.157 This includes through the language sources and features

¹⁵⁵ Re Edwards [2021] NZHC 1025, Affidavit of Te Rua Rakuraku (19 February 2020) at [46]–[49].

¹⁵⁶ Re Edwards [2021] NZHC 1025, Affidavit of Te Rua Rakuraku (19 February 2020) at [61].

157. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith (2 June 2020) at [36]. Ko Aotearoa Tēnei, Wai 262, #H11 Benjamin Hippolite at [27] and [54]; Ko Aotearoa Tēnei, Wai 262, #B11 Himiona Munroe at [19]; Ko Aotearoa Tēnei, Wai 262, #E3 Wayne Ngata at [7.2]. Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit by Justin Owen Ian Puna (11 August 2020) at [8].

discussed above such as kōrero,158 waiata,159 haka160 and karakia.161 Paula Ormsby gives the example of oriori (lullabies) that were composed and sung to pēpi (babies) in the womb. She says, “They tell stories of Tūpuna, journeys, whakapapa and whenua. They connect the land to the child and the child to the land.”162

• 2.61 Importantly, tikanga is also represented visually. Hetaraka Biddle (Ngāi Tamahaua hapū), in discussing their whare tipuna Muriwai, notes, “Each of the heke (rafters) ... are a visual representation of significant moments in our Ngāi Tama history.”163 Further, heke paying tribute to important tīpuna were also present.164
• 2.62 Moe Milne (Ngāti Hine) explains that the naming of children was another method of retaining stories and knowledge, and it was an important tradition that had descended through their whānau.165 Toro Waaka (Ngāti Pāhauwera) states a reason for doing so “was so those ancestors would be remembered and someone would continue to talk about the history of that person, and someone else would focus on another one”.166
• 2.63 An example of naming is provided by Hemana Manuera (Ngāti Awa):167

Kahungunu, while fishing whakaaronui, disrespected tikanga by failing to throw the first catch back to Tangaroa by way of koha. Kahungunu was slapped with a tāmure (snapper) by his brother. To resolve this misdeed, Kahungunu named his son Tūtāmure which means ‘pricked on the face by snapper fins’. Hemana uses this as an example of Kahungunu addressing his disrespect of the mauri of Tangaroa by the naming of Tūtāmure as perpetual living evidence of his misdeed and disrespect.

• 2.64 Moka Puru (Ngāti Ira, Te Whakatōhea) says, “Following the battle of Te Ika-A-Ranginui at Kaiwaka in 1825, Moka was shot. He was rescued by another Ngāpuhi chief, Rawiri Taiwhanga. He took the name Kainga-Mataa meaning ‘eaten by a bullet’, meaning he took a hit but survived.”168
• 2.65 Naming of areas more generally to reflect historical events or connections is also discussed frequently:

158. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith (2 June 2020) at [36]. Ko Aotearoa Tēnei, Wai 262, #H11 Benjamin Hippolite at [56]; Ko Aotearoa Tēnei, Wai 262, #B11 Himiona Munroe at [19].
159. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith (2 June 2020) at [36]. Ko Aotearoa Tēnei, Wai 262, #B9 Wiremu McMath at [21].
160. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith (2 June 2020) at [36].
161. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith (2 June 2020) at [36].
162. Mana Wāhine Kaupapa Inquiry, Wai 2700, #A55 Paula Ormsby at [83]. The authors have been unable to locate Paula Ormsby’s whakapapa based on the written material reviewed.

¹⁶³ Re Edwards [2021] NZHC 1025, Affidavit of Hetaraka Biddle (20 February 2020) at [65]–[70].

¹⁶⁴ Re Edwards [2021] NZHC 1025, Affidavit of Hetaraka Biddle (20 February 2020) at [71].

¹⁶⁵ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A62 Moe Milne at [5].

¹⁶⁶ Re Ngāti Pāhauwera [2021] NZHC 3599, Brief of evidence of Toro Edward Reginald Waaka (19 December 2019) at [72].

167. Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, Statement of Evidence of Hemana Eruera Manuera (29 March 2019) at [22]; Te Riaki Amoamo reiterated this same kōrero in his affidavit of 3 August 2020.

¹⁶⁸ Re Edwards [2021] NZHC 1025, Affiadvit of Moka Kainga Maata Puru (3 February 2020) at [25].

• Hetaraka Biddle (Ngāi Tamahaua hapū) discusses naming of the Ōpēpē awa. According to Ngāi Tamahaua tradition, the name relates to the Maruiwi people who are considered the first inhabitants of the area and who Ngāi Tamahaua whakapapa to. “The Maruiwi women were small in stature and the Ōpēpē stream was a place they would go to deliver their babies. Due to their small frames the babies often died there at the awa. That is why the name Ōpēpē was given.”169 A waiata tangi was composed to record the significance of the awa and its kōrero:170

Me pēnei ana Te mate i a koe

Me he mate marama Ka ora mai e

E hika e

Kua pani o tamariki

Kua riro koe hei whakaruruhau e Whakatutu ai

Nga kapua i opepe

E puanga nei ka rere i te hau e

• Tā Hirini Moko Mead (Ngāti Awa), Dr Hohepa Mason (Ngāti Awa, Ngāti Pūkeko) and Dr Te Kei Merito (Ngāti Awa, Ngāti Pūkeko, Ngāti Rangataua, Ngāti Hokopū, Ngāi Tamapare) discuss a number of examples of naming. One such example reflects an event that occurred in the Ngāpuhi raids, which resulted in the naming of Ōhope:171

The name Ōhope means to be suspended from the hips and the name resulted from an incident during the Ngāpuhi raids. Similarly, the naming of Ngāti Hokopu arose during this period also. They were resident at Ōhope and on Uretara Island at Te Paripari pā. During one of their raids, Ngāpuhi made a peace offering to Ngā Ariki. Slaves were offered in exchange for muskets. The slaves were killed and hung from the tress hence the name of Ōhope. From the transaction, Ngā Ariki became known as Ngāti Hokopu.

• Eru Koopu (Te Whakatōhea, Te Whānau-ā-Apanui, Ngāti Awa) discusses the kōrero of Muriwai and the name Te Whakatōhea.172 Koopu begins by recounting that, when Muriwai’s waka arrived at Whakatāne, all the men came off the waka to explore the forest. While exploring, the waka was left at Mataroa River, near a cave. The waka subsided and began to drift away. As the men could not reach the waka in time, Muriwai swam to retrieve it and pull it to the shore, proclaiming:173

Kia Whakatāne au i ahau. I must be like a man.

• Koopu notes further that “because no one was quick enough to catch the boat before it floated away, she growled, or asserted herself. Because of that

169. Re Edwards [2021] NZHC 1025, Affidavit of Hetaraka Biddle (20 February 2020) at [72] and [73]; Affidavit of Kayreen Tapuke (20 February 2020) at [24].
170. Re Edwards [2021] NZHC 1025, Affidavit of Hetaraka Biddle (20 February 2020) at [75]; Affidavit of Kayreen Tapuke (20 February 2020) at [26].
171. Re Edwards [2021] NZHC 1025, Affidavit of Tā Hirini Moko Haerewa Mead, Dr Hohepa (Joseph) Mason and Te Kei (O Te Waka) Wirihana Merito (19 May 2020) at [79]–[83].

¹⁷² Re Edwards [2021] NZHC 1025, Affidavit of Eru Koopu (21 February 2020) at [12]–[16].

¹⁷³ Re Edwards [2021] NZHC 1025, Affidavit of Eru Koopu (21 February 2020) at [13].

characteristic the descendants of Muriwai were called, Te Whakatōhea. An assertive people, and argumentative people.”174

• Larry Takamoana Delamere (Te Whakatōhea, Te Whānau-ā-Apanui) discusses the name Te Ika Whenua, which is the area between Tirohanga to the Ōpōtiki River. He notes the old people called it this because there was always an abundance of fish.175

• 2.66 Knowledge is also said to pass on from generation to generation. Huitau Te Hau (Rongomaiwahine) explains that their “ancestors right down to them have continuously used certain tauranga ika located around the Māhia peninsular and they have passed down through the generations the tohu or landmarks by which one can identify the tauranga ika”.176
• 2.67 Te Ringahuia Hata (Ngāti Patumoana) describes hapū links to the rohe moana and naming: “As the name of our hapū denotes, Ngāti Patumoana derives its name from an incident that occurred at the mouth of the Waiotahe river around 1830 during the Ngāpuhi pakanga. Hineiahua of Ngāti Ngahere, was captured by Ngāpuhi and killed at sea. This demonstrates Ngāti Patu strong links between the hapū and our rohe moana, as only events as significant as that in nature that impacted on its uri (descendants) would adopt that name for the entire sub-tribe.”177
• 2.68 Mātauranga is also said to pass down by observation as well as through teachers.178 Particular emphasis is placed on elders.179 Moe Milne (Ngāti Hine) says “me tiaki i ngā kaumātua; ngā māra kai. Ko ngā tamariki ngā rangatira, whakarongo ki ā rātou kōrero whakamanatia”. She explains that this was her mother’s catch cry that “conceptually talks about kaumātua as the knowledge holders to feed the children to make them grow. It also acknowledges the honesty of children and that we need to listen to what they have to say.”180

174. Re Edwards [2021] NZHC 1025, Affidavit of Eru Koopu (21 February 2020) at [14]. Koopu discussed a number of natural features to explain the boundary of Te Whakatōhea, including the significance of various names of those boundary features (see [17]–[22]). For example, he discusses the rock Te Rangi at Awakino that determines Whakatōhea’s boundary and signifies where the waka Nukutere anchored (at [20]).

¹⁷⁵ Re Edwards [2021] NZHC 1025, Affidavit of Larry Takamoana Delamere (21 February 2020) at [38].

176. The Fisheries Settlement Report, Wai 307, #A22 P Ricky, H Te Hau and H Christy at [2]–[3]. See also Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), “Rekohu (Chatham Islands) Submission to Te Ohu Kai Moana on Proposed Models of Allocation for Pre- settlement Assets” at 2, 6 and 7.

¹⁷⁷ Re Edwards [2021] NZHC 1025, Affidavit of Te Ringahuia Hata (29 January 2020) at [38].

178. Ko Aotearoa Tēnei, Wai 262, #H10 Puhanga Tupaea at [28] and [34]. Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit of Tony Walzl (10 August 2020) at [228].
179. Ko Aotearoa Tēnei, Wai 262, #H10 Puhanga Tupaea at [34]. Ko Aotearoa Tēnei, Wai 262, #D7 Mereraina Uruamo at [54]; The Fisheries Settlement Report, Wai 307, #A13 Michael Bradley at [50]–[52]; Re Edwards [2021] NZHC 1025, Affidavit of Marjorie Huingapani Kurei (20 February 2020) at [19]; Pepper Hudson (Ngāi Tamahaua hapū) talks of the common practice of children being sent to live with koro or kuia to learn tikanga, whakapapa and ancestral stories in her affidavit of 20 February 2020 at [40]–[41]; Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission

(HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), “Rekohu (Chatham Islands) Submission to Te Ohu Kai Moana on Proposed Models of Allocation for Pre-settlement Assets” at 2, 6 and 7.

¹⁸⁰ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A62 Moe Milne at [7].

• 2.69 Tīpuna,181 parents, aunties and uncles are also captured as teachers and holders of knowledge.182 Nigel Te Hiko (Raukawa, Waikato-Tainui, Ngāti Tūwharetoa, Ngāti Kauwhata, Ngāti Tukorehe, Ngāti Raukawa ki te Tonga) explains how he was taught the oratory art of whakapapa and the stories of his ancestors by his Uncle Fraser Te Hiko-o- te-rangi and his aunty Marina.183 He goes on to say:184

I was fortunate to be tutored by Fraser Te Hiko (also known as Hiko). Much of Hiko’s knowledge was taught to him by his paternal and maternal grandfathers as well as others. Each of his grandfathers were in turn taught by Hitiri Te Paerata and Werohia Te Hiko, the primary witnesses in the Pouākani rehearing in the Native Land Court in the 1800s. Hiko therefore had a significant understanding of the wāhi tapu within the Pouākani, including knowledge of certain Raukawa wāhi tapu. Without his efforts in passing that knowledge on, then the mātauranga of those places would be lost forever.

• 2.70 Ngāti Koata society is described by Benjamin Hippolite (Ngāti Koata, Ngāti Toa, Ngāi Tahu, Ngāti Kuia) as being “matriarchal” with women being responsible for passing down knowledge.185
• 2.71 Rereata Makiha (Te Mahurehure, Te Aupōuri, Te Arawa) describes whare wānanga as traditional places of higher learning.186 He says, “Both wāhine and tāne held traditional knowledge through whare wānanga. Certain mātauranga is connected with te ira wāhine and other mātauranga with te ira tāne.”187
• 2.72 Tohunga are also regarded as specially chosen and trained repositories of knowledge and often specialised in certain fields. Moe Milne (Ngāti Hine) says, “Tohunga were considered experts in their particular fields and held knowledge of a spiritual kind that was passed down through the generations. There were tohunga whakapapa, mahi rongoā, matakite. Both women and men were tohunga and this knowledge or spiritual abilities have descended through whakapapa to wāhine within Ngāti Hine today.”188
• 2.73 Tā Pou Temara (Tūhoe) explains, “Those that are fortunate to be raised steeped in the knowledge of whakapapa, history, and Tikanga are known as Tohunga Whakapapa, Tohunga Whaikōrero or Pou Tikanga. It is these knowledge keepers that ensure the integrity of the relationships between the various realms.”189
• 2.74 Carol Hemoana Gage (Ngāti Ira) notes that it was individual tohunga and rangatira that held the knowledge of and maintained “customary practices for the benefit of all hapū members”.190

¹⁸¹ The Fisheries Settlement Report, Wai 307, #A30 Te Whānau ā-Nuku and Te Whānau ā-Kahurautao p.1.

¹⁸² Ko Aotearoa Tēnei, Wai 262, #H10 Puhanga Tupaea at [34].

¹⁸³ The Wairarapa ki Tararua district inquiry, Wai 863, #J23 Nigel Te Hiko at [1.8].

¹⁸⁴ The Wairarapa ki Tararua district inquiry, Wai 863, #J23 Nigel Te Hiko at [2.10].

¹⁸⁵ Ko Aotearoa Tēnei, Wai 262, #H11 Benjamin Hippolite at [56].

¹⁸⁶ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A71 Rereata Makiha at [14].

¹⁸⁷ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A71 Rereata Makiha at [14].

¹⁸⁸ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A62 Moe Milne at [90].

¹⁸⁹ Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [9].

¹⁹⁰ Re Edwards [2021] NZHC 1025, Affidavit of Carol Hemoana Gage (13 February 2020) at [102].

• 2.75 Tāmati Kruger (Ngāti Koura, Ngāti Rongo, Ngāi Tūhoe) discusses how Tūhoe used ‘Whare Maere’ to transmit and transfer their knowledge and values to their descendants. He says:191

In the past the descendants of Tūhoe were taught through the schools of learning of Tūhoe called the Whare Maere. There were several schools inside of the Whare Maere, this is how our knowledge, this is how they were taught, but today they are – each person, they are taught by their elders, their own elders. And those – what you see – you see that demonstrated in the people on the Marae how they’ve been taught and that’s also a way of learning, practice is on the Marae.

• 2.76 According to Himiona Munroe (Ngātiwai), not everyone received mātauranga Māori.192 It could be jealously guarded.193 Knowledge held by tohunga in particular was fiercely guarded and was not passed on unless an appropriate person was identified.194 Houpeke Piripi (Ngātiwai) gives an example of tikanga governing knowledge and practices in respect of tātai (whakapapa) to protect its tapu nature.195 This includes knowledge only being given to select whānau members (usually the eldest child).196 He points out that this knowledge was not given to wāhine with young babies although it could be once the children were gone.197 Teaching tātai results in a transmission of mana from the teacher to the learner or recipient.198
• 2.77 There can therefore be tikanga and rules around the transmission of certain knowledge. Wiremu McMath (Ngātiwai) explains that he was told that you pass on tauparapara to your whānau and your iwi and that you select someone to pass it on to.199 When you hear or learn tauparapara, waiata or any knowledge from one tribal area, it should stay with that area and shouldn’t be taken or used in another tribal area.200
• 2.78 Pita Pangari (Ngāti Kahu) explains “our whakapapa has never been written or recorded but had been orally passed down through the generations and I recorded the wish of our kaumatua that this be respected and that it not be published”.201
• 2.79 Although the foundational notions of tikanga are widely known, Tā Hirini Moko Mead (Ngāti Awa) and Tā Pou Temara (Tūhoe) provide evidence that some tikanga might be tapu and kept confined to certain expert people. For example, certain karakia would be only used by a small group of experts who have the appropriate training, expertise and standing.202

¹⁹¹ R v Iti [2007] NZCA 267/06, Notes of Evidence, Tāmati Kruger, p.94.

¹⁹² Ko Aotearoa Tēnei, Wai 262, #B11 Himiona Munroe at [8].

¹⁹³ Ko Aotearoa Tēnei, Wai 262, #B11 Himiona Munroe at [11].

¹⁹⁴ Ko Aotearoa Tēnei, Wai 262, #B11 Himiona Munroe at [9], [13] and [20].

¹⁹⁵ Ko Aotearoa Tēnei, Wai 262, #C2 Houpeke Piripi at [14].

¹⁹⁶ Ko Aotearoa Tēnei, Wai 262, #C2 Houpeke Piripi at [20]–[23] and [28].

¹⁹⁷ Ko Aotearoa Tēnei, Wai 262, #C2 Houpeke Piripi at [25].

¹⁹⁸ Ko Aotearoa Tēnei, Wai 262, #C2 Houpeke Piripi at [227].

¹⁹⁹ Ko Aotearoa Tēnei, Wai 262, #B9 Wiremu McMath at [42].

²⁰⁰ Ko Aotearoa Tēnei, Wai 262, #B9 Wiremu McMath at [43].

²⁰¹ Muriwhenua Land Report, Wai 45, #H19 Pita Pangari p.3.

202. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [36].

• 2.80 Te Riaki Amoamo (Te Whakatōhea, Ngāti Patumoana, Ngāti Ruatakenga) discusses the tikanga of kupu ōhāki, which he explains as “one’s dying last words or oath”.203 He says that this is still practised in Te Whakatōhea today. He continues on to say “throughout our history, this is how people have handed down whakapapa, knowledge and locations of where taonga or people are buried”.204 He finishes that this is often when the dying person will detail their wishes for when they pass such as “who they wish to bequeath taonga to and more importantly, where they wish to be buried”.205
• 2.81 Particular techniques for learning tikanga include repetition without distraction.206 Wayne Ngata (Ngāti Porou) describes how in the past there was a clear process to learn mōteatea: “listen once, listen twice and if you didn’t get it, learn to carve”. He also mentions fasting as a technique that helped learning and to “noho tapu” so there were no distractions.207
• 2.82 Manuka Henare (Ngāti Hauā, Te Aupōuri, Te Rarawa, Ngāti Kahu) discusses the intergenerational impact of knowledge transmission throughout Māori history:208

According to Rev. Māori Marsden (1991), a theologian, and tohunga, the lessons of the past and the values imbued in cultural practices constitute a general corpus of Māori knowledge, which serve as guidelines to the future. Collectively they set a distinctive and contextual framework for articulating the spiritual and general principles and the absolutes in a Māori corpus of knowledge. These principles and corpus of knowledge have been tested and tried out over countless generations and represent a corporate experience of communities in which they have been culturally transmitted from a new generation to another time.

TIKANGA CAN BE IMPLICIT

• 2.83 Tikanga is often implicit and underpins evidence. For example, it is common for witnesses in their evidence to set out and reference their pepeha (introductory recitation), significant ancestors and associations with the whenua and various natural features.209

²⁰³ Re Edwards [2021] NZHC 1025, Second Affidavit of Te Riaki Amoamo (21 February 2022) at [13].

²⁰⁴ Re Edwards [2021] NZHC 1025, Second Affidavit of Te Riaki Amoamo (21 February 2022) at [14].

²⁰⁵ Re Edwards [2021] NZHC 1025, Second Affidavit of Te Riaki Amoamo (21 February 2022) at [15].

²⁰⁶ Ko Aotearoa Tēnei, Wai 262, #C2 Houpeke Piripi at [25].

²⁰⁷ Ko Aotearoa Tēnei, Wai 262, #E3 Wayne Ngata at [7.2].

²⁰⁸ Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), First Affidavit of Manuka Henare in support of the second to fourth plaintiffs in relation to the hearing of the preliminary question (29 January 1998) at [26].

²⁰⁹ Ko Aotearoa Tēnei, Wai 262, #E6 Maggie Ryland at [1.1]; Ko Aotearoa Tēnei, Wai 262, #H11 Benjamin Hippolite at [2]; Ko Aotearoa Tēnei, Wai 262, #H10 Puhanga Tupaea at [3], [4] and [8]; Ko Aotearoa Tēnei, Wai 262, #B9 Wiremu McMath at [1]–[5]; Ko Aotearoa Tēnei, Wai 262, #A30 Laly Haddon at [8]–[16]; Ko Aotearoa Tēnei, Wai 262, #E3 Wayne Ngata at [4.1.1]; Ko Aotearoa Tēnei, Wai 262, #G4 Apirana Mahuika at [3.2]–[3.5]; The Fisheries Settlement Report, Wai 307, #A9 Maui Solomon at [1.1]; Muriwhenua Fishing Report, Wai 22, #A13 Miraka Szászy p.1; Muriwhenua Land Report, Wai 45, #F23 Rima Eruera p.1; Muriwhenua Land Report, Wai 45, #F31 Rapata Romana p.1 and p.14; Muriwhenua Land Report, Wai45, #F33 Tuini Sylva p.2; Mana Wāhine Kaupapa Inquiry, Wai 2700, #A17 Ani Mikaere p.2; Mana Wāhine Kaupapa Inquiry, Wai 2700, #A19 Leonie Pihama p.1; Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Ngarimu Alan Huiroa Blair (2 June 2020) at [2]; Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Nigel Hikurangi Denny (13 October 2020) at [1]; Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, brief of evidence of Ted Andrews and Glen (Joe) Tupuhi (13 October 2020) at [1]– [6]; Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of Evidence of Te Kurataiaho Lonoholoikahiki Kapea (te reo Māori version) (2 June 2020) at [3].

• 2.84 The evidence of Maggie Ryland (Ngāti Porou), for example, starts with the following:210

Ko Hikurangi te Maunga, Ko Waiapu te Awa,

Ko Ngāti Porou te Iwi,

Ko Porourangi te Tangata.

...

I am Maggie Ryland of Te Whānau a Te Aotāwarirangi, Te Whānau a Ruataupare of Tokomaru Bay and of Te Iwi o Ngāti Porou.

My umbilical cord lies buried beneath the land near the mouth of the Waiapu river for I also have whānau links with Te Whānau a Hinepare, Te Whānau a Takimoana and Te Whānau a Hunaara of those areas.

My vision is often projected towards Hikurangi, the sacred symbol that portrays the unity and endurance of Te Iwi o Ngāti Porou.

My blood connotations mingle through the Iwi o Ngāti Porou for they are all kinfolk of mine.

This I can claim through Porourangi our common ancestors who is the taproot of my very existence as being of te Iwi o Ngāti Porou.

• 2.85 Margaret Kawharu (Ngāti Whātua Ōrākei) says “A large part of what defines tribal identity is the link between the tangata and the whenua ... The importance of the whenua for Māori is expressed in pepeha (formal introduction) in which the speaker will reference the maunga (mountain) and awa/moana (river/sea) which they are most closely associated with. These geographical landmarks will be drawn from the core rohe of their hapū. Each tribal group has a core area which it associates most strongly with.”211
• 2.86 Although this type of recitation is based on the principles of whakapapa and whanaungatanga,212 witnesses generally do not point out that this is a tikanga practice or comment on why they cited their pepeha from a tikanga perspective. It is performative tikanga in action rather than tikanga explained and objectively commented upon.
• 2.87 The inclusion of pepeha and identity markers illustrates the centrality and importance in tikanga of connection to people and to place. As Moe Milne (Ngāti Hine) explains, “Pepeha are a way of describing the nature of a person or situation by reference to important tribal landmarks and tūpuna. Pepeha capture tūpuna thinking of the past, the relationship of our tūpuna to the environment, and embody life lessons, tikanga, emotions and affirmations for generations to come.”213

²¹⁰ Ko Aotearoa Tēnei, Wai 262, #E6 Maggie Ryland at [1.1]–[1.6].

211. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Margaret Anne Kawharu (4 December 2020) at [9].
212. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [42].

²¹³ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A62 Moe Milne at [4].

• 2.88 Paul Meredith (Ngāti Maniapoto) says that “there are numerous pre-contact pepeha (tribal mottos) and whakataukī (proverbs) that arguably emphasise a jurisdictional association over geographical features and leading individuals”. Meredith draws on an example from Ngāti Kaputuhi and his ancestor Tamakowhao after defeating Ngāti Mākino, “I au ko Waimiha, ki runga, ki raro” (Mine is Waimiha, above and below).214

214. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith (2 June 2020) at [96].

SECTION THREE

Other conceptual frameworks

DIFFERENCE BETWEEN KAWA AND TIKANGA

• 3.1 Maggie Ryland (Ngāti Porou) describes kawa as “the recognised lore of Māori”.1 She explains, “This lore was initiated by our ancestors as the ultimate management plan. This ancient lore has always been accepted as the most effective system to conserve and protect the ecosystems of all forms of life, animate and inanimate.”2
• 3.2 There are different explanations offered as to the distinction between kawa and tikanga. Tāmati Kruger (Ngāti Koura, Ngāti Rongo, Ngāi Tūhoe) says:3

The practice or practical expression of tikanga is sometimes distinguished from the guiding principles of tikanga itself. These protocols are referred to as kawa, and are always grounded in the principles of tikanga. Kawa are flexible and adapt over time to changing circumstances, though they are first and foremost coercive and normative in nature.

• 3.3 Te Riaki Amoamo (Te Whakatōhea, Ngāti Patumoana, Ngāti Ruatakenga) explains, “Kawa are etiquette and protocols. They are the protocols that keep things operating smoothly whilst the Tikanga is the law or rule to protect the mana and mauri. For example, a kawa in Whakatōhea is ‘pāeke’ where the tangata whenua side speak first in whaikōrero and then the manuhiri speak. Tikanga and Kawa vary from hapū to hapū, iwi to iwi.”4
• 3.4 David Wilson (Te Ākitai Waiohua, Ngāti Te Ata) also uses an example from the pōwhiri and explains:5

There might be someone at a tangi (funeral) that wants to mihi (greet) the whānau on the paepae (orator’s bench) but they can’t kōrero Māori. Even though it is not tika (right) it might be decided to allow them to kōrero. This is consistent with the idea of manaakitanga and allowing for the exercise of whanaungatanga and connections to be made between people.

¹ Ko Aotearoa Tēnei, Wai 262, #E6 Maggie Ryland at [3.6].

² Ko Aotearoa Tēnei, Wai 262, #E6 Maggie Ryland at [3.6].

3. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [39].

⁴ Re Edwards [2021] NZHC 1025, Second Affidavit of Te Riaki Amoamo (21 February 2022) at [8].

5. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, brief of evidence of David Wilson (13 October 2020) at [52].

• 3.5 This indicates a protocol being flexible based on the application of the underlying tikanga principle. Wilson says that, because of their strong historical links and connections to Waikato-Tainui, “our kawa and protocols at the marae are Waikato-Tainui”.6
• 3.6 Although Korohere Ngāpō (Marutūāhu, Ngāti Tamaterā, Ngāti Maru, Ngāti Pāoa) describes tikanga Māori as being a structure that gives “effect to fundamental principles to achieve balance”, he says that “tikanga can be interchangeable where kawa is rigid like the rising and setting of the sun”.7
• 3.7 Dr Ruakere Hond (Taranaki, Ngāti Ruanui) draws on the words of Manuka Henare to explain “the cascading relationship between kawa, tikanga, ritenga and āhuatanga”:8

But at the top level is kawa. Now I understand that most iwi have concepts of kawa and they may be different to other areas, however, as I think what Mānuka explained is kawa in the sense of core principles. Looking at the words that we have on the page here kōrua rā is concepts like tapu and ora become core principles that can’t really be changed. They can be measured but they can’t really be changed. You don’t want to lose sight of those core values and they become he kawa ora, he kawa tapu that then informs tikanga.

Tikanga are the practices that are used in how we engage, our customs and how we relate to each other. And I very much followed the discussion that came from you Sir Kim around the concept of ea. At the end of the day it comes down to relationships. So tikanga would be around how do we maintain relationships, so tikanga.

And then the final one was āhuatanga which then becomes the core characteristic. Now when communities are exposed to trauma in particular historical trauma sometimes those āhuatanga get played out in terms of bitterness, anger and broken relationships. And so, how do you change āhuatanga? We need to come back to those core principles.

... he taki, he tātai, he taumata kei tērā wāhi, kei tērā wāhi, kei tērā wāhi kia mōhio kei hea tēnei momo mahi, kei hea tērā momo mahi. Hei tōna mutunga, is that we are seeking to achieve he āhuatanga ora, he āhuatanga whai mana, he āhuatanga kua whai tapu i roto i to tātou Ao. Kei te pai? Mehemea he whakaaro kei runga anō i tērā pātai, tērā kōrero.

TE IHO MATUA

• 3.8 Tāmati Kruger (Ngāti Koura, Ngāti Rongo, Ngāi Tūhoe) in his evidence stresses the centrality and importance of “te iho matua”:9

Tikanga and kawa as ideologies ground themselves in Māori philosophy, or iho matua. Quite literally iho is the umbilical cord that connects a woman and her child. Matua suggests something that is chiefly, important and occurring before anything else. Iho matua, then, is the foundational nature of wisdom, insight and appreciation according to Māori traditions.

It is not a coincidence that the ideas underpinning Māori philosophy relate to the importance of the connection between woman and child, and the creation of life. In Māori tradition, the creation of human life and all elements of the natural world are themselves

6. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, brief of evidence of David Wilson (13 October 2020) at [60].
7. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Dr Korohere Crossley Bishop Lloyd Ngāpō Evidence on behalf of Second Defendant 1(3 October 2020) (English translation) at [9].

⁸ The Wairarapa ki Tararua district inquiry, Wai 863, #4.11 Dr Ruakere Hond pp.71–72.

9. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [44]–[45] and [54]–[56].

grounded in an understanding of the origins of the cosmos. That knowledge system is also referred to as kawa, the same kawa as the protocols or practical expression of tikanga Māori. This connection represents an ongoing and enduring connection between the human and the natural worlds and the cosmological origins of Te Ao Māori.

...

As I have said, tikanga is an ideology grounded in philosophy, or iho matua. In my view, the particular iho matua principles that emerge from the account of the origins of Māori knowledge are:

• Karanga i te pai, i te tika: welcome what is good and what is true (there is no iho matua that that welcomes calamity, death or cruelty);
• Ārai i te kino: averting evil or disadvantageous consequences;
• Whakakotahi: unifying thought, opinion and action; and
• Whakaawe wairua: humanity grounded in spirituality (as distinct from religion).

While I am sure that the kawa (expression) of fundamental philosophies differs between iwi, and probably even between leaders of the same iwi, from my experience the underlying meaning of these iho matua are fairly universal.

• 3.9 Kruger acknowledges that, “Tikanga is not static, however, and sometimes there may be inconsistency or uncertainty as to which tikanga is the most appropriate in any given situation. The pursuit of the underlying iho matua should always provide clarification.”10

TE KAUAE RUNGA AND TE KAUAE RARO

• 3.10 Apirana Mahuika (Ngāti Porou) describes mātauranga Ngāti Porou as dealing with both the esoteric (kauae runga) and the world of man (kauae raro):11

The Esoteric is the Kauae Runga (Upper Jaw), which deals with spiritual, divine and religious matters in a holistic manner. This type of learning in particular became the field for the aristocracy and their leadership role was evidence in their tasks as tohunga, healers, chiefs and the like. They were trained, in order to hold this knowledge, to know how to acquire this knowledge, the wisdom to interpret that knowledge appropriately for the people to act out and also to pass that knowledge on to the appropriate students in the next generations.

Te Ao o Te Tangata (Kauae Raro) involved the operational tasks as well as implementing the interpretations of the esoteric as provided. For example, the rituals prior to an [sic] major event taking place are performed by a graduate of the higher school of learning who will also provide advice to the doers or performers of tasks.

• 3.11 Maanu Paul (Ngāti Awa) describes kauae runga as “that which belong to the celestial world – the world of the Atua/Gods” and kauae raro as “that which belongs to the terrestrial world – the world of humans”.12

10. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [62].

¹¹ Ko Aotearoa Tēnei, Wai 262, #G4 Apirana Mahuika at [10.3]–[10.4].

¹² R v Tamati Mason [2012] NZHC 1361, Cultural Advisor Report by Maanu Paul (5 July 2012) at [11].

SECTION FOUR

Central tikanga principles

WHAKAPAPA

• 4.1 Whakapapa is often translated as “genealogy”.1 However, as Walter Ngamane (Ngāti Maru, Ngāti Whanaunga, Ngāti Tamaterā, Ngāti Pāoa, Ngāi Te Rangi, Ngāti Hinerangi) explains, the deeper meaning of whakapapa is, “to lay one thing upon another – one generation upon the next”.2
• 4.2 In a similar vein, Leonie Pihama (Te Ātiawa, Waikato-Tainui, Ngā Māhanga a Tairi) explains:3

Whakapapa, the cultural template through which we understand our descent and ancestral relationships, refers to a process of placing in layers, which reminds us that relationships between and amongst us as individuals and social groupings, are layered upon each other and extend as wide as our whānau and intergenerational connections reach ...

• 4.3 Genevieve Ruwhiu-Pupuke (Ngāi Tamahaua hapū, Te Whakatōhea) states, “Whakapapa is depicted and referred to in the following ways:
  • Taotahi – Which is the use of a single tūpuna name, usually one of high rank;
  • Whakamoe – Which refers to whakapapa lines through inter-marriage;
  • Tararere – Which refers to a single whakapapa line from one tūpuna;
  • Tahu – Which referred to the main whakapapa lines; and
  • Tataihiko – Which depicts significant tūpuna by omitting other tūpuna to provide emphasis.”4

1. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [90].
2. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Walter (Wati) Ngakoma Ngamane evidence (13 October 2020). See Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [90].

³ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A19 Leonie Pihama at [18].

⁴ Re Edwards [2021] NZHC 1025, Affidavit Genevieve Ruwhiu-Pupuke (30 January 2020) at [10].

• 4.4 There were many briefs that contained accounts of whakapapa that connected people to the natural world, to places and to people.5 The centrality of whakapapa in te ao Māori across the evidence was clear:
  • Moe Milne (Ngāti Hine) states “Whakapapa connects us spiritually to our past and it defines the present.”6
  • Te Riaki Amoamo (Te Whakatōhea, Ngāti Patumoana, Ngāti Ruatakenga) refers to tikanga as being “ the law in our area [which] is underpinned by whakapapa, because without whakapapa you have no right to claim, speak for or take care of the whenua or its resources”.7
  • Chris Winitana (Ngāti Tūwharetoa) articulates whakapapa as being “the axis upon which the Māori world spins. It is not confined to people. It is the domain of all things. And it informs behaviour.”8
  • Tā Hirini Moko Mead (Ngāti Awa) and Tā Pou Temara (Tūhoe) explain that “Māori place great importance on genealogy and kinship relationships and the concept of whakapapa is central to being Māori and to identity. The world and everyone in it is part of a huge interlocking family tree.”9 They go on to describe whakapapa as being “pivotal to the Māori world and tikanga Māori”.10

5. For example, Ko Aotearoa Tēnei, Wai 262, #E6 Maggie Ryland at [1.1]–[1.6]; Ko Aotearoa Tēnei, Wai 262, #H11 Benjamin Hippolite at [2]; Ko Aotearoa Tēnei, Wai 262, #H10 Puhanga Tupaea at [3], [4] and [8]; Ko Aotearoa Tēnei, Wai 262, #B9 Wiremu McMath at [1]–[5]; Ko Aotearoa Tēnei, Wai 262, #A30 Laly Haddon at [8]–[16]; Ko Aotearoa Tēnei, Wai 262, #E3 Wayne Ngata at [4.1.1]; Ko Aotearoa Tēnei, Wai 262, #G4 Apirana Mahuika at [3.2]–[3.8]; The Fisheries Settlement Report, Wai 307, #A9 Maui Solomon at [1.1]; Muriwhenua Fishing Report, Wai 22, #A13 Miraka Szászy at 1;

Muriwhenua Land Report, Wai 45, #F23 Rima Eruera at [1.1]; Muriwhenua Land Report, Wai 45, #F31 Rapata Romana at

1 and 14; Muriwhenua Land Report, Wai 45, #F33 Tuini Sylva at 1; Mana Wāhine Kaupapa Inquiry, Wai 2700, #A17 Ani Mikaere at 2; Mana Wāhine Kaupapa Inquiry, Wai 2700, #A19 Leonie Pihama at [1]; Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Ngarimu Alan Huiroa Blair (2 June 2020) at [2]–[7]; Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Nigel Hikurangi Denny (13 October 2020) at [1]; Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, brief of evidence of Ted Andrews and Glen (Joe) Tupuhi (13 October 2020) at [1]–[6]; Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843,

Statement of Evidence of Te Kurataiaho Lonoholoikahiki Kapea (te reo Māori version) (2 June 2020) at [3]; and Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, The Wairarapa ki Tararua district Inquiry, Wai 863, #J20 Poihaere Elizabeth Anne Rangitutia Heke-Barrett at [1.1]–[1.3]; Affidavit of Tā Hirini Moko Haerewa Mead, Dr Hohepa (Joseph) Mason and Te Kei (O Te Waka) Wirihana Merito (19 May 2020) at [6], [7], [21], [30]–[33], [39]–[69] and [107]; Affidavit of Dayle

Lianne Takitimu (24 February 2020) at [2]–[4]; Affidavit of Te Kou Rikirangi Gage (21 February 2020) at [2] and [19]–

[53]; Affidavit of Carol Hemoana Gage (13 February 2020) at [6]; Affidavit of Hetaraka Biddle (20 February 2020) at [1]–

[39]; Affidavit of Hetaraka Biddle (20 Febraury 2020) at [2], [3], [22], [23], [29]–[33], [37] and [52]; Affidavit of Arapeta

Mio (14 April 2020) at [6]; Affidavit of Te Rua Rakuraku (19 February 2020) at [7] and [10]; Affidavit of Te Ringahuia Hata (21 February 2020) at [26]–[28] discusses the whakapapa of Ngāti Ira; Affidavit of Leelyn Raiha Ruwhiu (30 January 2020) at [7]–[30]; Affidavit of Karen Stefanie Mokomoko (30 January 2020) at [8]–[12], [21] and [24].

6. Mana Wāhine Kaupapa Inquiry, Wai 2700, #A62 Moe Milne at [31]; Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Principles for the Allocation of Quota: Report for the Māori Fisheries Commission; Exhibit A Apirana Mahuika Nga Tikanga Māori e pa ana ki a Tangaroa (22 November 1991) at 3.

⁷ Re Edwards [2021] NZHC 1025, Affidavit of Te Riaki Amoamo (25 January 2022) at [9].

8. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Statement of evidence of Chris Winitana (4 June 2017) at [2].
9. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [91].
10. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [92].
    • Mason Durie (Ngāti Kauwhata, Rangitāne) describes whakapapa as “the fundamental basis of the “Māori” knowledge system”.11
    • Morehu Wilson (Ngāti Paoa, Ngāti Whanaunga, Ngāti Maru, Ngāti Tamaterā) describes whakapapa as “‘he taonga tuia tāngata’ – ‘a treasure that binds people’”.12
    • Tamati Waaka (Te Whānau-ā-Apanui, Ngāi Tai, Te Whakatōhea, Ngāti Awa, Ngāti Pūkeko, Tūhoe) says whakapapa is “the foundation of Māori belief. Māori connection with all things starts with the whakapapa (genealogy) of creation”.13
    • Korohere Ngāpō (Marutūāhu, Ngāti Tamaterā, Ngāti Maru, Ngāti Pāoa) emphasises that “whanaungatanga and whakapapa are at the heart of tikanga, underpinning a complex cosmological network connecting people and the physical and spiritual worlds”.14
    • Christina Davis (Ngāti Muriwai, Te Whakatōhea) states, “Whakapapa drives relationships”.15
    • Justin Puna (Ngāti Kurumōkihi, Ngāti Marangatūhetaua, Ngāi Tauira, Ngāi Te Ruruku ki Tangoingoi, Ngāi Tahu) states, “Whakapapa is a core value in the Māori world. It gives and defines genealogical links between different whānau, hapū, iwi. Whakapapa provides links and gives validity to historical events. Whakapapa validates our existence in this world. It provides links to all matter, whether animate or inanimate.”16
    • Cleve Barlow (Ngāpuhi) states, “Whakapapa comes under the category of taonga or ‘treasure’ of the heart. It is very sacred.”17 He adds, “Its original purpose is to connect one generation to the next, to understand your roots and as the basis of self identity.”18

• 4.5 As Ani Mikaere (Ngāti Raukawa, Ngāti Porou) explains:19

Whakapapa necessitates a focus on relationships: between people; between people and their non-human relatives; between past, present and future generations. It reminds us that relationships must be carefully managed because everything in our world is connected.

¹¹ Ko Aotearoa Tēnei, Wai 262, #K14 Mason Durie at [2.2].

12. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Morehu Anthony Dean Wilson (13 October 2020) at [26].
13. Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tamati Waaka (4 January 2017) at [20].
14. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Dr Korohere Crossley Bishop Lloyd Ngāpō Evidence (13 October 2020) (English translation) at [10].

¹⁵ Re Edwards [2021] NZHC 1025, Affidavit of Christina Davis (21 February 2020) at [16] and [17].

¹⁶ Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit by Justin Owen Ian Puna (11 August 2020) at [14]–[15].

17. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Second affidavit of Dr Cleve Dufty Barlow in reply to affidavits in opposition filed by the various parties in relation to the preliminary question (11 March 1998) at [5(a)].
18. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Second affidavit of Dr Cleve Dufty Barlow in reply to affidavits in opposition filed by the various parties in relation to the preliminary question (11 March 1998) at [5(c)].

¹⁹ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A17 Ani Mikaere at [45].

Failing to nurture key relationships will result in imbalance which will ultimately be to the detriment of all.

• 4.6 Dr Moana Jackson (Ngāti Kahungunu, Ngāti Porou) says, “The ties of whakapapa which bound the collective together provided the precedents and jurisprudential framework that rationalised the rules for individual and collective behaviour as well as the various sanctions used to ensure compliance”.20 He further says, “Whakapapa also provided precedents for the exercise of the political power which was essential to the law’s effective functioning”.21 He discusses how rights stem from whakapapa:22

Our law is a way of maintaining relationships, where processes and entitlements are based upon kinds of obligations associated with the receipt of any gift. We sometimes define these entitlements as ‘rights,’ however these do not stem from the grant of a political body but from the rites of our birth and the whakapapa that makes us unique. They began at the moment of birth, as the first act in every child’s life was the burying of his or her whenua ... a means of proclaiming their right to stand on their land and proclaiming the reciprocal relationships they would have within their whānau, Hapū and Iwi.

• 4.7 The influence of whakapapa is extensive. For example, we see from Reverend Māori Marsden’s (Ngāi Takoto, Ngāti Warara) evidence that whakapapa influences the names of iwi and hapū, the connections with te taiao and non-related kin and (in the specific context in which he was writing his evidence) the fishing areas that people could fish in on behalf of iwi (or the relationship/connection that iwi had with another iwi).23 Cleve Barlow (Ngāpuhi) explains the “concept of whakapapa or genealogy is of great importance in Māori society. It traces the descent of all living things from the gods to the present time. It is not to be taken as simply a reference to the genealogy of the waka (canoes) commonly referred to as tribal genealogy. The different bonds provided by whakapapa may commonly be classified under the following four headings: (a) cosmic genealogies; (b) genealogy of the gods; (c) genealogy of mortal man or primal genealogies; (d) genealogy of the canoes.”24 Barlow further categorises whakapapa with reference to Hawaiiki. He states:25

there are generally said to be four categorisations of whakapapa or Māori genealogy which are known to Māori as: (i) Hawaikii Nui (ii) Hawaikii Roa (iii) Hawaikii Pamamao (iv) Hono-ki- Wairua.

One must trace back through all four phases in order to trace back to Io. Many of the witnesses tend to focus solely on the first and/or second phases only and thereby provide a telescopic and incomplete form of genealogy.

²⁰ R v Tamati Mason [2012] NZHC 1361, Brief of Evidence of Moana Jackson (10 January 2005) at [93].

²¹ R v Tamati Mason [2012] NZHC 1361, Brief of Evidence of Moana Jackson (10 January 2005) at [94].

²² R v Tamati Mason [2012] NZHC 1361, Affidavit of Moana Jackson (24 April 2012) at [19].

²³ Muriwhenua Fishing Report, Wai 22, #A14 Reverend Māori Marsden pp.6–9.

24. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), First Affidavit of Dr Cleve Dufty Barlow at [22].
25. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Second affidavit of Dr Cleve Dufty Barlow in reply to affidavits in opposition filed by the various parties in relation to the preliminary question (11 March 1998) at [5(e)].

• 4.8 Te Iwi Moriori Trust Board recounts the Moriori tradition regarding their tūpuna Rongomaiwhenua:26

The common founding ancestor or take tipuna of Moriori is Rongomaiwhenua. His line represents the tuakana or senior line of all present day Moriori descendants. In this sense, he is the unifying karapuna for Moriori.

Rongomaiwhenua was the most prominent early settlor on Rekohu. Our Hokopapa identifies Rongomaiwhenua as a descendant of Rangi and Papa and the child of Te Ao Marama and Rangitokona. Rangitokona is said by our karapunato to have propped up the sky in the same way as Tanetokorangi of the tribes of Aotearoa.

There are three distinct origin themes for the early settlement of Rekohu by the ancestors of the Moriori.

The first tells of a simultaneous migration from Hawaiki and settlement of Rekohu and Aotearoa. Rongomaiwhenua is said to have departed for Rekohu at the same time his younger brother Rongomaitere departed for Aotearoa. A second origin theme tells of the people of Rangiauria (Pitt Island) who claimed to have sprung from the earth. Literally tangata whenua or people of the earth. In this original tradition, Rangiuria was the first Island in the group to be occupied by the early settlors. In other words it was settled before the main island of Rekohu. More ancient names which appear for Rekohu include Te Rangikohua and Rekohua. It is said that Rangiuria was the last ‘Hawaiki’ for the ancestors before eventually settling on Rekohu.

These two settlement traditions are consistent and relate wherein Rongomaiwhenua departs from Rangiauria for Rekohu and Rongomaitere (his younger brother) departed from Rangiauria for Aotearoa. This would account for the remigration from Aotearoa to Rekohu of the Rangihoua, Rangimata and Oropuke canoes many generations later.

Connection to the natural world

• 4.9 Many of the briefs of evidence reference the genealogical link back to primordial parents Ranginui and Papatūānuku.27
• 4.10 Mason Durie (Ngāti Kauwhata, Rangitāne) explains:28

The Māori world view is based on the proposition that the environment is an interacting network of related elements, each having a relationship to the others and to earlier common origins. Ranginui and Papatūānuku are personified as the “parents” of the environment, a model based on family which has at its base the phenomena of connections and interdependencies. These phenomena can loosely be described as whakapapa ...

26. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), “Rekohu (Chatham Islands) Submission to Te Ohu Kai Moana on Proposed Models of Allocation for Pre-settlement Assets” at 2 and 3.
27. Ko Aotearoa Tēnei, Wai 262, #K14 Mason Durie at [2.2]; Ko Aotearoa Tēnei, Wai 262, #P3 Haami Piripi at [11]–[12]; Muriwhenua Fishing Report, Wai 22, #A13 Miraka Szászy at 2; Mana Wāhine Kaupapa Inquiry, Wai 2700, #A17 Ani Mikaere at [7]; Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tahu Potiki (23 December 2016) at [4.4]; Ngāi Te Hapū v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tamati Waaka (4 January 2017) at [21]–[24]; Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council

[2019] NZEnvC 196, Joint Brief of Evidence of Hohepa Joseph Mason and Te Kei (O Te Waka) Wirihana Merito (29 April 2019) at [37]–[38]; Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), “Rekohu (Chatham Islands) Submission to Te Ohu Kai Moana on Proposed Models of Allocation for Pre-settlement Assets” at 2 and 3; Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Principles for the Allocation of Quota: Report for the Māori Fisheries Commission at 12.

²⁸ Ko Aotearoa Tēnei, Wai 262, #K14 Mason Durie at [2.2].

whakapapa is the basis of the “Māori” knowledge system. The children of Rangi and Papa took on identities as atua, gods, and each domain had its own interdependencies in relation to forests, oceans, flora and fauna ...

• 4.11 Whakapapa is seen as the kinship connection that exists between all elements of the natural world (including humans).
  • Miraka Szászy (Ngāti Kurī, Te Aupōuri) clarifies:29

According to our cosmogeny legends we are the children of PAPATŪĀNUKU, the Earth Mother, one of our divine Primal Parents. We contend that all of Nature derives from her – our lands, forests, rivers, lakes and seas and all life contained therein. As such our spirituality is deep-rooted in the earth, the lands upon which our forebearers lived and died, the seas across which they travelled and the stars which guided them to Aotearoa.

• Tahu Potiki (Ngāi Tahu, Ngāti Māmoe) explains:30

Everything from weather events, the stars, planets and clouds, fish, birds, trees and flowers, stones and volcanic events, wellbeing, life, illness and death can be explained as a result of the creation narrative interlinking all of these components in a web of whakapapa.31

• Marjorie Huingapani Kurei (Ngāi Tamahaua hapū) states:32

We whakapapa back to the elements and the natural environment, including the sea. The seasons have a whakapapa back to our tīpuna, our Atua, back to Rangi and Papa. This is all reflected within the Maramataka o Ngāi Tamahaua.

It starts with Te Rā, the sun, who spends half his time with his wife Raumati and the seasons with his wife Hine Takurua. The movement of Ruaumoko, the trembles within Papatūānuku, signals the beginning of the shift of seasons from Summer to Winter.

With Raumati, the Summer, we have the heat, and the growing seasons in the realm of Tane and Rongo. We see their daughter Tanerore – this is the quiver of the heat from the rays of the sun. This is a time for the birds who have their babies in this season.

The stars are also signallers of the seasonal changes and the signals for certain Kaupapa, such as harvesting of harakeke or catching birds or fish/seafood. We see the whetū, Mere Tu Ahiahi, which moves into Tarewa and Kōpu and even the constellation of Matariki.

When Te Rā moves to Hine Takurua, also signalled by a star, this brings in the cold winds and signals the migration of the fish to the deeper waters, to be regenerated and to breed in the sacred waters of Wainui.

As Ngāi Tamahaua, we are intricately connected to the natural environment, including and especially our moana; there is no separation. This is reflected in all our practices, including our karanga and our karakia, and it links us back to the origins of our whakapapa.

²⁹ Muriwhenua Fishing Report, Wai 22, #A13 Miraka Szászy at 2.

30. Taranaki-Whanganui Conservation Board v Environmental Protection Authority [2018] NZHC 2217, Cultural Values Assessment and Analysis by Tahu Potiki (August 2016) at [6.1].
31. Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tahu Potiki on behalf of the Applicant (23 December 2016) at [4.6].

³² Re Edwards [2021] NZHC 1025, Affidavit of Marjorie Huingapani Kurei (20 February 2020) at [64]–[69].

• In evidence produced in a different context, Tahu Potiki (Ngāi Tahu, Ngāti Māmoe) says:33

At the core of everything Māori is whakapapa. Descent from the gods to all living things and all elements of the universe are genealogically inter-related. From creation ultimately all things in the universe are interconnected and they share a single source of spiritual authority. This spiritual force is also the origin of mana and tapu.

• Wiremu McMath (Te Rarawa) talks about Te Rarawa having a spiritual as well as physical connection to every form of plant life in their rohe (territory).34 “We have a common whakapapa with them.”35 He saw the same as applying to the sea, rivers, creeks, land and mountains.36
• Tamati Waaka (Te Whānau-ā-Apanui, Ngāi Tai, Te Whakatōhea, Ngāti Awa, Ngāti Pūkeko, Tūhoe) explains:37

Whakapapa is the foundation of Māori belief. Māori connection with all things starts with the whakapapa (genealogy) of creation.

Whakapapa describes the emergence of Ranginui (the sky father) and Papatūānuku (the earth mother) from nothingness. As the primal parents lay locked together in an embrace their children existed in a world of darkness. To allow light into their world the children separated the embrace of their parents. Once this has occurred the children become atua (gods or deity) of various parts of the natural world.

Tāne-Mahuta, known also as Tāne-nui-a-rangi (atua of the forest and all that lives within it) is credited with creating the first woman from soil. He named her Hineahuone and together they had a child, called Hinetitama (later known as Hine-nui-te-po). It is from these tūpuna that Māori are said to descend. Tāne-Mahuta’s brother, Tangaroa, is the atua of the sea and sea life. There are many more atua over the different domains of the world. Tūmatauenga, the atua of war, is also credited as the atua of man.

As such, Māori believe that all things are connected and that humans are part of, and genealogically linked to nature.

Māori are directly connected by whakapapa to the land, sea and ski and all things within. It is through this whakapapa that hapū and iwi are directed connected to parts of the environment that are important to them.

• Tāmati Kruger (Ngāti Koura, Ngāti Rongo, Ngāi Tūhoe) discusses Ranginui and Papatūānuku as the origins of humanity (tangata whenua). He introduces the atua Māori, the children of Rangi and Papa. “Tāne and Tūmatauenga are generally regarded as the progenitors of mankind. The other children of Ranginui and Papatūānuku gave form, aura and phenomenon to our universe. From this inter-

33. Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tahu Potiki (23 December 2016) at [4.6].

³⁴ Ko Aotearoa Tēnei, Wai 262, #B9 Wiremu McMath at [57].

³⁵ Ko Aotearoa Tēnei, Wai 262, #B9 Wiremu McMath at [57].

³⁶ Ko Aotearoa Tēnei, Wai 262, #B9 Wiremu McMath at [58].

37. Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tamati Waaka (4 January 2017) at [20]–[24].

weaving of relationships, comes the innate Māori relationship with whenua, arā ko

tangata whenua.”38

• Tā Pou Temara (Tūhoe) says:39

As a tangata Māori, we all have an obligation and duty to protect our whenua and resources (tāonga tuku iho) under Tikanga because we see ourselves as part of their intrinsic makeup through whakapapa. The environment, the seas, the rivers, the water, the mountains and sky and the earth are all tuakana to us, and we are their teina because they were here long before humankind.

• Henare Rakiihia Tau (Ngāi Tahu, Ngāti Māmoe, Waitaha) says:40

Our Ngāi Tahu perspective is that water and land are of the Creators, and we see Creation as a whole system of the world. We refer to the role of Papatūāanuku the Earth mother, and to Rakinui the sky father, and to their children Tane and Takaroa. The trees of the forest and their fruits, and the birds are referred to as the children of Tane, while the fishes are children of Takaroa. Both Tane and Takaroa are Atua of deities responsible for these natural resources in the created world, and they are closely related within the whakapapa of creation ...

... we use the concept of whakapapa both to analyse into separate parts and to bind the parts together as a whole entity of creation, of which we see ourselves are also a part ... our cultural concept in the land begins in Papatūānuku and her resources seen as a whole

... we go on to categorise the parts of the whole in respect to their uses and functions. But when we go out to make use of the resources of nature, we do not forget the whakapapa binding all together, at the same time as we distinguish the resources of land and sea.

• 4.12 A number of witnesses set out their whakapapa going back to the atua.41 Tā Pou Temara (Tūhoe) traces the whakapapa between Io and people broadly as being:42

Io

Ranginui = Papatūānuku

Te Ira Atua (Māori Gods and Goddesses) Te Ao Tūroa (Physical/Natural World) Te Ira Tangata (Humankind)

38. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [48]–[49].

³⁹ Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [34].

40. Re Tipene [2016] NZHC 3199, Affidavit of David Anderson Armstrong (Affirmed 31 August 2015) Exhibit DA-20 Ngai Tahu Māori Trust Board v Attorney-General CP 559/87, Affidavit of Henare Rakiihia Tau (24 November 1989) at [73].
41. See Muriwhenua Fishing Report, Wai 22, #A14 Reverend Māori Marsden at 6–9; Mana Wāhine Kaupapa Inquiry, Wai 2700, #A17 Ani Mikaere at 3; Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tahu Potiki (23 December 2016) at [4.1]–[4.12]; Taranaki-Whanganui Conservation Board v Environmental Protection Authority [2018] NZHC 2217, Cultural Values Assessment and Analysis by Tahu Potiki (August 2016) at [6.4];

and Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, Joint Brief of Evidence of Hohepa

Joseph Mason and Te Kei (O Te Waka) Wirihana Merito (29 April 2019) at [37]–[38].

⁴² Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [8].

• 4.13 Temara goes on to provide the whakapapa of atua that guide “these understandings in the context of the relationships between the rohe moana and the inland territories”.43 He states:44

Hinemoana, the goddess of the ocean is a wahine and Papamoana the ocean bed. Hinewai is the goddess of the waters. They are all female deities of Tangaroa – the God of the sea. Kiwa is one of Rangi and Papa’s children. We call the Pacific Ocean Te MoananuiaKiwa – the great ocean of Kiwa.

Hinemoana and Kiwa had a number of children. The names and number of these children vary in different accounts however each of them was the ancestor of the creatures of the sea ... Pipihura: ancestor of the cockle; Te Uru-kahikakahika: source of eels, lampreys and frostfish; Wharerimu: ancestor of seaweed ...

Kiwa’s first wife was Parawhenuamea: atua of streams that flow from the land to the sea and of fresh water generally. They had Rakahore, Te Atua o te Kohatu – Gods of rocks and stone.

• 4.14 Tamati Waaka (Te Whānau-ā-Apanui, Ngāi Tai, Te Whakatōhea, Ngāti Awa, Ngāti Pūkeko, Tūhoe) provides a whakapapa for Tūhoe from Ranginui (the sky father) to Te Maunga, the ancestor from which Tūhoe say they descend. Waaka explains that this whakapapa links Tūhoe directly to the whenua:45

Ranginui Rangoroa Rangipouri Rangipōtango Rangiwhatumā Rangiwharo Rangiwhākere

Ta Tahunui o te rangi Tukutuku

Hekeheke Uaua

Te Maunga = Hinepūkohurangi

• 4.15 Dr Hohepa Mason (Ngāti Awa, Ngāti Pūkeko) and Dr Te Kei Merito (Ngāti Awa, Ngāti Pūkeko, Ngāti Rangataua, Ngāti Hokopū, Ngāi Tamapare) set out the whakapapa of wai (water) according to Ngāti Awa experts:46

Ranginui married Papa-tū-ā-nuku (and begat Kiwa) Kiwa married Parawhenuamea (The ancestor of water)

⁴³ Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [17].

⁴⁴ Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [18]–[20].

45. Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tamati Waaka (4 January 2017) at [27].
46. Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, Joint Brief of Evidence of Hohepa Joseph Mason and Te Kei (O Te Waka) Wirihana Merito (29 April 2019) at [37]–[38].

Some names pertaining to water include; Tāne the Water of Life

Tāne the Great water

The Great river of the heavens.

• 4.16 The Māori relationship to the environment can only be understood in the context of this whakapapa.47
• 4.17 Mira Szászy (Ngāti Kurī, Te Aupōuri) explains that, because we are children of Papatūānuku and all nature derives from her, “our spirituality is deep-rooted in the earth, the lands upon which our ancestors lived and died”.48
• 4.18 Further, implications of this whakapapa to the natural world that are identified by different deponents include:
  • there being no disconnection between the secular and sacred for Māori as Māori descend from the gods;49
  • Māori being one with all things, an integral part of the natural order and holding a special relationship to Mother Earth;50
  • an emphasis on the importance of conservation and of maintaining balance with the natural world; and51
  • it being difficult to desecrate and dispose of the land as an alienable asset and resource.52
• 4.19 Margaret Mutu (Ngāti Kahu) explains that their tikanga is such that whenua is not treated like chattels. She says, “Muriwhenua customs, oral traditions and philosophy in respect of land absolutely preclude the land, which is perceived as the embodiment of Papatūānuku, the earth mother, being treated like a cow or a pig that one may buy one day and sell the next.”53
• 4.20 Rikirangi Gage (Te Whānau-ā-Apanui, Ngāti Porou) makes a similar point where he says, “In our cultural context the sea is not owned. In an interconnected environment, where we have whakapapa (genealogical links) to all living we do not own the land or the sea in the same way as is suggested by the English legal concept of title. Instead, we see an interconnection with the land and seas that gives us rights and obligations. Our cultural concept of mana is very different to the legal concept of ownership.”54
• 4.21 Wiremu Hodges’s (Ngāti Pāhauwera) expression of the whanaungatanga concept aligns with the Ngāti Pāhauwera “philosophy of relationships with all things of this earth”. He

47. Ko Aotearoa Tēnei, Wai 262, #K14 Mason Durie at [2.2]; Ko Aotearoa Tēnei, Wai 262, #P3 Haami Piripi at [19]; and Mana Wāhine Kaupapa Inquiry, Wai 2700, #A17 Ani Mikaere at 3.

⁴⁸ Muriwhenua Land Report, Wai 45, #A6 Miraka Szászy at 2.

⁴⁹ Muriwhenua Land Report, Wai 45, #A7/#A14 Reverend Māori Marsden at 1.

⁵⁰ Muriwhenua Fishing Report, Wai 22, #A14 Reverend Māori Marsden at 1.

⁵¹ Ko Aotearoa Tēnei, Wai 262, #E6 Maggie Ryland at [3.5.2(a)].

⁵² Ko Aotearoa Tēnei, Wai 262, #G4 Apirana Mahuika at [10.5].

⁵³ Muriwhenua Land Report, Wai 45, #H10 Margaret Mutu at 14.

⁵⁴ Re Edwards [2021] NZHC 1025, Affidavit of Te Kou Rikirangi Gage (21 February 2020) at [99].

adds that “we (‘te tangata’) belong within the environment – we don’t own it as such. Ownership is a foreign concept of ‘title’ whereas ours is one of ‘entitlement’ through Whakapapa and is celestially founded.”55

Connection to place

• 4.22 Whakapapa often plays a role in narratives around the connection that people have with whenua and particular places.56 For example, Apirana Mahuika (Ngāti Porou) talks about how Ngāti Porou maintain their descent from Māui, whose canoe, Nukutaimemeha, whilst fishing up his great fish, became stranded on the peak of Mt Hikurangi, the first part of the land to emerge from the deep.57 He explains:58

Ngāti Porou oral tradition is that this canoe rests in petrified form on top of Hikurangi. The whakapapa of Māui to Ngāti Porou shows that they are indigenous to this land and the story explains why Mt Hikurangi is imbued with tapu and so significant to Ngāti Porou.

• 4.23 A spiritual perspective on the importance of connection to place is provided by Tā Hirini Moko Mead (Ngāti Awa). He says, “One is born into an iwi, whenua ki te whenua (placenta to the land) and when one’s life is done there is a passage back to the land, to the rohe or takiwā, to lie with the whanaunga and the tipuna, symbolically to recapture the essence of the whānau, the hapū and the iwi.”59
• 4.24 Chris Winitana (Ngāti Tūwharetoa) explains that the geothermal resources in the Rotokawa area are part of their whakapapa lineage.60 He recounts one lineage line of Ngāti Tūwharetoa, the geothermal fires of Ngātoroirangi. This lineage began following the separation of Ranginui and Papatūānuku by Tāne-tokorangi.61 Rūaumoko was with his mother Papatūānuku. When the brothers decided to turn Papatūānuku over, Rūaumoko pleaded for them to retrieve him. However, he was left to placate Papatūānuku in her loneliness and sorrow.62 Rakahore (the father of bedrock and stone) imbued the sacred ‘ahi tāmou’ heat into the bedrock of Papatūānuku to keep the pair warm. Rūaumoko disagreed and vowed to take revenge on his brothers by “shaking the world and causing earthquakes to devour their offspring”.63 Rūaumoko moved about in discomfort and produced earthquakes. Winitana says, “His movements weakened the fabric of the

⁵⁵ Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit of Wiremu Itereama Sylvester Hodges (11 December 2013) at [33].

56. For example, see Ngā Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tamati Waaka (4 January 2017) at [21]–[24] and [27]–[28]; Ko Aotearoa Tēnei, Wai 262, #E6 Maggie Ryland at [3.5]; and Ko Aotearoa Tēnei, Wai 262, #E3 Wayne Ngata at [4.3].

⁵⁷ The Fisheries Settlement Report, Wai 307, #B8(c), Affidavit of Apirana Mahuika (Te Rūnanga o Ngāti Porou) at [3]–[4].

⁵⁸ Ko Aotearoa Tēnei, Wai 262, #G4 Apirana Mahuika at [3.3].

59. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Hirini Moko Mead for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [100].
60. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Statement of Evidence of Chris Winitana (4 June 2017) at [52].
61. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Statement of Evidence of Chris Winitana (4 June 2017) at [54]–[59].
62. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Statement of Evidence of Chris Winitana (4 June 2017) at [54]–[59].
63. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Statement of Evidence of Chris Winitana (4 June 2017) at [56].

earth’s crust, giving escape routes to Te Ahi Tapu a Tapeka and geothermal and volcanic activity was born into the world.”64

• 4.25 Hetaraka Biddle (Ngāi Tamahaua hapū) recounts the kōrero regarding Tārawa as “the earliest recognised ancestor from whom Tamahaua the man and therefore Ngāi Tamahaua hapū descends”.65 Biddle provides the following:66

According to our kōrero, Tārawa is said to have come over from Hawaiki on his chest and when the people first saw Tārawa they mistook him for a rata tree. When they approached him they found a man lying with a paepae kaiāwhā (beam across the front of a meeting house). The whenua where Tārawa landed was named Paerātā after this event which is a point 3 kilometres west of Ōpōtiki.

As Ngāi Tamahaua we acknowledge Te Tapuwae o Tārawa (‘The Footprint of Tārawa’) as being part of the rohe passed down to us. Te Tapuwae ō Tārawa is as follows:

Ka tīmata ki a Paerātā haere tonu ki a Tawhitinui, whakawhiti i te awa Waioweka ki te taone Pā-Kowhai (Ōpōtiki), whakawhiti i te awa ōtārawa ki ōroi. Ka herea ki te timatanga o te awa o te Motu, haere tōtika ki te tonga ki a Motuhora, Pokaikai ki Tapaona.

• 4.26 Biddle notes further that he always acknowledges Tārawa in his kōrero when speaking at various events or ceremonies as the name immediately places Ngāi Tamahaua in Ōpōtiki and surrounding areas.67
• 4.27 Whakapapa is described as the basis of certain tikanga-based status, rights, interests and responsibilities. For example:
  • David Topia Rameka (Ngāti Tūwharetoa, Ngāti Kurapoto, Waikato-Tainui, Ngāti Rangitihi, Ngāti Tahu) explains:68

Ngāti Tūwharetoa are linked by whakapapa to our lands and taonga. This connection establishes our mana whenua, kaitiakitanga and rangatiratanga, including our right to establish and maintain a meaningful and sustainable relationship between whānau, hapū and marae, and our taonga tuku iho or natural resources.

• Tā Hirini Moko Mead (Ngāti Awa) speaks of the birthright a child receives when it is born and the spiritual connection created by the burial of its whenua and pito in the land.69 He explains these rights continue in spite of distance, as exemplified by the many urban Māori who are returned to their marae and whenua for tangihanga and burial. The birthright includes mauri, wairua, mana, tapu, whenua, whanaungatanga, identity and whakapapa to the whānau, hapū, iwi and waka, interest in the tribal estate, use of the marae and future burial in the urupā.

64. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Statement of Evidence of Chris Winitana (4 June 2017) at [59].

⁶⁵ Re Edwards [2021] NZHC 1025, Affidavit of Hetaraka Biddle (20 February 2020) at [23].

66. Re Edwards [2021] NZHC 1025, Affidavit of Hetaraka Biddle (20 February 2020) at [22]–[26]; Affidavit of Heremaia Warren (21 February 2020) at [18].

⁶⁷ Re Edwards [2021] NZHC 1025, Affidavit of Hetaraka Biddle (20 February 2020) at [27].

68. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Statement of Evidence of David Topia Rameka (4 June 2017) at [20].
69. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Hirini Moko Mead for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [22]–[23].
    • Chris Winitana (Ngāti Tūwharetoa) emphasises that Tūwharetoa is a kaitiaki over the Rotokawa geothermal area by right of the “whakapapa lineage-defined resource”, the geothermal fires of Ngātoroirangi.70
    • When referring to rights over te takutai moana, Moka Puru (Ngāti Ira, Te Whakatōhea) says, “The source of our rights has not changed; it stems from our whakapapa, our whakapapa to our tūpuna, our atua, the whenua and the moana.”71
    • Tama Hata (Te Whakatōhea, Te Whānau-ā-Apanui, Ngāi Tūhoe, Waikato) references comments by Dr Moana Jackson (Ngāti Kahungunu, Ngāti Porou) in relation to whakapapa when discussing the authority to manage the marine and coastal area and responsibilities that arise from whakapapa:72

Tīpuna title may be described as the physical and spiritual interests that collectively vested in Iwi or Hapū as part of their mana or rangatiratanga in regard to the whenua.

It is a title that exists within what may be termed “relational interests,” that is interests that inhered in the relationships of a particular whakapapa and the willingness of our people to develop existing or potential relationships with others. It is an absolute title in the sense that rangatiratanga and whakapapa create inalienable ties to the land. Being tangata whenua implies having whenua to be tangata upon, and “tīpuna title” presupposes a continuing authority in relation to it. It may in fact be construed as a unique Māori construct of ownership because it implies a collective exclusivity.

• Whakapapa is also seen by Apirana Mahuika (Ngāti Porou) as being the key to Article 2 of the Treaty of Waitangi.73 He says that, without whakapapa, one does not have rangatiratanga rights to hapū, whānau, iwi, land, taonga and so on.74
• Reverend Māori Marsden (Ngāi Takoto, Ngāti Warara) makes the point that, while the Muriwhenua groups came into conflict and political dynamics change, they are all connected by whakapapa and have rights based on take tupuna (ancestral right) through that whakapapa.75
• Maui Solomon (Moriori) says his grandfather is “the last full-blooded Moriori who died in Rēkohu (Chatham Island) in 1933”.76 His whakapapa extends back 600 years in Rēkohu, and he points to this and his close association with Rēkohu as evidence that Moriori have retained their ahi kaa and mana over their lands and seas.77
• Te Rua Rakuraku and Donald Kurei (both Te Whakatōhea, Ngāti Ira) say:78

70. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Statement of Evidence of Chris Winitana on behalf of Tūwharetoa Māori Trust Board (4 June 2017) at [16]–[17], [21] and [29].

⁷¹ Re Edwards [2021] NZHC 1025, Affidavit of Moka Kainga Maata Puru (3 February 2020) at [53].

72. Re Edwards [2021] NZHC 1025, Affidavit of Tama Te Waiwhakaruku Hata (14 February 2020) at [53]; Moana Jackson “The Notion of Tipuna Title as a Tikanga Construct re The Foreshore and Seabed” (2010) APC

<http://www.apc.org.nz/pma/mjtipuna.htm> .

⁷³ Ko Aotearoa Tēnei, Wai 262, #G4 Apirana Mahuika at [4.6].

⁷⁴ Ko Aotearoa Tēnei, Wai 262, #G4 Apirana Mahuika at [4.6].

⁷⁵ Muriwhenua Land Report, Wai 45, #F25 Māori Marsden at 3.

⁷⁶ The Fisheries Settlement Report, Wai 307, #A9 Maui Solomon at [1.1].

⁷⁷ The Fisheries Settlement Report, Wai 307, #A9 Maui Solomon at [1.1].

⁷⁸ Re Edwards [2021] NZHC 1025, Joint affidavit of Te Rua Rakuraku and Donald Kurei (21 January 2022) at [16]–[17].

In assessing how to uphold our Tikanga the starting point must therefore be that our whakapapa obligations tie us to the moana and the land and are sovereign responsibilities we have as mokopuna of Muriwai; Te Hira Popo; Rakuraku and the many other familial figures in our whakapapa to uphold for future generations ...

A key obligation for us as those who possess mana whenua and as kaitiaki to the claimed area is thus the need to protect resources when they have been under threat or to avoid exploitation of limited taonga. More importantly to remember the relationships between tuakana and teina that subsist to ensure the ecological balance of the environment and the interaction between humankind are interconnected.

• Te Riaki Amoamo (Te Whakatōhea, Ngāti Patumoana, Ngāti Ruatakenga) says:79

Tikanga guides us in everything we do in Te Whakatōhea, how we behave and how we operate as whānau, hapū and iwi. ‘Tikanga’ literally means acting in the ways that are ‘tika’ (proper/correct). Tikanga is the law in our area and is underpinned by whakapapa, because without whakapapa you have no right to claim, speak for or take care of the whenua or its resources. This applies to the moana as much as the whenua: the moana is just whenua with water sitting on top of it ... Therefore, Tikanga are the rules and rituals that guide our practices and protect our whakapapa and resources. We have an obligation as kaitiaki of the whenua and of the moana to look after and protect all the rocks, fish species and the waters in the moana.

• According to Robyn Wallace (Ngāi Tahu), “Tikanga practice on Pohowaitai and Tamaitemioka dictate it is shared by all whānau who whakapapa to these islands.”80
• This statement is supported by Ronald Bull (Ngāi Tahu) who says that “customary marine title should be held under a collective of all whānau who whakapapa to the Tītī Islands, and definitely not one family”.81
• Henare Rakiihia Tau (Ngāi Tahu, Ngāti Māmoe, Waitaha) describes how fishing rights at some fishing grounds are derived from whakapapa. “Ngāi Tahu custom requires that access, in some instances, to certain sea fishing grounds is determined by a person’s whakapapa. Some are recognised as having a right by inheritance, while others may be excluded.”82 He provides an example of “the ground named Tuhaitara about 12 miles offshore from Moeraki, and we recognise only people who can claim descent from that Ngāi Tahu chiefteness [sic] Tuhaitara as having any right to fish on that ground”.83

⁷⁹ Re Edwards [2021] NZHC 1025, Affidavit of Te Riaki Amoamo (25 January 2022) at [9]–[10].

80. Re Tipene [2016] NZHC 3199, Affidavit of Sandra Helen Cook (30 October 2014), Annexure: Questionnaire – Customary Marine Title Application by Robyn Wallace (undated) at 96.
81. Re Tipene [2016] NZHC 3199, Affidavit of Sandra Helen Cook (30 October 2014), Annexure: Submission by Ronald Bull (4 October 2014) at 102.
82. Re Tipene [2016] NZHC 3199, Affidavit of David Anderson Armstrong (Affirmed 31 August 2015) Exhibit DA-20 Ngai Tahu Māori Trust Board v Attorney-General CP 559/87, Affidavit of Henare Rakiihia Tau (24 November 1989) at [77].
83. Re Tipene [2016] NZHC 3199, Affidavit of David Anderson Armstrong (Affirmed 31 August 2015) Exhibit DA-20 Ngai Tahu Māori Trust Board v Attorney-General CP 559/87, Affidavit of Henare Rakiihia Tau (24 November 1989) at [77].

• 4.28 When explaining a particular understanding of the word ‘iwi’, Tā Tīmoti Kāretu (Tūhoe, Ngāti Kahungunu) and Professor Te Wharehuia Milroy (Tūhoe) note the important links between the burial of ancestral bones in land and identity:84

These words [kōiwi/poroiwi] are used widely to describe the bones of a person such as those that lie in the resting places of the deceased whether they be the burial plots of modern times or the older resting places of traditional times. According to Māori custom these bones should be placed within the lands or district of the deceased so that they may be brought within the compass of their relations, tribes people or close descendants. From that it can be seen that the terms kōiwi or poroiwi are closely connected to iwi and have a common source in the sense of the genealogy of each whānau, each hapū and each tribe. In Pākehā thinking, kin relationship is expressed by ties of blood but the equivalent in Māori is not blood but bones. In Māori thought it is said, “they are my bones” (‘he poroiwi ēra nōku’).

Connection to and between people

• 4.29 Whakapapa is a common thread that serves to connect and weave people together.85
• 4.30 Tāmati Kruger (Ngāti Koura, Ngāti Rongo, Ngāi Tūhoe) refers to how most Māori, when giving their whakapapa, will recite their connection to whenua beginning at their ancestral genealogical lines, usually traced from ancestral waka (canoe) that arrived in Aotearoa from Hawaiki, where the Pacific peoples who became Māori originated.86 He describes whakapapa as being “about connection to others and how these connections inform one’s identity and relationships and the responsibilities to others”.87 He goes on to say:88

The point of establishing this whakapapa is to contextualise an individual person within their wider kinship group (hapū), who can all trace themselves back to a common tūpuna (ancestor) and to atua (spiritual world) where that impossible. Whakapapa inevitably connects both the individual and his or her kin group to the land and it affirms the values of sharing and community over the individual.

84. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Professor James Te Wharehuia Milroy and Professor Timoti Samuel Karetu for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (unsigned) at [10]; Māori taken from Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Te Kupu a te Toi Huarewa (Professor) James Te Wharehuia Milroy rāua ko te Ahorangi (Professor) Tīmoti Samuel Kāretu (25 February 1998) at [10].
85. The Fisheries Settlement Report, Wai 307, #B9 Tipene O’Regan at 5, where he describes whakapapa as “the common thread that weaves the hapū together to form the iwi”; Affidavit of Tā Hirini Moko Haerewa Mead, Dr Hohepa (Joseph) Mason and Te Kei (O Te Waka) Wirihana Merito (19 May 2020) discusses the origins of Ngāti Awa at length, which includes the kōrero regarding key people from whom Ngāti Awa descend and their travels, including Māui and Tīwakawaka, Toi Te Huatahi, Awanuiārangi I, Irakewa, and the arrival of the Mataatua waka and Wairaka, Awanuiārangi II, Te Tokotoru a Paewhiti, Te Heke o Te Rangihouhiri, at [39]–[69].
86. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [52].
87. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [52].
88. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [52].

• 4.31 As Apirana Mahuika (Ngāti Porou) explains, “The relationship is one of family united by a spiritual bond ... or whakapapa bond that unites all kinfolk, that is those living in the world now and those who have passed on to the world of the spirits.”89
• 4.32 Tā Tīmoti Kāretu (Tūhoe, Ngāti Kahungunu) describes the whakapapa connection as follows:90

Māori are all linked genealogically and they have these taurahere which ... joins them and links them and no one can say Māori stands alone, even though he may be ignorant of their genealogy.

• 4.33 Tā Hirini Moko Mead (Ngāti Awa) defines the centrality of what he called the “whakapapa principle” to Māori social order:

Unless you are born into the group or adopted as a whāngai, you cannot be a member of that whānau. The term used to label this group contains within it the defining characteristic that distinguishes a whānau from some other group of people. The whānau principle, which is described by anthropologists as the kinship principle and by Māori as the whakapapa principle underpins the whole social system, that is one must be born into the fundamental building block of the system in order to be a member as of right. The kinship principle cannot be bypassed or ignored.91

Without the whakapapa principle, they cannot be regarded as an iwi, or indeed as a hapū or whānau. Without shared descent from the principal identifying ancestor, they are strangers to each other without any kinship ties and the great bundle of rights and obligations that are inseparable from the whānau, the hapū and the iwi.92

• 4.34 In relation to the common use of prefixes (ngāti, ngāi te, te aitanga, te ati) before an iwi name, Tā Tamati Reedy (Ngāti Porou) says, “These prefixes are all variations on a single meaning – they collect the tribal descendants together as literally “the issue from the copulation of” the particular ancestor. The fact that one of these prefixes is used before most iwi names indicates the centrality of descent to the concept of iwi in the Māori context.”93 Reedy also explains the centrality of whakapapa to a Māori perspective and identity as exemplified in the word ‘iwi’:94

The strong relationship between the concept of iwi meaning bone and iwi meaning tribe is obvious to any speaker of Māori. The bones of ones ancestors have always been traditionally, and remain today, the most revered and sacred of treasures. The level of reverence is, in my experience, far greater than even the significant respect shown human

⁸⁹ Ko Aotearoa Tēnei, Wai 262, #G4 Apirana Mahuika at [10.5].

90. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Notes of Evidence (Timoti Samuel Karetu) at 77.
91. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Hirini Moko Mead for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [21].
92. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Hirini Moko Mead for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [83].
93. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Tamati Muturangi Reedy for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [24].
94. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Tamati Muturangi Reedy for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [37(b)].

remains by western culture. This is because, in Māori terms, one is defined by one’s ancestors.

To translate a common Māori phrase – “Ko tātou ngā kanohi me ngā waha kōrero o rātou mā kua ngaro ki te pō – we are but the seeing eyes and speaking mouths of those who have passed on”.

This reverence for the bones and indeed the memory of ancestors is directly reflected in the centrality of whakapapa or genealogy to all structures within Māori society. Whether it be at whānau, hapū, iwi or waka level the group dynamic and the right of each individual to participate is necessarily defined by kin relationship through descent from revered ancestors. If that component is taken away it is in my view clear that the term iwi cannot be used.

• 4.35 Whakapapa is a common tool used throughout the evidence to connect people. Reverend Māori Marsden (Ngāi Takoto, Ngāti Warara) refers to how Ngāti Kuri, Te Aupōuri and Ngāi Takoto were connected through their founding ancestors Ngāti Kaharoa, Ngāti Kahu and Te Rarawa.95 Rikirangi Gage (Te Whānau-ā-Apanui, Ngāti Porou), in introducing Te Whānau-ā-Apanui in his evidence, refers to their two neighbouring iwi groupings in whakapapa terms:96

To our west are our whanaunga of the Ngāi Tai tribe with whom we share important genealogical ties as Apanui Ringamutu (the eponymous ancestor of Te Whānau a Apanui) married two women from there: Te Whaaki and Te Kohepare.

Immediately to our east are our closet kin, the Ngāti Porou peoples. Together Te Whānau a Apanui and Ngāti Porou refer to ourselves as “ngā kotipu o te mārā tapu o Tumoanakotore” or “tubers from the sacred garden of Tumoanakotore”. Tumoanakotore was one of our common ancestors.

• 4.36 Tā Hirini Moko Mead (Ngāti Awa) recognises the enduring importance of whakapapa:97

The traditional system of whānau, hapū and iwi will live on well into the next century and beyond mainly because they continue to make sense to the people. As rallying points for action and for calling the people together they have no peers. People respond to the call of their whānau which remains the most supportive and important group in the life of any Māori. The hapū is also a powerful symbol of identity and its call to action is also difficult to ignore. This group comes together frequently in meeting the ceremonial requirements of whānau, such as tangihanga.

• 4.37 Dr Ranginui Walker (Whakatōhea) considers whakapapa central to a Māori viewpoint of the world:98

... that’s what whakapapa is, whakapapa is the paradigm of Māori knowledge of the world of reality. It is characterised by a layering in sequence which also contains within it the idea of progression and evolution and so you start at the creation, you come down to the sons of Rangi and Papa and other ancestors who are the repositories of knowledge such as fire, Māui having the knowledge of the magic props of bone for making artefacts, then further down to the migratory canoe ancestors of the 9th, 12th and 14th Centuries ...

⁹⁵ Muriwhenua Land Report, Wai 45, #F25 Māori Marsden at 2.

⁹⁶ Re Edwards [2021] NZHC 1025, Affidavit of Te Kou Rikirangi Gage (21 February 2020) at [11] and [12].

97. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Hirini Moko Mead for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [96].
98. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Notes of Evidence (Ranginui Walker) at 104.

• 4.38 Whakapapa is seen as a basis of responsibilities between kinship groups:
  • Walter Ngamane (Ngāti Maru, Ngāti Whanaunga, Ngāti Tamaterā, Ngāti Pāoa, Ngāi Te Rangi, Ngāti Hinerangi) points out generally that whakapapa “creates responsibilities of manaaki (care and nurturing) within the group. It is through whakapapa that kinship ties are cemented”.99
  • Reon Tuanau (Ngāi Te Rangi) more specifically indicates, “Our close Ngāi Te Rangi whakapapa connection with Ngāti Awa means that when environmental matters affect our kin that are of significance, Ngāi Te Rangi are duty bound by whakapapa to support.”100
  • Moe Milne (Ngāti Hine) describes how:101

[w]hakapapa connects us spiritually to our past and it defines the present. It is having confidence in our whakapapa; that through our relationships we can rely on each other and contribute to the wellness of the whānau, of the hapū as a whole. At a basic level, it is having a relationship where when you say you need me, I show, and equally when I say I need you, you show.

• Tā Hirini Moko Mead (Ngāti Awa) and Tā Pou Temara (Tūhoe) describe whakapapa as creating “responsibilities of manaaki (care and nurturing) within the whānau. Like all these concepts, that are inextricably linked, whakapapa is closely linked to the concept of whanaungatanga.”102

• 4.39 Nigel Te Hiko (Raukawa, Waikato-Tainui, Ngāti Tūwharetoa, Ngāti Kauwhata, Ngāti Tukorehe, Ngāti Raukawa ki te Tonga) states that “the complex web of whakapapa that starts from the time of Raukawa himself is what makes some of the mana whenua issues in our takiwā so complicated today”.103
• 4.40 Vanessa Eparaima (Raukawa) explains:104

Raukawa are landlocked and large and powerful neighbours border o[u]r takiwā. We have close whakapapa connections with all those neighbours, and a number of hapū regard themselves as part of both Raukawa and other iwi. This means that in practices there is often not a hard line that marks the Raukawa takiwā and our interests blend into others.

• 4.41 Ani Mikaere (Ngāti Raukawa, Ngāti Porou) explains what whakapapa accordingly demands of us:105

Reliance on a whakapapa framework to make sense of our existence requires us to value every person as part of an endlessly expanding whole. This is not to be confused with some

99. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Walter (Wati) Ngakoma Ngamane (13 October 2020) at [22].
100. Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, Affidavit of Reon Roger Tuanau (15 August 2018) at [19].

¹⁰¹ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A62 Moe Milne at [131].

102. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [94].
103. Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, The Wairarapa ki Tararua district inquiry, Wai 863, #J5 Nigel Te Hiko at [2.12].
104. Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, The Wairarapa ki Tararua district inquiry, Wai 863, #J4 Vanessa Eparaima at [2.2].

¹⁰⁵ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A17 Ani Mikaere at [44].

feel-good notion of equality or sameness; rather, it recognises that the particular qualities of every person contribute to the vitality of the whakapapa network in its entirety.

• 4.42 Robin Hapi (Ngāti Kahungunu) states that the obligations that come with whakapapa are not diminished by distance:106

... we have a Tupuna by the name of Hikawera the father of Te Whatuiāpiti, in his time there was a famine of kūmara in Wairoa district, Hikawera through obligations that he had to his whanaunga in Wairoa slaughtered a number of dogs and took the dogs up to Wairoa where they were provided to the people of Wairoa at Tūtaekurī of my own Tupuna a signatory to the declaration of independence also a signatory to the Treaty of Waitangi, I think about him and in the 1820s he was captured by a war party; the people of Kahungunu from Wairoa to Wairarapa got together pursued the war party and negotiated for his release. An exchange of gifts ensured his release.

Whakapapa expertise

• 4.43 Whakapapa is a prized form of knowledge, and great effort is made to preserve memory of it.107
• 4.44 Tā Pou Temara (Tūhoe) explains, “Those that are fortunate to be raised steeped in the knowledge of whakapapa, history and Tikanga are known as Tohunga Whakapapa, Tohunga Whaikōrero or Pou Tikanga. It is these knowledge keepers that ensure the integrity of the relationships between the various realms.”108

Whakapapa and status

• 4.45 Tahu Potiki (Ngāi Tahu, Ngāti Māmoe) explains that “The Māori view of the universe also places a hierarchy on descent. This means that those with more senior whakapapa inherit greater power status”.109 For a further discussion on tuakana/teina see paragraphs [6.94]– [6.100] below.
• 4.46 Apirana Mahuika (Ngāti Porou) expresses a similar sentiment, explaining, “Whakapapa determines rank and status within society and one’s genealogical ranking in the social hierarchy of whānau, hapū or iwi.”110 He also explains that of all the ancestors available, Porourangi was the chosen name for the iwi of Ngāti Porou because all the senior whakapapa lines from Hawaiki and Aotearoa converged on Porourangi.111 “My interpretation therefore is that just as many strands are woven together to adorn a house,

106. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Notes of Evidence (Robin Hapi) at 550.
107. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [92].

¹⁰⁸ Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [9]. See also [2.75] of this Report.

109. Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tahu Potiki (23 December 2016) at [4.13].
110. Ko Aotearoa Tēnei, Wai 262, #G4 Apirana Mahuika at [4.6]. See also Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Principles for the Allocation of Quota: Report for the Māori Fisheries Commission; Exhibit A Apirana Mahuika Nga Tikanga Māori e pa ana ki a Tangaroa (22 November 1991) at 4.

¹¹¹ Ko Aotearoa Tēnei, Wai 262, #G4 Apirana Mahuika at [3.49]–[3.65].

so in Porourangi’s case, he is the final adornment resulting from his senior whakapapa and or descent from his many ancestors.”112

• 4.47 Moe Milne (Ngāti Hine) talks about the strengthening of whakapapa through marriage: “If a couple were having trouble having children, it was common for the woman to remarry the brother or close relative. It was not about personal needs or wants, the priority was about strengthening whakapapa, kia ora ai te hapū. However, it was a consensus decision between the woman and man and their families.”113 This example not only illustrates the importance of whakapapa and connection but also the centrality of the collective and not just individuals.

Whakapapa and inclusiveness

• 4.48 Ani Mikaere (Ngāti Raukawa, Ngāti Porou) describes whakapapa as being “inherently non- hierarchical and is driven by the logic of inclusion”.114
• 4.49 Apirana Mahuika (Ngāti Porou) similarly explains how, traditionally and to the minds of Ngāti Porou, whakapapa was and is inclusive.115 He laments how the individualisation of legal title created a character of exclusivity to whakapapa as it resulted in the dispossession of rights granted by whakapapa to individuals in whānau and/or hapū areas of their iwi.
• 4.50 Margaret Kawharu (Ngāti Whātua Ōrākei) approaches this issue from a different perspective. She put emphasis on the “twin ideologies”116 of whanaungatanga and whakapapatanga that “inspire the logic and the ethos of tribal society”.117 She describes these principles “as providing a logical basis for the way things have been in the past, are now and ought to be in the future”. However, she goes on to distinguish between the two: “The more inclusive kinship ethic of whanaungatanga offsets the more exclusive linear factional loyalties derived from the descent lines of whakapapa.”118

WHANAUNGATANGA

The fundamental values base of Māori law is the maintenance and protection of relationships.

Dr Moana Jackson119

• 4.51 The concept of whanaungatanga is centred on relationships, expressed as:

¹¹² Ko Aotearoa Tēnei, Wai 262, #G4 Apirana Mahuika at [3.55].

¹¹³ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A62 Moe Milne at [95].

¹¹⁴ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A17 Ani Mikaere at [46].

¹¹⁵ Ko Aotearoa Tēnei, Wai 262, #G4 Apirana Mahuika at [4.2].

116. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Margaret Anne Kawharu (2 June 2020) at [3].
117. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Margaret Anne Kawharu (2 June 2020) at [6].
118. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Margaret Anne Kawharu (4 December 2020) at [6].
119. R v Tamati Mason [2012] NZHC 1361, Notes of evidence taken before the Hon Justice Heath on pre-trial application – 3 May 2012 at 4.
     • “the way we bring our whakapapa to life” and “the way we relate to our kin”;120
     • “the relationship between kinship groups”;121
     • “the kinship ties that link us together through events in history and our whakapapa”;122
     • focused on “the maintenance of relationships”;123 and
     • reminding “a person that they exist as part of a matrix and web of relationships and collectives”.124

• 4.52 David Wilson (Te Ākitai Waiohua, Ngāti Te Ata) describes how in tikanga:125

... we generally talk about how we are related and connected to each other and to different places, especially on the marae. Our framework for thinking emphasises our relationships to land and people and we are more inclusive than exclusive. This reflects the tikanga concepts of: whanaungatanga and manaakitanga.

• 4.53 Whaimutu Dewes (Ngāti Porou, Ngāti Rangitihi) discusses the concept of whanaungatanga in the context of Māori fishing rights and rangatiratanga:126

In terms of Tikanga Māori, the concept of Whanaungatanga (common descent) applies which establishes a web of reciprocal, kinship based, rights of acknowledgement, support, access to resources and an active duty of reciprocity. Behavioural norms in respect of the exercise of those rights are in turn drawn from the values inherent in Manaakitanga, or mutual respect. Hence the reciprocal nature of the relationship is affirmed and underlined by the need to respect the resource and those who have primary control of access to it.

The Māori fishing right, according to Tikanga Māori, may be seen as encompassing both the primary management right to allocate and oversee the rights of use in respect of the sea as well as the actual right of use itself. The right of allocation fell to those who exercised Rangatiratanga over that seaward territory. Rangatiratanga in respect of the sea was based upon the Rangatiratanga of the land to which the particular sea region was contiguous. Note that although occupation of the landward reference territory is the threshold determinant, the land and the sea are two different and severable composites of the Rangatira’s domain. Hence the expression “He rereke a Tai, he rereke a Uta”

120. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Statement of Evidence of Chris Winitana (4 June 2017) at [72].
121. Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tamati Waaka (4 January 2017) at [69]–[81].
122. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, brief of evidence of David Wilson (13 October 2020) at [54].
123. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Walter (Wati) Ngakoma Ngamane evidence (13 October 2020) at [21]. See also Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [96].
124. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [97].
125. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, brief of evidence of David Wilson (13 October 2020) at [53].
126. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Principles for the Allocation of Quota: Report for the Māori Fisheries Commission at 10. See also Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Principles for the Allocation of Quota: Report for the Māori Fisheries Commission; Exhibit A Apirana Mahuika Nga Tikanga Māori e pa ana ki a Tangaroa (22 November 1991) at 6–8.

According to Tikanga Māori, in certain circumstances, continuous and uninterrupted land occupation is not necessary to assert a fisheries right.

People connected by links of Whanaungatanga to the shoreline dwellers enjoy the right to share in the use of the resource. Such a right to share could be terminated by the shoreline dwellers or, if it were not maintained, be allowed to fail by virtue of disuse. The oral histories of Iwi are replete with examples of the application of sharing on the basis of Whanaungatanga and it is not necessary to repeat them here.

The primary right to allocate use and management and the right to share in the use were both collective rights, normally controlled by the respective Rangatira. These were not individual rights.

...

The resources that falls within the Māori fishing right is everything that Tangaroa provides or may provide. There is no limit as to fish or other marine life that may be harvested in terms of Whanaungatanga, no seaward or depth of water limitation. Similarly the uses to which the sea and its resources may be put. Tangaroa’s manaakitanga in making the bounty of the sea available must be treated with respect in term of the whanaungatanga with which it is proffered. Exploitation, whether commercial or non-commercial must be sustainable and respectful. Thus, over-fishing and pollution are both derogations of the values and the normative rules governing fishing. Commercial and non-commercial exploitations must be viewed in terms of the reciprocal obligations to the sea, including stewardship of the future productivity. These concepts provide the constraints, in Tikanga Māori terms, to exploitation.

• 4.54 Whanaungatanga is seen to create “rights and responsibilities”127 between “people and the natural world”128 as well as between “whānau”.129
• 4.55 Christina Davis (Ngāti Muriwai, Te Whakatōhea) describes how whanaungatanga relates to rights over resources and says, “The importance of knowing the whanaungatanga connections is that they validate the mana of the hapū in turn their tikanga Māori customary rights and practices to the whenua and foreshore and seabed.”130
• 4.56 Matire Duncan (Ngā Pōtiki) sets out that, “Central to the ideal of connectiveness is the concept of whanaungatanga. Relationships drive our everyday life in the Nga Pōtiki natural resources world. The people see themselves as intrinsically connected to the taonga such as Rangataua, they are living breathing beings just like humans. They form part of our whakapapa, our waiata, our whaikōrero, pepeha, they provide kai, healing and wairua support. The tikanga of whanaungatanga also allows us to manage relationships with other hapū and iwi, this includes managing use and occupations rights.”131
• 4.57 Tamati Waaka (Te Whānau-ā-Apanui, Ngāi Tai, Te Whakatōhea, Ngāti Awa, Ngāti Pūkeko, Tūhoe) says, “Through the tikanga of whanaungatanga, iwi and hapū support each other

127. Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tamati Waaka (4 January 2017) at [69]–[81].
128. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Walter (Wati) Ngakoma Ngamane (13 October 2020) at [21].

¹²⁹ Sir Hirini Moko Mead and Professor Pou Temara Statement of Tikanga, 31 January 2020 at [97], as cited in Ellis v R

[2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [97].

¹³⁰ Re Edwards [2021] NZHC 1025, Affidavit of Christina Davis (21 February 2020) at [17].

¹³¹ Re Reeder on behalf of Ngā Pōtiki [2021] NZHC 2726, Affidavit of Matire Duncan (6 July 2020) at [14].

and held reciprocal obligations to assist each other in maintaining their mana. This tikanga also extends to shared rights and responsibilities to resources and taonga.”132

• 4.58 Although, some explanations of whanaungatanga focus on whanaungatanga as being between “kin”, Tā Hirini Moko Mead (Ngāti Awa) and Tā Pou Temara (Tūhoe) in their evidence explain that “[t]he whanaungatanga principle goes beyond just whakapapa and includes non-kin persons who become like kin through shared experiences”.133
• 4.59 Toro Waaka (Ngāti Pāhauwera) explains whanaungatanga as an essential element to survival, emphasising that you “depended not only on immediate whānau for survival, you depended on your extended family and beyond. Your status was not about what you had it was what you could give”.134
• 4.60 Manuka Henare (Ngāti Hauā, Te Aupōuri, Te Rarawa, Ngāti Kahu) states whanaungatanga “is the value of belonging in a kind of kinship system but it’s the idea of belonging”.135
• 4.61 An example from Tā Hirini Moko Mead (Ngāti Awa) and Tā Pou Temara (Tūhoe) of the responsibilities that whanaungatanga creates between people is that, when a hara (wrong) is committed, it not only impacts the individuals involved, both offender(s) and victim(s), but also the broader collectives of these individuals including whānau, hapū and iwi.136 They explain that it means that a community is always responsible for their wrongdoers because they are kin.137 It also means that a community is impacted as victims when offending occurs.138
• 4.62 Associate Professor Khylee Quince (Ngāpuhi, Te Roroa, Ngāti Porou, Ngāti Kahungunu) says:139

Within Māori whānau, social control is modelled through the concept and practice of whanaungatanga – kinship or familial obligations. Boundaries and behavioural expectations are set and enforced by the collective, with particular roles and responsibilities for guidance and leadership vesting in parents, aunts and uncles and grandparents.

132. Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tamati Waaka (4 January 2017).
133. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [97].

¹³⁴ Re Ngāti Pāhauwera [2021] NZHC 3599, Brief of evidence of Toro Reginald Waaka (19 December 2019) at [69].

135. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Notes of Evidence (Manuka Henare) at 33.
136. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [98].
137. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [99].
138. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [99].

¹³⁹ Solicitor-General v Heta [2018] NZHC 2453, s 27 report by Khylee Quince (18 September 2018) at 8.

• 4.63 Some witnesses describe whanaungatanga as an “integral”,140 “essential”141 or “fundamental” principle of the “Māori world”142 and as “the glue that holds the Māori world together”.143
• 4.64 Tā Pou Temara (Tūhoe), however, places a slightly different emphasis. He describes whakapapa as “the glue that holds the Māori world together and sets the parameters of the relationships between and amongst all things”.144 However, he goes on to say, “Whanaungatanga is the idea that makes the whole system make sense ...”.145
• 4.65 The interconnectedness between whakapapa and whanaungatanga perhaps explains in part why the concept of whanaungatanga was not teased out or explored in more depth in the evidence reviewed. The significant emphasis that we see in the evidence on connections through whakapapa is whanaungatanga in action.
• 4.66 Tā Hirini Moko Mead (Ngāti Awa) notes that, in te reo Māori, the word ‘iwi’ also means ‘bone’, an important metaphor for the relationship embodied by ‘iwi’.146 He goes on to say, “An important component of the metaphor of bone is that it provides strength. lwikore, literally no bones, means feeble, and without strength. Bones make a body strong and give form to it. Thus bones in the sense of whakapapa and in giving strength to anything is important in understanding the concept of iwi. The important aspect of the word iwi is its function as a metaphor for whanaungatanga and the strength that arises from that fact.”147

TAPU AND NOA

• 4.67 Tāmati Kruger (Ngāti Koura, Ngāti Rongo, Ngāi Tūhoe) summarises the concepts of tapu and noa:148

Tapu and noa: Tapu is the miracle and sanctity of life and refers to life’s mysteries and everything that is not yet understood or known. In particular tapu is seen as a value that would provide a connection to understanding the universe and is not a human creation but a natural phenomenon like gravity. Noa then is described as the ordinary world, where there is a state of ease, limited restrictions and freedom. They are opposite concepts that

¹⁴⁰ Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Notes of Evidence at 39.

141. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Walter (Wati) Ngakoma Ngamane (13 October 2020) at [21].
142. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Walter (Wati) Ngakoma Ngamane (13 October 2020) at [21] and also Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [96].
143. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [96].

¹⁴⁴ Re Edwards [2021] NZHC 1025, Joint affidavit of Te Rua Rakuraku and Donald Kurei (21 January 2022) at [11].

¹⁴⁵ Re Edwards [2021] NZHC 1025, Joint affidavit of Te Rua Rakuraku and Donald Kurei (21 January 2022) at [11].

146. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Hirini Moko Mead for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [46].
147. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Hirini Moko Mead for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [48].
148. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [58].

balance each other. Every aspect of the physical and spiritual world holds elements of tapu and noa and people can transition between them. Tapu however is too often associated with the Christian idea of sacredness, and while I don’t disagree with that, one does not have to subscribe to Christianity to understand tapu. Tapu persists despite religion, and must be respected.

• 4.68 The word ‘sacred’ is commonly used in association with the idea of tapu.149 Tapu is also linked with notions of restriction,150 prohibition151 and protection152 and seen as a mechanism to control and regulate behaviour.153
• 4.69 As Te Riaki Amoamo (Te Whakatōhea, Ngāti Patumoana, Ngāti Ruatakenga) explains:154

Though ‘tapu’ is commonly translated as sacred, it is more accurate to think of tapu as being a restriction for spiritual purposes. ‘Tapu’ must be understood alongside the concept of ‘noa’. Noa is when tapu is removed or cleared through the proper karakia ritual, removing the spiritual restriction.

• 4.70 The spiritual realm is central to the concept of tapu.155 Rima Eruera (Muriwhenua, Te Rarawa, Ngāti Kuri) points out that “the Māori world was a world of wairua, and Māori life was spiritually driven. Everything that was done was accompanied by karakia and rules of tapu”.156
• 4.71 This spiritual dimension of the Māori world is also reflected in Tahu Potiki’s (Ngāi Tahu, Ngāti Māmoe) explanation of the origins of tapu and mana. He says, “Tapu and mana are

149. See Beadle and Wihongi v Minister of Corrections, EnvC Wellington A074/2002, Statement of Evidence of Reuben Clarke (undated) at [5]–[6]; Ko Aotearoa Tēnei, Wai 262, #G4 Apirana Mahuika at [3.6]–[3.7]; Ko Aotearoa Tēnei, Wai 262, #B9 Wiremu McMath at [16]; Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Primary statement of evidence of Rereamanu Wihapi (22 December 2016) at [21]; and Minhinnick v Minister of Corrections [2004] NZEnvC A43/04, 6 April 2004, Statement of Evidence of Roimata Minhinnick (undated) at [25].
150. Mana Wāhine Kaupapa Inquiry, Wai 2700, #A19 Leonie Pihama citing Rangimarie Rose Pere at [80]. Beadle and Wihongi v Minister of Corrections, EnvC Wellington A074/2002, Statement of Evidence of Reuben Clarke (undated) at [5]–[9]. Ko Aotearoa Tēnei, Wai 262, #H10 Puhanga Tupaea at [77]. Minhinnick v Minister of Corrections [2004] NZEnvC A43/04, 6 April 2004, Statement of Evidence of Roimata Minhinnick (undated) at [24]. Minhinnick v Minister of Corrections statement of Evidence by Buddy Mikaere (undated) at [18]. The Fisheries Settlement Report, Wai 307, #A22 P Ricky, H Te Hau and H Christy at [2]–[3].
151. Beadle and Wihongi v Minister of Corrections, EnvC Wellington A074/2002, Statement of Evidence of Reuben Clarke (undated) at [5]–[9]. Muriwhenua Fishing Report, Wai 22, #B57 Niki Kanara, Piri Paraone and Ratima Petera at [5]. Ko Aotearoa Tēnei, Wai 262, #H10 Puhanga Tupaea at [77]. Ko Aotearoa Tēnei, Wai 262, #B9 Wiremu McMath at [10]–[11] and [38]–[39].
152. Ko Aotearoa Tēnei, Wai 262, #H10 Puhanga Tupaea at [77]. Beadle and Wihongi v Minister of Corrections, EnvC Wellington A074/2002, Statement of Evidence of Reuben Clarke (undated) at [5]–[6]. Ko Aotearoa Tēnei, Wai 262, #B9 Wiremu McMath at [10]–[11] and [38]–[39].
153. Minhinnick v Minister of Corrections [2004] NZEnvC A43/04, 6 April 2004, Statement of Evidence of Roimata Minhinnick (undated) at [29]. Ko Aotearoa Tēnei, Wai 262, #B9 Wiremu McMath. Ko Aotearoa Tēnei, Wai 262, #B11 Himiona Munroe.

¹⁵⁴ Re Edwards [2021] NZHC 1025, Third Affidavit of Te Riaki Amoamo (25 January 2022) at [14].

155. Mana Wāhine Kaupapa Inquiry, Wai 2700, #A19 Leonie Pihama citing Rangimarie Rose Pere at [80]. Ko Aotearoa Tēnei, Wai 262, #G4 Apirana Mahuika at [3.6]–[3.7]. Ko Aotearoa Tēnei, Wai 262, #H10 Puhanga Tupaea. Ko Aotearoa Tēnei, Wai 262, #B9 Wiremu McMath at [8]. Ko Aotearoa Tēnei, Wai 262, #C2 Houpeke Piripi. Ko Aotearoa Tēnei, Wai 262, #B11 Himiona Munroe. Minhinnick v Minister of Corrections [2004] NZEnvC A43/04, 6 April 2004, Statement of Evidence of Roimata Minhinnick (undated) at [17]; Statement of Evidence by Buddy Mikaere (undated) at [18].

¹⁵⁶ Muriwhenua Land Report, Wai 45, #F23 Rima Eruera p.8.

derived from the creation of the world, from Te Kore, Te Pō, Te Ao, through to the union of Rangi and Papatūānuku and their offspring.”157

• 4.72 Tā Pou Temara (Tūhoe) makes a similar point:158

When you enter the realm of Tapu the atua are always at the forefront of your mind. When we look at the whakapapa from the atua to you as a tangata, the atua are still at the forefront of your mind. When we enter the realm of Tapu, we enter where the atua reside, their rivers, their mountains, their waters, their forests their domains, their territories, all of which fall under the spiritual protection of Tapu. Te Wharehuia Milroy used to say “Pēnā he tangata whakapono koe, he wairua tapu tōu” – If you are person who believes and has faith, then you are spiritually connected to tapu. Tapu comes directly from the atua.

• 4.73 Tā Pou Temara (Tūhoe) explains the purpose of tapu as being:159
  • to caution and warn of danger (kia wehi, kia tūpato i te tangata);
  • to instil faith, values and belief of traditions (kia ū te whakapono);
  • to guide, nurture and protect people (hei arataki i te tangata);
  • to honour the relationship between humankind, the physical realm and atua (whakahōnore whakapapa);
  • to instil mana (whakaū mana);
  • to protect the mauri (whakaū mauri); and
  • to restrict, impose a ban on an area for a short period of time (rāhui).
• 4.74 Tā Pou Temara (Tūhoe) goes on to emphasise, “Pre-1840 Māori communities’ behaviour was also highly influenced by tapu ... both people and objects could be tapu, and it was used to govern communities’ behaviour and adherence to people, such as rangatira and tohunga, and to situations, for example wāhi tapu.”160
• 4.75 Dr Te Kei Merito (Ngāti Awa, Ngāti Pūkeko, Ngāti Rangataua, Ngāti Hokopū, Ngāi Tamapare) says, “Tapu can be both permanent and temporary depending on the site and tikanga associated with that site.”161
• 4.76 Peter Adds (Te Ātiawa) draws on a paper written by Michael Shearers in 1982 to explain tapu.162 He gives the examples of:163

... the tapu of the head, the tapu of blood, the tapu of the urupā and so on you know. In some cases, tapu is a desirable thing. In some case it is undesirable. It is to be avoided at all costs. Because if you don’t avoid it what happens? Well, you can be affected by tapu. It

157. Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tahu Potiki (23 December 2016) at [4.1].
158. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [35].
159. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [37].

¹⁶⁰ Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [40].

161. Re Edwards [2021] NZHC 1025, Joint Brief of Evidence of Dr Te Kei (O Te Waka) Wirihana Merito and William Bruce Stewart (24 January 2022) at [31].

¹⁶² The Wairarapa ki Tararua district inquiry, Wai 863, #4.11 Peter Adds p.34.

¹⁶³ The Wairarapa ki Tararua district inquiry, Wai 863, #4.11 Peter Adds p.35.

has a polluting quality some anthropologists say. It can rub off on you and it can harm you, to the point where if you’re not careful you can die or at least get sick. If it’s not you that gets sick it might be some other member of your whānau that gets sick. This is a deeply, deeply held view and way of thinking about the tapu even today I think in Māori communities across the country.

• 4.77 Adds also explains that “everything is intrinsically tapu” because “everything in the Māori world has a whakapapa that goes back to ancestors and then eventually back to the Atua”.164 “There are degrees of tapu. Some things are intrinsically more tapu than others because of their association with the hierarchy of gods.”165

Te tapu o te tangata: the tapu of people

• 4.78 Reuben Clarke (Ngāti Rangi) describes all living things (including the land, ocean, rivers and forests) as being tapu.166 He acknowledges that mankind is tapu because the gods created him.167
• 4.79 Tā Pou Temara (Tūhoe) makes a similar point:168

If one looks at what is between Rangi and Papa everyone also falls under the spiritual protection of tapu. Rangi is tapu and Papa is tapu. All their children and descendants are tapu, the mountains, the waters, the forests, they are all supreme beings superior to humankind. People are tapu as well from their head to their toes, the most tapu person all during a tangihanga, are women. That is why only women can sit beside the tūpāpaku the entire duration of a tangi to mourn and lament, whilst men sit opposite or separate to the tūpāpaku.

• 4.80 Although everyone is tapu in a sense, the level of tapu associated with a person can vary. For example:
  • Puhanga Tupaea (Ngāti Koata, Ngāti Kuia) explains that the personal mana of certain rangatira made them highly tapu and in some sense dangerous to themselves and other people unless the tapu was appropriately adhered to.169 She uses the example of the mana of Te Whetu and Toro Roma being such that “they protected others by restricting themselves, their utensils, their clothes and bedding, because they knew that the strength of their mana could cause misfortune to others. That is why Te Whetu buried his hair at a special place.”170
  • Apirana Mahuika (Ngāti Porou) similarly talks about how tradition has it that Uenuku, a senior person in Hawaiki, was so tapu that someone else had to give him food lest his tapu would contaminate it.171

¹⁶⁴ The Wairarapa ki Tararua district inquiry, Wai 863, #4.11 Peter Adds p.36.

¹⁶⁵ The Wairarapa ki Tararua district inquiry, Wai 863, #4.11 Peter Adds p.36.

166. Beadle and Wihongi v Minister of Corrections, EnvC Wellington A074/2002, Statement of Evidence of Reuben Clarke (undated) at [5]–[6].
167. Beadle and Wihongi v Minister of Corrections, EnvC Wellington A074/2002, Statement of Evidence of Reuben Clarke (undated) at [5]–[6].
168. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [39].

¹⁶⁹ Ko Aotearoa Tēnei, Wai 262, #H10 Puhanga Tupaea at [77] and [90]–[92].

¹⁷⁰ Ko Aotearoa Tēnei, Wai 262, #H10 Puhanga Tupaea at [77].

¹⁷¹ Ko Aotearoa Tēnei, Wai 262, #G4 Apirana Mahuika at [3.27].

• Tā Pou Temara (Tūhoe) also talks about the particularly tapu status of tohunga.172 He says, “Atua are tapu and tapu come from atua. Therefore, the mandate of the Tohunga come from their whakapapa and from the atua. They become repositories of esoteric knowledge ... this kind of knowledge is tapu and not for general dissemination. Tohunga are the kauwaka or the mediums and mouthpieces of the atua.”173 He goes on to say that they refrained from anything that could contaminate that tapu state and render them noa. “Some Tohunga were considered so tapu that they did not wash. These kinds of Tohunga tended to live apart from the community.”174
• Certain parts of bodies (both of people and of animals) are described as particularly tapu. For example, Benjamin Hippolite (Ngāti Koata, Ngāti Toa, Ngāi Tahu, Ngāti Kuia) describes how the head of the fish was always offered to manuhiri out of respect. He explains that “the head is always the tapu part”.175

• 4.81 The connection between tapu, mana and whakapapa is discussed by Tamati Waaka (Te Whānau-ā-Apanui, Ngāi Tai, Te Whakatōhea, Ngāti Awa, Ngāti Pūkeko, Tūhoe). Waaka recognises that many activities and resources have tapu associated with them in recognition of their whakapapa and the source of mana. He gives the example of how, when interacting with a rangatira, due to their tapu, one would be careful not to breach that tapu to cause offence. He indicates that the same caution is advised when chopping down a tree, which requires recognition of tapu and observation of kawa.176
• 4.82 Peter Adds (Te Ātiawa) also talks about how sometimes the terms tapu and mana “can be used interchangeably”.177 He provides an example of a Lindauer painting of a young child feeding an old man with his hands behind his back. He explains that the old man:178

... is a valued member of the community, he’s got a lot of mana in that community. Therefore, he has become tapu, and in that context, his tapu needs to be preserved at all costs, and one way to ruin his tapu is by ... coming into contact with cooked food. Cooked food is also a powerful agent of tapu removal.

...

So, on the one hand, tapu is dangerous. In other contexts, it’s a desirable thing. We want to preserve the tapu, and in that case the extended tapu of that man, because it affects his mana. He has mana because he’s tapu. He has tapu because he’s got a lot of mana in that community, and that has to be looked after in that context.

• 4.83 Tahu Potiki (Ngāi Tahu, Ngāti Mamoe) says:179

172. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [69]–[83].

¹⁷³ Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [73].

¹⁷⁴ Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [82].

¹⁷⁵ Ko Aotearoa Tēnei, Wai 262, #H11 Benjamin Hippolite at [42].

176. Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tamati Waaka (4 January 2017) at [82]–[84].

¹⁷⁷ The Wairarapa ki Tararua district inquiry, Wai 863, #4.11 Peter Adds p.41.

¹⁷⁸ The Wairarapa ki Tararua district inquiry, Wai 863, #4.11 Peter Adds pp.41–42.

179. Taranaki-Whanganui Conservation Board v Environmental Protection Authority [2018] NZHC 2217, Cultural Values Assessment and Analysis by Tahu Potiki (August 2016) at [7.3].

The residual impact of mana is tapu. Where there is mana, which is god power, the influence creates an effect that is holy or tapu – the residue of gods. Important ancestors were not only tapu as a result of their descent but also their other works that required them to be a vessel or channel for godly activities such as controlling weather, volcanic activity and the seas. Where they ventured, places they named or built would become tapu thanks to the power of their mana.

• 4.84 People are also considered to be particularly tapu at certain times or based on particular actions. For example:
  • Wiremu McMath (Te Rarawa) explains that, when manuhiri (visitors) come onto marae, they are seen to be coming in a state of tapu.180 It is through the singing of waiata that their tapu is removed.
  • Bella Tari (Ngāti Rangi) is of the view that inmates who have committed a crime put themselves in a state of tapu. That tapu is relative to their own mauri and wairua, which is an effect directed to themselves only – their tapu will not affect the area.181
  • Tā Pou Temara (Tūhoe) says that “women are the only ones permitted under tikanga and tapu to sit beside the tūpāpaku. This is because women are the source of tapu, or te puna o te tapu. It is not the men.”182

Wāhi tapu: tapu areas

• 4.85 Te Riaki Amoamo (Te Whakatōhea, Ngāti Patumoana, Ngāti Ruatakenga) describes wāhi tapu as follows:183

‘Wāhi’ is a place or location and ‘tapu’ is commonly defined as sacred. So in simple terms ‘wāhi tapu’ is usually out of bounds to people, at least until such time as the proper karakia ritual is performed. The karakia ritual makes the area noa or free from tapu.

• 4.86 Buddy Mikaere (Ngāti Pūkenga, Ngāti Ranginui) explains wāhi tapu as being “strictly set apart from the daily traffic of normal domestic life. This was due to the tapu or spiritual restriction contained within such places posing danger to people who might, for example, accidentally transgress upon them”.184
• 4.87 Hetaraka Biddle (Ngāi Tamahaua hapū) says:185

I understand wāhi tapu to be a sacred or tapu place, a place where tapu exists whether it is in a traditional or spiritual sense. To Māori, the physical, spiritual and natural world are all linked and wāhi tapu are often sacred because they are sites which keep open our connection to our tīpuna, our atua Māori and our histories.

Wāhi tapu are sites combining Mana Atua, Mana Whenua, Mana Moana, and Mana Tangata through a complex system of tikanga that comes from mātauranga and tikanga within Te Kauae Runga and Te Kauae Raro.

¹⁸⁰ Ko Aotearoa Tēnei, Wai 262, #B9 Wiremu McMath at [17].

181. Beadle and Wihongi v Minister of Corrections, EnvC Wellington A074/2002, Statement of Evidence of Bella Tari (undated) at [10]–[11].

¹⁸² Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [45].

¹⁸³ Re Edwards [2021] NZHC 1025, Third Affidavit of Te Riaki Amoamo (25 January 2022) at [12].

184. Minhinnick v Minister of Corrections [2004] NZEnvC A43/04, Statement of Evidence by Buddy Mikaere (undated) at [18].

¹⁸⁵ Re Edwards [2021] NZHC 1025, Affidavit of Hetaraka Biddle (undated) at [6], [7] and [10]–[12].

...

Wāhi tapu are places within our rohe which we were raised to know about and where we were always taught you need to be respectful and careful around. They are places where we conduct our customary practices and kawa such as karakia to protect those who are visiting the site and to pay our respects to the sacredness of the site as a result of a historical incident or act which might have taken place there including historical battles where there are likely koiwi of those who have passed on still located there.

Wāhi tapu are also places of communication, signals and tohu in respect of events to come that may impact our lives, whenua, awa, moana. Wāhi tapu is a mechanism of safety and protection for the whenua, Ngāi Tamahaua and manuhiri in the spiritual domain.

Wāhi tapū reflects the enduring relationship between Ngāi Tamahaua and sites of special spiritual, cultural and historical significance to us.

• 4.88 The following are examples of wāhi tapu identified in the evidence:
  • Areas associated with the dead:
    • Laly Haddon (Ngātiwai) explains that the Pakiri sands are considered wāhi tapu because a battle, Te Ika a Ranginui, took place there. Many warriors from Ngāpuhi and Ngāti Whātua were slain and buried there.186 This was why Ngātiwai objected to the taking of sand from Pakiri: “Ngātiwai did not understand why their tupuna should be taken away from Pakiri to be spread over Mission Bay to make it look beautiful. Ngātiwai do not wish to see their tupuna taken away, so that tourists may sit on them and watch the Americas Cup.”187
    • Nigel Te Hiko (Raukawa, Waikato-Tainui, Ngāti Tūwharetoa, Ngāti Kauwhata, Ngāti Tukorehe, Ngāti Raukawa ki te Tonga) describes some of their burial caves, which were negatively impacted by the construction of dams:188
      • [T] he steep banks and cliff faces along the Waikato River also contain a number of sites that were traditionally used as burial caves.

These are difficult to talk about with any great specificity though. They were considered very tapu by my elders and so not widely discussed.

The caves were also where the bones of the dead would be secretly interred after a period of time, once the flesh has been removed.

While other places such as rock crevices and gaps in trees were also used to hide bones, caves were particularly important because they often housed the bones of leading rangatira (chieftain). These places were considered as tribal sepulchres, where only the bones of leading rangatira were interred.

Because this is where remains were taken to be ‘hidden’ the very point was that they remained secret and are not recorded.

• Tahu Potiki (Ngāi Tahu, Ngāti Mamoe) similarly explains that various burial sites “such as urupā, rua tūpāpaku and tomo” are examples of wāhi tapu. “Their

¹⁸⁶ Ko Aotearoa Tēnei, Wai 262, #A30 Laly Haddon at [30].

¹⁸⁷ Ko Aotearoa Tēnei, Wai 262, #A30 Laly Haddon at [31].

¹⁸⁸ The Wairarapa ki Tararua district inquiry, Wai 863, #J95 Nigel Te Hiko at [4.1]–[4.5].

association with the dead, particularly those who were of importance or died in important events, meant these areas were not freely accessible.”189

• Pepper Hudson (Ngāi Tamahaua hapū) discusses Ngāi Tama practice regarding tūpāpaku, which were laid in the sand dunes to have the sand flow over – specifically, the areas to let the sand flow over the top. “To us the sand dunes from Tirohanga to Waiaua were urupā.”190 However, Hudson also notes another tikanga practice of hanging tūpāpaku in a pōhutukawa tree.191 Tracy Hillier (Ngāi Tamahaua hapū) reiterates this by noting that the tūpāpaku were hung in the trees until the flesh fell away and they would then be placed in caves often along the coast.”192
• Wiremu McMath (Te Rarawa) speaks of a spiritual pathway that runs throughout Aotearoa that our spirits tread before leaving this world.193 He recognises that “there are many wāhi tapu along the pathway which are sacred to these spirits” and run to “Te Rēinga Wairua” where they depart.194
• In discussing specific wāhi tapu, Tracy Hillier (Ngāi Tamahaua hapū) explains that Tirohanga pā “is the location where Ngariki killed the children of Ngāi Tai and dragged them through the surf and placed them in pits at the Tirohanga pa. There are four urupā in that area and our kōrero is there is a taniwha in the awa known as Tama-Ariki which is said to change from an eel to a shark when it reaches the saltwater.”195 The significance of Tirohanga was the reason Ngāi Tamahaua opposed the original plan for Motu Trails cycle track project as the original trail plans had the track traverse the pā site.196
• Karen Mokomoko (Ngāti Patumoana, Te Upokorehe, Ngāi Tamahaua hapū) identifies Akeake, located at Waiotahe Drifts, as a wāhi tapu due to it being the location of a raid by Ngāti Maru on Te Whakatōhea (the battle of Pāpakanui). The bodies of those killed remain and the area is now an urupā.”197
• Areas associated with ancestors:
  • Tahu Potiki (Ngāi Tahu, Ngāti Mamoe) explains:198

189. Taranaki-Whanganui Conservation Board v Environmental Protection Authority [2018] NZHC 2217, Cultural Values Assessment and Analysis by Tahu Potiki (August 2016) at [8.11].

¹⁹⁰ Re Edwards [2021] NZHC 1025, Affidavit of Pepper Hudson (20 February 2020) at [71].

¹⁹¹ Re Edwards [2021] NZHC 1025, Affidavit of Pepper Hudson (20 February 2020) at [73].

¹⁹² Re Edwards [2021] NZHC 1025, Affidavit of Tracy Francis Hillier (20 February 2020) at [107].

¹⁹³ Ko Aotearoa Tēnei, Wai 262, #B9 Wiremu McMath at [46].

¹⁹⁴ Ko Aotearoa Tēnei, Wai 262, #B9 Wiremu McMath at [47].

195. Re Edwards [2021] NZHC 1025, Affidavit of Tracy Francis Hillier (20 February 2020) at [71]; Affidavit of Toni Cherie Ngoungou-Martin (20 February 2020) at [32] and [33].
196. Re Edwards [2021] NZHC 1025, Affidavit of Tracy Francis Hillier (20 February 2020) at [70]; Affidavit of Toni Cherie Ngoungou-Martin (20 February 2020) at [32] and [33].

¹⁹⁷ Re Edwards [2021] NZHC 1025, Affidavit Karen Stefanie Mokomoko (30 January 2020) at [45] and [66].

198. Taranaki-Whanganui Conservation Board v Environmental Protection Authority [2018] NZHC 2217, Cultural Values Assessment and Analysis by Tahu Potiki (August 2016) at [7.4], [8.2], [8.14] and [8.18].

Behaviour associated with tapu is one of the most culturally persistent beliefs amongst Māori meaning that certain places are avoided or treated with reverence because of traditional associations with powerful ancestors.

The Māori view of the universe also places a hierarchy on descent. This means that those with a more senior whakapapa inherit greater status of power.

To determine exactly what creates wāhi tapu and what does not is somewhat problematic. If it was merely ancestral or association or connection with an ancestor then the entire country could be considered a wāhi tapu but instead there are certain activities or events that lend themselves to this character and, it would be fair to say, in a hierarchical manner.

Kāinga Tawhito or ancient occupation sites were also considered wāhi tapu. A village or fortified site abandoned by the people was often avoided for a generation or longer. This was due to the residual ancestral tapu associated with the area and the potential for harm to the unwitting.

Puna Waiariki, Awa, Roto, Toka, Motu, Mahinga Kai, Ngaherehere, hot springs, rivers and waterways, rock features, islands, hunting grounds, forests and many other geographical features were also imbued with wāhi tapu status dependent on ancestral association and activities. They were often recognised as holding such status but activities surrounding them were less restrictive. More people had greater access to them although some sites may have also been dedicated purely to one family or one chief.

• Apirana Mahuika (Ngāti Porou) talks about how Mount Hikurangi is a sacred mountain upon which rested the canoe and spirits of their ancestors.199
• Certain areas associated with birth and burying of placenta:
  • Genevieve Ruwhiu-Pupuke (Ngāi Tamahaua hapū, Te Whakatōhea) discusses this practice, saying, “The placenta is referred to as whenua. This is because the placenta sustains and nurtures the development of the baby while in the womb, much like the land will once the child is born. ‘Pito’ refers to the remaining umbilical cord that hangs from a baby’s navel. The practice associated with the pito involves burying this with the whenua or in another appropriate location. When buried in separate locations, the purpose is to keep the whakapapa/connections to those places strong, and enhance the kaitiakitanga and rangatiratanga of our Mokomoko whānau.”200 Ruwhiu-Pupuke goes on to say that the places where whenua and pito are buried are sacred or wāhi tapu because the tapu associated with these areas, commonly pā sites, provide the whenua and pito with protection.201
  • Hetaraka Biddle (Ngāi Tamahaua hapū) notes that the caves at wāhi tapu, Te Taiharuru, was one such place used for the burying of pito.202

¹⁹⁹ Ko Aotearoa Tēnei, Wai 262, #G4 Apirana Mahuika at [3.6]–[3.7].

²⁰⁰ Re Edwards [2021] NZHC 1025, Affidavit Genevieve Ruwhiu-Pupuke (30 January 2020) at [21].

201. Re Edwards [2021] NZHC 1025, Affidavit Genevieve Ruwhiu-Pupuke (30 January 2020) at [19] and [20]; Affidavit of Hetaraka Biddle (20 February 2020) at [85]; Affidavit of Tracy Hillier (20 February 2020) at [104].
202. Re Edwards [2021] NZHC 1025, Affidavit of Hetaraka Biddle (20 February 2020) at [85]; Affidavit of Tracy Hillier (20 February 2020) at [104].
     • Areas such as the marae ātea, for example, Roimata Minhinnick (Ngāti Te Ata) points out, “The purpose of the marae ātea, the open space in front of the marae or pā, is where all the ceremonial speeches, welcoming of visitors or challenges were made.”203 This area was considered to be tapu and would always need to remain clear.204 Minhinnick also recognises that whare or kāinga or ceremonial places within old pā or fortifications were said to have varying degrees of tapu. The whare tupuna (ancestral house) would be tapu, not restricting people’s use of the house, but restricting the form of use.205
     • Muriwai Jones (Ngāi Tai) says, “Our wāhi tapu sites play an important part of our culture and traditions. We hold these places in reverence and practice our specific Ngāi Tai kawa and tikanga. Wāhi tapu can include urupā, birthing sites, placenta burial sites, battle sites, sites of old existing pā, midden and archaealogical sites, sources of water, sites of valued natural resources, sites of ritual practices, significant sites attached to tupuna, sites of extreme tragedy.”206
     • Hetaraka Biddle (Ngāi Tamahaua hapū) identifies different types of wāhi tapu areas, including:207
       • landforms that symbolise the identity/whakapapa and creation story of the hapū such as maunga and awa;
       • urupā, burial caves and burial trees;
       • battle sites and areas where there has been a loss of life;
       • pā sites, excavations and middens;
       • sites where the kōiwi, pito or placenta has been placed;
       • areas associated with a tipuna of significance;
       • areas of wānanga tawhito (training) of tohunga and warriors;
       • springs or sources of water used for healing;
       • sites for birthing rituals;
       • sources of water used for death rites;
       • places where baptismal rites were performed;
       • areas where a significant event has occurred;
     • sacred natural resources such as rocks, trees or springs; and
     • water courses, swamps, lakes and their edges.

203. Minhinnick v Minister of Corrections [2004] NZEnvC A43/04, 6 April 2004, Statement of Evidence of Roimata Minhinnick (undated) at [30].
204. Minhinnick v Minister of Corrections [2004] NZEnvC A43/04, 6 April 2004, Statement of Evidence of Roimata Minhinnick (undated) at [30].
205. Minhinnick v Minister of Corrections [2004] NZEnvC A43/04, 6 April 2004, Statement of Evidence of Roimata Minhinnick (undated) at [24].

²⁰⁶ Re Edwards [2021] NZHC 1025, Affidavit of Muriwai Jones (26 January 2022) at [3].

²⁰⁷ Re Edwards [2021] NZHC 1025, Affidavit of Hetaraka Biddle (undated) at [13]; In Affidavit of Tā Hirini Moko Haerewa Mead, Dr Hohepa (Joseph) Mason and Te Kei (O Te Waka) Wirihana Merito (19 May 2020) at [114], relevant sites of significance for Ngāti Awa are identified, which include fishing and resource-gathering places and pā. These areas were significant due to their association with resources, people or events or due to their specific (strategic) location.

• Biddle notes further that today many wāhi tapu are considered “important sites to conduct kawa (protocols) such as karakia as well as being used as tohu (signs) and pou (markers) for fishing spots, gathering kaimoana”.208

• 4.89 In terms of the use of wāhi tapu areas:
  • Houpeke Piripi (Ngātiwai) talks about how there are laws around how and who can use wāhi tapu. He points out that some places are specific to particular whānau and only they can use its resources without risk of retribution.209
  • Wiremu McMath (Te Rarawa) similarly states that only certain people may go to wāhi tapu.210
  • Wallace Wihongi (Ngāti Mahia, Te Uri o Hua, Ngāti Hine) explains that the knowledge about wāhi tapu is passed down from elders. If land is a wāhi tapu, children are instructed by their elders on how to conduct themselves on the land. He gives the example that horses are not ridden over land where tūpuna are buried, but walked. Tapu land is identified and known to all the people.211
  • Arapeta Mio (Ngāi Tai) similarly notes there is knowledge and use of the wāhi tapu along the beach where tūpāpaku were hung in the trees due to the knowledge held and passed on by their koroua as well as the actions of tohunga in removing the tapu.212
  • Dr Te Kei Merito (Ngāti Awa, Ngāti Pūkeko, Ngāti Rangataua, Ngāti Hokopū, Ngāi Tamapare) says:213

The elements or components of wāhi tapu include traditional kōrero tuku iho, wairua and pūrakau. How you treat those wāhi tapu depends on the circumstances. For example, our urupā are considered wāhi tapu. However, that doesn’t exclude us from going there because we have to go there to bury our tūpāpaku. Wāhi tapu does not always imply that entry is necessarily prohibited (but it may mean that certain practices need to be followed).

• 4.90 Nigel Te Hiko (Raukawa, Waikato-Tainui, Ngāti Tūwharetoa, Ngāti Kauwhata, Ngāti Tukorehe, Ngāti Raukawa ki te Tonga) says many of their wāhi tapu “were known to only a very few of our old people and not widely spoken about”.214 Te Hiko goes on to explain that “all our rohe is a wāhi tapu – some sites are simply more tapu in comparison to others”.215 He further clarifies:216

I say this to mean that from the time our ancestors first trod on Pouākani their mauri and tapu infused with the land. Sometimes their engagement left a significant footprint on the

²⁰⁸ Re Edwards [2021] NZHC 1025, Affidavit of Hetaraka Biddle (20 February 2020) at [47].

²⁰⁹ Ko Aotearoa Tēnei, Wai 262, #C2 Houpeke Piripi at [79]–[97].

²¹⁰ Ko Aotearoa Tēnei, Wai 262, #B9 Wiremu McMath at [100].

211. Beadle and Wihongi v Minister of Corrections, EnvC Wellington A074/2002, Statement of Evidence of Wallace Wihongi (undated) at [13].

²¹² Re Edwards [2021] NZHC 1025, Affidavit of Arapeta Mio (14 April 2020) at [53].

213. Re Edwards [2021] NZHC 1025, Joint Brief of Evidence of Dr Te Kei (O Te Waka) Wirihana Merito and William Bruce Stewart (24 January 2022) at [28].

²¹⁴ The Wairarapa ki Tararua district inquiry, Wai 863, #J95 Nigel Te Hiko at [2.9].

²¹⁵ The Wairarapa ki Tararua district inquiry, Wai 863, #J95 Nigel Te Hiko at [1.6].

²¹⁶ The Wairarapa ki Tararua district inquiry, Wai 863, #J95 Nigel Te Hiko at [1.7].

land e.g. settlements, urupā and cultivations. A number of these withstood the passing of time and physical traces of their existence remain today. In other cases the engagement between the tūpuna and the land is so subtle that they are only remembered in tradition

e.g. walking tracks, watercress spots and bird hunting places are a few examples.

• 4.91 Louis Rapihana (Te Whakatōhea, Te Whānau-ā-Apanui, Ngāi Tama, Ngāti Rua, Ngāti Patu, Ngāti Ngāhere) in his evidence emphasises that “one of the distinguishing features of a wāhi tapu is that its location and boundaries were identifiable so that people would know to avoid the area. Sometimes tohu (signs) or kōrero (statements) were used to define a wāhi tapu area. A wāhi tapu must have identifiable boundaries so that it can be protected from inappropriate uses and access. It is not possible to protect a wāhi tapu if nobody knows where the boundaries are.”217 Rapihana goes on to say:218

Wāhi tapu areas were traditionally kept very separate from areas where fishing, kaimoana collection and other daily activities were performed because such activities are noa (common or ordinary), and never exercised in the same area as a wāhi tapu (sacred place). This is why you will rarely find wāhi tapu in coastal areas where there is lots of movement of people for fishing or transport, such as river mouths. If there are wāhi tapu are present in such areas, they will have clearly defined boundaries so that people can avoid them and continue to use the kai gathering or travel routes that were essential to the everyday functioning of traditional Māori life.

• 4.92 The position that wāhi tapu are rare along the coast, however, is not universal. The evidence of Tahu Potiki (Ngāi Tahu, Ngāti Mamoe), for example, is that wāhi tapu ki te Moana or sacred sites on the water and coast were “a common occurrence”.219
• 4.93 Dr Te Kei Merito (Ngāti Awa, Ngāti Pūkeko, Ngāti Rangataua, Ngāti Hokopū, Ngāi Tamapare) describes the term “Horanuku Tongarewa” to signify “unique cultural landscapes”.220 He goes on to say “all of our wāhi tapu and Horanuku Tongarewa have their own levels of tapu and this may increase depending on different circumstances”.221
• 4.94 Te Iwi Moriori Trust Board discusses wāhi tapu in the context of mana whenua, stating that they are “sign posts on the land and in the sea by which Moriori define ourselves and our tikanga. To claim or assert as some do that Moriori mana does not remain on and in the land, is to ignore all of these essential characteristics of tikanga Moriori. The Land Court decisions did not and could not remove these things from the land. They are timeless. They are immutable.”222
• 4.95 Tahu Potiki (Ngāi Tahu, Ngāti Mamoe) recognises variation between iwi as to how tapu particular areas might be. He explains that “Maunga Tapu or sacred mountains are also considered wāhi tapu but the levels of restriction appear to vary across iwi. Some required

²¹⁷ Re Edwards [2021] NZHC 1025, Affidavit of Louis Agassiz Schenker Rapihana (31 March 2022) at [5.1].

²¹⁸ Re Edwards [2021] NZHC 1025, Affidavit of Louis Agassiz Schenker Rapihana (31 March 2022) at [4.3].

219. Taranaki-Whanganui Conservation Board v Environmental Protection Authority [2018] NZHC 2217, Cultural Values Assessment and Analysis by Tahu Potiki (August 2016) at [9.1].

²²⁰ Re Edwards [2021] NZHC 1025, Joint Brief of Evidence of Dr Te Kei (O Te Waka) Wirihana Merito and William Bruce Stewart (24 January 2022) at [30].

221. Re Edwards [2021] NZHC 1025, Joint Brief of Evidence of Dr Te Kei (O Te Waka) Wirihana Merito and William Bruce Stewart (24 January 2022) at [30].

²²² Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), “Rekohu (Chatham Islands) Submission to Te Ohu Kai Moana on Proposed Models of Allocation for Pre-settlement Assets” at 8.

absolute reverence whilst others were proud identity markers imbued with cultural story and personification.”223

• 4.96 Tā Pou Temara (Tūhoe) emphasises the centrality of tohunga to wāhi tapu:224

[T]here are varying levels, contexts and conditions of wāhi tapu for Māori and they also vary from hapū to hapū, and iwi to iwi. Wāhi tapu are places that are sacred for spiritual reasons and are protected by tikanga and karakia rituals performed only by Tohunga. They are sacred because the Gods have placed tapu there before us, the deceased are buried there, kaitiaki or taniwha reside there or a significant event or deed by an ancestor has happened there.

It is for those Tohunga to determine what is a wāhi tapu and what is not.

• 4.97 Louis Rapihana (Te Whakatōhea, Te Whānau-ā-Apanui, Ngāi Tama, Ngāti Rua, Ngāti Patu, Ngāti Ngāhere) also discusses the role of tohunga:225

The boundaries of a wāhi tapu are set by the tohunga who places the tapu over the wāhi to make it a wāhi tapu in the first place. The knowledge of the boundaries are then passed on from generation to generation, and maintained in the present day by the tohunga who hold mana over an area. These are the people you call when you have an issue such as the discovery of koiwi, to come and perform the necessary rituals to deal with the tapu.

...

For other types of wāhi tapu arising from a pakanga (battle) or a tragedy involving the loss of life, the locations of the wāhi tapu are recognised by the people with lived experience of those events and passed on through the generations. However the boundaries of the wāhi tapu resulting from those events are still set and maintained by the tohunga. This is necessary so that people can be made aware of where the wāhi tapu is and avoid that area. It could be considered as a type of traditional land management process, keeping that which is tapu away from that which is noa.

The tohunga who are left today still perform these wāhi tapu management responsibilities. These include putting wāhi tapu boundaries in place, lifting tapu from wāhi that may need to be used for noa activities, maintaining and protecting wāhi tapu from inappropriate uses and acting as knowledge keepers for wāhi tapu locations.

Rāhui

• 4.98 Te Riaki Amoamo (Te Whakatōhea, Ngāti Patumoana, Ngāti Ruatakenga) describes rāhui as “a general tikanga concept used widely by all Māori. Rāhui is a temporary ban on an area that is placed by Tohunga”.226 He goes on to say, “The ritual of placing rāhui takes many forms in Whakatōhea but generally a special karakia is performed by Tohunga and everyone is aware of the boundary placed and how it should be respected.”227

223. Taranaki-Whanganui Conservation Board v Environmental Protection Authority [2018] NZHC 2217, Cultural Values Assessment and Analysis by Tahu Potiki (August 2016) at [8.16].

²²⁴ Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [62] and [63].

²²⁵ Re Edwards [2021] NZHC 1025, Affidavit of Louis Agassiz Schenker Rapihana (31 March 2022) at [4.1], [4.4] and [4.5].

²²⁶ Re Edwards [2021] NZHC 1025, Third Affidavit of Te Riaki Amoamo (25 January 2022) at [34].

²²⁷ Re Edwards [2021] NZHC 1025, Third Affidavit of Te Riaki Amoamo (25 January 2022) at [34].

• 4.99 Tā Hirini Moko Mead (Ngāti Awa) and Tā Pou Temara (Tūhoe) describe a rāhui as a ”means of prohibiting specific human activity from occurring through the use of tapu”.228
• 4.100 Rikirangi Gage (Te Whānau-ā-Apanui, Ngāti Porou) explains:229

A rāhui is a form of tapu and can be set up for either conservation, economic, social or political purposes.

The placing of a rāhui is a common practice in Whānau a Apanui and is a practice that has continued throughout the generations long before 1840. Rāhui is a tikanga mechanism adopted by Te Whānau a Apanui to regulate access to and activities within Whānau a Apanui rohe, often in response to an event. The placement of rāhui and subsequent adherence to rāhui is a sign of Whānau a Apanui mana in the area.

• 4.101 Two of the main categories discussed by witnesses were rāhui related to death230 and conservation.231
• 4.102 Te Rua Rakuraku and Donald Kurei (both Te Whakatōhea, Ngāti Ira) explain:232

Rāhui is a pivotal part of our role as Kaitiaki of the moana which protects our relationships to particular territories but also ensure the enduring connections to the spiritual realm to ensure our earthly protection. Rāhui is thus a form of tikanga and a form of tapu prohibiting or preventing access to, or use of, an area or resource by the kaitiakitanga of the area while at the same time recognising the interconnection of the past to the future.

In respect to our takutai moana, Rāhui has always been an important aspect of tikanga. They are imposed to embrace extensive area’s (the whole coastal area) or sometimes, they would only embrace specific areas. Our Tīpuna Muriwai exercised her mana when she placed a rāhui from Ngā Kuri a Whārei to Tihirau when her twin sons drowned near Tauranga. This prohibited the taking of kaimoana within these coastal boundaries.

Rāhui were typically set down for reasons including a perceived need for conservation of food resources or because the area concerned is in a state of ‘tapu’, due for example, to a recent death in the area, out of respect for the dead and to prevent the gathering of food there for a specific period.

²²⁸ Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [43]; Danny Craven Pohipi in his affidavit of 21 February 2020 reiterates this noting that rāhui “makes an area and/or its resources tapu” at [57].

²²⁹ Re Edwards [2021] NZHC 1025, Affidavit of Te Kou Rikirangi Gage (21 February 2020) at [131]–[132].

²³⁰ Muriwhenua Fishing Report, Wai 22, #B57 Niki Kanara, Piri Paraone and Ratima Petera at [5]. Re Edwards [2021] NZHC 1025, Third Affidavit of Te Riaki Amoamo (25 January 2022) at [35]. Re Tipene [2016] NZHC 3199, Pūkenga’s Report of Jane Ruby Karina Davis (undated) at [40]. Re Edwards [2021] NZHC 1025, Joint Brief of Evidence of Dr Te Kei (O Te Waka) Wirihana Merito and William Bruce Stewart (24 January 2022) at [32]. Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Primary statement of evidence of Rereamanu Wihapi (22 December

2016) at [21]. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [43]. Re Edwards [2021] NZHC 1025, Affidavit of Muriwai Jones (26 January 2022) at [18]; Affidavit of

Danny Craven Pohipi (21 February 2020) at [57]; Affidavit of Arapeta Mio (14 April 2020) at [37].

231. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Statement of Evidence of Wikitōria Hepi- Te Huia (1 May 2017) at [2.4]. Re Tipene [2016] NZHC 3199, Pūkenga’s Report of Jane Ruby Karina Davis (undated) at [40]. Muriwhenua Fishing Report, Wai 307, #B30 Reverend Harold Petera at p.2. Re Edwards [2021] NZHC 1025, Joint Brief of Evidence of Dr Te Kei (O Te Waka) Wirihana Merito and William Bruce Stewart (24 January 2022) at [32]. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [43]. Re Edwards [2021] NZHC 1025, Affidavit of Muriwai Jones (26 January 2022) at [18]; Affidavit of Danny Craven Pohipi (21 February 2020) at [57]; Affidavit of Arapeta Mio (14 April 2020) at [37]; Affidavit of David Peters (24 July 2020) at [10].
232. Re Edwards [2021] NZHC 1025, Joint affidavit of Te Rua Rakuraku and Donald Kurei (21 January 2022) at [22]–[24]. See also Affidavit of Te Rua Rakuraku (19 February 2020) at [54].

• 4.103 Hetaraka Biddle (Ngāi Tamahaua hapū) notes, “There are different types of rāhui. Some are used to warn people against trespassing, some are to mark tapu areas where for example a death may have occurred, and some, are for temporary protection of kaimoana where some species are few ... If there is a rāhui over a particular area, every activity along the Takutai moana stops including the gathering of kaimoana.”233
• 4.104 Biddle also discusses pou rāhui, which were used to set boundaries within hapū and whānau regarding the land. He notes, “These could be for different lengths of time and could change over time. Some of the historical pou rāhui are still observed by hapū members who know about them today.”234
• 4.105 Donald Kurei (Te Whakatōhea, Ngāti Ira) notes that rāhui is a “normal practice of kaitiakitanga for us and is our obligation as mana whenua. A rāhui is placed when a person or people die in the sea and have not been found, when a natural disaster happens that disrupts and stirs the sea, or when there is a need to replenish food stocks or resources in a particular area.”235 Kurei further notes:236

We as Tohunga Tikanga in Whakatōhea all make decisions together on Rāhui for the benefit and safety of all. We have always asserted our mana moana and kaitiakitanga and that will never change.

We would never place a rāhui on areas we do not govern, manage or look after. For example Ngāti Ira would not go and place a Rāhui in areas that belong to Whānau Apanui and vice versa. However, when one has been placed, we respect it and let all the people know where it has been placed.

• 4.106 Rehua Smallman (Ngāti Pūkenga) discusses the general process for laying down a rāhui:237

The decision to impose a rāhui is normally taken by the senior kaumatua of the iwi taking into account the nature and timing of the event which has precipitated the need for a rāhui imposition. The kaumatua may or may not consult with other hapū and iwi but normally the decision is of their own initiative reflecting their responsibility to their own people in the first instance. The decision is normally taken at a hui called for the purpose and will include the normal hui protocols of mihimihi to the attendees and appropriate karakia.

• 4.107 In relation to death, Te Riaki Amoamo (Te Whakatōhea, Ngāti Patumoana, Ngāti Ruatakenga) tells the story of the rāhui placed by Muriwai:238

The first known rāhui was set down by Muriwai following the drowning of her sons Tane Whirinaki and Koau. They were never found and so she imposed the Rāhui across the entire Mataatua rohe from Kaitiaki in the western end of Bay of Plenty to Tihirau in the east and quoted to be: “Mai i ngā kuri a Whārei ki Tihirau”.

It was believed that the death of both of her sons was a direct result of her breaking the tapu when she saved the Mataatua waka from drifting out to sea and uttered the words: “Kia tū Whakatāne ake ahau”. “Make my stance that as a man.”

233. Re Edwards [2021] NZHC 1025, Affidavit of Hetaraka Biddle (20 February 2020) at [110]–[113]; Affidavit of Kayreen Tapuke (20 February 2020) at [54] and [58].

²³⁴ Re Edwards [2021] NZHC 1025, Affidavit of Hetaraka Biddle (20 February 2020) at [47].

²³⁵ Re Edwards [2021] NZHC 1025, Affidavit of Donald Ati Kurei (19 February 2020) at [46].

²³⁶ Re Edwards [2021] NZHC 1025, Affidavit of Donald Ati Kurei (19 February 2020) at [47] and [48].

²³⁷ Re Reeder on behalf of Ngā Pōtiki [2021] NZHC 2726, Affidavit of Rehua Tom Smallman (7 July 2020) at [48].

²³⁸ Re Edwards [2021] NZHC 1025, Affidavit of Te Riaki Amoamo (25 January 2022) at [35]–[37].

From then on Muriwai lived in isolation from her people and confined herself to a cave until her death. The cave was named ‘Te ana a Muriwai’ or ‘The cave of Muriwai’ and whilst the tapu was lifted with a karakia by Ngāti Awa in 1970’s the cave was opened to the general public to view. The cave is still considered sacred to her memory and therefore eating and drinking is not permitted.

• 4.108 Amoamo goes on to give the more recent example when “a Rāhui was imposed by the iwi and hapū after the eruption of Whakaari on 9 December 2019 which resulted in 21 fatalities. A Rāhui was placed prohibiting fishing, diving, collecting or harvesting food for the duration of the Rāhui ... [this] was supported by other tohunga Ringatū on the day.”239 Amoamo provides additional insight:240

More recently, the eruption at Whakaari in December 2019 resulted in a rāhui being imposed on the ocean for some weeks afterwards, extending from the tribal areas of Te Whānau a Apanui and Whakatohea across to Ngāti Awa. The karakia to lift the tapu were performed on 27 December 2019, and I was asked to lead the karakia for Whakatōhea. We were taken out to sea in a boat. I was asked to say a karakia on the wharf at Whakatāne before we left, and I said no because we were within Ngāti Awa’s rohe.

• 4.109 Tā Hirini Moko Mead (Ngāti Awa) and Tā Pou Temara (Tūhoe) also draw on the example of the rāhui placed as a response to the eruption of Whakaari White Island on 9 December 2019 in their evidence.241 They recall “a number of iwi initially placed a total ban on all maritime activities in the ocean (including swimming), this was then later changed to a ban only on fishing and the gathering of seafood”.242 They note that, even though “the Eastern Bay of Plenty is a strong beach and ocean based community, people overwhelmingly respected the rāhui. This is the case despite the rāhui having a negative commercial and fiscal impact on businesses and affecting usual pre-Christmas and holiday ocean activities.”243
• 4.110 Also in response to this same event, Dayle Takitimu (Te Whānau-ā-Apanui) explains that what may not have been visible to the outside world was that there was an internal tribal process for Te Whānau-ā-Apanui to place a rāhui over their tribal marine space.244 She states that each hapū had to declare the rāhui under their own mana.245 “As it was an emergency situation, not all hapū were able to effect their internal processes at the same pace; so some hapū very early on (the afternoon of the eruption) declared the rāhui in accordance with their customs, whilst others attended it to as soon as they were able.”246

²³⁹ Re Edwards [2021] NZHC 1025, Affidavit of Te Riaki Amoamo (25 January 2022) at [38].

²⁴⁰ Re Edwards [2021] NZHC 1025, Affidavit of Te Riaki Amoamo (3 August 2020) at [6.3].

241. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [46]–[47]. This was also referenced in the Affidavit of Tā Hirini Moko Haerewa Mead, Dr Hohepa (Joseph) Mason and Te Kei (O Te Waka) Wirihana Merito (19 May 2020) at [118] as a recognition of the ongoing mana of Ngāti Awa over Whakaari.

²⁴² Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [46].

²⁴³ Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [47].

²⁴⁴ Re Edwards [2021] NZHC 1025, Affidavit of Dayle Lianne Takitimu (24 February 2020) at [77].

²⁴⁵ Danny Pohipi (Te Whānau-ā-Apanui) also used this rāhui as an example of the exercise of mana (see Affidavit of Danny Craven Pohipi (21 February 2020) at [59]–[61]).

²⁴⁶ Re Edwards [2021] NZHC 1025, Affidavit of Dayle Lianne Takitimu (24 February 2020) at [71].

• 4.111 Robert Edwards (Te Whakatōhea) also discusses the rāhui at Whakaari in the context of the commercial mussel farm that lies between the coastline and Whakaari. Harvesting of mussels was scheduled at the time the volcanic eruption happened. However, due to the rāhui, this could not proceed. Edwards explains that, to save the mussels, which were at risk of sinking to the bottom of the ocean, extra floats were put in place to enable the mussels to remain near the surface. Ngāti Awa agreed to enable the extra floats to be put in place so long as harvesting did not occur.247 The tikanga conducted during the time the extra floats were being put in place involved a tohunga conducting karakia to cleanse the moana as well as to bless the structures of the mussel lines and crew.248
• 4.112 More generally, Dayle Takitimu (Te Whānau-ā-Apanui) also talks about the power of a death-related rāhui.249 She explains, “Our custom requires that the intensity of the tapu be acknowledged and given time to dispel. There are ample precedents of this within our tribal history, and it is a fairly well known, well accepted and settled tikanga. I cannot recall an instance where a rāhui has been put on, by a hapū or by the entire iwi acting in confederation, and then breached. They are almost universally respected, within the iwi and by outsiders.”250 Takitimu notes further that, during a rāhui, they “do not usually go on the water or within the sea. Most definitely the taking of kaimoana is prohibited. Some hapū only permit certain classes of people to search or access the beachfront during rāhui, it being considered to have the same tapu intensity as an urupā at those times.”251
• 4.113 Niki Kanara (Te Aupōuri, Ngāti Kuri), Piri Paraone (Ngāti Kuri) and Ratima Petera (Te Aupōuri, Ngāti Kuri) say that “when someone drowns at a particular place the spot is prohibited for fishing. No sea-food is taken until ‘Tangaroa’ returns the dead. Only then can tapu be lifted. Indeed, three months must pass.”252
• 4.114 Te Kahautu Maxwell (Te Whakatōhea, Te Whānau-ā-Apanui, Ngāi Tai, Ngāti Awa, Tūhoe, Ngāti Porou, Ngāti Maniapoto) recounts multiple examples of rāhui, one being:253

In Ōpōtiki, Te Whakatōhea a rāhui was placed by lrākewa the ariki of the Pākihikura waka that landed at the of the confluence of the Ōtara and Tamatea (Waioweka) awa which is known by the name Pākihikura. lrākewa is the father of Toroa the ariki of Mataatua waka and Muriwai the ariki tapairu and sister of Toroa. In the hinterland is a forest area also known as Pākihikura named after the waka. It is said lrākewa placed a rāhui on both the foreshore and the forest this rāhui was known as “Piikihikura ki uta, Pākihikura ki tai’’, meaning Pākihikura inland and Pākihikura at sea. This rāhui claimed the mana of that area for lrākewa and the people of the waka Pākihikura.

• 4.115 Genevieve Ruwhiu-Pupuke (Ngāi Tamahaua hapū, Te Whakatōhea) notes, “Te Whānau a Mokomoko still adhere to the traditional timeframe of a rāhui – being three months. We

²⁴⁷ Re Edwards [2021] NZHC 1025, Affidavit of Robert Edwards (21 February 2020) at [16] and [17].

²⁴⁸ Re Edwards [2021] NZHC 1025, Affidavit of Robert Edwards (21 February 2020) at [27].

²⁴⁹ Re Edwards [2021] NZHC 1025, Affidavit of Dayle Lianne Takitimu (24 February 2020) at [71].

²⁵⁰ Re Edwards [2021] NZHC 1025, Affidavit of Dayle Lianne Takitimu (24 February 2020) at [71]–[72].

²⁵¹ Re Edwards [2021] NZHC 1025, Affidavit of Dayle Lianne Takitimu (24 February 2020) at [80].

²⁵² Muriwhenua Fishing Report, Wai 22, #B57 Niki Kanara, Piri Paraone and Ratima Petera at 5.

²⁵³ Re Reeder on behalf of Ngā Pōtiki [2021] NZHC 2726, Affidavit of Te Kahautu Maxwell (7 August 2020) at [140].

practice this along our entire coastline/takutai moana in times of significant disruption, need or tragedy.”254

• 4.116 There are also examples of rāhui being placed for longer periods of time:
  • Wikitōria Hepi-Te Huia (Ngāti Tahu) describes a rāhui that was placed as a result of the death of Paora Matenga at Rotokawa in 1867. A tohunga placed a tapu on the lake for five years.255 This meant that alternative locations for mahinga kai needed to be sourced during that time, and “maintaining whanaungatanga or good neighbourly relations” were important for access.256
  • Danny Pohipi (Te Whānau-ā-Apanui) notes a rāhui put in place for five years on all fishing grounds in Maraenui by Te Whānau-ā-Apanui following the tragic death of 16 children and two adults in the Mōtū River.257 Today, a permanent rāhui applies over the Mōtū River with food gathering and fishing being prohibited every Saturday and on the 12th of every month.258
  • Ngarimu Blair (Ngāti Whātua Ōrākei) says, “Ngāti Whātua to this day are forbidden to eat this fish [Araara or Trevally fish] given Rongomai, the captain of their founding waka, Mahuhu-Ki-Te-Rangi, was eaten in the Kaipara by the Araara following his drowning there.”259
• 4.117 In relation to conservation, Dr Te Kei Merito (Ngāti Awa, Ngāti Pūkeko, Ngāti Rangataua, Ngāti Hokopū, Ngāi Tamapare) and William Stewart (Waikato, Taranaki, Ngāti Kahungunu, Ngāti Awa, Te Whānau-ā-Apanui, Ngāti Ranginui, Te Rarawa) explain that “rāhui were also a mechanism our old people used to help kaimoana [seafood] resources to flourish. It was a form of control.” Jane Davis (Ngāi Tahu) discusses the various types of rāhui that have been placed on tītī (muttonbird) and a rāhui on cutting down rātā trees.260
• 4.118 Whaimutu Dewes (Ngāti Porou, Ngāti Rangitihi) describes a rāhui placed in the late 1990s:261

In the sense that mana moana describes the authority which a descent group be it whanau hapū or other level, exercises and the guardianship which it has responsibility for particular sea maritime resources, yes I think [rāhui] does fall within that.

²⁵⁴ Re Edwards [2021] NZHC 1025, Affidavit of Genevieve Ruwhiu-Pupuke (30 January 2020) at [32]–[34]. In her affidavit, Ruwhiu-Pupuke notes that rāhui is placing of restrictions over an area or restricting use and access to an area. It usually follows a significant natural event such as “a natural disaster, the bloom of algae ... a decline in the number of fish or shellfish ... the beaching of whale or other sea creatures; a human death or disappearance; or a significant event within or near the area that warrants a rāhui.” She refers to the rāhui of Muriwai as the first significant rāhui, which followed the death of her two sons.

²⁵⁵ Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Statement of Evidence of Wikitōria Hepi- Te Huia (1 May 2017) at [2.8].

²⁵⁶ Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Statement of Evidence of Wikitōria Hepi- Te Huia on behalf of Tauhara North No.2 Trust (1 May 2017) at [2.8].

²⁵⁷ Re Edwards [2021] NZHC 1025, Affidavit of Danny Craven Pohipi (21 February 2020) at [110]–[113].

²⁵⁸ Re Edwards [2021] NZHC 1025, Affidavit of Danny Craven Pohipi (21 February 2020) at [115].

²⁵⁹ Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Ngarimu Alan Huiroa Blair (2 June 2020) at [33].

²⁶⁰ Re Tipene [2016] NZHC 3199, Pūkenga’s Report of Jane Ruby Karina Davis (undated) at [40].

261. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Notes of Evidence (Whaimutu Dewes) at 484.

Just prior to this Christmas gone, the pakeke of Te Whānau-ā-Hunāra which is a priceless but very small community on the East Cape were so worried about the effects of various environmental and harvesting practices on their seafood resources that they in their own traditional mana placed a rāhui from the mouth of the Awatere River to the East Cape Point and that applied to all people in the taking of all of the shellfish and seafood in that area. Although a number of them came under some severe criticism it was observed with one exception and that particular person did attend a hui called by the pakeke and gave what amounts to an apology for having broken the rāhui so it was a very recent example of the guardianship being put in action.

• 4.119 Tā Hirini Moko Mead (Ngāti Awa) and Tā Pou Temara (Tūhoe) give an example of the environmental rāhui placed by Te Kawerau ā Maki over the Waitākere forest in late 2017 in response to the threat of kauri dieback disease:262

This [rāhui] was unilaterally imposed in response to perceived central and local government inaction, to ensure the risks to kauri were mitigated until effective and appropriate research, planning and remedial work was completed.

The rāhui on the Waitākere ranges was generally respected and followed by the entire community. This was for a variety of reasons including the practice of rāhui becomingly increasingly known and the rangatiratanga (authority) or the iwi being respected. However, it was also because the principles behind the rāhui of kaitiakitanga (guardianship) and environmental protection was clearly conveyed and supported by the community. Kaitiakitanga was an ethic and principle that people could understand and that resonated.

• 4.120 Rikirangi Gage (Te Whānau-ā-Apanui, Ngāti Porou) explains:263

During rāhui no kaimoana is to be taken and the sea is considered tapu. The placement of rāhui by Te Whānau a Apanui and its constituent hapū is not lightly exercised, due to the iwi’s heavy reliance on the sea. Rāhui are often placed when there is a depletion of kaimoana. The hapū in question might notice that stock is depleting and will place a sign in the area restricting kaimoana gathering. Rāhui are immediately placed by hapū following drownings [or] disasters such as the ‘Rena’ ship disaster off the coast of Tauranga. Following the shipwreck there was a ban on taking shellfish from certain sea regions including Whānau a Apanui areas.

• 4.121 Dayle Takitimu (Te Whānau-ā-Apanui) gives examples of rāhui that “regulate environmental integrity or fish/seafood stocks” placed at the “instruction of elders” including:264
  • particular mussel rocks being prohibited from take for a season;
  • regulation on the size of a catch or take (i.e. designated kete designs made to a specified size in accordance with tradition);
  • designation of certain rocks/areas for certain whānau or classes of people (i.e. rocks reserved for kuia and kaumātua);
  • regulation as to how a species may be caught (i.e. season/methodology, protocols, even how you prepare and eat it); and

262. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [44]–[45].

²⁶³ Re Edwards [2021] NZHC 1025, Affidavit of Te Kou Rikirangi Gage (21 February 2020) at [134]–[136].

²⁶⁴ Re Edwards [2021] NZHC 1025, Affidavit of Dayle Lianne Takitimu (24 February 2020) at [73].

• how waste is returned to the environment.

• 4.122 Maggie Ryland (Ngāti Porou) sets out various categories of rāhui, including:265
  • restricting areas to regulate harvesting over threatened areas, prevent commercial encroachments into kāpata kai, limit the catch of endangered species and prevent diving apparatus and set nets over wāhi tapu;
  • reserves, including education research (open closed seasons), wāhi tapu (where restrictions are applied), spawning grounds (that have open and closed seasons) and nurseries (that have infinite rāhui);
  • prohibited areas, including recovery programmes (to observe the natural process), rotation harvest, pollution-affected areas and death by drowning; and
  • protected areas, including wāhi tapu, rua ngōiro, rua taniwha, pake taniwha, ngā toka tapu and taunga ika tapu.
• 4.123 Te Kei Merito (Ngāti Awa, Ngāti Pūkeko, Ngāti Rangataua, Ngāti Hokopū, Ngāi Tamapare) and William Stewart (Waikato, Taranaki, Ngāti Kahungunu, Ngāti Awa, Te Whānau-ā- Apanui, Ngāti Ranginui, Te Rarawa) provide the example of rāhui that were placed to areas that were considered dangerous for people to swim.266 It was therefore a rāhui designed to protect people.
• 4.124 Colin Reeder (Ngā Pōtiki) discusses the importance of instinctual knowledge when it comes to preventing the need for rāhui in the Rangataua rohe. For example, he states, “I have never experienced an overt declaration of rāhui over the Rangataua. The reason for this is that we, as Ngā Pōtiki, instinctively know the tikanga of Rangataua, we know that it is not permitted to fish and collect kaimoana around Karikari urupa, as this is a tapu area; we know that we cannot swim in the harbour when someone has drowned nearby; we know not to take kai moana that is too small. These are basic tikanga that are instilled in us at a very young age, to the point that they become instinctual. Therefore, overt declarations of rāhui have not yet been required.”267
• 4.125 Louis Rapihana (Te Whakatōhea, Te Whānau-ā-Apanui, Ngāi Tama, Ngāti Rua, Ngāti Patu, Ngāti Ngāhere) says, “The placing of a rāhui over any area whether it is for recovery of a certain type of kaimoana (such as pipi bed) or because of a drowning, is always a temporary placing of tapu. Rāhui are not intended to be permanent. Once the temporary purpose for which a rāhui is placed is completed, the tapu is lifted and the place returns to its former state which is noa.”268 Rapihana goes on to clarify that it is up to the tohunga to determine the timeframes of a rāhui:269

It is the tohunga who make these decisions on when to place a rāhui, how long to leave the rāhui in place for, and when to lift the rāhui. Rāhui can go for a short period of time such as a few weeks, or much longer, even years, if the tohunga decide for example that shellfish gathering needs to stop in order to let the stocks recover. However, once the purpose for

²⁶⁵ Ko Aotearoa Tēnei, Wai 262, #E6 Maggie Ryland at [4].

266. Re Edwards [2021] NZHC 1025, Joint affidavit of Dr Te Kei O Te Waka Wirihana Merito and William Bruce Stewart dated 24 January 2022 at [32].

²⁶⁷ Re Reeder on behalf of Ngā Pōtiki [2021] NZHC 2726, Affidavit of Colin Francis Reeder (6 July 2020) at [60].

²⁶⁸ Re Edwards [2021] NZHC 1025, Affidavit of Louis Agassiz Schenker Rapihana (31 March 2022) at [7.2].

²⁶⁹ Re Edwards [2021] NZHC 1025, Affidavit of Louis Agassiz Schenker Rapihana (31 March 2022) at [7.3].

the rāhui is concluded, the tapu is lifted and the area goes back to being noa. It does not remain a wāhi tapu.

• 4.126 Muriwai Jones (Ngāi Tai) also places emphasis on tohunga where she says, “From time to time Ngāi Tai have placed rāhui over the takutai moana. Rangatira would consult with tohunga as to the details of the rāhui. Once the tapu was in place for rāhui only the tohunga could lift it. It applied to all, whether of the iwi or not.”270
• 4.127 Te Rua Rakuraku (Te Whakatōhea, Ngāti Ira) states, “Tohunga and Pou Tikanga are the ones who set down Rāhui on behalf of the hapū and iwi. This right is given to Tohunga firstly because of their whakapapa and secondly, because of their understanding and knowledge of the kind of tapu that is involved in the process of setting down Rāhui. We as Tohunga or Pou Tikanga in Whakatōhea all make decision on Rāhui for the benefit and safety of all.”271
• 4.128 Tracy Hillier (Ngāi Tamahaua hapū) states that the imposition of rāhui rested with the rangatira of the hapū. Following an event, the rangatira would be contacted and they would perform specific karakia at the relevant site. Following this, the hapū and community where the rāhui was located would be notified.272
• 4.129 Te Ringahuia Hata (Ngāti Patumoana) discusses rāhui in the context of taonga:273

Tāonga are both tangible and intangible treasures of Māori. All relationships and resources based on these relationships and connectedness Māori have to the land, sea and environment are the tāonga that we maintain and protect.

Our Tikanga, or customs, laws and protocols, to protect tāonga are actively practiced by the concept of rāhui.274

The purpose of Rāhui is to uphold the Tikanga of Kaitiakitanga of our tāonga, to actively protect the mana, integrity and life force of the Hinemoana and Papamoana and every being that resides within her womb and bosom.275

Ngāti Patu tohunga would place Rāhui on the sea (or rivers) concerned whenever a drowning would occur. They would discuss the Rāhui with other hapū affected and neighbouring iwi who are involved and their Kaitiakitanga would be supported in the placing and removal of a Rāhui.276

In general, a special karakia is recited by a Tohunga, however depending on the kind of Rāhui to be instated, a Pou Rāhui would be erected in the area. This was a physical reminder that a Rāhui was placed in the area and warned people against trespassing.277

²⁷⁰ Re Edwards [2021] NZHC 1025, Affidavit of Muriwai Jones (26 January 2022) at [17].

²⁷¹ Re Edwards [2021] NZHC 1025, Affidavit of Te Rua Rakuraku (19 February 2020) at [57].

272. Re Edwards [2021] NZHC 1025, Affidavit of Tracy Francis Hillier (20 February 2020) at [97]; Affidavit of Kayreen Tapuke (20 February 2020) at [55].

²⁷³ Re Edwards [2021] NZHC 1025, Affidavit of Te Ringahuia Hata (29 January 2020) at [98].

²⁷⁴ Re Edwards [2021] NZHC 1025, Affidavit of Te Ringahuia Hata (29 January 2020) at [102].

²⁷⁵ Re Edwards [2021] NZHC 1025, Affidavit of Te Ringahuia Hata (29 January 2020) at [103].

²⁷⁶ Re Edwards [2021] NZHC 1025, Affidavit of Te Ringahuia Hata (29 January 2020) at [107].

²⁷⁷ Re Edwards [2021] NZHC 1025, Affidavit of Te Ringahuia Hata (29 January 2020) at [109].

Tapu of knowledge

• 4.130 In addition to people, the natural world and places, Himiona Munroe (Ngātiwai) emphasises the tapu nature of some forms of knowledge such as knowledge held by tohunga,278 which was fiercely guarded and was not passed on unless an appropriate person was identified.279
• 4.131 Tā Pou Temara (Tūhoe) explains, “Esoteric and spiritual knowledge is knowledge that is restricted or tapu and only the sagacious few, the elite, are privy to that knowledge. In the Māori world this elite are the known as Tohunga.”280
• 4.132 Particular expressions of mātauranga Māori are also held to be tapu. Puhanga Tupaea (Ngāti Koata, Ngāti Kuia), for example, talks about certain Māori art and icons as being tapu. She explains that it is desecration to use these on tea towels as it mixes the tapu of designs with the noa of food.281

Consequences of breaching tapu

• 4.133 A theme from Tupaea’s evidence is that the contravention of tapu or tikanga can have profound physical and spiritual consequences:282

I have heard of “Kauae hurihia”, from Ngāti Kuia – a double handed mere of Tutepourangi came into the possession of the wrong Ngāti Kuia people, and so they were inflicted with physical deformities of the lower jaw. When they handed it back to the correct owner, the deformities stopped appearing.

• 4.134 As put by Tā Pou Temara (Tūhoe), “If you do not respect the spiritual protection of tapu, you will be abandoned by your atua and worse, you or your whānau members will fall ill or sick. You will end up a mere commoner (hawini mawhiro). The extreme consequence is death.”283 In a different context, Temara says that “a breach of tapu was feared not only because it could reduce the mana of a rangatira or tohunga who was tapu or had placed the tapu, and therefore would be subject to muru or utu, but also because a breach of tapu was considered to expose the person to spiritual interference and misfortune”.284
• 4.135 Tamati Waaka (Te Whānau-ā-Apanui, Ngāi Tai, Te Whakatōhea, Ngāti Awa, Ngāti Pūkeko, Tūhoe) talks about “mate Māori”. This is determined by tohunga. It is “a term used for illness determined by tohunga to be the result of transgressions of tapu”. This can also be an illness that is brought on from whakamā (shame).285

²⁷⁸ Ko Aotearoa Tēnei, Wai 262, #B11 Himiona Munroe.

²⁷⁹ Ko Aotearoa Tēnei, Wai 262, #B11 Himiona Munroe at [20].

²⁸⁰ Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [72].

²⁸¹ Ko Aotearoa Tēnei, Wai 262, #H10 Puhanga Tupaea at [23]–[24].

²⁸² Ko Aotearoa Tēnei, Wai 262, #H10 Puhanga Tupaea at [29].

²⁸³ Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [43].

²⁸⁴ Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [40].

285. Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tamati Waaka (4 January 2017) at [98]–[100].

• 4.136 Buddy Mikaere (Ngāti Pūkenga, Ngāti Ranginui) makes a similar point: “Defiance, or as Māori described it, the commission of a hara, brought down swift retribution from the gods in the form of misfortune, illness or death.”286
• 4.137 Te Riaki Amoamo (Te Whakatōhea, Ngāti Patumoana, Ngāti Ruatakenga) also says, “The consequence of breaking tapu results in misfortune, sickness or death. Therefore tapu was taken very seriously and even today, if there is sickness or death in a whānau or hapū we generally reflect on whether any tapu has been broken so we understand how to deal with it and remedy the situation.”287
• 4.138 The evidence of Houpeke Piripi (Ngātiwai) includes repeated use of anecdote (both kōrero tuku iho and contemporary) to show the breaches of tapu have both physical and spiritual consequences and that this aspect of life is very real for Māori:288

I knew of a man – that’s all he did was killing and skinning possum. He had a beautiful house, two bedroom house and a nice kitchen. All he did was possum skins. The next minute, crash. The skinning of possums now means no money.

...

You are not allowed to tātai in the kai house. You could not keep tātai next to kai at all. That wasn’t suppose to be. In our home the table was cleared and everything wiped and karakia said before all the tātai books came onto the table.

...

There were penalties for breaking these rules surrounding tātai. If you abuse tātai you abuse its tapu nature. There were spiritual penalties – even today if you play around with the tātai some people may get sick.

...

Te Waiariki, they control their wāhi tapu places. Once someone there went to disturb some taonga there. Next minute someone died and they couldn’t find the body. So a local person told them to take that that taonga back to where they got it from. Low and behold what happened – the body floated ashore.

• 4.139 In addition to spiritual penalties, Himiona Munroe’s (Ngātiwai) evidence is that traditionally “the old people would enforce the laws”.289 Although he goes on to say, “Nowadays, the old people have little or no say in fishing.”290
• 4.140 Danny Pohipi (Te Whānau-ā-Apanui) explains, “If someone breaks a rāhui there are various consequences. Some rāhui we trust that the breach of the tapu itself will result in spiritual and supernatural consequences. Other times we actively uphold and enforce our tikanga. This occurs through verbal direction or warnings as well as direct action.”291

286. Minhinnick v Minister of Corrections [2004] NZEnvC A43/04, 6 April 2004, Statement of Evidence by Buddy Mikaere (undated) at [12].

²⁸⁷ Re Edwards [2021] NZHC 1025, Affidavit of Te Riaki Amoamo (25 January 2022) at [13].

²⁸⁸ Ko Aotearoa Tēnei, Wai 262, #C2 Houpeke Piripi at [9], [16], [18] and [90].

²⁸⁹ Ko Aotearoa Tēnei, Wai 262, #B11 Himiona Munroe at [83].

²⁹⁰ Ko Aotearoa Tēnei, Wai 262, #B11 Himiona Munroe at [83].

²⁹¹ Re Edwards [2021] NZHC 1025, Affidavit of Danny Craven Pohipi (21 February 2020) at [62].

• 4.141 Gary Hooker (Te Roroa) explains, “Ignorance of waahi tapu does not negate their existence.”292
• 4.142 To avoid the adverse consequences of tapu, there were practices and rules were implemented “to protect the uninitiated and ignorant”.293 It was acknowledged by Tahu Potiki (Ngāi Tahu, Ngāti Mamoe) that “the tapu aspects could be managed with appropriate ritualistic responses”.294 Such rules included:
  • rules around placement of food bowls such as no carrying kai over someone’s head;295
  • doing a karakia before fishing and gifting the first fish back;296
  • restrictions on certain activities during menstruation;297
  • the placing of rāhui over an area or activity (which meant simply either staying out of the area or not engaging in a particular activity).298

Noa and removal of tapu

• 4.143 Noa is described by Tā Pou Temara (Tūhoe) as “the spiritual state and physical ability to allow a person to be free from the restrictions of tapu. The people or place is no longer tapu for a permanent or short period of time so that people can access it without fear of spiritual harm to them or their whānau. Noa allows people to survive and live.”299
• 4.144 Rangimarie Rose Pere (Tūhoe, Ngāti Ruapani, Ngāti Kahungunu), as cited by Leonie Pihama (Te Ātiawa, Waikato-Tainui, Ngā Māhanga a Tairi), explains:300

The influence and power of noa is very significant to the physical well-being of people by freeing them from any quality or condition that makes them subject to spiritual and/or ceremonial restriction and influences. The concept of noa is usually associated with warm, benevolent, life-giving, constructive influences including ceremonial purification.

• 4.145 Peter Adds (Te Ātiawa) says that “noa is not the opposite to tapu. The opposite to tapu are other forms of tapu”.301 The example that Adds gives is that, during the building of Te Herenga Waka marae, Ruka Broughton and Huirangi Waikerepuru applied a tapu to the

²⁹² Beadle and Wihongi v Minister of Corrections, EnvC Wellington A074/2002, Statement of Evidence of Gary Hooker (undated) at [34].

²⁹³ Ko Aotearoa Tēnei, Wai 262, #H10 Puhanga Tupaea at [77].

²⁹⁴ Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tahu Potiki (23 December 2016) at [7.6].

²⁹⁵ Ko Aotearoa Tēnei, Wai 262, #H10 Puhanga Tupaea at [77].

²⁹⁶ Ko Aotearoa Tēnei, Wai 262, #H11 Benjamin Hippolite at [60].

²⁹⁷ Beadle and Wihongi v Minister of Corrections, EnvC Wellington A074/2002, Statement of Evidence of Reuben Clarke (undated) at [5].

²⁹⁸ Re Edwards [2021] NZHC 1025, Joint Brief of Evidence of Dr Te Kei (O Te Waka) Wirihana Merito and William Bruce Stewart (24 January 2022) at [32]; Re Tipene [2016] NZHC 3199, Pūkenga’s Report of Jane Ruby Karina Davis (undated) at [40].

²⁹⁹ Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [57].

³⁰⁰ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A19 Leonie Pihama citing Rangimarie Rose Pere at [80].

³⁰¹ The Wairarapa ki Tararua district inquiry, Wai 863, #4.11 Peter Adds p.39.

building site.302 While the marae was being built but before it could be opened, both Broughton and Parker died. This was seen as utu for that marae and had the effect of intensifying the tapu.303 Adds explains: “It meant that the tapu removal for the opening of the house, the removal of the forcefield as it were, needed to be done properly, well and good, and our community up at the university ended up doing that by bringing in three tohunga to do that process.” Pou Temara, Huirangi Waikerepuru and Matiu Māreikura lit a fire on the marae ātea, roasted kūmara and walked around the house doing karakia, sprinkling water, and wearing greenery, kawakawa, on their heads. The kūmara were thrown over the roof of the house from one side to the other, down the length of the house.304 Another important aspect of tapu removal was for a woman, a puhi, to be the first person to walk through the door, not because that woman was noa but because she is a powerful agent of tapu removal. “She was so tapu in her own right that she had the power, conceptually at least, to remove that extended tapu around the house.”305

• 4.146 Adds also explains that “there is also the concept of extended tapu. On certain occasions and when people deem it to be necessary, anything can be declared tapu.”306 When someone says something is tapu it has “extended tapu applied to it”. When this “is removed, and it goes back to its ordinary state, that’s when something is said to be noa, but it still has intrinsic tapu as well. It’s both tapu and noa at the same time.” When people or “things are in the extended state, that’s when they are dangerous.”307
• 4.147 There are a number of processes for removing tapu in particular circumstances. For example, Leonie Pihama (Te Ātiawa, Waikato-Tainui, Ngā Māhanga a Tairi) describes wāhine as critical agents of whakanoa.308 She explains:309

Women are especially powerful in making things and activities noa. Women have a particularly important task in ensuring that the extension of tapu on buildings does not apply to the users. They therefore make buildings safe for use or habitation. This is the mana and tapu of women, in that they have the ability to free areas, things and people from restrictions imposed by tapu. Women are not noa, as is often thought, but they are agents to whakanoa – to make noa. This is their tapu, and they are taonga because of their own specific areas of activity.

• 4.148 Other examples that draw on wāhine:
  • Tahu Potiki (Ngāi Tahu, Ngāti Mamoe) provides the example of soldiers that became tapu under the power of Tūmatauenga. To break the tapu, they would be required to crawl under the legs of a women or have appropriate karakia and ritual performed over them in or near a kūmara oven to deem them free from that tapu.310

³⁰² The Wairarapa ki Tararua district inquiry, Wai 863, #4.11 Peter Adds p.39.

³⁰³ The Wairarapa ki Tararua district inquiry, Wai 863, #4.11 Peter Adds pp.39–40.

³⁰⁴ The Wairarapa ki Tararua district inquiry, Wai 863, #4.11 Peter Adds p.40.

³⁰⁵ The Wairarapa ki Tararua district inquiry, Wai 863, #4.11 Peter Adds pp.40–41.

³⁰⁶ The Wairarapa ki Tararua district inquiry, Wai 863, #4.11 Peter Adds p.36.

³⁰⁷ The Wairarapa ki Tararua district inquiry, Wai 863, #4.11 Peter Adds p.38.

³⁰⁸ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A19 Leonie Pihama at [79] citing Manuka Henare, 1988.

³⁰⁹ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A19 Leonie Pihama at [79].

310. Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tahu Potiki on behalf of the Applicant (23 December 2016) at [4.14]–[4.15].
     • Paula Ormsby provides a similar example: “When our Men returned from war to lift the tapu of the blood that they shed they would crawl between the legs of a ruahine making them noa. Additionally to break them out of their war stance of Nguha woman would have intercourse with these warriors to bring them back into a balanced state. The sexual power and force that wāhine hold was one of the many sacred roles.”311
     • David Taipari (Ngāti Maru, Ngāti Whanaunga, Ngāti Pāoa, Ngāti Tamaterā) uses an example of where, as part of a process to remove tapu from a whare rūnanga, “three women with mana sufficiently strong to absorb the tapu had been confirmed to perform the takahi te paepae ritual, to cross over the threshold, which makes the house safe for women”.312

• 4.149 Further examples of methods used to move from a tapu to a noa state:
  • Water and food: Water and food are also agents to remove tapu and bring things back to their normal states – for example, using water when leaving a cemetery or having a hākari (meal).313 Lindsay Marr (Ngāti Rangitihi) talks about washing at a river outlet to lift tapu and to enjoy the cleanliness of the river.314
  • Waiata: Wiremu McMath (Te Rarawa) describes how, when a kaumātua has finished speaking on the marae, his talk has created a spiritual arena by his incantations.315 A waiata is required to bring the utterances from that sacred state back to the normal sense. Waiata have a large role in removing tapu.
  • Tauparapara: The recitation of tauparapara is explained as being sacred and protected as well as one of the steps in whaikōrero in removing tapu.316 McMath says, “When you utter a tauparapara you are in the world of the dead. Until the tauparapara is finished you remain in the world of the dead. When it finishes you return to the world of the living.”317
  • Gift giving: Wikitōria Hepi-Te Huia (Ngāti Tahu) provides an example of how, as part of the lifting of tapu, Ngāti Kahungunu were sent tahā (gourds) as a gift.318 “This gift giving was an embedded part of the tapu lifting ritual which required that the ‘hara’ was carried away and off the whenua.” A gift was the ritual that enabled this to occur. It was a key reason Ngāti Kahungunu were invited to participate.319

311. Mana Wāhine Kaupapa Inquiry, Wai 2700, #A55 Paula Ormsby at [106]. The authors have been unable to locate Paula Ormsby’s whakapapa based on the written material reviewed.
312. David Errol Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of David Errol Taipari for the second defendant (13 October 2020) at [16].
313. Ko Aotearoa Tēnei, Wai 262, #B9 Wiremu McMath at [38]; and Minhinnick v Minister of Corrections [2004] NZEnvC A43/04, 6 April 2004, Statement of Evidence of Roimata Minhinnick (undated) at [24]. Also see The Wairarapa ki Tararua district inquiry, Wai 863, #4.11 Peter Adds p.36.

³¹⁴ Marr v Bay of Plenty Regional Council, Statement of evidence of Lindsay John Ngahau Marr (25 May 2010) p.1.

³¹⁵ Ko Aotearoa Tēnei, Wai 262, #B9 Wiremu McMath at [16].

³¹⁶ Ko Aotearoa Tēnei, Wai 262, #B9 Wiremu McMath at [38]–[39].

³¹⁷ Ko Aotearoa Tēnei, Wai 262, #B9 Wiremu McMath at [38].

318. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Rebuttal Evidence of Wikitōria Hepi-Te Huia (23 June 2017) at [3.4].
319. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Rebuttal Evidence of Wikitōria Hepi-Te Huia (23 June 2017) at [3.4].

• 4.150 Because food is a means to remove tapu, some practices require a person to abstain from it until a task is complete such as the weaving and setting of a large fishing net:320

Te Pokiha, a chief of Ngati Pikiao of the Te Arawa tribe had a kūpenga made by the members of his hapū in 1885. At the beginning of the winter, each family group began to make one of the sections, and while doing the work, the men were all under tapu. It took eight or nine months to make, and three hundred or more men worked on it.

When everything was ready, the net was taken to Otumakaro flat just below Maketu kāinga, and here the toronga or setting up occurred with high ritual by the Tohunga. As all this was a very tapu ceremony,. the men took no food until after each day’s work, when the tapu was taken off by the Tohunga ...

• 4.151 Wallace Wihongi (Ngāti Mahia, Te Uri o Hua, Ngāti Hine) states that tapu can be removed by a tohunga.321
• 4.152 Himiona Munroe (Ngātiwai) talks of a tohunga who assisted with people who had been inflicted by tapu and mākutu.322 He was able to look at those inflicted and ascertain the source and where the tapu came from or whether the person had transgressed tapu.323 Rongoā Māori was secondary to the spiritual realm.324 If people did not adhere to his advice, they may perish.325
• 4.153 Tā Pou Temara (Tūhoe) explains, “Rituals known as Pure are to purify people and areas. Tohi are rites of passage or a type of baptism for newborn babies or young children and performed in a river or the ocean with water sprinkled by a branch of a tree. Both pure and tohi are rituals of removing tapu.”326 He states that only tohunga can perform karakia to unu i te tapu (karakia to remove tapu).
• 4.154 Danny Pohipi (Te Whānau-ā-Apanui) discusses Te Whānau-ā-Apanui traditions relating to the land and sea being te huamata (the planting rite) and te pure (the harvesting traditions), which are linked to Māori cosmology and Ringatū practices.327 After the planting of the first fruits (te huamata), no one was permitted to enter or harvest until te pure, which were purification processes to move the māra from a state of tapu to a state of noa.328
• 4.155 Roimata Minhinnick (Ngāti Te Ata) talks about the ongoing nature of tapu in the face of damage: “Desecration will never remove the spiritual and cultural attachment to the

³²⁰ Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Elaine Rawinia Tapsell in support of the Applicant’s case regarding the High Court rule 418 preliminary questions as referred back to this Court by Her Majesty’s Privy Council; Exhibit Te Arawa Mangai Nui Upoko Tutakitaki, Te Ihu o te Waka ki Maketu (20 June 2020) at 5.

321. Beadle and Wihongi v Minister of Corrections, EnvC Wellington A074/2002, Statement of Evidence of Wallace Wihongi (undated) at [14].

³²² Ko Aotearoa Tēnei, Wai 262, #B11 Himiona Munroe at [5].

³²³ Ko Aotearoa Tēnei, Wai 262, #B11 Himiona Munroe at [5].

³²⁴ Ko Aotearoa Tēnei, Wai 262, #B11 Himiona Munroe at [4]–[5].

³²⁵ Ko Aotearoa Tēnei, Wai 262, #B9 Wiremu McMath at [6].

³²⁶ Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [59].

³²⁷ Re Edwards [2021] NZHC 1025, Affidavit of Danny Craven Pohipi (21 February 2020) at [71].

³²⁸ Re Edwards [2021] NZHC 1025, Affidavit of Danny Craven Pohipi (21 February 2020) at [72]–[74].

designated area, it is still wāhi tapu.”329 Minhinnick states that “if all the tūpuna ancestors at the urupā/burial grounds of Ngāti Te Ata ... were uplifted and moved to another location, the urupā site would still be tapu to Ngāti Te Ata. If Pākehā put a McDonalds there in 50 years’ time, others will eat from there, but no Ngāti Te Ata would dare go there to eat ... The whenua/afterbirth of our ancestors alone being buried there, is wāhi tapu enough for Ngāti Te Ata.”330

MANA

• 4.156 Leonie Pihama (Te Ātiawa, Waikato-Tainui, Ngā Māhanga a Tairi) explains:331

Central to Mana Wahine is the concept and practice of ‘mana’. The meaning of ‘mana’ is one that engages us conceptually, culturally, spiritually, emotionally and in material ways of being, and encompasses an essence and power of being that we have been reminded is beyond any singular translation (Henare, 1998; Pere 1991, Pihama 2001, 2005). Mana is multi- dimensional and requires an understanding of wider tikanga Māori and the relationships within which we locate ourselves. Mana is connected to every form of activity within Māori society and is generated through collective relationships. Mana is also enhanced by the collective in order to support peoples role in fulfilling particular obligations, social and political functions, as such it is a significant contributing factor to the how we present ourselves and are seen by others (Marsden 1988).

In the context of discussing Māori women’s theories, mana relates to notions of power, status and collective affirmation of our place within our communities (Smith 1992). Mana is both inherent to our being as Māori and can be enhanced or diminished through the ways in which we enact ourselves within the collectives that we affiliate to and with. Mana is therefore connected to both spiritual and earthly sources. Rangimarie Rose Pere reminds us that the origins of mana is firstly that of our connections to atua. This affirms the sacredness of all people. She writes:

Mana as a concept is beyond translation from the Māori language. Its meaning is multi-form and includes psychic influence, control, prestige, power, vested and acquired authority and influence, being influential or binding over others, and that quality of the person that others know she or he has! The most important mana however is mana atua – divine right from Io Matua. Every person has mana atua – no more, no less. This form of mana recognises the absolute uniqueness of the individual. Everything across the universe has mana atua, in that everything was created by Io Matua within the ancient teachings of Hawaiki, a leaf, a blade of grass, a spider, a bird, a fish, a crustacean, all have the same divine right as a person. The challenge is to feel for what this really means. (Pere 1991, 14)

• 4.157 Mana is described in various ways:
  • Te Kurataiaho Kapea (Ngāti Whātua Ōrākei, Te Uri o Hau, Ngāti Rongo) describes mana as resting “in the spiritual dimension as well as the physical but it’s people who determine and construct it and exercise it”.332

329. Minhinnick v Minister of Corrections [2004] NZEnvC A43/04, 6 April 2004, Statement of Evidence of Roimata Minhinnick (undated) at [17].
330. Minhinnick v Minister of Corrections [2004] NZEnvC A43/04, 6 April 2004, Statement of Evidence of Roimata Minhinnick (undated) at [21].

³³¹ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A19 Leonie Pihama at [13]–[14].

³³² Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Notes of Evidence at 48.

• David Wilson (Te Ākitai Waiohua, Ngāti Te Ata) says, “Mana in this context is about integrity. It is about speaking and behaving with integrity or looking after people and taonga with integrity. Mana is also something you earn and not something you demand.”333
• Tamati Waaka (Te Whānau-ā-Apanui, Ngāi Tai, Te Whakatōhea, Ngāti Awa, Ngāti Pūkeko, Tūhoe) explains that “to Māori, mana is the most valued quality. Mana is the basis of personal and collective authority and is central to hapū and iwi identity and relationships to their rohe and each other.”334
• Te Ururoa Flavell (Ngāti Rangiwewehi) confirms that mana is inherent in pepeha and is a term used when referring to the link of whānau, hapū and iwi to the land. The loss of land is a deterioration of mana.335
• Rikirangi Gage (Te Whānau-ā-Apanui, Ngāti Porou) says, “When we talk about mana we talk about authority, about regulations and about the ranking of status to make certain rules and laws. This authority applies to an area, the resources and the activities conducted within.”336
• Danny Pohipi (Te Whānau-ā-Apanui) says mana “means the authority and right to exercise our tikanga in our territorial area”.337
• Hauata Palmer’s (Ngāi Te Rangi) discussion of manaaki manuhiri highlights that “the mana of our hapū and iwi rests on how well we treat our manuhiri or visitors, and equally importantly, how well we feed them”.338

• 4.158 Tāmati Kruger (Ngāti Koura, Ngāti Rongo, Ngāi Tūhoe) discusses the idea that mana, often referred to as ‘authority’, ‘influence’ and/or ‘power’, always has a source (such as gods, ancestors, people or land), and that source must be established and maintained by discharging certain responsibilities to the source of that mana.339 He goes on to say:340

The concept of mana is often interpreted as involving ‘authority’, ‘influence’ and/or ‘power’. As a general proposition, I agree that is the case. However it is important to stress that mana must always have a source (whether in gods, ancestors, people or land), and that source must be established and maintained by discharging certain responsibilities to the source of that mana. In that way, mana is not something held or possessed by someone over their gods, ancestors or their land, rather that mana comes from the source and is preserved and fulfilled by living and practicing tikanga Māori.

333. See Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, brief of evidence of David Wilson (13 October 2020) at [56]. The context that David Wilson speaks of is disputes regarding mana whenua in Tāmaki Makaurau.
334. Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tamati Waaka (4 January 2017) at [32].
335. Te Maru o Ngāti Rangiwewehi v Bay of Plenty Regional Council [2008] NZEnvC 24; [2008] NZRMA 395, Brief of Evidence of Te Ururoa Flavell (undated) at [6.5]–[6.6].

³³⁶ Re Edwards [2021] NZHC 1025, Affidavit of Te Kou Rikirangi Gage (21 February 2020) at [101].

³³⁷ Re Edwards [2021] NZHC 1025, Affidavit of Danny Craven Pohipi (21 February 2020) at [39] and [121].

³³⁸ Re Reeder on behalf of Ngā Pōtiki [2021] NZHC 2726, Affidavit of Hauata Palmer (15 December 2017) at [20].

339. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [42].
340. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [42]–[43].

Because mana is derived from a particular source, it is inconceivable as a tikanga Māori idea that gods, ancestors and the more tangible land could be ‘owned’ or possessed. The issue of mana whenua in particular requires further examination given the issues in this litigation and I will come back to that in more detail later in my statement. But for now I will give some further information about the key ideas that inform the Māori belief systems which tikanga and kawa reflect.

• 4.159 Kruger explains further that the exercise of mana is done with the best interests of the iwi at the forefront:341

Overall, the essence of the Māori connection with land was its value to the community which was enduring and could not be severed unless in very narrow circumstances. And, as I mentioned earlier, the exercise of mana is done foremost with the benefit of its iwi in mind. Mana is exercised to preserve the identity of the iwi and the relationship Māori have with the land is a significant part of this identity.

• 4.160 Kruger under cross-examination in the same case clarifies:342

In my opinion you cannot divorce responsibility from mana. When I go and reach for my trusty Williams Dictionary mana is straight away translated as power, authority and influence, which is true, but rather those things are the outcome of fulfilling your responsibilities. So I think they’ve gone straight to the end result of mana. So today that’s how we now understand mana as power, authority, control and influence. And I think forgetting that you have to earn it and that there has to be a reputation, there has to be a track record, there has to be a consistency of performance in order for you to enjoy the control, the authority and influence. It doesn’t come because you are appointed and given a title to something to have that mana.

• 4.161 Peter Adds (Te Ātiawa) says there are many definitions for mana, and most of them “tend to revolve around the idea of power, authority, respect ... reputation”.343 He says mana “applies to individuals ... groups, to iwi, to hapū and so on but it can also apply equally to inanimate objects as well”.344 He explains that “there are degrees of mana. Some people and some things have more mana than other people and other things depending on context and depending on the deeds ... of that particular person.”345 In terms of redress, Adds says the questions is “how much redress is going to be needed to reinstate the mana to a position where it should have ideally been prior to the hara”.346 Paul Meredith (Ngāti Maniapoto) says there is also mana in giving redress.347

Types of mana

• 4.162 A number of different people make reference to three manifestations of mana including that of the spiritual (mana atua), that bestowed in humanity (mana tangata) and that relating to Papatūānuku (mana whenua):

341. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [96].

³⁴² Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Notes of Evidence at 1901.

³⁴³ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Peter Adds and Paul Meredith) at 25.

³⁴⁴ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Peter Adds and Paul Meredith) at 25.

³⁴⁵ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Peter Adds and Paul Meredith) at 25.

³⁴⁶ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Peter Adds and Paul Meredith) at 27.

³⁴⁷ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Peter Adds and Paul Meredith) at 27.

• Wiremu McMath (Te Rarawa) comments, “The significance of the tauparapara is that it opens with reference to the sneeze of the living essence ‘Tihewa mauri ora’. Tihewa is that sneeze. It covers the whole world. When a child is born it is slapped to get that sneeze, the coming out of the breath. Once it has had that sneeze it is Tihewa Mauri and goes on with the breathing of life. Mauri ora is the essence of life. Even mother earth has the tihewa mauri ora. The three manifestations of mana are that of the spiritual (Mana Atua), that bestowed in humanity (Mana Tangata), and that relating to Papatūānuku (Mana Whenua). There is sacredness and laws that attach to each of these manifestations of mana.”348
• Kakapaiwaho Kururangi Tibble (Ngāti Porou) says, “Ko te mana o Ngāti Porou – he mana atua, he mana tangata, he mana whenua, kore e taea tētahi atu te wete.” That is, it is not for anyone else to speak on Ngāti Porou’s behalf but theirs. Their right to speak is derived from their mana atua, mana tangata and mana whenua of their rohe.349
• Ngahihi o Te Ra Bidois (Ngāti Rangiwewehi) identifies the three types of mana as being “mana tangata, mana atua and mana whenua”.350
• Similarly, Taiaha Hawke (Ngāti Whātua Ōrākei, Te Taoū, Te Uri o Hau, Ngāti Hē, Ngāti Mahuta) for Ngāti Whātua Ōrākei discusses the different types of mana that “should inform tikanga-based relationships: mana atua, mana tūpuna (or mana tangata) and mana whenua”.351 He adds a fourth strand in relation to Ōrākei – mana motuhake.352 He explains, “Mana Motuhake is the unique mana that an individual fosters and comes to possess over a period of time, and is bound together by an individual’s connection to their iwi/hapū and their ancestors (mana tūpuna), their atua (mana atua) and their land (mana whenua).”353
• Tāmati Kruger (Ngāti Koura, Ngāti Rongo, Ngāi Tūhoe) also describes tikanga in relation to three pou tokomanawa, or institutional pillars, that are consistent and cognisable reference points within te ao Māori. These are “mana atua, mana that is sourced from the genealogical connection between the divine and spiritual world and the physical world; mana tangata, mana that is sourced from genealogical connections between ancestors and their living relatives; and mana whenua, mana that is sourced from genealogical connections between people and the land”.354
• In relation to the phrase mana whenua, Toro Waaka (Ngāti Pāhauwera) denotes that one “cannot have mana over your tipuna Papatūānuku. Mana is associated with the

³⁴⁸ Ko Aotearoa Tēnei, Wai 262, #B9 Wiremu McMath at [35]–[36].

³⁴⁹ The Fisheries Settlement Report, Wai 307, #B8(b) Kakapaiwaho Kururangi Tibble at 1.

350. Te Maru o Ngāti Rangiwewehi v Bay of Plenty Regional Council [2008] NZEnvC 24; [2008] NZRMA 395, Statement of Evidence of Ngahihi o Te Ra (19 November 2007) at [5.2].
351. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Taiaha (Lance) Joseph Hawke (2 June 2020) at [71].
352. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Taiaha (Lance) Joseph Hawke (2 June 2020) at [71].
353. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Taiaha (Lance) Joseph Hawke (2 June 2020) at [71].
354. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [41].

word manaakitanga. Papatūānuku is our source of sustenance or manaakitanga. Those who do not practice manaakitanga have no mana.”355

• Roderick Hadfield (Ngāti Kahungunu) conceptualises the types of mana: “Mana atua encapsulates sacred spiritual power from the atua (gods); mana tangata is the power or status reflected in one’s leadership skills, human rights and the mana of people; mana whenua is the power/authority over tribal lands that are associated with possession and occupation of those lands. The separation is land and sky, not land and sea, the sea is treated the same as the land, like an extension of land. Mana moana is like an extension of these land rights to seas or lakes with fixed boundaries for inshore and deep-sea fishing and gathering of kaimoana.”356

• 4.163 Hetaraka Biddle (Ngāi Tamahaua hapū) says that “mana atua acknowledges our whakapapa to and relationship with atua such as Ranginui and Papatūānuku and their Tamariki Tānemahuta, Tangaroa, Hinemoana, Hinewai, and many other atua who influence the environment and the moana in a meaningful way”.357
• 4.164 The term ‘mana tupuna’ is sometimes used as an alternative to ‘mana tangata’. For example, Reverend Māori Marsden (Ngāi Takoto, Ngāti Warara) describes the three types of mana as “Mana Atua (Gods); Mana Tupuna; Mana Whenua”.358 Marsden goes on to give a summary of the history, settlement, whakapapa and interrelationships of Aupōuri-nui- tonu (Ngāti Kaha – Ngāti Kuri, Ngāi Takoto and Te Aupōuri) in Muriwhenua from Hawaiki to contemporary times. He uses this as evidence of the following:359
  • Mana atua “is delegated by the gods. Proof of their delegation of mana is through victory in conquest and continued support in occupation”.360 “Ngāti Kaha’s claims to the land within the boundaries outlined above, both by virtue of continued occupation and conquest through her sub-tribes of Ngāti Kuri, Ngāi Takoto, and Aupouri are established.”361
  • Mana tupuna is “mana to lands, harbours, rivers, beaches, forests fisheries”, which are “inherited through the ancestors”.362 “From the genealogies submitted the Mana Tupuna, by virtue of direct descendant from Kurahaupo, is also established.”363
  • Mana whenua “is based on occupation under the principle of “Ahi Kā” – keeping the home fires burning”.364 “Proof of claims is attested to by known papakāinga, Pā, gardens and burial sites.”365

³⁵⁵ Re Ngāti Pāhauwera [2021] NZHC 3599, Brief of evidence of Toro Edward Reginald Waaka (19 December 2019) at [54].

³⁵⁶ Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit of Roderick Nigel Kerry Hadfield (11 August 2020) at [34].

³⁵⁷ Re Edwards [2021] NZHC 1025, Affidavit of Hetaraka Biddle (undated) at [8].

³⁵⁸ Muriwhenua Fishing Report, Wai 22, #A14 Reverend Māori Marsden p.8.

359. Muriwhenua Land Report, Wai 45, #A7 Reverend Māori Marsden; Muriwhenua Fishing Report, Wai 22, #A14 Reverend Māori Marsden at 2–8.

³⁶⁰ Muriwhenua Fishing Report, Wai 22, #A14 Reverend Māori Marsden at 8.

³⁶¹ Muriwhenua Fishing Report, Wai 22, #A14 Reverend Māori Marsden at 8.

³⁶² Muriwhenua Fishing Report, Wai 22, #A14 Reverend Māori Marsden at 8.

³⁶³ Muriwhenua Fishing Report, Wai 22, #A14 Reverend Māori Marsden at 8.

³⁶⁴ Muriwhenua Fishing Report, Wai 22, #A14 Reverend Māori Marsden at 8.

³⁶⁵ Muriwhenua Fishing Report, Wai 22, #A14 Reverend Māori Marsden at 8.

• 4.165 Tāmati Kruger (Ngāti Koura, Ngāti Rongo, Ngāi Tūhoe) similarly explains mana tangata in reference to whakapapa connections from tūpuna (ancestors),366 and Chris Winitana (Ngāti Tūwharetoa) says that mana tipuna is the right to speak for an ancestor.367
• 4.166 Tamati Waaka (Te Whānau-ā-Apanui, Ngāi Tai, Te Whakatōhea, Ngāti Awa, Ngāti Pūkeko, Tūhoe) explains that mana is central to all Māori life and custom and provides the examples of:368
  • mana atua – spiritual power from the atua;
  • mana whenua – power associated with possession and occupation of tribal land – the histories and legends of the tribe are based in the land;
  • mana moana – authority over the sea;
  • mana o te moana – authority of sea and lakes;
  • mana motuhake – mana through self-determination;
  • mana tangata – the power and status of a person;
  • mana whakatipu – acquired leadership, power and status accrued through one’s leadership;
  • mana tupuna – mana through descent;
  • mana tangata whenua – indigenous rights; and
  • tuku mana whakahaere.
• 4.167 Te Riaki Amoamo (Te Whakatōhea, Ngāti Patumoana, Ngāti Ruatakenga) discusses the terms ‘mana reo’ and ‘māngai reo’:369

Mana Reo and Māngai Reo are similar concepts in Tikanga however they tend to stem from a Pākehā model of representation meaning “one who represents a person, group or kaupapa” or the mostly common term of mandate.

Mana means “prestige” or “authority”, Māngai means “spokesperson, speaker” or “representative” and reo means “to speak”, “one’s language”, “to articulate”. However nowadays we use both of these terms to mean “a person who represents a group or person for a specific purpose”. Mana goes hand in hand with tapu (sacred, spiritual) one affecting the other.

• 4.168 Dr Moana Jackson (Ngāti Kahungunu, Ngāti Porou) explains that mana is based on whakapapa. “The whakapapa which ultimately links all Iwi and Hapū together provides the papa upon which mana is based because any mana which humans might exercise as a political power could only be legitimised in concert with mana whenua, mana moana, and mana atua.”370

366. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [41].
367. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Statement of Evidence of Chris Winitana (4 June 2017) at [18] and [30].
368. Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tamati Waaka (4 January 2017) at [34].

³⁶⁹ Re Edwards [2021] NZHC 1025, Second Affidavit of Te Riaki Amoamo (21 February 2022) at [17]–[18].

³⁷⁰ R v Tamati Mason [2012] NZHC 1361, Affidavit of Moana Jackson (24 April 2012) at [29].

• 4.169 Jackson says, “The concept of mana as a political and constitutional power thus denotes an absolute authority. It was absolute because it was absolutely the prerogative of Iwi and Hapū, but it was also absolute in the sense that it was commensurate with independence and an exercise of authority that could not be tampered with by that of another polity.” It included a number of different components that may be called the specifics of power such as:371
  • power to define – the power to define the rights, interests and place of individuals and collectives;
  • power to protect – the power to protect, manaaki and be the kaitiaki for everything and everyone within the polity;
  • power to decide – the power to make decisions about everything affecting the wellbeing of the people; and
  • power to develop – the power to change in ways that are consistent with tikanga and conducive to the advancement of the people.
• 4.170 Jackson also explains:372

Within this reality two fundamental prescriptions and proscriptions underpinned mana as a concept of power and determined how it could be exercised within any particular site of power:

1. Firstly, the power was bound by law and could only be exercised in ways consistent with tikanga and thus the maintenance of relationships and responsibilities.
2. Secondly the power was held by and for the people, that is it was a taonga handed down from the tipuna to be exercised by the living for the benefit of the mokopuna.

The ramification of those prescriptions was that mana was absolutely inalienable. No matter how powerful rangatira might presume to be, they never possessed the authority nor had the right to give away or subordinate the mana of the collective because to do so would have been to give away the whakapapa and the responsibilities bequeathed by the tipuna. The fact that there is no word in Te Reo Māori for ‘cede’ is not a linguistic shortcoming but an indication that to even contemplate giving away mana would have been legally impossible, politically untenable, and culturally incomprehensible.

In general terms then mana as a concept of power was a culturally and tikanga-specific understanding of political authority. It grew from this land and the history, knowledge and experience which the people took from it. It was a concept of independence and if it was rarely articulated as such it was only because independence was known and lived as the norm by a people who were neither dependent upon nor beholden to any other.

In the context of Iwi and Hapū realities law and political power were like the maihi and amo of a whare tipuna – they held the house of the people together. The inter-relationship between tikanga as law and mana as a concept of power was intimate and indeed inevitable in both a philosophical and practical sense. Law set the parameters of acceptable political behaviour because the exercise of mana was only legitimate if it was tika and pursued according to the law. The law in turn gained its efficacy from the power and certainty of mana, whether it was the mana of a rangatira ensuring compliance through consensus decision making or the mana atua ensuring compliance through the seemingly inexplicable precedents and power of tapu.

³⁷¹ R v Tamati Mason [2012] NZHC 1361, Affidavit of Moana Jackson (24 April 2012) at [30].

³⁷² R v Tamati Mason [2012] NZHC 1361, Affidavit of Moana Jackson (24 April 2012) at [36]–[39].

Mana tangata

• 4.171 The mana and status of people is both tied up in whakapapa (mana tupuna) as well as their skills. As Dr Moana Jackson (Ngāti Kahungunu, Ngāti Porou) explains, “Ariki and rangatira could be hereditary or selected for their particular skills but their tenure was always subject to what would now be called ’performance measures,’ that is how well they preserved and defended the well-being of the people, protected their land, and nurtured the relationships implicit in whakapapa. John Rangihau (Tūhoe) once succinctly and accurately described the authority and status of rangatira as being ‘people bestowed’.”373
• 4.172 Margaret Mutu (Ngāti Kahu) similarly says, “The role of tribal leaders was, very basically, to ensure the well-being of the tribe. Leadership was passed from one generation to the next with the extent of a chief’s mana determined not only by genealogical seniority but also by his or her own personal qualities and abilities to maintain the support and confidence of his/her people.”374
• 4.173 Ngahihi o Te Ra Bidois (Ngāti Rangiwewehi) explains:375

Mana is often used as an equivalent for the authority that particular individuals carry, and in some respects it conveys a notion of personal power if not omnipotence. However that definition of mana is more likely to be invoked when an individual is considered in isolation from a community of origin. However mana is usually invested not so much in the deeds of the hero but in the collective well-being of the community. For example, mana tangata is bestowed to an individual by the hapū or iwi that they are serving. It is the authority that comes from their hapū or iwi and if the power of a person dwarfs the people then there is no real mana in existence as mana is invested only in those who will advance the interests of the tribe.

Fundamentally, if you do things that will prosper your people, you will gain mana. It is therefore relevant that mana and power lie outside of the individual and with the people. Mana tangata is mana that lies outside the individual with the people.

• 4.174 David Williams (Pākehā) discusses mana tangata and mana tūpuna together, noting the following:376

The interplay between mana tūpuna and mana tangata in particular has tended to accentuate the importance of accountability between rangatira and people of a tribe both traditionally and today. Rangatira were and are continually required to affirm the consensus of the people in public fora. Thus the institution of the hui and the rūnanga, when people gather to discuss issues of moment, were and remain the real seat of power and law- making. A leader taking his or her people in a direction which is not supported will quickly be corrected or, at length, abandoned in favour of a contender more willing to lead to where the people wish to go.

• 4.175 Mita Ririnui (Ngāi Te Rangi, Ngāti Ranginui, Ngāti Whakahemo) implicitly makes the connection between mana tipuna, mana tangata and mana whenua:377

³⁷³ R v Tamati Mason [2012] NZHC 1361, Affidavit of Moana Jackson (24 April 2012) at [33].

³⁷⁴ Muriwhenua Land Report, Wai 45, #F12 Margaret Mutu, Joan Metge and Maurice Alemann at 8.

375. Te Maru o Ngāti Rangiwewehi v Bay of Plenty Regional Council [2008] NZEnvC 24; [2008] NZRMA 395, Statement of Evidence of Ngahihi o Te Ra (19 November 2007) at [5.2].

³⁷⁶ Re Edwards [2021] NZHC 1025, Affidavit of David Vernon Williams (30 July 2020) at [56].

³⁷⁷ Re Reeder on behalf of Ngā Pōtiki [2021] NZHC 2726, Evidence of Mita Michael Ririnui (6 July 2020) at [20].

The relationship with Rangataua and its resources is about mana heke and mana tipu. Mana through whakapapa or mana through personal ability. The leadership of our hapū was based on the exercise of mana. The leadership carried with it the responsibilities to provide for the needs of the groups physically and spiritually. Such responsibilities included mauri ora (survival), tikanga (customs), kawa (procedure), preserving rangatiratanga (leadership and preserving chiefly lines) and the authority to make decisions for the group over the resources within the domain of the hapū.

• 4.176 Dr Ranginui Walker (Whakatōhea) speaks of the enduring importance of mana tangata:378

... when one goes into another tribe’s territory one behaves circumspectly and respects the kawa the customs of the local people otherwise you would be takahī, tramping on mana because that’s all many of us have left with the land gone, is that mana tangata.

• 4.177 As an example of the implications of having personal mana, Marjorie Huingapani Kurei (Ngāi Tamahaua hapū) talks of her father who was “a knowledge holder (matatau) regarding traditional fishing and kaimoana practices and preserving of kai. He was taught it by our elders.”379 She goes on to explain, “As a reflection of his role as a knowledge holder he was buried high up on a hill of the urupa, underneath a certain tree, facing the fishing grounds.”380

Mana wāhine

Mana wāhine in its simplest definition, refers to the inherent uniqueness, strength, power, influence and authority that is derived not only through whakapapa but to our potentiality.

Paula Ormsby381

• 4.178 In relation to the term ‘mana wāhine’, Ani Mikaere (Ngāti Raukawa, Ngāti Porou) says:382

It should be noted that the very term “mana wahine” is a product of the “patri-fying” of Māori thought and practice. Our tūpuna are most unlikely to have felt the need to refer to “mana wahine” because it was simply the case that all people, female and male, had mana. It is only because the colonists regarded “mana” as an exclusively male characteristic – and because of the enthusiasm with which some Māori men embraced that belief – that it has become necessary to identify “mana wahine” as a phenomenon.

• 4.179 Leonie Pihama (Te Ātiawa, Waikato-Tainui, Ngā Māhanga a Tairi) confirms:383

Mana Wahine is an assertion of our intrinsic mana as descendants of our tūpuna, as holders and maintainers of whakapapa. An underlying tenet of Mana Wahine is that our tūpuna wāhine have always had critical roles in Māori society.

• 4.180 Pihama, citing Dr Kathie Irwin (Ngāti Porou, Ngāti Kahungunu), states that there is diversity within the context of mana wāhine:384

378. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Notes of Evidence (Ranginui Walker) at 107.

³⁷⁹ Re Edwards [2021] NZHC 1025, Affidavit of Marjorie Huingapani Kurei (20 February 2020) at [41].

³⁸⁰ Re Edwards [2021] NZHC 1025, Affidavit of Marjorie Huingapani Kurei (20 February 2020) at [41].

³⁸¹ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A55 Paula Ormsby at [12].

³⁸² Mana Wāhine Kaupapa Inquiry, Wai 2700, #A17 Ani Mikaere at [56].

³⁸³ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A19 Leonie Pihama at [6].

³⁸⁴ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A19 Leonie Pihama at [19].

In our work with Māori women we need to recognize that they, like any other community of women, are not a homogenous group. A number of other factors influence Māori women’s development: tribal affiliation, social class, sexual preference, knowledge of traditional Māori tikanga, knowledge of the Māori language, rural or urban location, identification on the political spectrum from radical to traditional, place in the family, the level of formal schooling and educational attainments to name but a few.

• 4.181 Mana wāhine is a source of identity.385 Ngahuia Murphy (Ngāti Manawa, Ngāti Ruapani ki Waikaremoana, Ngāi Tūhoe, Ngāti Kahungunu) says, “Our primary identities originate from the wombs of our mothers. In pre-colonial times warriors were named after their mothers and grandmothers, taking on their mana and tapu. Male warriors named their weapons after their mothers and grandmothers. These examples indicate an acknowledgement and celebration of the mana of wahine as a primary source of identity (and also shield of protection).”386
• 4.182 There is also a theme of the importance of atua wahine to mana wāhine:
  • Murphy says, “He wahine, he whenua. Women are the human counterpart of Papatūānuku. We are the ūkaipō, providing, like the whenua, for all the needs of humanity born from our wombs.”387 She goes on to say, “The blood of the womb is the physical offering placed upon the earth to honour our connection to her as the mother of life and the source of our identity, sustenance, and survival. We are the centrepoint of creation, a cosmological tenet laid down by Hineahuone, the first human at Kurawaka.”388 She explains further:389

Throughout our mortal lives Papatūānuku is the source of our sustenance and survival. When we die Hinenuitepō caretakes our souls. Her supremacy is final and total. Women are the beginning and the end because of these atua. We are the only way in and out of this would through the sacred passage that is the birth canal. We open space through karanga because of Hineahuone and Papa and we close it through waiata because of Hinenuitepō. Whilst these tikanga continue, the understandings that underpin them and their central significance have been deliberately erased from the record.

In times of transgression in pre-colonial times, wahine led muru plundering parties and at time, war parties to seek utu – the restoration of balance. This is one of the sacred role of wahine dictated by the atua wāhine and our cosmological stories. Maui transgressed sacred laws when he entered Hinenuitepō without invitation. She restored balance by annihilating him with her vulvic teeth – a symbol of the autonomous mana of wahine. The story is repeated a generation later with Hineteiwaiwa – the atua of women’s esoteric and ritual knowledge, and the tohunga Kae. The sacred roles of wahine in restoring balance in times of transgression have been forgotten. Women’s ritual knowledges have been deliberately censored, erased and denied as wahine have been reframed as ‘profane’, ‘inferior’ and spiritually polluting by colonial ethnographers.

³⁸⁵ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A67 Ngahuia Murphy; Mana Wāhine Kaupapa Inquiry, Wai 2700, #A55 Paula Ormsby; Mana Wāhine Kaupapa Inquiry, Wai 2700, #A17 Ani Mikaere; Mana Wāhine Kaupapa Inquiry, Wai 2700, #A19 Leonie Pihama; Mana Wāhine Kaupapa Inquiry, Wai 2700, #A62 Moe Milne; Mana Wāhine Kaupapa Inquiry, Wai 2700, #A63 Ella Henry; and Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022).

³⁸⁶ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A67 Ngahuia Murphy at [10].

³⁸⁷ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A67 Ngahuia Murphy at [9].

³⁸⁸ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A67 Ngahuia Murphy at [11].

³⁸⁹ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A67 Ngahuia Murphy at [14].

• Ella Henry (Ngātikahu ki Whangaroa, Te Rārawa, Ngāti Kuri) explains:390

On this point, Walker states that the reason for the voice of welcome being the woman’s was, “Because of her power to negate tapu and evil spiritual influences”. This ability to negate spiritual influences extended to carvings, for a female figure was carved into the lintel above guest houses. The presence on the door lintel is an acknowledgement of the importance of women. This in turn is known as ‘mana wahine’, which Walker has described as the “Dual generative and destructive power of the female sex. The duality of woman is further elaborated by Johannsen when he writes: “The crucial point in the woman’s being is that her life is made up of more varied, mixed and every day contents than that of the male ... she is more robust as regards pollutions of life, just because by nature her life is made of several components”. We can assume that Johansen is making delicate reference to menstruation, gestation, and lactation, when he refers to women’s ‘several components.

• Tā Pou Temara (Tūhoe) says that “women have the same role as Papatūānuku, which is to look after, nurture and protect the essence of mauri which includes taking care of people and their resources (taonga). Wāhine Māori are the physical manifestation of Papa, they carry in their womb, te whare tangata, the amniotic fluids of life, te wai āhuru, and they give birth to new life and humankind.”391

• 4.183 Moe Milne (Ngāti Hine) says that the term mana wāhine “is describing an inner strength and ability within Ngāti Hine wāhine that is inherited. As Ngāti Hine wāhine we walk around as if we own our world. We do not prescribe to anybody. It is something that is intrinsically within us.”392
• 4.184 An expression of mana wāhine is also present in relation to partnerships with men:393

Women were always free to dissolve their connection with a ‘husband’ and return to their people. No doubt, if this occurred her tribe would have cause for retribution in the form of utu, which would reflect badly on the husband, and could result in the exacting of costly revenge for the loss of mana to the wife and her whānau, because he had proven himself to be an inadequate marital partner.

• 4.185 Ani Mikaere (Ngāti Raukawa, Ngāti Porou) recounts the stories of Te Rangihaeata and Hineteiwaiwa to show the power and influence wahine had:394

Known to the outside world primarily for his military prowess and his steadfast refusal to submit to the Crown, Te Rangihaeata was also a spiritual leader within the iwi, well-versed in karakia. As the son of Waitohi and the brother of Rangi Topeora, he would have considered it normal for power and influence to be wielded by women as well as by men.

The manuscripts contain a wealth of stories about both men and women who exhibit a wide range of abilities and who perform all manner of roles.

Hineteiwaiwa plays a pivotal role in a number of Te Rangihaeata’s accounts. She is revealed not only as a woman with an exceptional array of talents, but also as possessing the wisdom to utilise those talents to maximum effect. It is proposed to focus on Hineteiwaiwa as a way of exploring the implications of our theories of creation for mana wahine.

³⁹⁰ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A63 Ella Henry at [46].

³⁹¹ Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [50].

³⁹² Mana Wāhine Kaupapa Inquiry, Wai 2700, #A62 Moe Milne at [32].

³⁹³ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A63 Ella Henry at [61].

³⁹⁴ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A17 Ani Mikaere at [16]–[18].

Mana in relation to lands/territories/moana

• 4.186 Mana in relation to lands, territories and moana has long been contested between Māori collectives both within and outside courts. We address this point more generally in the methodology section but note specifically in this section that the majority of evidence we cite comes from contested contexts.
• 4.187 What is consistent is the centrality of lands and territories to Māori. For example, Taiaha Hawke (Ngāti Whātua Ōrākei, Te Taoū, Te Uri o Hau, Ngāti Hē, Ngāti Mahuta) gives the following whakataukī: “Pērā anō te Māori ki te kumara; kaore he whenua ka mate noa – A Māori is just like a kumara; it dies without the land.”395
• 4.188 There is also relative consistency when people describe mana whenua in a general way:
  • Rima Edwards (Muriwhenua, Te Rārawa, Ngāti Kuri) describes the concept of mana whenua: “This means The Power and the Authority, the Protection of this Authority, the Control of this Authority and the Sanctity of this Authority in whom it is vested.”396
  • According to Tāmati Kruger (Ngāti Koura, Ngāti Rongo, Ngāi Tūhoe), “A group has mana whenua if they occupy an area of land for a consistent period of time, and fulfil their responsibilities to the land in a manner consistent with tikanga Māori and iho matua.”397
  • Paul Meredith (Ngāti Maniapoto) says, “Mana whenua means power, authority, jurisdiction, influence, or governance over land or territory. When a Māori group can demonstrate mana whenua over a particular parcel of land, that status involves corresponding responsibilities on the group to respect and protect the land itself, the people who live from the land, and the ancestors and deities through which one connects with the land.”398
  • According to Buddy Mikaere (Ngāti Pūkenga, Ngāti Ranginui), there is no black and white definition of mana whenua and it is best described as “the right to speak for the land”.399
  • Roger Pikia (Ngāti Tahu, Ngāti Whāoa, Ngāti Tūwharetoa, Raukawa, Waikato-Tainui, Ngāti Maniapoto, Ngāti Hikairo) similarly says, “I have read Mr Mikaere’s draft brief of evidence. In it, he records a dictionary definition of mana whenua and also his own understanding of the concept as amounting to a ‘right to speak for the land’. These descriptions accord with my own understanding of mana whenua. It also has to be acknowledged that the concept of mana whenua has evolved somewhat over the last century and a half, and that it is no longer necessarily exclusive. However, that

395. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Taiaha (Lance) Joseph Hawke (2 June 2020) at [70].

³⁹⁶ Muriwhenua Land Report, Wai 45, #B2 Rima Edwards at 2.

397. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [117].
398. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith (2 June 2020) at [87].
399. Minhinnick v Minister of Corrections [2004] NZEnvC A43/04, 6 April 2004, Statement of Evidence by Buddy Mikaere in rebuttal (undated) at [33].

does not mean there are not terms and conditions, so to speak, for the use and enjoyment of resources.”400

• Ngarimu Blair (Ngāti Whātua Ōrākei) explains mana whenua as meaning “to receive mana from the land as a result of discharging obligations to it. As such, mana whenua is necessarily exercised only by the hapū or iwi that has been living on and with the land for an extended period of time, and so maintaining an ahi kā connection.”401
• Justin Puna (Ngāti Kurumōkihi, Ngati Marangatūhetaua, Ngāi Tauira, Ngāi Te Ruruku ki Tangoio, Ngāi Tahu) asserts that mana is not obtained by whakapapa alone or mere presence in an area. Puna describes the key elements involved in obtaining mana whenua:402

Ahi kā roa – an undisturbed occupation of a long period. This occupation includes a historical link with the whenua and historical links include kōrero that tie you to those lands.

Whakapapa – a genealogical link to one of the source ancestors who would have occupied the land and had ahi kā roa.

Active participation in kaupapa within the takiwā. In other words, it requires involvement in Hapū matters. You do not qualify as tangata whenua with an infrequent appearance or involvement within the takiwā, you need your presence to be seen and felt.

• Puna goes on to explain, “To be recognised as tangata whenua, you must have whakapapa to the relevant hapū, and be an active participant within that particular takiwā. You must be or have been an active participant in kaupapa (activities) in and around your tūrangawaewae. Having whakapapa links to a hapū, iwi where you are not an active participant, gets you ‘in the door’ but it doesn’t afford you tangata whenua rights. Tāngata whenua are the people who have mana over a particular area.”403
• Awhina Waaka (Ngāti Pāhauwera) also reinforces that mana “is as much about responsibility, the responsibility to maintain mauri ora or the healthy state of natural resources, as it is about rights of use”.404
• Taiaha Hawke (Ngāti Whātua Ōrākei, Te Taoū, Te Uri o Hau, Ngāti Hē, Ngāti Mahuta) explains:405

400. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Statement of Evidence of Roger Pikia (1 May 2017) at [5.1].
401. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Ngarimu Alan Huiroa Blair (2 June 2020) at [69].

⁴⁰² Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit by Justin Owen Ian Puna (17 December 2020) at [9].

⁴⁰³ Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit by Justin Owen Ian Puna (11 August 2020) at [14]–[15]. See also Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Principles for the Allocation of Quota: Report for the Māori Fisheries Commission; Exhibit A Apirana Mahuika Nga Tikanga Māori e pa ana ki a Tangaroa (22 November 1991) at 8.

⁴⁰⁴ Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit of Awhina Evelyn Waaka (21 November 2013) at [5]. See also Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Principles for the Allocation of Quota: Report for the Māori Fisheries Commission; Exhibit A Apirana Mahuika Nga Tikanga Māori e pa ana ki a Tangaroa (22 November 1991) at 6.

⁴⁰⁵ Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Taiaha (Lance) Joseph Hawke for the plaintiff (2 June 2020) at [72].

To me mana whenua means the authority that a Māori kinship group has the privilege to have, by virtue of its constant attention to and respect for its land. I am reminded of the way Pā Henare Tate delivered a message about Māori and our whenua: he would say we have “mana i te whenua”, that is “mana from the land”. That has always made sense to me, because an individual or a group simply cannot have dominion over Papatūānuku. We must gain the blessing of Papatūānuku through tending to her and respecting her – this is the practice of kaitiakitanga-guardianship which determines the rights and responsibilities of a people who actively strive to maintain ahi kaa: a consistent presence on the land without interruption.

• Paul Meredith (Ngāti Maniapoto) says there is one universal definition or expression of mana whenua. “I think there is one – there definitely is within Māori tradition the notion of political jurisdiction or authority over an area, which can include excluding others, having that sort of dominion.”406
• Marei Apatu (Ngāti Pāraru) says, “Mana moana (those that have authority over the sea) was an expression similar to mana whenua (those that have authority over the land). This ethos sits at the very construct of the Māori world view – the celestial and terrestrial relationship are interwoven.”407

• 4.189 Dayle Takitimu (Te Whānau-ā-Apanui) draws on similar language when describing the mana that Te Whānau-ā-Apanui had over the moana.408 She explains:409

The iwi have consistently considered themselves to have mana motuhake over the tribal marine territory and have acted accordingly ... The iwi have considered that territorial jurisdiction to include the right to territorial integrity, which includes the right and authority to exclude.

Exclusion is considered a latent right by the iwi because access and accommodation, if it is in accordance with the tikanga of the iwi, is typically permitted, but it remains at the ongoing discretion and/or license of the iwi. Hence, Te Whānau a Apanui members and outsiders regularly interact with the marine territory of the iwi, but do so under the auspices of the mana of the iwi.

• 4.190 Justin Puna (Ngāti Kurumōkihi, Ngati Marangatūhetaua, Ngāi Tauira, Ngāi Te Ruruku ki Tangoio, Ngāi Tahu) contrasts the Māori understanding of mana whenua and mana moana against a common misconception some have with Pākehā views of possession. Puna explains:410

Mana whenua and mana moana are terms used to describe the territorial rights over the land and sea which the hapū possess, which have been achieved either through whakapapa and ahi kā roa, or through conquest. This is different to a pākehā view of possession of land which is seen as having title to a particular area. Mana whenua and mana moana are a cultural view of rights over land and sea. Māori may not have a title to the land or sea but they have a spiritual, historical, whakapapa and cultural link to the land and sea.

⁴⁰⁶ Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Notes of Evidence at 1194.

⁴⁰⁷ Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit of Marei Boston Apatu (10 Augus 2020) at [55].

⁴⁰⁸ Re Edwards [2021] NZHC 1025, Affidavit of Dayle Lianne Takitimu (24 February 2020) at [63]–[64].

⁴⁰⁹ Re Edwards [2021] NZHC 1025, Affidavit of Dayle Lianne Takitimu (24 February 2020) at [63]–[64].

⁴¹⁰ Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit by Justin Owen Ian Puna (11 August 2020) at [21].

• 4.191 Te Iwi Moriori Trust Board discusses the significance of tapu and its connection to mana:411

The important point is that our mana as a people and our mana over the land and sea remained intact in accordance with tikanga Moriori. The Land Court may have deprived Moriori of land ownership but it did not deprive us of our mana in relationship to that land. Mana comes from tapu and tapu comes from the gods. What is given by the gods can only be taken by the gods – not by a court.

• 4.192 Whaimutu Dewes (Ngāti Porou, Ngāti Rangitihi) stresses that mana over territory cannot be understood from a Pākehā viewpoint.412
• 4.193 Although he does not use the term “mana whenua” specifically, Maui Solomon (Moriori) describes, “Each tribe exercised territorial rights over a definitive area of land with defined boundaries. As agriculture was not practised, these rights resolved themselves into exclusive privileges of hunting and fishing, and the right to all stranded matter such as whales or timber (H D Skinnder).”413
• 4.194 Similarly to Maui Solomon, Te Riaki Amoamo (Te Whakatōhea, Ngāti Patumoana, Ngāti Ruatakenga) does not specifically use the term mana whenua but notes:414

Within Whakatōhea, each hapū had their customary land and sea territory, and each hapū would be responsible for acting as kaitiaki (custodians) of their territory. Each hapū has, and still has, their own mana and their own authority in their own customary domain. They control the sea as well as the land.

...

In tikanga, what is in front of you extending from the land out to the sea is your space. You control the sea as well as the land. ‘Takutai moana’ means ‘it’s my coastline’, and is a term I recall my elders using. I never heard them saying ‘tautai moana’ (‘it’s your coastline’).

• 4.195 Hemaima Mariana Hughes (Ngāti Ira) notes that terms like ‘mana moana’ were not used during her childhood but that they knew their whakapapa, who they were and where their lands, pā, urupā and kaimoana-gathering areas were (which included any shared areas), and each hapū respected those specific areas.415
• 4.196 Tama Hata (Te Whakatōhea, Te Whānau-ā-Apanui, Ngāi Tūhoe, Waikato) states, in relation to the concept of ‘mana moana’, “Seas do not belong to a people, they are entirely their own entity. People cannot claim an oceans mana, it is the oceans in its entirety. Who am I to make myself godlike and to cause the flow and ebb of the oceans? Who am I, a mere mortal, to espouse that my mana is greater than the mana of the guardian of the oceans?”416

411. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), “Rekohu (Chatham Islands) Submission to Te Ohu Kai Moana on Proposed Models of Allocation for Pre-settlement Assets” at 6.
412. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Notes of Evidence (Whaimutu Dewes) at 525.

⁴¹³ The Fisheries Settlement Report, Wai 307, #B23 Maui Solomon at [6.2]–[6.3].

414. Re Edwards [2021] NZHC 1025, Affidavit of Te Riaki Amoamo (3 August 2020) at [3.1] and [5.2]. This was similar to Hohepa Te Kahika who notes in his affidavit dated 20 February 2020 at [25] that the tikanga was that “You only ever took from where you belong. You never ventured unless ... people from that area take you to where their sources are. That’s respect for another iwi or hapū.”

⁴¹⁵ Re Edwards [2021] NZHC 1025, Affidavit of Hemaima Mariana Hughes (30 January 2020) at [40].

⁴¹⁶ Re Edwards [2021] NZHC 1025, Affidavit of Tama Te Waiwhakaruku Hata (14 February 2020) at [44].

• 4.197 Dr Moana Jackson (Ngāti Kahungunu, Ngāti Porou) explains the human dimension of mana whenua:417

The site of power resided in the institutions of ariki and rangatira operating within particularly Iwi and Hapū, and sometimes through huihuinga or whakaminenga involving a collective of Iwi and Hapū. It was through those institutions that the concept of power was given effect and the exercise of power was given the sanction of law.’ But the existence of mana whenua meant that this human site of power was also located in the land (mana i te whenua) and related to the mana moana and mana atua just as the concept of power was.

• 4.198 Tā Hirini Moko Mead (Ngāti Awa) states:

... it is important to note that there is a homeland, a territory that has been traditionally inhabited by members of an iwi, and that is variously described as te hau kāinga (home), te wā kāinga (home area), te whenua o te iwi (the land of the iwi), te rohe o te iwi (the boundaries of the iwi) or te takiwā o te iwi (the district of an iwi). This was and is a geographically defined region that is also recognised by neighbouring iwi.418

...

At the time of the signing of the Treaty of Waitangi the land was occupied by a number of iwi and their hapū and though much of the land has been lost the idea of a rohe or takiwā and te hau kāinga remains strong. This geographic identification of an iwi with a particular region also had to be acknowledged by neighbouring iwi who were usually in conflict with each other.419

The iwi must have a region, large or small, that it has historically occupied for a period of time with evidence of pā sites and cultivations, urupā (burial grounds) and other waahi tapu (sacred sites). A further indication of iwi identity within a particular region is the naming of important rivers, mountains and other landmarks that define the tribal boundaries and regions of importance.420

The various take whenua

• 4.199 A number of references to mana whenua draw on specific take as being critical to establishing mana whenua.421

417. R v Tamati Mason [2012] NZHC 1361, Affidavit of Moana Jackson (24 April 2012) at [32]. See also Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Principles for the Allocation of Quota: Report for the Māori Fisheries Commission; Exhibit A Apirana Mahuika Nga Tikanga Māori e pa ana ki a Tangaroa (22 November 1991) at 4.
418. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Hirini Moko Mead for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [17].
419. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Hirini Moko Mead for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [51].

⁴²⁰ Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Hirini Moko Mead for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [52].

421. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Ngarimu Alan Huiroa Blair (2 June 2020) at [21]–[22]; Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [97]–[103]; Ko Aotearoa Tēnei, Wai 262, #A30 Laly Haddon at [8]–[16]; Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith o (2 June 2020) at [67]; Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Statement of Evidence of Roger Pikia (1 May 2017) at [3.1]–[3.2]; Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93,

• 4.200 For example, Tāmati Kruger (Ngāti Koura, Ngāti Rongo, Ngāi Tūhoe) explains how relationships with the land can be expressed differently through the five take:422

While the connection between Māori and the land at a spiritual level is enduring, the reality is that there are different ways in which the relationship with particular areas of land come about. These are referred to as take, which means ‘the basis of’. There are five different take which allow for a closer analysis of the justification of a particular group’s responsibilities vis-à-vis the land.

These are:

• Take kitea: responsibilities on the basis of discovering of the land;
• Take tipuna: responsibilities on the basis of heritage or whakapapa;
• Take raupatu: responsibilities on the basis of conquest or war;
• Take tuku iho: responsibilities on the basis of gift, including through marriage; and
• Take hoko: responsibilities arising from an ‘exchange’, though not a purchase in the Pākehā sense. I will return to this aspect later in my statement.

Take are not mutually exclusive and a group may claim responsibilities and connections to land via different take.

Not all take provide the same intensity of responsibilities. Take raupatu, for example, may extinguish another group’s connection and responsibilities to the land, but doing so does not in of itself achieve a take tipuna connection with the land for the conqueror. That would ordinarily be established through marriages between the group that was defeated, and the group successful in battle.

Take, then, is the basis foundation and starting point for assessing land connections. The behaviour of the Māori group in relation to the land will reveal more information about the strengths, weaknesses and longevity of a group’s responsibilities.

I want to emphasise that the language I am using to describe the relationship an iwi has with land following any particular take is deliberate. Take justifies responsibilities to land, and in my view responsibilities are distinct from ‘rights’. Rights are a European concept that don’t translate well to indigenous cultures because of their concentration on the individual. Rather, and as I have described, Māori are a kinship-based society who calibrate their relationships based on their responsibilities to their atua (here, creator), people and land.

Those responsibilities do not give an individual ‘rights’ over the land in the sense that a decision about that land can be taken unilaterally and in isolation from considerations of tikanga. On the contrary, iho matua and tikanga values and principles are present in every decision about land with a view to maintaining and enhancing whanaungatanga, and restoring balance through utu if required to achieve a state of ea. These responsibilities are further guided by determining what is best for their community and achieving iwi tauukiuki (the continuity of the iwi in the future).

• 4.201 Others also refer to various types of take:

Rebuttal Evidence of Roger Pikia (23 June 2017); Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith in reply (4 December 2020) at [42]; Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Joint Affirmation of Jacinta Arianna Ruru and Mihiata Rose Pirini affirmed 14 September 2020 at [58]– [65]; The Wairarapa ki Tararua district inquiry, Wai 863, #J5 Nigel Te Hiko at [6.1]–[6.6]; The Wairarapa ki Tararua district inquiry, Wai 863, #J23 Nigel Te Hiko at [2.1]–[5.8].

⁴²² Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [97]–[103].

• Laly Haddon (Ngātiwai) refers to the “take tupuna” and “take tikanga” rights of Ngātiwai along the Pakiri coastline.423 He recalls the deeds and occupation of this area by his ancestors (600 years in unbroken succession) in support of this. The purpose of this evidence appeared to be to show that Ngātiwai was submitting as tangata whenua of the area.
• Roger Pikia (Ngāti Tahu, Ngāti Whāoa, Ngāti Tūwharetoa, Raukawa, Waikato-Tainui, Ngāti Maniapoto, Ngāti Hikairo) explains:424

Ngāti Tahu assumed mana whenua of their rohe through the traditional right of take raupatu (conquest) and consequently take tupuna (intermarriage) when Tahu [Matua] drove former inhabitants Ngāti Ruakōpiri from the area.

• Chris Winitana (Ngāti Tūwharetoa) explains, “Our exclusive mana whenua derives from take raupatu (conquest), take taunaha (naming and bequeathing) and take tipuna (intermarriage and alliance).”425 He also refers to tatau pounamu (formal peace settlements).426
• Ngarimu Blair (Ngāti Whātua Ōrākei) claims Ngāti Whātua Ōrākei holds mana whenua within its rohe on the following bases: take raupatu (taking the land through military conquest); take tūpuna or whakapapa; and ahi kā.427 He says there are a variety of things such as cultivating practices that evidence one’s mana whenua.
• Paul Meredith (Ngāti Maniapoto) says there are fundamental principles that are commonly understood – for example, whenua kite hou (discovery) and taunaha or tapatapa whenua (claiming the land by naming it), take tupuna (ancestral right) and ōhākī (dying bequest), take raupatu (conquest) and take tuku (gifting and transfer).428
• Professor Jacinta Ruru (Raukawa, Ngāti Ranginui) and Mihiata Pirini (Ngāti Tūwharetoa, Whakatōhea) say, “Acquisition of mana whenua occurs over time and begins with the acquisition of land. In accordance with tikanga Māori, land can be initially acquired by these three broad entry points:429
  • take kitenga (right of prior discovery);
  • take raupatu (right of conquest); and
  • take tuku (right of gift).”

• 4.202 Nigel Te Hiko (Raukawa, Waikato-Tainui, Ngāti Tūwharetoa, Ngāti Kauwhata, Ngāti Tukorehe, Ngāti Raukawa ki te Tonga) explains that interests in land could only be

⁴²³ Ko Aotearoa Tēnei, Wai 262, #A30 Laly Haddon at [8]–[16].

424. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Statement of Evidence of Roger Pikia o (1 May 2017) at [3.1]–[3.2].
425. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Statement of Evidence of Chris Winitana (4 June 2017) at [48].
426. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Statement of Evidence of Chris Winitana (4 June 2017) at [50].
427. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Ngarimu Alan Huiroa Blair (2 June 2020) at [23].
428. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith in reply (4 December 2020) at [42].
429. Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Joint Affirmation of Jacinta Arianna Ruru and Mihiata Rose Pirini affirmed 14 September 2020 at [58].

obtained through recognised take.430 These relate to both rights and obligations to whenua.431 These take whenua include take kitenga or take kite whenua hou (discovery),432 take raupatu and take ringa kaha (conquest),433 take tuku and take tupuna (descent)434 and take taunaha or tapatapa whenua (naming).435 Te Hiko goes on explain the background of Raukawa and how they came to be in the takiwā goes to their mana whenua. Raukawa interests in the takiwā derive from take taunaha, take raupatu and ahikāroa.436 This forms the basis of their mana whenua. In explaining another group’s connection to the area, Te Hiko says that Wairarapa Moana received their connection to the area by a Crown grant. which is not a take that would form the basis of mana whenua.437

Take tupuna

• 4.203 According to Paul Meredith (Ngāti Maniapoto):438

Take tupuna manifested itself through whakapapa (genealogies), which identified the relevant line of descent and succession. Aside from providing a connection to, and understanding of, the cosmological and spiritual realms, whakapapa determines and informs membership of kinship groupings, rank and status. It also reveals relationships and connections to each other and other groups through key linking ancestors, shared identities and eponymous ancestors.

• 4.204 The following comments were made about mana tupuna:
  • Reverend Māori Marsden (Ngāi Takoto, Ngāti Warara) makes the point that, while the Muriwhenua groups came into conflict and political dynamics change, they are all connected by whakapapa and had rights based on take tupuna through that whakapapa:439

Whilst the three principal groupings [of Muriwhenua] retained their identity and sovereignty because of the inter marriages and the fact of kinship and consanguineous relationships, the political dynamics were constantly changing. Political alliances were entered into and dissolved just as quickly. This characteristic has affected the relationships and interpretation of the political dynamics that obtained in Muriwhenua on the arrival of the Pākehā. While, in Pākehā eyes this may appear to create distortions, the reality was that throughout our history the chiefs in Muriwhenua identified with a single iwi but had rights based on take tupuna throughout the region. Panakareoa was a classic example of this ... The point is that it is very easy, by concentrating on the conflict between these chiefs, to

⁴³⁰ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Affidavit of Nigel Te Hiko affirmed 3 October 2018 at [2.1]–[2.2].

⁴³¹ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Affidavit of Nigel Te Hiko affirmed 3 October 2018 at [2.1]–[2.2].

⁴³² Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Affidavit of Nigel Te Hiko affirmed 3 October 2018 at [3.1].

⁴³³ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Affidavit of Nigel Te Hiko affirmed 3 October 2018 at [4.1].

⁴³⁴ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Affidavit of Nigel Te Hiko affirmed 3 October 2018.

⁴³⁵ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Affidavit of Nigel Te Hiko affirmed 3 October 2018 at [5.1].

436. Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Brief of Evidence of Nigel Huirama Te Hiko dated 22 May 2017 at [2.1]–[2.19].
437. Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Brief of Evidence of Nigel Huirama Te Hiko dated 22 May 2017 at [6.1]–[6.6].
438. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith (2 June 2020) at [67].

⁴³⁹ Muriwhenua Land Report, Wai 45, #F25 Māori Marsden at 3.

overlook the fact that they were inextricably intertwined. It is easy to overlook the cooperation between them, even in the midst of bitter conflict.

• In regard to Panakareao’s infamous statement “Kihai au i hoko whenua engari he mea tuku naku toku tuara ki Te Reinga”, Marsden interprets it as “whilst he could not sell, he had authority to allow the use of those lands by virtue of the rights derived from take tupuna”.440
• According to Eru Manukau,441 this extends to such things as mana whenua. Manukau says that all Ngāti Whatua hapū claim their mana from Haumoewharangi who conquered the Kaipara, and his children settled in the area.442 In the context of the Kaipara area, it seems this may be in relation to mana whenua as well as the broader idea of mana.443
• Paul and Natalie Karaitiana (Ngāi Tahu) say, “We agree that these islands and their coastal marine area are exclusively the right and property of Rakiura Māori who hold mana whenua by direct descent from one or more of the identified tupuna, for occupation and use most particularly during the period of each tītī season.”444

• 4.205 Paul Meredith (Ngāti Maniapoto) connects the importance of whakapapa alongside an ongoing presence to maintain mana whenua: “An iwi and its individual members must constantly pay attention to and serve the whakapapa through which their take tupuna connection with the land is established. Achieving a higher level of interest like mana whenua involves other factors, not least ahi kā.”445
• 4.206 Poihaere Heke-Barrett (Raukawa) notes, in regard to strategic marriage, that those marriages do not suddenly give an iwi (in this case Ngāti Kahungunu) a right to the land.446 She comments, “I also want to say that those that married into Raukawa stayed there because they married into tangata whenua – and that’s important to remember. If you marry into another iwi that connects to that iwi who are tangata whenua – it doesn’t make your iwi tangata whenua.”447

⁴⁴⁰ Muriwhenua Land Report, Wai 45, #F25 Māori Marsden at 6.

⁴⁴¹ Mr Manukau’s iwi affiliations were not listed.

⁴⁴² The Fisheries Settlement Report, Wai 307, #A21 Eru Manukau at [6].

⁴⁴³ The Fisheries Settlement Report, Wai 307, #A21 Eru Manukau at [6].

444. Re Tipene [2016] NZHC 3199, Affidavit of Sandra Helen Cook (30 October 2014), Annexure: Questionnaire – Customary Marine Title Application by Paul and Natalie (Pohio) Karaitiana (undated) at 13.
445. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith (2 June 2020) at [71].
446. Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Affidavit of Poihaere Elizabeth Anne Rangitutia Heke-Barrett affirmed 7 August 2018 at [3.1]–[3.6].
447. Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Affidavit of Poihaere Elizabeth Anne Rangitutia Heke-Barrett affirmed 7 August 2018 at [3.6].

Take kitenga/take kite whenua hou

• 4.207 Nigel Te Hiko (Raukawa, Waikato-Tainui, Ngāti Tūwharetoa, Ngāti Kauwhata, Ngāti Tukorehe, Ngāti Raukawa ki te Tonga) explains “take kitenga” or “take kite whenua hou” as “the rights to whenua derived through discovery”.448 He gives an example:449

Rakatāura was the tohunga of the Tainui waka, who married Kahukeke, the daughter of the Tainui captain, Hoturoa. Shortly after the waka arrived in Aotearoa, Rakatāura and Kahukeke journeyed inland. Everywhere they travelled, Rakatāura named significant sites commemorating his wife. These sites included Pirongia-te-aroaro-a-Kahu, Kakepuku-o- Kahu, Wharepūhunga-o-Kahu and Pureora-o-Kahu. He also named places in the Pouakani area including Whakamarumarutanga-o-Kahu.

...

Tia was an ancestor of the Te Arawa waka and journeyed to Aotearoa on that waka. He was the tupuna of Tūrongoihi, Raukawa’s wife. Tia was also an earlier explorer of the interior of the central North Island. On his travels inland, he would name places in commemoration of his travels ... [t]hese places include Horohoroi-o-ngā-ringa o Tia ... commemoration of his travels such as Taupōnui-a-Tia ... assert an association deriving out of take kite whenua hou through these early ancestors.

Take raupatu/take ringa kaha

• 4.208 Te Hiko further explains, “Take raupatu and take ringa kaha are interconnected. Take raupatu is the act of conquest, whereas take ringa kaha is to successfully defend a conquered area from being re-taken by the vanquished or being conquered in turn.”450 He gives an example:451

In the context of Pouakani, Raukawa rights derived through take raupatu or conquest of the area by Whāita, Wairangi and others.

Having heard the news of the slaying of his sister, the Raukawa chief, Whāita together with his cousins Tamatehura, Ūpokoiti, Wairangi, Ngākohua and Pipito organised a taua seeking retribution for her death. The avenging Raukawa taua attacked the iwi blamed for her killing. They were the Ngāti Kahupungapunga, a populour iwi located in throughout the central North Island. The reprisal was as shift as it was brutal, conquering the hapless Ngāti Kahupungapunga and their allies.

Raukawa forces fell upon their enemies at Pouakani. Here, they took a significant number of Ngāti Hotu and Ngāti Ruakōpiri pā, and took up occupation themselves. These pā included: Ngataamoa; Komako; Te Waokū (located south of Tahataharoa); Ngāwhakaekenga; Te Ika o Ngutuwera; and Whatapō.

...

In terms of take ringa kaha, Ngāti Kahupungapunga, Ngāti Hotu and Ngāti Ruakōpiri returned to challenge for the land. As a result Raukawa cemented their rights in the Pouakani through take raupatu and take ringa kaha.

⁴⁴⁸ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654 Affidavit of Nigel Te Hiko at [3.1].

⁴⁴⁹ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654 Affidavit of Nigel Te Hiko at [3.3]–[3.4].

⁴⁵⁰ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654 Affidavit of Nigel Te Hiko at [4.1].

⁴⁵¹ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654 Affidavit of Nigel Te Hiko at [4.2]–[4.7].

• 4.209 Paul Meredith (Ngāti Maniapoto) provides the following explanation:452

Because land, ancestors and deities are so interdependent within the Māori worldview, it is also critical to emphasise that a tikanga connection with land could be completely severed only in very rare circumstances, like raupatu (military conquest) followed by occupation by the conquering people.

...

Take raupatu has been described by the Waitangi Tribunal in the Pouākani Inquiry as:

... a right obtained by conquest, with displacement or servitude of the original occupants, followed by occupation of the land by the conquering group.

(footnotes omitted).

The club used in war is known as patu, and its blade was known as the rau, hence the term for conquest, raupatu.

... If a group succeeded in claiming land by raupatu but did not establish a permanent community presence on that land, then that group cannot later rely on take raupatu to justify a connection with the land.

Acts of raupatu could be more nuanced, perhaps shaped by rangatira relationships and the adoption of strategic alliances or even expressions of mana through generosity.

• 4.210 Meredith goes on to explain how “ringa kaha” and “ahi kā” are critical to securing mana whenua after a raupatu:453

In relation to Ngapuhi’s invasion of Tāmaki and Ngāti Whātua’s retreat and later return with Waikato support, Meredith states “[a]s I mentioned before, it is a general principle of take raupatu, that raupatu alone did not confer mana whenua or the right of authority and control over the land unless it was followed by continuous occupation or ahi kā.”

...

Maintaining claims to land also relied on ringa kaha (strength of the arm) – the ability of the victors to defend the land against challenges. This is also referred to by some as a Take Ātete. The word ātete means to resist. When Ngāti Whātua returned to Tāmaki, in a demonstration of ringa kaha, they eventually erected pā to defend themselves at Ōkahu, Karangahape and Mangere while elsewhere in Te Taoū and Ngaoho had pā at Onewa Te To (Waitaheke), Maunganui (Reretuahu) and Tauhinu (Paewhenua).

• 4.211 Under cross-examination, Meredith says ringa kaha was associated with “the strong arm”.454 That was enforced either by an individual’s own force or by having an army. Although there were political relationships and strategic alliances between iwi and hapū, the key was warding off people or defending rights.455

452. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith (2 June 2020) at [57]–[62].
453. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith (2 June 2020) at [161].

⁴⁵⁴ Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Notes of Evidence at 1194.

⁴⁵⁵ Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Notes of Evidence at 1194.

• 4.212 Alluding to the concept of ringa kaha, Gary Hooker (Te Roroa) says that the Battle of Pikoi may not have amounted to raupatu.456 The tikanga of raupatu “requires the former possessors to be driven out in their entirety”.457
• 4.213 Others also emphasise the importance of ahi kā following a raupatu in order to secure mana whenua:
  • Maui Weepu (Ngāi Tahu) claims that the Tuhuru hapū have “mana and tino rangatiratanga over the land and sea fishery of Tai Poutini from Kahurangi Point in the North to Piopiotahi in the South because it attaches to their rangatira Tuhuru and his chiefs including Te Koeti Turanga by right of conquest and subsequent occupation”.458 He says:459

Tuhuru’s rights on Tai Poutini are well established through the principle of Ahi Kā. At Arahura, the hapū’s papatipu marae, the fires have been kept burning by the hapū since Tuhur’s conquest.

• Margaret Kawharu (Ngāti Whātua Ōrākei), in response to assertions that groups, including Te Ākitai and Ngāi Tai ki Tāmaki, have mana whenua in the Tāmaki Makaurau isthmus through pre-defeat connections to the whenua, says:460

I accept that Waiohua people did not ‘disappear’ from the isthmus. However, mana whenua is not only about whether individuals from the group remain. It is about political preeminence, particularly via the recognition of the personal mana of key people. The fact is that a Te Taou/Ngāti Whātua force killed the preeminent Waiohua leader Kiwi Tāmaki and took over his main stronghold. Te Taou leader Wahaakiaki took on the name Kiwi Tāmaki after that battle. Peace was made subsequently through marriages of Te Taou men with Waiohua women. I accept that that preeminence was challenged and fought for time to time. But I do not consider this affects Ngāti Whātua Ōrākei’s mana whenua as at 1840.

• Charles Tawhiao (Ngāi Te Rangi) discusses the tikanga around raupatu – the basic understanding being that “if you took the land and you held it, it was yours” regardless of regional variations.461 In cross-examination, Tawhiao confirms that:462

... by virtue of the conquest of that land, the next thing that occurred was occupation by the descendants, and the continued occupation, the ability to hold the territory and dominance established ahi kā roa. Subsequent to the initial occupation, the take to the land passes down through the generations. He also confirmed it was a combination of these particular things which gives rise to Ngāi Te Rangi having mana whenua in Tauranga Moana. Take raupatu gives them status on the land. Ahi kā roa is what maintains it.

⁴⁵⁶ Beadle v Minister of Corrections, EnvC Wellington A074/2002, Statement of Evidence of Gary Hooker (undated) at [37].

⁴⁵⁷ Beadle v Minister of Corrections, EnvC Wellington A074/2002, Statement of Evidence of Gary Hooker (undated) at [37].

⁴⁵⁸ The Fisheries Settlement Report, Wai 307, #A10 Maui Weepu at [1].

⁴⁵⁹ The Fisheries Settlement Report, Wai 307, #A10 Maui Weepu at [4].

460. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Margaret Anne Kawharu in reply (4 December 2020) at [45].
461. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Charles Wahia Tawhiao (4 December 2020) at [38].

⁴⁶² Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Notes of Evidence at 1240.

• Nigel Te Hiko (Raukawa, Waikato-Tainui, Ngāti Tūwharetoa, Ngāti Kauwhata, Ngāti Tukorehe, Ngāti Raukawa ki te Tonga) explains that Raukawa’s presence in their rohe came about by take raupatu:463

Raukawa’s grandsons – Whāita and Wairangi – led tauā into this area and eventually conquered the Ngāti Kahupungapunga

... For the hapless Ngāti Kahupungapunga, as a result of the fighting they were decimated to the point that the iwi no longer exist.

Raukawa have maintained ahikāroa here ever since.

• Maui Solomon (Moriori) explains that the Moriori “were a unique people who had set aside warfare and established their own peaceful form of settlement in Rēkohu”.464 This is the reason why they didn’t fight back when Ngāti Tama and Ngāti Mutunga invaded Rēkohu in 1835, as it “would be a violation of their custom of peace declared centuries earlier by the paramount chief Nunuku Whenua”.465 Regardless of these iwi taking possession of the island, Solomon maintains Moriori mana whenua was never extinguished.466 It is implied because they still exist today and maintained their presence on the islands.467

• 4.214 There is not universal agreement on raupatu. David Wilson (Te Ākitai Waiohua, Ngāti Te Ata) says in cross-examination that “Te Ākitai Waiohua does not agree with this term “raupatu”... Even though Kiwi Tāmaki died, he was succeeded by another, and that was Rangimatoru.”468 Conquest is therefore not always clear cut and does not entirely displace the rights and interests of the occupying group. This may be particularly complicated where there is intermarriage.
• 4.215 Not all attempted raupatu are converted. Paraone Gloyne (Raukawa ki Wharepūhunga) says, “Raukawa originally went down into Kahungunu and tried to get that land by way of conquest in a tikanga Māori way. But we got our arses’ kicked and had to leave that there – so ka pai Ngāti Kahungunu.”469
• 4.216 Mana whenua continues to be defined and redefined by battle. Margaret Mutu (Ngāti Kahu) explains that mana whenua was continuously established by battle, referring to a battle fought between Poroa leading Te Rarawa and Te Houtaewa leading Te Aupōuri, and other battles that establish boundaries in Te Oneroa a Tohe.470

Take tuku

• 4.217 According to Tāmati Kruger (Ngāti Koura, Ngāti Rongo, Ngāi Tūhoe):471

⁴⁶³ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654 Brief of evidence of Nigel Te Hiko at [2.13]–[2.15].

⁴⁶⁴ The Fisheries Settlement Report, Wai 307, #A9 Maui Solomon at [4.2].

⁴⁶⁵ The Fisheries Settlement Report, Wai 307, #A9 Maui Solomon at [4.3].

⁴⁶⁶ The Fisheries Settlement Report, Wai 307, #A9 Maui Solomon at [4.3].

⁴⁶⁷ The Fisheries Settlement Report, Wai 307, #A9 Maui Solomon at [4.2]–[4.3].

⁴⁶⁸ Ngāti Whātua Ōrākei Trust v Attorney General [2022] NZHC 843, Notes of Evidence at 2944.

⁴⁶⁹ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654 Paraone Gloyne at [3.11].

⁴⁷⁰ Muriwhenua Land Report, Wai 45, #F12 Margaret Mutu, Joan Metge and Maurice Alemann at 9.

471. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [121]–[124] and [126].

Tuku means an offer to share, or being presented with the opportunity to share, or bestowing a gift on someone.

When land is concerned, tikanga Māori provides that a gift of land may establish the basis of a group’s responsibilities and connection to the land (take tuku), while the act of the gifting itself is a tuku whenua.

A tuku whenua is not a transaction. It is a result of a decision made by a Rangatira on behalf of his kin group for the purposes of establishing or maintaining whanaungatanga with another group in a manner that is informed by iho matua.

In the context of a tuku, the values of utu and ea are particularly important. A tuku is not complete the moment the land is gifted, nor are the gifting group’s responsibilities to the land extinguished either. Utu – or in this context proportionate compensation – is required to restore the balance between the gifting group and the receipting group in order to return to a state of ea.

It is therefore important to consider match of a tuku, which is tango. Tango means to redeem, accept, derive a gain or an advantage, or to meet one’s obligations. Tango reveals the intentions or aspirations of the receiving party, which allows both parties to assess whether the utu and tango achieves its moral objective, which could be ea depending on the context.

Of course, reaching ea does not extinguish the gifting group’s connection with the land. That connection lasts forever, with both groups retaining the ability to exercise certain responsibilities to the land, to the enablers of mana and the facilitators of the whakapapa connection.

By considering a tuku from both the giver and receiver’s perspective, it demonstrates the underlying reciprocity that is inherent in tuku. Again, it is difficult to use the English word ‘gift’ which is inadequate.

• 4.218 Margaret Mutu (Ngāti Kahu) describes tuku whenua as “a very old custom established long before Māori came to New Zealand, [and] can be found throughout the Pacific”.472 She refers to Wilkie Rasmussen’s discussion of a custom called henua soo or soo henua in Tongarevan customs (in the Cook Islands) that shares parallels with Muriwhenua/Māori land customs, specifically mana whenua.473 Mutu also says that this system is not peculiar to the Pacific and that the system of land tenure, including the allocation of use rights, practised in Switzerland is strikingly similar to Māori systems.474
• 4.219 Mutu further explains:475

... when a Māori gave over land, it was the land of his ancestors. Giving it over to others did not change the fact that his ancestors had lived there, been buried there, probably fought there and that many generations of the history and traditions of the hapū were inextricably woven into that land. To abandon all ties to these things was tantamount to abandoning [sic] one’s ancestors and therefore one’s mana and identity which had come from them. Certainly, as long as the hapū continued to live in the vicinity or visit the land, the ties would not be broken.

⁴⁷² Muriwhenua Land Report, Wai 45, #F12 Margaret Mutu, Joan Metge and Maurice Alemann at 13.

473. Muriwhenua Land Report, Wai 45, #F12 Margaret Mutu, Joan Metge and Maurice Alemann at 13–14, citing Rassmussen 1991:8–10.

⁴⁷⁴ Muriwhenua Land Report, Wai 45, #F12 Margaret Mutu, Joan Metge and Maurice Alemann at 13, fn 14.

⁴⁷⁵ Muriwhenua Land Report, Wai 45, #H10 Margaret Mutu at 14.

• 4.220 Ross Gregory (Te Rārawa, Te Aupōuri, Ngāti Kahu, Ngāpuhi, Ngāi Tahu) explains:476

Aroha was the most important thing. If that aroha was abused, the abuser put the tuku at risk. An acute sense of judgement and considerable trust was required on the part of the kaituku. He had to decide whether it was appropriate for an individual or a group to be bound into the community. The potential recipient would have been subjected to a spiritual challenge by the kaituku in order to ensure that his wairua was right. There was certainly no written contract or anything like that.

...

In all cases, the link had to be maintained. The tuku had to be remembered and passed on in oral tradition within the whānau, hapū or iwi. If a challenge was made the descendants having knowledge of the tradition, could respond. The tuku became bound up in the oral tradition of the people. To maintain the tuku you need to know about it.477

• 4.221 Margaret Mutu (Ngāti Kahu) says that, if there was a breach of tuku whenua, there were responses such as reducing the initial allocation of the tuku whenua.478
• 4.222 A number people emphasise that the original donors of the land retain mana whenua and particular rights:
  • Paul Meredith (Ngāti Maniapoto) says, “Tuku whenua is a notion of land allocation which permits occupation and use rights while the mana whenua of the donor tribe continues over the land. The basis of a connection of land by tuku is take tuku.”479
  • Margaret Mutu (Ngāti Kahu) explains, “There was also a clear understanding that when these Pākehā and their descendants no longer needed to use the land, it would return to the tribe. There was nothing in the discussions leading to the transactions which gave these Pākehā the right to sell the land. The land was given only for the use of a particular Pākehā and his descendants and the mana whenua remained always with the tribe.”480
  • Ngarimu Blair (Ngāti Whātua Ōrākei) explains:481

Tuku is a tikanga Māori concept whereby an area of land is donated or gifted by the chief/rangatira of the iwi holding mana whenua to another party. The purpose of a tuku was usually to establish a new relationship, maintain a previous relationship, secure an alliance or, less often, to repay a debt. Distinct from the Pākeha [sic] concept of a gift, the party making the tuku retains interests in and responsibilities to the land. According to tikanga Māori, there is no such thing as permanent alienation of land unless of course it taken by Take Raupatu military conquest (and even then, continuous occupation must follow a raupatu in order to establish a connection with the land of any meaningful value).

...

⁴⁷⁶ Muriwhenua Land Report, Wai 45, #F28 Ross Gregory at 5.

⁴⁷⁷ Muriwhenua Land Report, Wai 45, #F28 Ross Gregory at 7.

⁴⁷⁸ Muriwhenua Land Report, Wai 45, #F12 Margaret Mutu, Joan Metge and Maurice Alemann at 12.

479. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith (2 June 2020) at [108].

⁴⁸⁰ Muriwhenua Land Report, Wai 45, #F12 Margaret Mutu, Joan Metge and Maurice Alemann at 7.

481. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Ngarimu Alan Huiroa Blair (2 June 2020) at [71] and [374.3].

Tuku whenua is the act of allocating a piece of land to another iwi or group (including the Crown, or non-Māori). The tuku is a symbol of mana whenua itself – only the group with mana whenua could carry out such an act. Tuku does not sever mana whenua. Tuku could never operate that way, because the act of tuku is a symbol of mana whenua (or rangatiratanga).

• Henare Rakiihia Tau (Ngāi Tahu, Ngāti Māmoe, Waitaha) describes how tuku whenua worked in their rohe and that it was always subject to Ngāi Tahu rangatiratanga:482

... it was normal in traditional times to make land available for the use, even the exclusive use, of other people coming to live with us. They had to be given enough land for their house and for gardens to feed themselves. It was a human requirement. That was our way, to make available to our friends and to visitors amongst us enough land for them to live on, and mahinga kai areas for their sustenance to make food for their families, and to live in peace amongst us. This would be described ... as a tuku manuhiri, or a tuku whenua right. It was not a complete “ownership right”, or a total property alienation as is spoken of today.

Rangatiratanga was of most importance. What was given, could be taken away again. That risk required the people enjoying those tuku whenua or tuku moana rights given to them to observe and respect our tribal Ngāi Tahu mana, or else risk the consequences.

• Ross Gregory (Te Rārawa, Te Aupōuri, Ngāti Kahu, Ngāpuhi, Ngāi Tahu) explains, “Poroa’s tuku was never a relinquishment of Te Rarawa mana over Ahipara. In fact it confirmed our mana. How could we have tuku’d the land if we did not have the mana to do so? We retain that mana today.”483
• Rima Eruera484 (Muriwhenua, Te Rārawa, Ngāti Kuri) says, “When Panakareao tuku’d the land at Te Ahu to the missionaries, he was allowing them to live on it as part of his whānau and hapū, inviting them to share his life and community.”485 Rima also notes that evidence of this is that Panakareao returned to Te Ahu to die.486 He says:487

Having taken ill at Oruru, it was his wish to come back to Te Ahu to die. He would not have done that if he did not firmly believe that he still held the mana at Te Ahu. No chief would choose to die on land over which he had no mana.

• Tuku whenua is often signified by a parallel koha of some kind. According to Margaret Mutu (Ngāti Kahu), “It was common practice for a tuku whenua to be marked in some way such as the passing over of a mana tunga (e.g. a cloak or mere) or composition of waiata or whakataukī. Such items were termed tohu, symbols or signs of the transactions. They symbolised not only the transaction but also the binding of the two parties in a long-term agreement. Ultimately, maybe several generations later, both the tohu and the land would be returned to its original owners. At no stage in this process was the mana whenua of the allocating chief threatened.”488

482. Ngai Tahu Māori Trust Board v Attorney-General CP 559/87, Affidavit of Henare Rakiihia Tau (24 November 1989) at [34]–[35].

⁴⁸³ Muriwhenua Land Report, Wai 45, #F28 Ross Gregory at 4.

⁴⁸⁴ Also known as Rima Edwards.

⁴⁸⁵ Muriwhenua Land Report, Wai 45, #F23 Rima Eruera at 9.

⁴⁸⁶ Muriwhenua Land Report, Wai 45, #F23 Rima Eruera at 16.

⁴⁸⁷ Muriwhenua Land Report, Wai 45, #F23 Rima Eruera at 16.

⁴⁸⁸ Muriwhenua Land Report, Wai 45, #F12 Margaret Mutu, Joan Metge and Maurice Alemann at 8.

• 4.223 Some examples of tuku whenua:
  • Tāmati Kruger (Ngāti Koura, Ngāti Rongo, Ngāi Tūhoe) gives an example from Tūhoe, where the daughter of Sir Apirana Ngata married a man from Tūhoe. When the man passed away, tikanga saw the wife would inherit the whenua. However, she exercised tuku and gave the land back to the Tūhoe whānau.489 This, in Kruger’s opinion, demonstrated the “reciprocity inherent between two iwi with responsibilities to the same piece of land is never forgotten”.490
  • Rikirangi Gage (Te Whānau-ā-Apanui, Ngāti Porou) in his evidence tells the story of Whakaari being given to Te Whānau a Te Ehutu as “utu” or compensation for traveling to Whakatāne at the behest of Purahokino, a Ngāti Awa chief, to avenge the death of his beloved son Te Whakapākina.491 Gage explains, “Te Whakapākina had been killed by a neighboring faction of that tribe. In situations where intra-tribal killing took place, it was customary (and strategic) to invite a third party, a party not too closely related to intercede as part of “utu” process. This avoided the spiralling out of control of killings if the broader tribal network became involved in the utu.”492
  • Te Kahautu Maxwell (Te Whakatōhea, Te Whānau-ā-Apanui, Ngāi Tai, Ngāti Awa, Tūhoe, Ngāti Porou, Ngāti Maniapoto) provides an example of tuku whenua in Ngāti Pūkenga:493

An example is Ngāti Pukenga, renowned as warriors, they were called upon often by other iwi to assist in battle. Hence, they were gifted land at Manaia, Hauraki by Ngāti Maru and land at Ngāpeke, Tauranga Moana by Ngāti He. Ngāti Porou ki Harataunga in Hauraki were gifted land by Paora Te Putu of Ngāti Tamaterā for assisting them in battle against Ngā Puhi.

• Ngarimu Blair (Ngāti Whātua Ōrākei) explains that the tuku Apihai Te Kawau made to the Crown and Governor Hobson in 1840 “was an exercise of rangatiratanga by Apihai on behalf of Ngāti Whātua Ōrākei”.494 Blair also explains a “tuku Rangatira” to Waikato-Tainui:495

Ngāti Whātua Ōrākei also gave land within its rohe to Waikato iwi such as Ngāti Mahuta and Ngāti Tamoho [sic] in 1837. Blocks of land at Three Kings, Mount Hobson and Pukapuka were given to repay them for their services during the time Ngāti Whātua Ōrākei had withdrawn from the isthmus and received shelter on their lands. These lands were ‘tuku rangatira’ (an offering of land between high-ranking iwi leaders) and while that kind of tuku gave them rights of use and occupation, it was still subject to Ngāti Whātua Ōrākei’s mana whenua and rangatiratanga.

489. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [129]–[130].
490. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [130]–[130].

⁴⁹¹ Re Edwards [2021] NZHC 1025, Affidavit of Te Kou Rikirangi Gage (21 February 2020) at [142]–[143].

⁴⁹² Re Edwards [2021] NZHC 1025, Affidavit of Te Kou Rikirangi Gage (21 February 2020) at [142]–[143].

⁴⁹³ Re Reeder on behalf of Ngā Pōtiki [2021] NZHC 2726, Affidavit of Te Kahautu Maxwell (7 August 2020) at [129].

494. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Ngarimu Alan Huiroa Blair (2 June 2020) at [70].
495. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Ngarimu Alan Huiroa Blair (2 June 2020) at [60]–[61] and [136.4].

...

Ngāti Whātua Ōrākei rangatira often made chiefly gifts – or qualified land transfers – in the nature of tuku rangatira, to create, secure and govern political relationships. Tuku rangatira meant “the mana or title being retained by the donor rangatira.”

• Margaret Mutu (Ngāti Kahu), talking about the same tuku from Apihai Te Kawau to the Crown and Governor Hobson, says, “Our tribal lands were willingly given over under the custom of tuku whenua for the use of Pākehā, in particular, the missionaries, but on the clear understanding that such a transaction was carried out primarily to benefit the tribe and to bind the Pākehā and his descendants into the tribes’ structures.”496
• Haami Te Whaiti (Ngāti Kahungunu ki Wairarapa, Ngāi Tumapuhia) says tuku between Ngāti Kahungunu, Rangitāne and Ngāi Tara “paved the way for Ngāti Kahungunu to reside and eventually become dominant” in the Wairarapa rohe.497 He explains the tūpuna that arrived later. Tūmapuhia, Māhanga and Te Rangitawhanga, were given land through tuku because of their shared whakapapa (Kahungunu, Rangitāne and other local iwi). He clarifies that land wasn’t the only subject of tuku. In one case, there was “an exchange of waka” to “enable those Rangitāne who wished to leave the district to cross to Te Waipounamu”.498
• Margaret Mutu (Ngāti Kahu) explains how she attended a hui in 1991 in Karikari, and Patana Matiu, as kaumātua (elder) and holder of the mana whenua for a particular block of land, was asked by his niece for some land for a community hall. He responded “Ka tuku au i te whenua ki a koe mō tō whare. Ka mutu tō mahi i taua whenua, me whakahoki mai ki ahau”, which translates to “I will give or allocate the land to you for your building. When you finish your business on the land, return it (the land) to me.”499
• Walter Ngamane (Ngāti Maru, Ngāti Whanaunga, Ngāti Tamaterā, Ngāti Pāoa, Ngāi Te Rangi, Ngāti Hinerangi) for Marutūāhu describes whanaungatanga, whakapapa and mana as “fundamental principles that underlie tikanga”.500 He says a good example of these principles in practice is tuku whenua, which is “an important part of the history of Ngāti Maru and Marutūāhu”.501 He gives the example of Te Tawera of Ngāti Pūkenga who received a tuku from Ngāti Maru. This tuku was due to Te Tawera’s hospitality and their military alliance in the early decades of the 1800s.502 He gives another example of a conditional tuku, where Taraia allowed Te Whanake land at Ongare to grow crops and only grow crops. However, after a while, they began establishing kāinga at Ongare. Taraia sent a messenger with a warning, but it

⁴⁹⁶ Muriwhenua Land Report, Wai 45, #F12 Margaret Mutu, Joan Metge and Maurice Alemann at 7.

⁴⁹⁷ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654 Brief of evidence in reply Haami Te Whaiti at [6].

⁴⁹⁸ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654 Brief of evidence in reply Haami Te Whaiti at [9].

⁴⁹⁹ Muriwhenua Land Report, Wai 45, #F12 Margaret Mutu, Joan Metge and Maurice Alemann at 11.

500. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Walter (Wati) Ngakoma Ngamane evidence (13 October 2020) at [19].
501. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Walter (Wati) Ngakoma Ngamane evidence (13 October 2020) at [25].
502. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Walter (Wati) Ngakoma Ngamane evidence (13 October 2020) at [25]–[31].

was ignored. Another messenger was sent, this time with eels and a cartridge for Te Whanake to choose one or the other. Te Whanake chose the cartridge, which ended in war and his eventual defeat where Taraia and other iwi including Ngāti Tamaterā feasted upon Te Whanake’s people.503

Take taunaha or tapatapa whenua

• 4.224 Roger Pikia (Ngāti Tahu, Ngāti Whāoa, Ngāti Tūwharetoa, Raukawa, Waikato-Tainui, Ngāti Maniapoto, Ngāti Hikairo) explains that “take taunaha applies to vacant or unoccupied land”.504
• 4.225 Nigel Te Hiko (Raukawa, Waikato-Tainui, Ngāti Tūwharetoa, Ngāti Kauwhata, Ngāti Tukorehe, Ngāti Raukawa ki te Tonga) explains take taunaha as “the connection that comes from being the ones that name an area or geographic features. This is an important take as it brings visibility to the connections to that area. Places were often named to recount important events or to recognise the connection of a key tupuna to that area.”505 He explains, “As others go on to use those names it becomes a way of recognising the mana of the tangata whenua by referencing the tangata whenua connections.”506 Te Hiko gives an example:507

The name of the wider area in which the Pouākani block is situated is referred to as Te Pae o Raukawa. This name dates back to the time of the eponymous ancestress Māhina-a-rangi and her journey to her husband’s lands.

The name ‘Pouākani’ itself is a relatively recent one ... this name was ascribed to a pou raised in the area that delineated the eastern boundary of the Rohe Pōtae.

... the name is one that links the various iwi in the area and references the events of the Waikato wars and the growth of the Kīngitanga. These were pivotal events in Raukawa history.

According to my elders, the river was named Mangakino by Rakatāura. They said that as he crossed the river he felt a sense of foreboding. This, they said he took as a tohu which he named.

• 4.226 Morehu Wilson (Ngāti Paoa, Ngāti Whanaunga, Ngāti Maru, Ngāti Tamaterā) explains how the naming of places can be evidence of a relationship to that whenua. “The protocol of naming locations and land features within a Māori context is steeped in customary ritual, and provides tribal connection to those places. Names of ancestors crewing both ancestral vessels have been given to various locations within Tāmaki and the wider district.”508

503. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Walter (Wati) Ngakoma Ngamane evidence (13 October 2020) at [25]–[31].
504. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Rebuttal Evidence of Roger Pikia on behalf of Ngāti Tahu-Ngāti Whaoa Rūnanga Trust (23 June 2017).

⁵⁰⁵ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654 Third Affidavit of Nigel Te Hiko at [5.1].

⁵⁰⁶ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654 Third Affidavit of Nigel Te Hiko at [5.2].

⁵⁰⁷ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654 Third Affidavit of Nigel Te Hiko at [5.3], [5.5] and [5.8].

508. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Morehu Anthony Dean Wilson (13 October 2020) at [17].

• 4.227 Tā Hirini Moko Mead (Ngāti Awa), Dr Hohepa Mason (Ngāti Awa, Ngāti Pūkeko) and Te Kei Merito (Ngāti Awa, Ngāti Pūkeko, Ngāti Rangataua, Ngāti Hokopū, Ngāi Tamapare) discuss the travels of the Mataatua waka, which includes an account of the origin of the name Whakatāne:509

The Mataatua waka traversed many parts of the North island before coming to the Bay of Plenty. The waka made landfall at Whangaparaoa, then Tauranga, then Te Awa o Te Atua (Matata) and then Kakahoroa. On that journey, some of the children of Muriwai died at sea near the Coromandel peninsular. A rāhui was placed over the Bay of Plenty from Moehau to Tihirau. This is commemorated in the Mataatua definition of its boundaries “Mai ngā Kurī a Wharei ki Tihirau”. Wharei was an occupant on the Mataatua waka.

In its journey, the Mataatua travelled from Tauranga to Whakatāne naming places along the way such as Maketu, Karewa, Waihi, Pukehina, Te Kaokaoroa, Kaupaea, Rurima, Moutoki and Koohi Point. The various accounts of the arrival of the Mataatua have it visiting many places around Aotearoa and like the other waka arrivals they named various places. For instance, Muriwai and Owairaka in Tamaki Makaurau are named after two of our famous tupuna.

The waka travelled past Whakaari and veered towards Moutohora. From there the occupants noticed Kakahoroa as it was known then.

At Kakahoroa, the waka was paddled up the Whakatāne River to Te Punga o Mataatua. It was here that Wairaka (in the Ngāti Awa tradition) saved the Mataatua waka from drifting away from its mooring. In saving the waka she uttered the famous saying “E, kia Whakatāne ake au i ahau!” (Let me act like a man). From that time, the area became known as Whakatāne.

The mauri of the Mataatua is buried at Whakatāne and was signified by Te Manuka Tutaki (the lone standing Manuka tree). The anchor was Te Toka a Taiao which is where the Wairere stream joins the Whakatāne river.

• 4.228 Te Ringahuia Hata (Ngāti Patumoana) describes an example of connection to place through naming: “Ngāti Patumoana descended from Ruamoko, the younger brother of Tahu, the sons of Hau o Te Rangi. Ruamoko and Tahu (whom Ngāti Ngahere derive from) descend from Tārawa, who was the earliest recognized ancestor of Whakatōhea. Tārawa swam to Aotearoa and when he cast up on the beach the people living at the pā thought he was a rātā log (pae rātā), hence the name Pāerātā when Tārawa came ashore. Another kōrero passed down is that Tārawa came to Aotearoa on the waka Te Arautauta accompanied by two pet fish. He released his pet fish in a spring and the area became known as Ōpōtiki-Mai-Tawhiti, the pets from afar. This is also how Ōpōtiki township got its name.”510
• 4.229 Hetaraka Biddle (Ngāi Tamahaua hapū) discusses naming of the Ōpēpē awa. According to Ngāi Tamahaua tradition, the name relates to the Maruiwi people who are considered the first inhabitants of the area and who Ngāi Tamahaua whakapapa to. “The Maruiwi women were small in stature and the Ōpēpē stream was a place they would go to deliver their babies. Due to their small frames the babies often died there at the awa. That is why

509. Re Edwards [2021] NZHC 1025, Affidavit of Tā Hirini Moko Haerewa Mead, Dr Hohepa (Joseph) Mason and Te Kei (O Te Waka) Wirihana Merito (19 May 2020) at [50]–[54].

⁵¹⁰ Re Edwards [2021] NZHC 1025, Affidavit of Te Ringahuia Hata (29 January 2020) at [23].

the name Ōpēpē was given.”511 A waiata tangi was composed to record the significance of the awa and its kōrero:512

Me pēnei ana Te mate i a koe

Me he mate marama Ka ora mai e

E hika e

Kua pani o tamariki

Kua riro koe hei whakaruruhau e Whakatutu ai

Nga kapua i opepe

E puanga nei ka rere i te hau e

• 4.230 Paul Meredith (Ngāti Maniapoto) sees take taunaha or tapawhenua as being illustrative and part of the expression of ahi kā:513

Hapū and iwi demonstrate their ahi kā and their connection to land through their association with, and knowledge of, the landscape, flora, fauna and tohu or sites of cultural and historical significance. Related to ahi kā, the tikanga or taunaha or tapatapa whenua was claiming the land by naming it. Every hill, valley, stream and forest had been named by Māori and those names have meaning and importance to associated hapū and iwi.

Ahi kā

• 4.231 Ngarimu Blair (Ngāti Whātua Ōrākei) explains the concept of ahi kā:514

Ahi kā means to live on and tend to land, in order to sustain a way of life for an entire iwi or hapū. Considered together, all of the usual signs of a kinship based community are strong signals of ahi kā: fires for cooking and heating, pā, marae, urupā, kāinga, mahinga kai, fishing sites, and natural landscapes named and respected by the group with mana whenua. The key to ahi kā is a continuous and permanent presence in a particular area.

• 4.232 Nigel Te Hiko (Raukawa, Waikato-Tainui, Ngāti Tūwharetoa, Ngāti Kauwhata, Ngāti Tukorehe, Ngāti Raukawa ki te Tonga) describes ahikāroa as providing “warmth, light and the opportunity for cooked food”.515 He explains:516

511. Re Edwards [2021] NZHC 1025, Affidavit of Hetaraka Biddle (20 February 2020) at [72] and [73]; Affidavit of Kayreen Tapuke (20 February 2020) at [24].
512. Re Edwards [2021] NZHC 1025, Affidavit of Hetaraka Biddle (20 February 2020) at [75]; Affidavit of Kayreen Tapuke (20 February 2020) at [26]. See also at [97] of this Report.
513. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith (2 June 2020) at [76].
514. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Ngarimu Alan Huiroa Blair (2 June 2020) at [374.2].
515. Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654 Affidavit of Nigel Huirama Te Hiko affirmed 3 October 2018 at [6.1].
516. Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654 Affidavit of Nigel Huirama Te Hiko affirmed 3 October 2018 at [6.1]–[6.20].

... lighting fires was both time and labour intensive. In order to save on both, throughout night and day, villagers would constantly stoke a centrally located fire.

The constant tending to the village fire, gave rise to the metaphoric expression “keeping the fires burning” or ahikāroa.

... ahikāroa is a traditional concept that is rooted in tikanga Māori. It comes from a presence on the land that has been established by the take whenua that are also rooted in tikanga Māori.

Ahikāroa is not an immediate thing. It develops over generations, and is the maintenance of the fires over time rather than the lighting of the fires.

Raukawa assert that our fires were never extinguished and have maintained a presence in Pouakani (names several hapū and marae etc) since the time of Rakatāura, Kahukeke and Tia.

• 4.233 Te Riaki Amoamo (Te Whakatōhea, Ngāti Patumoana, Ngāti Ruatakenga) notes:517

Under our tikanga, we belong to our customary land and sea through a combination of our whakapapa to the land, the occupation of our ancestors keeping the home fires burning over many centuries (or ahi kā roa, literally the long burning fires), and conquest over other tribes in battle. That is, you obtain and maintain your customary title through whakapapa and occupation, and before colonisation you needed to defend your territorial boundary through battle as well.

Maintaining your ahi kā roa mean that you are there permanently, and you maintain your customary title. So long as the home fires are kept burning at your marae, whether it’s big or little hui, or tangihanga or whatever, there is somewhere for people to come back to.

• 4.234 The importance of ahi kā is a central tenet of mana whenua:
  • Tā Pou Temara (Tūhoe) says. “Ahi kā is a metaphor for a iwi and a culture that is alive and vibrant on their land ... The mana to have discussions and to guide decisions over tribal matters is through their relationship and ongoing connection to land. Land gives a Māori mana to karanga and to whaikōrero.”518
  • Tā Tipene O’Regan (Ngāi Tahu) says that “it could be possible to obtain a tikaka- based connection with whenua, or a right of presence, over the effluxion of time through the principle of ahikāroa. Even outright conquest does not, of itself, convey mana whenua unless it is followed by ongoing occupation.”519
  • Charles Tawhiao (Ngāi Te Rangi) references the relationship between Ngāi Te Rangi and Tauranga Moana as “based in our history as an iwi and in our exercise of cultural authority in Tauranga Moana, which has continued unbroken since then ... It is not enough to simply claim mana whenua over a place. The claim must be kept alive just as the long burning fires of ahi kā must be kept alive.”520
  • Paul Meredith (Ngāti Maniapoto) points out that to “maintain rights and interests in land, individuals and groups needed to show continuous occupation of an area,

⁵¹⁷ Re Edwards [2021] NZHC 1025, Affidavit of Te Riaki Amoamo (3 August 2020) at [3.2] and [3.3].

⁵¹⁸ Re Edwards [2021] NZHC 1025 Sworn affidavit of Tā Pou Temara dated 24 January 2022 at [30]–[31].

519. Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Affirmation of Sir Tipene Gerard O’Regan (17 September 2020) at [38].
520. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Charles Wahia Tawhiao (2 June 2020) at [35].

generally referred to as ahi kā (lit fire) or ahi kā roa (long-burning fire)”.521 Meredith draws on the whakataukī “Ka wera hoki i te ahi, e mana ana ano – While the fire burns the mana is effective.”522 In order to maintain rights and claims to the land, hapū and iwi need to show continuous occupation in an area.523

• Wira Gardiner (Ngāti Pikiao, Ngāti Awa, Te Whakatohea, Te Whānau-ā-Apanui) explains that mana whenua is established though an “unbroken connection to the land”. He says, “This notion, known as ahi kaa (burning fires) signals to both internal and external parties who has cultural mandate to determine the affairs of hapū or iwi.”524
• Tāmati Kruger (Ngāti Koura, Ngāti Rongo, Ngāi Tūhoe) explains that maintaining ahikāroa is critical to establishing mana whenua. He says, “your take is empty without ahi kā roa. So my example would be that if there was histories between yourself and myself and historically you could refer to 20 battles where you won all 20, defeated me, but then after each battle you returned to Rūātoki and never, ever stayed here, the victories of your battles does not equate then to mana whenua.”525
• Maui Solomon (Moriori) says that Moriori preserved their mana whenua over the entire of Rēkohu to present day through continuous and unbroken ahi kaa.526 Moriori who were born in Rēkohu keep the home fires burning on the island. They are the “Pito o te Whenua – those whose lifeblood is forever connected to the whenua of Rēkohu”. Moriori who were not born on Rēkohu have the right to reclaim their ahi kaa and their cultural links with their whenua and tīpuna by virtue of their birthright and hokopapa links back to Rēkohu.527
• Te Kurataiaho Kapea (Ngāti Whātua Ōrākei, Te Uri o Hau, Ngāti Rongo) explains ahi kā as:528

Ko tēnei mea te ahi kā roa, ko tō noho mau roa ki ō whenua. Ko tō whakatupu kai ki ō whenua. Ko tō taokai ki ō whenua. Ko tō whakatū whare ki ō whenua. Ko tō whakatupu tamariki, whakatupu mokopuna ki ō whenua. Ko tō tanu tūpāpakuki ō whenua.

Ahi kā roa is your continuous occupation of land. It is your growing of food on your lands. It is your erecting houses on your lands. It is your raising of children and grandchildren on your lands. It is your burying of loved ones on your lands.

521. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith (2 June 2020) at [72].
522. Te Pipiwharauroa: He kupu Whakamarama No. 130, January 1909, at 6; See also Mead and Grove Ngā Pēpeha a Ngā Tīpuna (Victoria University Press, Wellington) at 197.
523. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith in reply (4 December 2020) at [35].
524. Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073, Reply Evidence by Harawira Tiri Gardiner (17 February 2017) at [3.1].

⁵²⁵ Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Notes of Evidence at 1831.

⁵²⁶ The Fisheries Settlement Report, Wai 307, #B23 Maui Solomon at [6.6].

⁵²⁷ The Fisheries Settlement Report, Wai 307, #B23 Maui Solomon at [7.18].

⁵²⁸ Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of Evidence of Te Kurataiaho Lonoholoikahiki Kapea (te reo Māori version) (2 June 2020) at [56]; and Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of Evidence of Te Kurataiaho Lonoholoikahiki Kapea (English version) (2 June 2020) at [56]).

• Nigel Te Hiko (Raukawa, Waikato-Tainui, Ngāti Tūwharetoa, Ngāti Kauwhata, Ngāti Tukorehe, Ngāti Raukawa ki te Tonga) says, “Once interests have been established through the various take whenua then a presence on the land needs to be maintained

– or ahikāroa maintained – in order to sustain mana o te whenua.”529

• Hauata Palmer (Ngāi Te Rangi) explains:530

Those that are said to have ahi kā, are those that have mana over an area and have maintained continuous occupation of that area. Some aspects that point towards ahi kā being in existence are marae, urupa, whakapapa of those living on the land and kainga.

...

The establishment of mana over areas was based on the mana of a rangatira, and their influence extended across the land and the moana based on markers for example like trees, rocks, hills, rivers, and anything that could easily define a boundary. Furthermore, however long that hapū occupied and defended that land or part of the moana, it pointed to that area belonging to them.

• Paul and Natalie Karaitiana (Ngāi Tahu) say, “in our view ahi kā is about continued representation and practical application of rights handed down to whānau from our tupuna. The tikanga is applied for the benefit of ngā whānau over many generations.”531
• Marie Moses (Ngāti Pāhauwera) describes ahi kā as “the people that are at the marae and in the area all of the time. They are the heart of the marae and the holders of knowledge, practitioners of the Tikanga and Kaitiakitanga.”532

• 4.235 There are a number of ways to illustrate the exercise of ahi kā roa:
  • Professor Jacinta Ruru (Raukawa, Ngāti Ranginui) and Mihiata Pirini (Ngāti Tūwharetoa, Whakatōhea) say, “Evidence of take ahikāroa within a hapū or iwi’s boundaries could be shown by simple acts of appropriation for example, the cultivation of small areas of ground. It could also be reinforced by external factors such as recognition by neighbouring hapū or iwi as an important part of the validating process.”533
  • Ngarimu Blair (Ngāti Whātua Ōrākei) claims Ngāti Whātua Ōrākei holds mana whenua within its rohe on the following bases: take raupatu (taking the land through military conquest); take tūpuna or whakapapa; and ahi kā.534 He says there are a variety of things such as cultivating practices that evidence one’s mana whenua. “I will ... describe the rohe of Ngāti Whātua Ōrākei by reference to geographical sites of significance that define our rohe, as well as the customary practices such as food cultivating, fishing and seasonal migration. In addition to the mere presence of people

⁵²⁹ The Wairarapa ki Tararua district inquiry, Wai 863, #J23 Nigel Te Hiko at [2.2].

⁵³⁰ Re Reeder on behalf of Ngā Pōtiki [2021] NZHC 2726, Evidence of Hauata Palmer (6 July 2020) at [11] and [19].

531. Re Tipene [2016] NZHC 3199, Affidavit of Sandra Helen Cook (30 October 2014), Annexure: Questionnaire – Customary Marine Title Application by Paul and Natalie (Pohio) Karaitiana (undated) at 13.

⁵³² Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit of Marie Ketia Moses (19 December 2013) at [6].

533. Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Joint Affirmation of Jacinta Arianna Ruru and Mihiata Rose Pirini affirmed 14 September 2020 at [61].
534. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Ngarimu Alan Huiroa Blair (2 June 2020) at [23].

within an area, these activities are an important part of establishing and maintaining mana whenua through ahi kā roa (permanent occupation) through, among other things, the ability to feed, shelter and protect the hapū.”535

• 4.236 Dayle Takitimu (Te Whānau-ā-Apanui) discusses ahi kā in the context of associations with “primary hapū”.536 She explains how she has whakapapa to several hapū in Te Whānau- ā-Apanui:537

Notwithstanding this inter-relationship we are acknowledged, in accordance with our tikanga, as having primary hapū affiliations. These primary associations are normally determined by where you physically reside, your involvement in the hapū politic and your contribution and participation in hapū life. This is what we normally refer to as ahi kā; the place where our fires actively burn. While we might have affiliations to other hapū (or iwi) our fires there may be maintained by other whānau members on our behalf. Hence, I say I have primary affiliation to Te Whānau a Hikarukutai and Te Whānau a Tutawake because that is where the occupation of my whānau has been most active in the past.

• 4.237 Many people described types of ahi that correlate to varied relationships and connections to the land:
  • Margaret Kawharu (Ngāti Whātua Ōrākei) says:538

[L]ighting a fire and keeping it alight or warm was and still is the standard metaphor for permanency of title. Those chiefs with that type of title, or mana whenua to protect, could allocate use rights and invite non-members of their hapū to have access to their land ... Cultivations, fishing circuits, hunting and gathering grounds, the building of pā for defence purposes, food storage houses or pits are all indicators of ahi kā and likely to cover a wide area for seasonal use. Urupā or burial grounds are probably the most compelling markers for permanent title ... In contrast to ahi mātao which is when the fires have gone out and become cold. Ahi mātaotao, the fires have been permanently extinguished (e.g. people have vacated the land permanently).

• Tāmati Kruger (Ngāti Koura, Ngāti Rongo, Ngāi Tūhoe) states that “ahi indicates the ‘quality’ of the particular take. There are different types of ahi: Ahi kā/ahi kā roa (a permanent presence, or undisturbed settlement in the traditional manner); Ahi tahutahu (occasional or periodic presence); and Ahi mataotao (a rare presence, like ‘camping’).”539 Kruger explains:540

535. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Ngarimu Alan Huiroa Blair (2 June 2020) at [21]–[22].

⁵³⁶ Re Edwards [2021] NZHC 1025, Affidavit of Dayle Lianne Takitimu (24 February 2020) at [4].

⁵³⁷ Re Edwards [2021] NZHC 1025, Affidavit of Dayle Lianne Takitimu (24 February 2020) at [4].

538. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Margaret Anne Kawharu (2 June 2020) at [34].
539. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [105]–[107].
540. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [106]–[107].

Ahi kā roa means permanency, and is the presiding principle that will legitimise mana whenua and take whenua. Ahi kā roa is often defined in written sources as the “continuous fires of occupation” or similar. Keeping cooking fires lit continuously was a sign of permanency. The fire that sustains the iwi is a metaphor that indicates warmth, shelter, company, safety and security. While ahi kā follows any particular take, the take in return is given legitimacy through ahi kā roa. Ahi kā roa must be present to ensure the survival of an iwi, and in that way ahi kā roa defines an iwi.

It is possible for an iwi or hapū to have ahi kā roa within its rohe but also have areas of ahi mataotao. It is equally possible that an iwi or hapū with ahi kā roa can allow another group into its rohe, such that the group can establish an ahi mataotao connection.

• Kruger also discusses iwi maintaining influence beyond its area of exclusive interests through marriage, and beyond these areas of influence, iwi can claim shared interests. He says that these interests “would often be located at the true limits of the rohe of a particular iwi, where two or more iwi may reciprocally acknowledge each other’s interests”.541 Kruger calls this “‘ahi tahutahu’, where there is an occasional presence but the presence is regular or consistent enough for the group to establish and maintain relationships with particular natural features of the land”.542
• Kruger, under cross-examination, says:543

It’s kind of a default position ... if you haven’t got ahi kā roa then the suggestion is do you now claim ahi tahutahu. In some iwi they call it ahi teretere. The metaphor here is that these fires are ... not burning hot but they are occasional fires ... [I]f your attachment and connection to the land is only occasional, then that must be ... ahi teretere or ahi tahutahu. If it’s not that, then ... it may be ahi mātaotao meaning you do have this connection but it’s rather cold ... [T]he significant thing here is that it’s not called ahi weto, which means the fire is completely extinguished ... Ahi mātaotao just means it’s a cold fire which can with effort over time you can relight it can become ahi kā roa in time.

• Paul Meredith (Ngāti Maniapoto) explains, “Another similar term is ahi tahutahu or intermittent fires that have been maintained by limited occupation of the land. Ahi tere (an unstable fire) is a term used when members of the hapū or iwi have not returned to tribal lands to ‘keep the fires burning’ for three or four generations, their rights being pretty much extinguished. Ahi mataotao is a fire that has been abandoned and is therefore completely extinguished.”544

541. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [110].
542. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [110]–[113].

⁵⁴³ Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Notes of Evidence at 1878.

544. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith (2 June 2020) at [78].
     • Professor Jacinta Ruru (Raukawa, Ngāti Ranginui) and Mihiata Pirini (Ngāti Tūwharetoa, Whakatōhea) say, “Take ahikāroa needs to be maintained. If a hapū or iwi voluntarily left the land either through marriage or otherwise for another location, or if no ancestral descendants returned to the land for several generation, such land could, depending on the tikanga of the iwi, become ahi matatoa (fires that become cold).”545
     • Maui Solomon (Moriori) notes, “It is possible for takata whenua to lose their ahikā on the basis of mataotao.”546
     • Paraone Gloyne (Raukawa ki Wharepūhunga) says that what ahi kā, ahi teretere and ahi matao all have the common is the idea of ahi – the fire.547 He says the ahi “might have different strengths at different times but it still needs to be lit ... through the traditional take whenua ... The ahi is a tikanga Māori concept so its origins must be tikanga Māori too.”548 Gloyne also holds the view that Crown grants cannot form the basis for ahi kā because they don’t come from tikanga.549

• 4.238 Justin Puna (Ngāti Kurumōkihi, Ngati Marangatūhetaua, Ngāi Tauira, Ngāi Te Ruruku ki Tangoio, Ngāi Tahu) sets out that, if “occupation of an area waned over time, then it would be described as ahi tere, a flickering or unstable fire. If occupation of land became non-existent over a two-three generation period then it would be class as ahi mātao.”550
• 4.239 Professor Jacinta Ruru (Raukawa, Ngāti Ranginui) and Mihiata Pirini (Ngāti Tūwharetoa, Whakatōhea) talk about the necessity for ahikaroa to be based on what they call “entry points” – these being take kitenga (right of prior discovery), take raupatu (right of conquest) and take tuku (right of gift). They say:551

Ahikāroa needs to build from one of the three broad entry points, and over time will lead into take tupuna – an ancestral right.

... ahikāroa alone would not establish a claim to mana whenua – there must be some element of one of the three entry point take to exist for a group to claim mana whenua in accordance with tikanga Māori. Otherwise, Pākehā who have been on an area of land for an extended period of time could claim mana whenua.

...

The acquisition of mana whenua over the long term must be supported by take tūpuna and must be maintained by take ahikāroa.

545. Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Joint Affirmation of Jacinta Arianna Ruru and Mihiata Rose Pirini affirmed 14 September 2020 at [62].
546. Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Affirmation of Sir Tipene Gerard O’Regan (17 September 2020) at [40].

⁵⁴⁷ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 843, Affidavit of Paraone Gloyne at [5.13].

⁵⁴⁸ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 843, Affidavit of Paraone Gloyne at [5.13].

⁵⁴⁹ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 843, Affidavit of Paraone Gloyne at [5.13].

⁵⁵⁰ Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit by Justin Owen Ian Puna (11 August 2020) at [20].

551. Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Joint Affirmation of Jacinta Arianna Ruru and Mihiata Rose Pirini affirmed 14 September 2020 at [59] and [64]–[65]. See also at [4.222] of this Report.

• 4.240 Te Riaki Amoamo (Te Whakatōhea, Ngāti Patumoana, Ngāti Ruatakenga) discusses ahi kā roa in the context of maintaining customary title:552

Maintaining your ahi kā roa means that you are there permanently, and you maintain your customary title. So long as the home fires are kept burning at your marae, whether it’s big or little hui, or tangihanga or whatever, there is somewhere for people to come back to.

• 4.241 Mandy Mereaira Hata (Ngāti Ruatakenga) discusses ahikāroa as the people rather than a concept, noting that “the ahikāroa or those who keep the home fires burning at the marae are the keepers of traditional knowledge. And they are responsible for protecting, preserving and maintaining our customary practices. When our whānau return home for the holidays, it is the ahikāroa who teach them about our customary practices and what is ‘tika’ (correct) and what is not.”553
• 4.242 Hetaraka Biddle (Ngāi Tamahaua hapū) notes that one of the tikanga that was passed from generation to generation was “practicing ahi kā by maintaining a connection with our home, our whenua and our moana, no matter where in the world we were”. Importantly, Biddle notes that this did not entail living at the marae but could be exercised by whānau living away through the provision of goods being sent home, which would ensure the connection to the area was never lost.554

Maintenance of mana whenua

• 4.243 Alongside take, many specific examples of how mana whenua is maintained were present in the evidence:
  • Taiaha Hawke (Ngāti Whātua Ōrākei, Te Taoū, Te Uri o Hau, Ngāti Hē, Ngāti Mahuta) on behalf of Ngāti Whātua Ōrākei explains that the protest and occupation of land at Bastion Point is a form of assertion of mana whenua.555
  • Benjamin Hippolite (Ngāti Koata, Ngāti Toa, Ngāi Tahu, Ngāti Kuia) explains that the mana of Ngāti Koata was maintained by entering into an agreement with the Department of Conservation regarding Takapourewa (an island and reserve) that requires Ngāti Koata permission for people to go onto the island. “This is one step towards recognising our tino rangatiratanga.”556
  • Taiaha Hawke (Ngāti Whātua Ōrākei, Te Taoū, Te Uri o Hau, Ngāti Hē, Ngāti Mahuta) gives several contemporary examples of expressions of ahi kā – opening events within the tribal area such as award ceremonies, citizenships, economic summits, trade talks, weapons proliferation, business conferences, university graduations, openings of buildings, parks and roads.557

⁵⁵² Re Edwards [2021] NZHC 1025, Affidavit of Te Riaki Amoamo (3 August 2020) at [3.3].

⁵⁵³ Re Edwards [2021] NZHC 1025, Affidavit of Mandy Mereaira Hata (5 August 2020) at [6].

⁵⁵⁴ Re Edwards [2021] NZHC 1025, Affidavit of Hetaraka Biddle (20 February 2020) at [100] and [101].

555. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Taiaha (Lance) Joseph Hawke (2 June 2020) at [27], [42] and [47].

⁵⁵⁶ Ko Aotearoa Tēnei, Wai 262, #H11 Benjamin Hippolite at [90].

557. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Taiaha (Lance) Joseph Hawke (2 June 2020) at [81]–[82].
     • Hauata Palmer (Ngāi Te Rangi) explains that aspects that point towards ahi kā being in existence are marae, urupā, whakapapa of those living on the land and kāinga.558

• 4.244 In relation to mana moana, specific practical examples of activities on the moana were referenced more readily. A Chadwick (Te Whānau-ā-Apanui) discusses Te Whānau-ā- Apanui’s traditional harvesting of tohorā to show the extent of their mana moana:559

Whaling was certainly one example of the extension of our rohe moana, since whales were taken anywhere up to 15 or so miles from shore ... using White Island or Whakaari as a base. All those waters between us and Whakaari were considered Te Whānau-ā-Apanui territory and our iwi mana was laid over it.

Mana over territory as central to identity

• 4.245 A number of witnesses speak about mana over territory (both whenua and the moana) as being central to identity:
  • Taiaha Hawke (Ngāti Whātua Ōrākei, Te Taoū, Te Uri o Hau, Ngāti Hē, Ngāti Mahuta) uses a whakataukī to explain the maintenance of mana whenua: “Kei raro i te tarutaru o te whenua ngā tuhinga tupuna – Sacred signs of ancestral heritage lay beneath the surface of the land.” This informs the Ngāti Whātua approach to maintaining its mana i te whenua through the continued practice of kaitiakitanga over the land, sea, forests and estates of its ancestors.560
  • Tamati Waaka (Te Whānau-ā-Apanui, Ngāi Tai, Te Whakatōhea, Ngāti Awa, Ngāti Pūkeko, Tūhoe) explains:561

Through the concepts of mana whenua and mana moana the essence, and identity of a person, hapū, and iwi is culturally and spiritually linked to the whenua and moana of their rohe. Their mana and tapu are intertwined.

• Nganeko Minhinnick (Ngāti Te Ata) says, “Ngāti Te Ata are mana whenua of Matukutureia. Matukutureia is Ngāti Te Ata. We are inseparable.”562
• Toro Waaka (Ngāti Pāhauwera) similarly accentuates that “water or wai gives meaning to the identity of tangata whenua”. He explains that if one was asked “Ko wai koe?” this is interpreted as “What waters, river, parts of the ocean are you from?” Accordingly, the Ngāti Pāhauwera statement of identity to manuhiri on their marae and introduction to their rohe will refer to both waters and land.563

⁵⁵⁸ Re Reeder on behalf of Ngā Pōtiki [2021] NZHC 2726, Evidence of Hauata Palmer (6 July 2020) at [11] and [19].

⁵⁵⁹ The Fisheries Settlement Report, Wai 307, #B10(a) A Chadwick at 2.

560. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Taiaha (Lance) Joseph Hawke (2 June 2020) at [88].
561. Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tamati Waaka (4 January 2017) at [45].
562. Minhinnick v Minister of Corrections [2004] NZEnvC A43/04, 6 April 2004, Statement of Evidence of Nganeko Minhinnick of Ngāti Te Ata Waiohua at [4].

⁵⁶³ Re Ngāti Pāhauwera [2021] NZHC 3599, Brief of evidence of Toro Edward Reginald Waaka (19 December 2019) at [26].

• 4.246 When describing those who hold and exercise mana whenua, Margaret Kawharu (Ngāti Whātua Ōrākei) says:564

The group wielding mana whenua is the “tangata whenua”. The tangata whenua, literally “people of the soil” is a local community whose members recognise collective rights and obligations. Their rights derive from common ties of descent and kinship. Their obligations turn on the hospitality extended to non-members of their community, whether of the same tribe or not. Thus, rangatiratanga, mana whenua and tangata whenua are all terms inextricably linked to the central idea of pride in that identity given to individuals by their kin groups and their present and former lands, marae and wāhi tapu ... shared ritual beliefs and practices underpinning all social enterprise give the people a sense of security in their environment and of legitimacy in their mana whenua

... a tribal group exercises mana whenua over its core rohe through ahi kā – through residence and demonstrating kaitiakitanga and manaakitanga ... mana i te whenua is essential to tuku whenua; one must have an authority from the land to be able to grant conditional rights to another.

Exclusive versus shared mana whenua

• 4.247 There are a range of conflicting views as to whether mana whenua can be shared. In the dispute over mana whenua in Tāmaki Makaurau, a number of witnesses for Ngāti Whātua Ōrākei emphasised the exclusive nature of mana whenua at least within a “core area”:
  • Ngarimu Blair (Ngāti Whātua Ōrākei) says, “But two groups cannot hold mana whenua (or similar interests) at the same time. The very nature of mana whenua demands that it is held and maintained by one iwi and one iwi only. It is certainly a ridiculous notion that multiple iwi including those that have no whakapapa to each other can hold mana whenua for a particular place.”565
  • Margaret Kawharu (Ngāti Whātua Ōrākei) similarly states that ”there cannot be more than one tangata whenua with mana I te whenua”.566 Kawharu says further that the concept of shared mana whenua:567

... is inconsistent with the generally agreed principles of mana and whanaungatanga. That is not to say that tribal groups might reach shared understandings over the use and occupation of land and waterways at different times, but those understandings require maintaining.

• Kawharu further explains:568

... from a tikanga perspective, boundaries have never been fixed in the western legal sense, and groups might have moved freely. It is clear that there are always contentious border

⁵⁶⁴ Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Margaret Anne Kawharu for the plaintiff (2 June 2020) at [27]; and Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Margaret Anne Kawharu on behalf of the plaintiff in reply (4 December 2020) at [12].

⁵⁶⁵ Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Ngarimu Alan Huiroa Blair for the plaintiff (2 June 2020) at [151].

⁵⁶⁶ Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Margaret Anne Kawharu for the plaintiff (2 June 2020) at [206]–[207].

⁵⁶⁷ Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Margaret Anne Kawharu on behalf of the Plaintiff in reply (4 December 2020) at [5].

⁵⁶⁸ Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Margaret Anne Kawharu in reply (4 December 2020) at [13].

areas, and that lesser interests (through customary use or tuku) can attach to land which another group has mana whenua over. Similarly, a group may come to an area to make use of its resources, but that group would either be domiciled with the host group temporarily or take those resources home, to their core rohe. Only one group can hold mana whenua over an area.

• Tāmati Kruger (Ngāti Koura, Ngāti Rongo, Ngāi Tūhoe)569 agrees that mana whenua can sometimes be shared. However, he doesn’t believe that there can be shared mana whenua in an iwi’s core rohe:570

[T]o my mind there is no such thing as “shared mana whenua” over an iwi’s heartland, or core rohe. Iwi are a territorial, cultural, political, economic nations, where iwi and hapū connect closely to land and other natural resources within a specified territory. A territory always has a heartland, and the heartland with landmarks is in turn a crucial aspect of the identity of an iwi. It is the place of origin, existence and future of the iwi and is filled with strong whanaungatanga connection traces between the iwi and the land. Simply put, if there was no heartland, there would be no iwi.

• Kruger, under cross-examination, agrees that more than one group can have responsibilities and take to one piece of whenua, and if a group has multiple take, it can strengthen the relationship with the whenua.571 Kruger says that ‘shared’, ‘overlapping areas’ or ‘ahi tahutahu’ in respect of mana whenua:572

... can’t come into the heartland. It would be on those fringes where ahi tahutahu does denote that it is shared on both parties, for both parties. So even if it’s a kind of a fringe area where there are three iwi, one cannot claim I have ahi kā roa in this area but you only have ahi tahutahu. The two concepts are quite different tiers. So it must be ahi tahutahu for everyone. So Kaingaroa was that example when we went around the room and people then narrated their histories and their oral tradition and associations with Kaingaroa, we found that for the majority of us we agreed that we only had ahi tahutahu and that in some areas we had ahi mātaotao ...

• Paul Meredith (Ngāti Maniapoto) “disagrees that the idea of exclusivity is foreign to tikanga. Nor is it alien to te reo Māori as suggested by Morehu Wilson.”573 Meredith draws on kupu such as rāwaho (someone considered to be an outsider and often excluded from participating in decision making when it comes to land), aukati (a boundary over which others may not pass), rāhui or whakatapua (setting aside something for the benefit for a certain group but not others), a rohe potae (an external boundary of tribal territory) and pei or pana (to drive away or expel someone or some group, effectively excluding them). He explains, “There are in fact

⁵⁶⁹ Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Notes of Evidence, in this section Tāmati Kruger agrees with Dr Maxwell (Ngāi Tai ki Tāmaki) and Mr Mikaere’s (Marutūāhu) position that mana whenua can sometimes be shared but that there is no such thing as mana whenua over an iwi’s heartland or core area (at 1837).

⁵⁷⁰ Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger in reply (4 December 2020) at [17].

⁵⁷¹ Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Notes of Evidence p.1869.

⁵⁷² Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Notes of Evidence p.1869.

⁵⁷³ Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith in reply (4 December 2020) at [8].

many examples on the historical record of iwi and hapū asserting the distinct identity and the right to exclude others from their whenua and moana.”574

• By way of example, Meredith refers to Rapata Wahawaha of Ngāti Porou who suggests that mana whenua cannot be exercised over another tribe or subtribe’s lands.575

Ko te mana tipuna ka mana tonu ki tōna iwi ake hapū rānei. Ka mana anō ki runga ki ōna ake whenua ... Kaore he mana rangatira o tētahi iwi e mana ana ki runga ki ngā whenua o ētahi iwi, me ētahi atu hapū rangatira hoki. Tōna mana ki tōna whenua ake anō, rātou ko tōna hapū, iwi rānei.

[The authority of a chiefly ancestor will prevail over his own tribe or sub tribe. It extends to his lands ... No tribe has chieftainship over another tribe’s lands or chiefs sub tribes. His authority only extends to his own lands his own tribe or sub tribe].

• However, Meredith acknowledges that he has seen examples of shared mana. “On the other hand, I have seen suggestions of shared mana or authority over areas, particularly over land on tribal boundaries where interests were more fluid. I have seen this expressed as mana huihui.”576 Meredith draws on historical examples to reflect this proposition, such as comments by Tamihana Te Rauparaha (Ngāti Toa, Ngāti Raukawa) in the Native Land Court: “In 1840 my father fixed the end of Ngāti Apa mana at Manawatu ... It was done at ‘rūnangas’ – heard that it was settled that the ‘mana’ of the 3 tribes should end there ... The ‘mana of Te Āti Awa was because they came with us and shared in our ‘mana’ over the bush and plains.” Meredith considers this suggests mana whenua was shared between Ngāti Toa, Ngāti Raukawa ki te Tonga and Te Ātiawa because the three iwi had migrated south and settled together.577
• Meredith goes on to say:578

... shared authority might not always be necessarily equal. Expressions such as mana nui and mana iti seem to suggest that there were differing levels of mana over land held by ancestors.

... the fact that mana whenua can be shared in some circumstances does not mean it was always shared ... Mana whenua can be shared between two or more groups by agreement, but equally it can be held by only one group in a particular area to the exclusion of others.

• Meredith states that:579

574. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith in reply (4 December 2020) at [8]–[9].
575. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith in reply (4 December 2020) at [18].
576. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith in reply (4 December 2020) at [19].
577. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith in reply (4 December 2020) at [20].
578. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith in reply (4 December 2020) at [25] and [27].
579. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith (2 June 2020) at [88].

Mana whenua extends to all parts of the rohe of an iwi where those rights and responsibilities are tended to and carried out. Generally speaking, mana whenua was exercised by one predominant tribal identity as a result of their take to the land.

There is a difference of views about whether mana whenua can be shared in certain specific contexts. In order for that to be tika, the incumbent mana whenua group must give its permission for another group to exercise some kind of authority or control over that area (although it would generally be the case that one of these groups has a more predominant interest over the other).

• 4.248 A number of other witnesses (in various contexts) emphasise non-exclusive or layered mana whenua interests:
  • Ted Andrews (Ngāti Paoa) and Glen Tupuhi (Ngāti Paoa) say, “Ngāti Whātua Ōrākei has acknowledged that Ngāti Paoa has lead mana whenua interests in the east of Auckland and on the North Shore, and Ngāti Paoa has recognised Ngāti Whātua Ōrākei has lead mana whenua interests in central Auckland.”580 However, Tupuhi in cross-examination recognised that, even in the area that they considered Ngāti Whātua Ōrākei to have lead mana whenua, Ngāti Pāoa also has mana whenua.581
  • Walter Ngamane (Ngāti Maru, Ngāti Whanaunga, Ngāti Tamaterā, Ngāti Pāoa, Ngāi Te Rangi, Ngāti Hinerangi) explains that sharing and inclusion in relation to the whenua and moana is a tangible display of fundamental principles, whanaungatanga, whakapapa and mana.582 He states that “shared whenua and resources is a common tradition among the Marutūāhu tribes”. He explains that “where one of us is, so will the others often be”. This is exemplified in shared marae “such as Wharekawa (Ngāti Paoa and Ngāti Whanaunga)”. He says that Tāmaki is no exception to this rule.583
  • Roger Pikia (Ngāti Tahu, Ngāti Whāoa, Ngāti Tūwharetoa, Raukawa, Waikato-Tainui, Ngāti Maniapoto, Ngāti Hikairo) says that the concept of mana whenua has evolved over the last century such that it doesn’t necessarily mean exclusive.584
  • Desmond Kahotea (Ngāi Te Rangi, Ngāti Ranginui, Ngāti Pūkenga) distinguishes the importance of some relationships that have been retained through occupation versus more recent interests recognised through legislation. Not all relationships are of the same nature, type or strength. This recognition of a hierarchy is appropriate and in line with the way in which traditional Māori society viewed relationships to land.585
  • Paul Meredith (Ngāti Maniapoto) says sharing of land and resources might be the result of strategic alliances formed through whakapapa or the result of a conflict

⁵⁸⁰ Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Notes of Evidence at 1323.

⁵⁸¹ Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Notes of Evidence at 1323 and 1335–1336.

582. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Walter (Wati) Ngakoma Ngamane evidence (13 October 2020) at [24].
583. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Walter (Wati) Ngakoma Ngamane evidence (13 October 2020) at [34].
584. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Statement of Evidence of Roger Pikia on behalf of Ngāti Tahu-Ngāti Whaoa Rūnanga Trust (1 May 2017) at [5.1].
585. Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Desmond Tatana Kahotea on behalf of the Applicant (28 October 2016) at [4.7]–[4.9].

resolution process of maungārongo or houhou i te rongo.586 Equally, maungārongo or houhou i te rongo can also result in agreed boundaries delineating the mana whenua or moana of each group.587

• Professor Jacinta Ruru (Raukawa, Ngāti Ranginui) and Mihiata Pirini (Ngāti Tūwharetoa, Whakatōhea) say, “Where two iwi or hapū each hold tangata whenua status and have overlapping takiwā, mana whenua may be exercised by them both within the same geographical area.”588
• Tā Hirini Moko Mead (Ngāti Awa), Dr Hohepa Mason (Ngāti Awa, Ngāti Pūkeko) and Dr Te Kei Merito (Ngāti Awa, Ngāti Pūkeko, Ngāti Rangataua, Ngāti Hokopū, Ngāi Tamapare) discuss tribal overlaps:589

Iwi do not have straight line borders like modern countries. This is because our whakapapa can often not be divided so neatly given our common whakapapa with most of our neighbours. For us, we view our rohe as being in two parts largely. Firstly, an exclusive rohe where Ngāti Awa has sole control. Secondly, in the areas where we overlap with other iwi, we refer to this as a whenua tautohetohe or a contested zone where more than one iwi or hapū had control. While there is an emphasis on battles and contention between the iwi, there is also a substantial history of peaceful and constructive interaction and relationships. Even in the whenua tautohetohe, the iwi accessed the resources on and in the whenua and moana. Sometimes these rights overlapped as well. The exercise of those rights was exclusive to those iwi.

...

There has been a contest for resources at times and in other times there is the application of tikanga that allow for neighbouring groups to co-exist and share resources.

• 4.249 Shared rights and the exercise of mana by more than one group seems to be more widely accepted when it is in relation to resources (with some people specifically noting that this would happen against the backdrop of a group holding mana whenua):
  • A Chadwick (Te Whānau-ā-Apanui) says that some of their tino rangatiratanga rights over their fisheries are shared with other hapū. These rights were also exercised and shared by young and old alike and apply to all activities of sea harvesting.590
  • Maui Solomon (Moriori) says:591

Each tribe exercised territorial rights over a definitive area of land with defined boundaries

... these rights resolved themselves into exclusive privileges of hunting and fishing, and the right to all stranded matter such as whales or timber.

... the stranding of a school of blackfish (Rongomoana) was a time for sharing amongst the various tribal groupings and people for miles around would participate ... These ceremonies

586. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith in reply (4 December 2020) at [22]–[23].
587. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith in reply (4 December 2020) at [22]–[23].
588. Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Joint Affirmation of Jacinta Arianna Ruru and Mihiata Rose Pirini affirmed 14 September 2020 at [56].
589. Re Edwards [2021] NZHC 1025, Affidavit of Tā Hirini Moko Haerewa Mead, Dr Hohepa (Joseph) Mason and Te Kei (O Te Waka) Wirihana Merito (19 May 2020) at [123] and [124].

⁵⁹⁰ The Fisheries Settlement Report, Wai 307, #B10(a) A Chadwick at 1.

⁵⁹¹ The Fisheries Settlement Report, Wai 307, #B23 Maui Solomon at [6.2]–[6.3].

were regarded as sacred ... It was considered of the highest importance that appropriate karakia were said and offerings made to Pou and Tangaroa (the revered gods of the sharks and sea respectively) and the head of the fish stranded placed on the tuahu as a koha of thanks to appease these gods. These strandings were attributed to the power of the spirit of someone who had recently died, and the larger the stranding, the larger the mana of the deceased.

• Ross Gregory (Te Rārawa, Te Aupōuri, Ngāti Kahu, Ngāpuhi, Ngāi Tahu) says that “it is important to understand that the right was a shared right. A right to share in the occupation of the land under the mantle of Te Rarawa. It was never exclusive.”592
• Wikitōria Hepi-Te Huia (Ngāti Tahu), on behalf of Tauhara North No.2 Trust, explains that mahinga kai rights at Rotokawa were afforded to neighbouring hapū groups because of the close whakapapa relationships.593
• Roger Pikia (Ngāti Tahu, Ngāti Whāoa, Ngāti Tūwharetoa, Raukawa, Waikato-Tainui, Ngāti Maniapoto, Ngāti Hikairo), on behalf of Ngāti Tahu-Ngāti Whaoa, disputes claims of mana whenua by Ngāti Hinerau and Ngāti Hineure, which were based on gathering resources and maintaining seasonal kāinga in the vicinity of Rotokawa. He states that gathering resources is a courtesy and does not amount to mana whenua.594
• Rikirangi Gage (Te Whānau-ā-Apanui, Ngāti Porou) says, “Resource use by others [in their rohe] may be permitted. However, in the area in which Whānau a Apanui exercise mana, this permission is a privilege and does not establish a right. The hapū of Whānau a Apanui maintain the authority and right to retract this permission at any point.”595
• Rereamanu Wihani (Tūhourangi, Tapuika) explains:596

There were unwritten rules to traditional fishing areas which everyone understood in Te Ao Māori. We knew whose patch was whose. However, feeding the people was the priority and other hapū were always accommodating in giving a friendly wave and a smile. Sharing is not unusual within our culture.

• Ngarimu Blair (Ngāti Whātua Ōrākei) explains that Ngāti Paoa also fished at Waitematā with Ngāti Whātua Ōrākei, and the two iwi often shared fishing stations. “Ngāti Paoa was able to fish there because Ngāti Whātua Ōrākei gave them permission to do so. It was considered theft if an iwi fished around the isthmus without Ngāti Whātua Ōrākei’s permission.”597
• Paul Meredith (Ngāti Maniapoto) states that a common misconception is when visitors have been allocated temporary use rights on another group’s land. This

⁵⁹² Muriwhenua Land Report, Wai 45, #F28 Ross Gregory at 4.

593. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Statement of Evidence of Wikitōria Hepi- Te Huia (1 May 2017) at [2.4].
594. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Statement of Evidence of Roger Pikia on behalf of Ngāti Tahu-Ngāti Whaoa Rūnanga Trust (1 May 2017) at [5.4].

⁵⁹⁵ Re Edwards [2021] NZHC 1025, Affidavit of Te Kou Rikirangi Gage (21 February 2020) at [106].

596. Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073, Primary statement of evidence of Rereamanu Wihapi (22 December 2016) at [29].
597. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Ngarimu Alan Huiroa Blair (2 June 2020) at [59].

arrangement should not be considered as conveying mana over the land to the visiting group.598 Meredith says, in the context of the Ngāti Maniapoto/Ngāti Tama Settlement Cross Claims Report, “[w]hile groups may at times move freely on the ground and on the waters of the two harbours, there was nevertheless a clear understanding about mana whenua, i.e. proprietary rights giving those who claimed them the right to invite others to share in the access to resources in particular localities”.599

Rangatiratanga

• 4.250 Dr Moana Jackson (Ngāti Kahungunu, Ngāti Porou) explains:600

For rangatiratanga is the Māori cultural version of the absolute power encapsulated in the original French concept of sovereignty. It has always been institutionally different but never anything less than the absolute political authority that every culture develops to govern itself.

...

As the word rangatira itself implies rangatiratanga is a power to weave the people together through the lawful protection of their whakapapa and their resources.

...

Rangatiratanga in a sense is the power common to Māori, a statement of independence and absolute self determination according to law.

Fundamental to that power was the inherent authority to determine what the rights of the Iwi should be because self determination can mean nothing less. Equally fundamental, it was the ability and authority to determine when those rights had been breached.

• 4.251 By way of example, Jackson says, “The authority, rights, and law of Ngā Hapū o Tūhoe are a fundamental and essential component of their tino rangatiratanga which has been defined and exercised by them since time immemorial.”601
• 4.252 Margaret Kawharu (Ngāti Whātua Ōrākei) explains:602

Rangatiratanga means, “evidence of breeding and greatness”. In essence, it is the proven ability to lead through service. The word itself implies someone who can bring together the strands of a community to make a unified whole. It is a dynamic not static concept, emphasizing the reciprocity between the human, material (for example whenua) and non- material worlds. It involves reciprocity between the individual and their god and reciprocity between the individual and their tribal community. Applied, it means the wise administration of all the assets possessed by a group for that group’s benefit ... a rangatira is a trustee for their people, an entrepreneur in all their enterprises, a leader in war and peace.

...

598. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith (2 June 2020) at [70].
599. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Paul Edward Meredith (2 June 2020) at [103].

⁶⁰⁰ R v Tamati Mason [2012] NZHC 1361, Brief of Evidence of Moana Jackson (10 January 2005) at [55]–[58].

⁶⁰¹ R v Tamati Mason [2012] NZHC 1361, Brief of Evidence of Moana Jackson (10 January 2005) at [10].

602. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Margaret Anne Kawharu (2 June 2020) at [24] and [26].

The effective exercise of rangatiratanga over a particular area of land, either by discovering the land in the first place or wresting it from a previous occupier by force, will result in the survival of the beneficiaries of that rangatiratanga. Consolidation of the group’s occupation of the whenua will assure power and political control over the domain. Such power has been called mana whenua.

• 4.253 As explained simply by Maui Solomon (Moriori) “only Moriori have a right to make decisions affecting Moriori”.603
• 4.254 Wiremu Hodges (Ngāti Pāhauwera) says rangatiratanga “denotes a terrestrial role as Kaitiaki and our status through Whakapapa to exercise” mana tipuna, mana whenua and mana moana.604 He adds that rangatiratanga “bestowed not just the right of access to resources but also the responsibility to preserve the mauri and conserve the species”.605
• 4.255 Justin Puna (Ngāti Kurumōkihi, Ngati Marangatūhetaua, Ngāi Tauira, Ngāi Te Ruruku ki Tangoio, Ngāi Tahu) says, “Rangatiratanga is about self-determination, self-management, sovereignty, the right to exercise authority. It is about having the mana to determine what you would like to aspire to and what direction you feel you need to take.”606

MANAAKITANGA

• 4.256 A number of people refer to the importance of manaakitanga to uphold both the mana of others and one’s own mana. Moe Milne (Ngāti Hine) says “manaakitanga is the process of giving to others, but it is about “te mana āki” or enhancing the mana of others, and in doing so upholding your own mana”.607
• 4.257 A common example of the exercise of manaakitanga is connected to the provision of kai:
  • James Rickard (Ngāti Porou) explains:608

[At Whaingaroa] I floundered and gathered shellfish like many other Māori whānau (families) to feed our families and supplement our incomes.

...

During Princess Te Puea’s time the people from Turangawaewae marae in Ngaruawahine would bring their truck out to collect kutai (mussels) for hui, especially the Coronation anniversary which catered for thousands of visitors over a week of celebration.

Kutai were gathered from Pipirua, an island adjacent to Te Kopua and specifically reserved for hui purposes. Being able to carry out this function helped the Tainui people of this area to fulfil their manaakitanga (caring for) obligations. This also helped them to retain and enhance their mana.

• Joseph Davis (Ngāti Hei) states, “The mana of the tangata whenua is based, in part, on an ability to provide kai moana for such events. Kai moana is considered to be

⁶⁰³ The Fisheries Settlement Report, Wai 307, #B023 Maui Solomon at [7.12].

⁶⁰⁴ Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit of Wiremu Iterema Sylvester Hodges (11 December 2013) at [27].

⁶⁰⁵ Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit of Wiremu Iterema Sylvester Hodges (11 December 2013) at [32].

⁶⁰⁶ Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit by Justin Owen Ian Puna (11 August 2020) at [43].

⁶⁰⁷ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A62 Moe Milne at [122].

608. Tainui Hapū v Waikato Regional Council, NZEnvC 131 Auckland A063/2004, Statement of Evidence of James (Tex) Rickard on behalf of Tainui Hapū (undated) at [8]–[10].

fundamental to the perpetuation of cultural and related social activities. For these reasons water quality and the productivity of the environment within the Regional Coastal Plan is highly valued by the Waikato Tainui people.”609

• Margaret Kawharu (Ngāti Whātua Ōrākei) says. “Manaakitanga can be described as generosity, care-giving, or compassion and is an expression of one’s mana, one’s status and authority, through acts of kindness and caring. To manaaki or give generously and provide hospitality is a mana-enhancing activity. It also creates an obligation on the visitor to reciprocate in the future. Thus mana, manaaki and tuku are closely related concepts in Te Ao Māori.”610
• Benjamin Hippolite (Ngāti Koata, Ngāti Toa, Ngāi Tahu, Ngāti Kuia) explains:611

People who came from different areas to a hui supplied the kai of that area, and that was an expectation. For example, when it was time for the Queen’s pokai, the D’Urville Island Māori were expected to bring delicacies from the rohe, so they would take dried fish, dried paua, and dried tuere. It was hoped that tuere would be brought by the D’Urville Island people. Often tītī would be brought as well depending on the date of the pokai. As Ngāti Koata are a coastal people, we took along the kai from the coast and that is the same today. For example, at weddings today the mana of a wedding is often dependent upon the type of kaimoana that is on the table. It enhanced mana and still does today. The mana of the hui is dependant [sic] upon what is on the table.

Ngāti Koata are a very hospitable people. Our view is that it is alright to run out of food for ourselves, but it is very embarrassing to run out for manuhiri. Mana attaches to the provision of food. If we could not supply food from our rohe, we would lose our mana. My father told me that the biggest embarrassment for an iwi is not having enough food to give to the manuhiri. Providing food gives an iwi mana because it shows that the iwi has authority, strength and is trustworthy. Mana reflected the Ngāti Koata rangatiratanga over the rohe.

• Reuben Perenara (Ngāti Rangitihi) says the tikanga his father brought him up with was that “if you should catch an excess of fish, over and above what is required for you, your whānau [your immediate family, your extended family], your hapū [the groups of whanau resident around your marae], that excess is a gift that is to be shared with all others fairly”.612

• 4.258 Te Kahautu Maxwell (Te Whakatōhea, Te Whānau-ā-Apanui, Ngāi Tai, Ngāti Awa, Tūhoe, Ngāti Porou, Ngāti Maniapoto) discusses the varying degrees of manaakitanga:613

There are different levels of manaakitanga accorded a person. It depends on the level of whanaungatanga, whether a close blood whānau member or a whanaunga. Sometimes the whanaunga relationship is stronger than the whanaungatanga to a blood relative this may be due to close association through work, sports and friendship. These types of

609. Wilson v Waikato Regional Council [2021] NZEnvC 131 Statement of Evidence of Joseph Davis for the Applicant (28 August 2020) at [78].
610. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Margaret Anne Kawharu (2 June 2020) at [35].

⁶¹¹ Ko Aotearoa Tēnei, Wai 262, #H11 Benjamin Hippolite at [97]–[98].

612. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Eighth affidavit of Reuben Brian Perenara in support of the CP 395/93 Plaintiffs position in regards the HCR 418, and in reply to various affidavits filed in opposition to that position at 4.

⁶¹³ Re Reeder on behalf of Ngā Pōtiki [2021] NZHC 2726, Affidavit of Te Kahautu Maxwell (7 August 2020) at [99].

relationships and as well as their strengths will determine what level of manaakitanga is given. Then, of course, there is the status of a person, the mana and the tapu associated with them. This determines a manaakitanga of the highest level to maintain the mana of the person and the mana of the iwi (host).

• 4.259 Te Riaki Amoamo (Te Whakatōhea, Ngāti Patumoana, Ngāti Ruatakenga) discusses the concept of manaakitanga in the context of mana and rangatiratanga:614

We have the right to exercise our customary authority (mana and rangatiratanga) in relation to our own seascape. For the same reason, we would not go into other tribal (iwi) seascapes because we would be challenged. Our customary areas are not as rigid as Western boundaries however. Other Whakatōhea hapū can come into our sector, for instance, we wouldn’t stop Ngāti Patu coming to fish in our area. The tikanga is that we share the kai because our hapū of Whakatōhea are related to each other by whakapapa, and it is part of our collective responsibility to care for our whanaunga, as they do for us (this is known as manaakitanga).

However, distinction between permitting access to our sea territory as a matter of manaakitanga and having the customary authority to act as the kaitiaki. Ngāti Rua holds the mana in Ngāti Rua’s sea territory. For instance, if somebody drowns out there in our rohe, Ngāti Patu would not do the karakia, I would, because it’s my customary area.

• 4.260 Mandy Mereaira Hata (Ngāti Ruatakenga) notes that the collection of kaimoana for sustaining whānau and manuhiri is part of their traditional ways of doing things and how they practise manaakitanga.615
• 4.261 Pepper Hudson (Ngāi Tamahaua hapū) states, “Manaakitanga and feeding the people was instilled in us as part of our cultural upbringing, and ... we were taught to never let manuhiri go away hungry.”616
• 4.262 A key Moriori tikanga concerns the sharing of resources.617 Te Iwi Moriori Trust Board states that “tikanga, whanaungatanga and manaakitanga of te Iwi Moriori, requires the sharing of ... resources”.
• 4.263 Karen Mokomoko (Ngāti Patumoana, Te Upokorehe, Ngāi Tamahaua hapū) describes manaakitanga as including the exercise of hospitality, looking after others that are weak, old, hungry or homeless and showing respect to manuhiri and being hospitable. Mokomoko notes, “After defeating Ngāi Tūhoe at Maraetotara, Te Whakatōhea displayed manaakitanga through providing them access to Te Moana o Tairongo, knowing the value of the resources to sustain the people.”618
• 4.264 Tā Pita Sharples (Ngāti Kahungunu) discusses the importance of aroha as a reciprocal relationship between people and peoples:619

⁶¹⁴ Re Edwards [2021] NZHC 1025, Affidavit of Te Riaki Amoamo (3 August 2020) at [6.5] and [6.6].

⁶¹⁵ Re Edwards [2021] NZHC 1025, Affidavit of Mandy Mereaira Hata (5 August 2020) at [51].

⁶¹⁶ Re Edwards [2021] NZHC 1025, Affidavit of Pepper Hudson (20 February 2020) at [39].

617. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), “Rekohu (Chatham Islands) Submission to Te Ohu Kai Moana on Proposed Models of Allocation for Pre-settlement Assets” at 8.

⁶¹⁸ Re Edwards [2021] NZHC 1025, Affidavit Karen Stefanie Mokomoko (30 January 2020) at [39]–[42].

619. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Notes of Evidence (Pita Sharples) at 129. The authors acknowledge this section is entitled Manaakitanga but we are of the view that this quote from Tā Pita Sharples about aroha also speaks to manaakitanga.

Aroha is something which exists between the group and to enlarge it requires obligation and privilege, relationship so that all benefit and I think that’s a key factor that it’s for the group to benefit and not the individual.

I believe that is the pivotal value around which Māori society was organised and it reflects a set of privileges and obligations that each folk has with the rest of his community.

• 4.265 Importantly, while not discussing manaakitanga specifically, many raise the importance of sharing kai caught or collected with kaumātua and whānau or being given as a koha to support marae kaupapa such as tangihanga.620 These practices were considered obligatory and an essential aspect of sustaining the collective.

UTU AND EA

• 4.266 The interrelated concepts of utu and ea are key principles that explain and motivate dispute resolution in a Māori context. Hara is also a key component of this dispute resolution framework.
• 4.267 In the context of dispute resolution generally, Dr Moana Jackson (Ngāti Kahungunu, Ngāti Porou) in his evidence for R v Mason621 states:622

One of the most important aspects of tikanga, is that while some might be enforced simply through a belief or faith in the sacredness to ensure our compliance, we also had proper political institutions to enforce any sanction that might be required.

...

Our old people saw law or tikanga as a way to manage changing circumstances, where differences could be mediated through an understanding of cause and imbalance. The stories of our laws are passed to us through whakapapa and are the cornerstone of what may be termed Māori jurisprudence.

• 4.268 Jackson also describes the general process of resolving disputes within te ao Māori:623

In exercising the rights of a rangatira in relation to members of the Iwi or Hapū, leaders had to act within a framework of rules derived from the precedents of their own ancestral law and mana. If a dispute arose within an Iwi or Hapū it signalled a breakdown in the whakapapa relationship. Resolution required a rebuilding of the relationship through available precedents and their consequent political enforcement.

...

In protecting the Iwi or Hapū against others the rights were derived from the same source and were mediated by the reality that every Iwi and Hapū ultimately had common origins. Whakapapa reached across and between Iwi in a way which ensured that any conflict of laws could be resolved through shared precedents.

⁶²⁰ Re Edwards [2021] NZHC 1025, Affidavit of Leeann Martin (20 February 2020) at [24], [28] and [30].

⁶²¹ R v Tamati Mason [2012] NZHC 1361.

⁶²² R v Tamati Mason [2012] NZHC 1361, Affidavit of Moana Jackson (24 April 2012) at [18] and [22].

⁶²³ R v Tamati Mason [2012] NZHC 1361, Brief of Evidence of Moana Jackson (10 January 2005) at [95]–[96].

• 4.269 In the same case, Jackson in oral explains that “from a Māori law point of view the issue first is what is the relationship and how has the relationship been damaged?”624 He then goes on to say:625

... reconciliation should never imply subordination of one by another ... It was to recognise the place of both and seek a way to rebuild the relationships and so in that sense a specific hara, a specific wrong is part of that much wider context of the need for relationship building.

• 4.270 Tā Eddie Taihakurei Durie (Rangitāne, Ngāti Kauwhata, Ngāti Raukawa) explains that utu is less about revenge than it is about balance and not only within the dispute resolution process:626

The land, people and life forms were thought to be governed by cycles. By the law of utu, what is given is returned or that taken is retrieved. “Utu” was not just “revenge”, as popularly portrayed, it was a mechanism for the maintenance of harmony and balance. Survival depended on the maintenance of the cycles of nature, and on the maintenance of cycles in human relationships. The latter is illustrated in the careful Māori attention to reciprocal obligations, the maintenance of bloodlinks through arranged marriages and the institution of gift exchange.

• 4.271 Tā Hirini Moko Mead (Ngāti Awa) and Tā Pou Temara (Tūhoe) explain the concept of hara:627

The concept of “hara” at a simplified level means: the transgression of tapu; the commission of a wrong; and the violation of tikanga resulting in an imbalance. This requires a restoration of balance or the achieving of a state of “ea”.

We consider it is useful to start with an example that illustrates this. The following example is from Tūhoe, Ruatāhuna.

One day a kuia (elderly woman) went and visited a family.

When the kuia got to the home, the dog of the family that she was visiting attacked her. The dog drew blood from her leg and tore her flesh.

The owners of the dog rushed outside, took the dog away and then tended to the injuries of the kuia.

It was a hara on behalf of the dog owners for the dog to have attacked the kuia. The shedding of blood is significant as it meant there was a transgression of tapu (as blood is sacred). The offence also resulted in mana became [sic] imbalanced.

The owners of the dog knew that they had committed a hara and that there had been a breach of tikanga.

⁶²⁴ R v Tamati Mason [2012] NZHC 1361, Notes of Evidence (3 May 2012) at 8. This answer was given by Moana Jackson in the context of the Crown’s hypothetical question where someone from Te Arawa has an incident with a New Zealand citizen of Indian origin. The question from the Crown was “is there an ability of Māori law to deal with that kind of matrix, that factual situation?” (at 5).

⁶²⁵ R v Tamati Mason [2012] NZHC 1361, Notes of Evidence (3 May 2012) at 12.

⁶²⁶ Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Sixth affidavit of Reuben Brian Perenara in support of the applicant’s case regarding the High Court rule 418 preliminary questions as referred back to this court by Her Majesty’s Privy Council; Exhibit C Custom Law: Address to the New Zealand Society for Legal and Social Philosophy, Chief Judge ET Durie (22 July 1994) at 329.

⁶²⁷ Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [60]–[61]. See also at [2.56] of this Report.

In response, they went to their waka huia (treasure box) and brought out a pounamu (greenstone) that had significant value. They gave this to the kuia as compensation for the hara.

The kuia had every right to impose a muru (ritual plundering and restorative justice process that entails the redistribution of wealth). However, she accepted the pounamu as payment for the wrong that had been committed.

This meant that the issue became ea (satisfied, settled, mana rebalanced).

This shows the successful resolution of a hara. A hara was committed by the dog biting the kuia and action was required to address the hara and achieve a state of ea. The notion of ea indicates the successful closing of a sequence and the restoration of relationships, or the securing of a peaceful outcome.

• 4.272 Mead and Temara further explain that, where a hara has been committed, there is an “intergenerational need for a state of ea”.628 One of the examples they draw on is that of Rua Kēnana, who they describe as “a Tūhoe Prophet that in about 1906 established the “New Jerusalem” in the Urewera and led the Iharaira (Isralite [sic]) faith”.629 They set out what happened to him: “Rua Kēnana was convicted of ‘moral resistance’ to an attempted arrest and served 18 months in prison. The Iharaira faith went into a serious decline after the events arising from Rua’s arrest. These events have been a source of grievance since they occurred.”630
• 4.273 Mead and Temara go on to explain:631

... a hara was committed (by the Crown) against Rua Kēnana;

this impacted not only the mana of Rua Kēnana himself but also had an impact on the mana of his descendants; and

despite the death of Rua Kenana, a state of ea still needed to be reached many years later (hence the reason for the pardon and restoration of mana to the individual and his descendants).

• 4.274 Ultimately, in recognition of this hara and the need to achieve a state of ea, the Rua Kēnana Pardon Act 2019 was granted Royal Assent by the Governor-General in a ceremony at Maungapōhatu on 21 December 2019.
• 4.275 Professor Jacinta Ruru (Raukawa, Ngāti Ranginui) and Mihiata Pirini (Ngāti Tūwharetoa, Whakatōhea) explain utu and ea:632

Utu involves a process which seeks to find a way to restore equilibrium or balance. In tikanga, this process must continue until ea is reached. Ea may not result in all affected

628. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [68].
629. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [70].
630. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [70].
631. Ellis v R [2022] NZSC 114, Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (31 January 2020) at [70].
632. Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Joint Affirmation of Jacinta Arianna Ruru and Mihiata Rose Pirini affirmed (14 September 2020) at [81]–[82].

parties feeling happy with the outcome but there is an acceptance of the process and its outcome.

• 4.276 Margaret Kawharu (Ngāti Whātua Ōrākei) explains that the concept of utu is about reciprocity:633

The principle of reciprocity and the fulfilment of obligation underpins all Māori social interaction and exchange. The concept of utu encompasses both positive and negative reciprocity within a single holistic system in Māori thinking and a fundamental driver of Māori life. Emphasis is placed on maintaining relations. The social forms and practices of utu and whakautu, giving and taking, are seen for example in ceremonial welcomes to visitors at any Māori gathering, the generous hospitality expressed in food, especially the hākari, the presentation of koha or gifts, the exchange of taonga on special occasions linking important people, and the emotional and spiritual attachment to ancestral land, especially demonstrated by the desire to take the tupāpaku home for burial.

For everything given and taken, a reciprocity and return of some kind is required. Those who give, gain mana, those who receive must restore the balance ... If the balance is not restored then compensation must be taken.

An aspect of utu is tuku ... Ngāti Whātua Ōrākei uses the term “tuku Rangatira” to denote an allocation made between those highest in their respective authorities. It is rangatiratanga in action, where residual rights remaining intact and an attendant expectation of reciprocity from the recipient is generated.

• 4.277 Tā Tipene O’Regan (Ngāi Tahu) describes utu:634

In tikaka, the process of utu, in the sense of reciprocal balance, is not finished until a solution is reached.

... all the parties have to work together to find a solution that can be digested by everyone who belongs at the table.

All those who are affected must be part of the process and ultimately accept the solution. Negotiations must continue until all parties accept the process has concluded.

Any outcome that involves the whenua as a means of redress to another iwi/hapū affects the mana whenua. In accordance with tikanga, they must also be involved in the process of utu.

Taka whenua involvement in the process is not just as matter of letting them be heard – they must also accept that an outcome has been reached too.

• 4.278 Tāmati Kruger (Ngāti Koura, Ngāti Rongo, Ngāi Tūhoe) explains utu as:635

... a virtue that considers how one should respond, solve or acknowledge. At the heart of utu is the idea that balance must be achieved by reciprocity, whether by compensation or by revenge. Utu is usually proportionate to the action that has caused a particular state to be unbalanced, and is always directed at repairing and enhancing whanaungatanga.

633. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Margaret Anne Kawharu (2 June 2020) at [30]–[33].
634. Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Affirmation of Sir Tipene Gerard O’Regan (17 September 2020) at [49]–[52].
635. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [7]–[8].

• 4.279 In oral evidence in the Mercury NZ Ltd v Waitangi Tribunal proceedings,636 Peter Adds (Te Ātiawa) and Paul Meredith (Ngāti Maniapoto) state that there is no one single term in Māori for the notion of redress.637 Adds explains:638

... oranga, was ... a word that came up extensively in the historical literature ... the obviously [sic] one is the word “utu” ... but whakatika was also a word that was commonly used as was whakaora and ritenga as well.

• 4.280 Adds also explains that utu is much more complex than revenge. “It invokes notions of payment, reciprocity, and balance in particular”, “keeping things in equilibrium.”639 Adds draws on Allan Hanson’s 1983 book called Counterpoint and Māori Culture to explain how going from a state of ea “where things are essentially in balance” and then “some sort of hara occurs ... throwing the system out of balance ... It then becomes incumbent on that community or that person to try and fix that imbalance, a take has been created for that purpose ... At that point, an utu process kicks in, the aim of which is to re-establish that original state of ea.”640 Adds clarifies that the balance and restoration of that balance can pertain to mana, relationships and tapu.641
• 4.281 Adds acknowledges that:642

... sometimes to achieve that balance, it requires a greater response than what was the actual loss too ... it’s a relative term ... the balance isn’t just a ‘one for one’ balance, sometimes the balance, the restoration of balance, required more than the original hara to fix the scales in their proper place as it were.

• 4.282 One of the main characteristics of utu is:643

the notion of escalation utu processes invariably it seems somehow upping the ante on something that happened to a person or to a group. This is probably easiest to see in the revenge aspect of utu ... there is this concept of an eye for an eye [but] in the traditional Māori world, it seems to be not that idea. It seems to be the idea of two eyes for one eye.

• 4.283 Paul Meredith (Ngāti Maniapoto) says it can “also be the same case when gifting”.644
• 4.284 Once a hara occurs, there is “imbalance”, which requires “the affected party to go through a process to address that imbalance” and “any failure to do that ... to address the imbalance is seen as a failure on the part of that person and can affect the mana of that person”.645 That failure is described “as mate, so it creates a state of melancholy ... which can affect communities and individuals”.646 “It creates a sort of an obligation as it were in the mind of that person, in the mind of that community, if it’s a community thing to address

⁶³⁶ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654.

⁶³⁷ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Peter Adds and Paul Meredith) at 20–21. ⁶³⁸ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Peter Adds and Paul Meredith) at 20–21. ⁶³⁹ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Peter Adds and Paul Meredith) at 21–22. ⁶⁴⁰ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Peter Adds and Paul Meredith) at 22.

⁶⁴¹ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Peter Adds and Paul Meredith) at 50–51.

⁶⁴² Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Peter Adds and Paul Meredith) at 23. ⁶⁴³ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Peter Adds and Paul Meredith) at 23. ⁶⁴⁴ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Peter Adds and Paul Meredith) at 23. ⁶⁴⁵ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Peter Adds and Paul Meredith) at 23. ⁶⁴⁶ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Peter Adds and Paul Meredith) at 23.

that imbalance because what is at stake was the mana of that person.”647 Notion of escalation can also be seen in koha. Some marae keep a record so that, when they visit other marae, they can reciprocate in kind and if possible increase the value of the koha.648

• 4.285 Meredith raises the question as to who determines ea. He goes on to say it is “those who have suffered [who] determine when kua ea”.649
• 4.286 It is clear from many of the examples that acts of utu were seen as a reflection of mana. Tā Kim Workman (Ngāti Kahungunu, Rangitāne) gives the following examples:650

There was one chief who was fined for stealing goods and was outraged by the quantum of the fine and complained that it was not nearly enough. He insisted that he be fined four times more because that was more in line with his mana ...

Another leader who was sentenced to prison complained that he didn’t want to go there and asked to be executed instead because to take away his freedom and to live in one of those hell holes was uncivilised.

• 4.287 We see from the section 27 report written by Associate Professor Khylee Quince (Ngāpuhi, Te Roroa, Ngāti Porou, Ngāti Kahungunu) in Solicitor-General v Heta651 that the idea of “balance” also pertains to the health of the individual. “[T]he cornerstones of a healthy Māori identity [are] the need for balance in the constituent elements of Te Taha Tinana (the physical aspect), Te Taha Wairua (the spiritual aspect), Te Taha Whānau (the family aspect) and Te Taha Hinengaro (the psychological aspect).”652
• 4.288 Maanu Paul (Ngāti Awa) writes:653

In order to reach a state of Te Ao Marama, the balance has to be struck. Referred to as UTU, the term itself takes on many guises. When there has been a HARA, an offence of any nature, there must be an utu to restore the balance that the offence has created. Without restoring this balance, an individual will find himself sloping down the stages of whakama, because he is in a state of nama/owing, has not repaid for the offence committed, as if in purgatory.

...

The ultimate point to get to is ‘ka ea’. If the utu does not meet the hara, and the mana has not been repaid, then whakamā will ensue.

• 4.289 He describes whakamā as “generational and will thus attach from generation to generation”.654
• 4.290 Dr Moana Jackson (Ngāti Kahungunu, Ngāti Porou) says utu “is not about revenge. It is about a price to be paid to restore harmony. It is a step towards reconciliation. It is part of the process ... of achieving justice and acknowledgement of hurt and then finding a

⁶⁴⁷ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Peter Adds and Paul Meredith) at 24. ⁶⁴⁸ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Peter Adds and Paul Meredith) at 24. ⁶⁴⁹ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Peter Adds and Paul Meredith) at 69. ⁶⁵⁰ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Kim Workman) at 60–61.

⁶⁵¹ Solicitor-General v Heta [2018] NZHC 2453.

⁶⁵² Solicitor-General v Heta [2018] NZHC 2453, s 27 report by Khylee Quince (18 September 2018) at 7.

⁶⁵³ R v Tamati Mason [2012] NZHC 1361, Cultural Advisor Report by Maanu Paul (5 July 2012) at [20].

⁶⁵⁴ R v Tamati Mason [2012] NZHC 1361, Cultural Advisor Report by Maanu Paul (5 July 2012) at [31].

way to address the hurt.”655 He goes on to clarify “the notion of matching the act could be problematic if it’s seen that this is a violent act, a physically violent act, therefore we’ll match it with physical violence. It didn’t necessarily imply that but if you like, there was a comparability in the response needed to deal with a particular act.”656

• 4.291 Professor Jacinta Ruru (Raukawa, Ngāti Ranginui) and Mihiata Pirini (Ngāti Tūwharetoa, Whakatōhea) indicate that a state of “ea” can only be reached if all parties are involved in the resolution process:657

Tikanga evolves and adapts to fit situations. So while the Crown’s actions cannot be undone, in tikanga Māori a resolution is always possible.

...

Any tikanga based solution must acknowledge and respect the mana of all those involved and affected. In tikanga Māori, that must include tangata whenua and mana whenua groups where whenua is involved as part of the resolution process.

...

In tikanga, a state of ea could not be reached unless all affected parties, were involved in the process of resolution – this would otherwise be inconsistent with the principles of whanaungatanga and mana. In our opinion, a state of ea could not be reached where whenua is involved unless tangata whenua were involved and respected in the process.

Muru

• 4.292 Tamati Waaka (Te Whānau-ā-Apanui, Ngāi Tai, Te Whakatōhea, Ngāti Awa, Ngāti Pūkeko, Tūhoe) explains that muru is the plundering of an individual, whānau, hapū or iwi.658 It is restorative.659 It has the purpose of restoring mana.660 It is also an act that is done with aroha.661 When the group that was about to be subject to muru lays in front of the aggrieved party all of their taonga, it is shown that restoration is wanted. This left both parties mana.662
• 4.293 Peter Adds (Te Ātiawa) similarly explains that muru was “a very common device that was used in Māori communities for the purposes of redress ... muru was about the ritualised removal of a persons’ private property ... a really common form of social control in Māori communities across the country”.663 He thinks that the translation of muru as “robbery”

⁶⁵⁵ R v Tamati Mason [2012] NZHC 1361, Notes of Evidence (3 May 2012) at 11.

⁶⁵⁶ R v Tamati Mason [2012] NZHC 1361, Notes of Evidence (3 May 2012) at 12.

657. Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Joint Affirmation of Jacinta Arianna Ruru and Mihiata Rose Pirini affirmed (14 September 2020) at [81], [83] and [85].
658. Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tamati Waaka (4 January 2017) at [101]–[104].
659. Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tamati Waaka (4 January 2017) at [102].
660. Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tamati Waaka (4 January 2017) at [101]–[104].
661. Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tamati Waaka (4 January 2017) at [103].
662. Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tamati Waaka (4 January 2017) at [104].

⁶⁶³ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Peter Adds) at 28.

or “plunder” is completely wrong.664 He goes on to provide an example of muru in Taranaki in 1873:665

Te Kahuikararehe ... [from Te Namu Pā, Ōpunake] eloped with Lydia [from Parihaka] when

... he was already married to ... Betty ... [t]he people living closest to Te Namu Pā turned up at Te Namu Pā to take the property of the whole village, not just Te Kahui’s stuff.

...

Not only did the people of Te Namu have to sit back and watch this happen to their property, they were also expected to provide manaakitanga to the people that were coming to get their stuff. They had to feed the people that were coming to get the material from Te Namu Pā and group after group turned up to get there [sic] stuff ...

Betty’s relations from Parihaka turned up at Te Namu ... They were naked according to the description. They were covered in mud. They had scratched themselves and there was blood coming from various parts of their body and they came in ... And the rest of the party came in.

At one point in the ceremony a fire started in one of the huts at Te Ngamu [sic] Pā. People were really worried that the fire was in a house where there was an old man said to be living, at which point the whole process stopped. Both parties, the people from Te Ngamu [sic] and Parihaka rushed in to save the man who they thought was in the house. In the event, there was no one in the house.

... it demonstrates of course that the theatre and the rules around muru and the primary rule of muru apparently was that there was no one ... to get physically hurt in the process

...

By the end of the visit ... there was virtually nothing left at Parihaka.

[This process of muru] sanctified the divorce of Te Kahui and Betty so Te Kahui and Lydia could end up in a new marriage.666

Te Kahui’s mana and his whanaunga in Te Namu, “in that context skyrocketed” and not only his mana but the mana of his Whanaunga living at Te Ngamu [sic] as well also skyrocketed as a result of the process. Interestingly, not just their mana, the mana of the people visiting Te Ngamu [sic] to take the stuff also increased. Why, because this was an overt statement to the rest of the world ... ‘I must be somebody because I’m going to take part in a muru – or be muru’d’.

• 4.294 Paul Meredith (Ngāti Maniapoto) explains that the “term muru has a notion of forgiveness and shows remorsefulness ... it’s mana enhancing to show forgiveness, and remorsefulness”.667 He provides the example of a Pākehā grandfather that blocks the tauā muru coming across the bridge but the whānau show their remorse by waiting till he is asleep and taking their goods to present to the ope for muru.668
• 4.295 Tā Pou Temara (Tūhoe) describes a similar concept to muru – a ‘taua’:669

⁶⁶⁴ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Peter Adds) at 28. ⁶⁶⁵ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Peter Adds) at 29–31. ⁶⁶⁶ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Peter Adds) at 32.

⁶⁶⁷ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Paul Meredith) at 45. ⁶⁶⁸ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Paul Meredith) at 45. ⁶⁶⁹ Clarke v Takamore [2009] NZHC 901; [2010] 2 NZLR 525, Affidavit of Pou Temara (31 July 2008) at [24]–[26].

The climax of my whaikōrero was to place a taua on the whānau of the deceased and by association the hapū of the Marae. Other tribes would call taua a muru. But a taua is when you place a restriction or you demand compensation for some deed that has insulted or upset people.

• 4.296 Temara also says:670

Tikanga was being used to seek compensation for another set of tikanga. The compensation I called for was no less than a greenstone weapon ... Ko te utu he pounamu” and this was paid three months later.

• 4.297 According to Ngahuia Murphy (Ngāti Manawa, Ngāti Ruapani ki Waikaremoana, Tūhoe, Ngāti Kahungunu), muru was often instigated by wahine:671

In times of transgression in pre-colonial times, wahine led muru plundering parties and at times, war parties to seek utu – the restoration of balance. This is one of the sacred role of wahine dictated by the atua wāhine and our cosmological stories.

• 4.298 Similarly, Ella Henry (Ngātikahu ki Whangaroa, Te Rārawa, Ngāti Kuri) says “muru (the call for utu) was often at the request or instigation of women”.672
• 4.299 Professor Jacinta Ruru (Raukawa, Ngāti Ranginui) and Mihiata Pirini (Ngāti Tūwharetoa, Whakatōhea) explain, “There is no role for the Crown to lead in determining the appropriate use of muru.”673 They say, “Muru must be expressed in accordance with tikanga Māori at the behest of the tangata whenua.”674

Tatau pounamu

• 4.300 Maanu Paul (Ngāti Awa) says:675

Where tikanga is an available avenue to guide a dispute resolution process, it is the most appropriate mechanism to guide the dispute resolution process for our people.

An example of this is the negotiation of tatau pounamu (greenstone door) a binding contract to ensure peace. Tatau simply meaning door and pounamu signifying an everlasting, unbreakable and eternal peace pact. They key context for such agreements was that their legitimacy and meaning were dependent upon the realities of tikanga as law and mana as a concept of power.

An example of this may be the offering of a rākau (tree) to acknowledge the tragic event in a manner that seeks to offer peace ... the impact of a tatau pounamu is life long.

• 4.301 Dr Moana Jackson (Ngāti Kahungunu, Ngāti Porou) describes tatau pounamu:676

Tatau pounamu was a restorative process used after particularly serious wrongs or a breakdown in relationships between say hāpu [sic] caused by warfare and it was design [sic] specifically ... to deal with more serious issues and so there was formalisation ... of the

⁶⁷⁰ Clarke v Takamore [2009] NZHC 901; [2010] 2 NZLR 525, Affidavit of Pou Temara (31 July 2008) at [25]–[26].

⁶⁷¹ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A67 Ngahuia Murphy at [15].

⁶⁷² Mana Wāhine Kaupapa Inquiry, Wai 2700, #A63 Ella Henry at [41].

673. Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Joint Affirmation of Jacinta Arianna Ruru and Mihiata Rose Pirini affirmed (14 September 2020) at [88].
674. Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Joint Affirmation of Jacinta Arianna Ruru and Mihiata Rose Pirini affirmed (14 September 2020) at [89].

⁶⁷⁵ R v Tamati Mason [2012] NZHC 1361, Cultural Advisor Report by Maanu Paul (5 July 2012) at [28]–[30].

⁶⁷⁶ R v Tamati Mason [2012] NZHC 1361, Notes of Evidence (3 May 2012) at 25.

need to bring back the collectors together and the utu that might be exacted in that case would also then reflect the gravity of the office ...

• 4.302 Jackson also says:677

The negotiation of tatau pounamu (greenstone door – a binding contract to ensure peace) is one example of Iwi and Hapū regularly treating with each other, as are instances where for example coastal Hapū allowed access by inland Hapū to gather kaimoana in return for reciprocal access to the resources of the forest etc.

The key context for such agreements was that their legitimacy and meaning were dependent upon the realities of tikanga as law and mana as a concept of power. Those who negotiated them therefore had to have the legal standing to do so, and the agreement they made had to be consistent with the prescriptions and proscriptions inherent in the tika exercise of mana.

• 4.303 According to the examples provided by Chris Winitana in Tūwharetoa Māori Trust Board v Waikato Regional Council,678 tatau pounamu is a peace agreement and can be brokered via marriage.679
• 4.304 Ella Henry (Ngātikahu ki Whangaroa, Te Rārawa, Ngāti Kuri) also cites evidence that explains tatau pounamu: “Biggs ... notes that marriages between victorious chiefs and women from the defeated party were a feature of peace making ... peace making included the exchange of weapons, known as tatau pounamu.”680

Social organisation and peace making

• 4.305 Traditionally, given the importance and unifying concept of whakapapa, intermarriage was strategic and a common way of resolving disputes or creating kinship connections between groups to foster relationships. Nigel Te Hiko (Raukawa, Waikato-Tainui, Ngāti Tūwharetoa, Ngāti Kauwhata, Ngāti Tukorehe, Ngāti Raukawa ki te Tonga) explains:681

Traditional strategic marriages were an important part of establishing take to the whenua. [The] purpose of strategic marriages were to:

• promote peace between hapū;
• provide opportunity for trade and access to resources; and
• produce offspring with whakapapa connection to the various tupuna connected to the land.

• 4.306 Moe Milne (Ngāti Hine) explains:682

Tomo or arranged marriages, were common practice in Ngāti Hine. It was not marriage in the Pākehā sense, it was arranged “moea”, ka moea te tāne me te wahine, kia whai uri; the consummation of man and woman to produce offspring. Often marriage was between

⁶⁷⁷ R v Tamati Mason [2012] NZHC 1361, Affidavit of Moana Jackson (24 April 2012) at [52] and [53].

⁶⁷⁸ Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93.

679. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Statement of Evidence of Chris Winitana (4 June 2017) at [105]–[108].
680. Mana Wāhine Kaupapa Inquiry, Wai 2700, #A63(a), Ella Henry “Rangatira Wahine: Māori Women Managers & Leadership” at 83.

⁶⁸¹ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Nigel Te Hiko) at [7.2], [7.3] and [7.8].

⁶⁸² Mana Wāhine Kaupapa Inquiry, Wai 2700, #A62, Moe Milne at [91].

relatives as a way of keeping land within the hapū. Often third cousins would be married. A distinct part of the tomo, was that everybody was involved in the relationship.

• 4.307 Rereata Makiha (Te Mahurehure, Te Aupōuri, Te Arawa) emphasises the role of wahine in this peace making in the context of “puna roimata” (a deep tangi). “There is a recognition here that wāhine were the everlasting peace makers. To settle disputes or grievances wāhine were often married off to other tribes ‘ki te hohou i te rongo’ or te rongotaketake, everlasting peace. An example was the marriage of Matire Toha from Te Waihangehange and Ngāti Juta to Kakati (Potatau Te Wherowhero’s younger brother) to settle the dispute between Ngapuhi and Tainui.”683
• 4.308 In response to the question “who and what is the tribe” of Ngāi Tahu, Tā Tipene O’Regan (Ngāi Tahu) explains that “social and political organisation ... [was] a deliberate outcome of rangatira marriage arrangements and directly linked to the politics and resource ownership of the tribe. [This was also] reflected in non-rangatira marriage and inter- whānau access to use rights in the wakawaka by which mahinga kai were and are divided.”684 In separate evidence, he draws an analogy:685

Tomo was the traditional practice or custom of chiefly intermarriages between iwi. It could perhaps be compared to the strategic alliances forged by marriages arranged for members of the British royal family in the Victorian era (and earlier). Such alliances were all carefully orchestrated.

• 4.309 Examples of such marriages:
  • Haami Te Whaiti (Ngāti Kahungunu ki Wairarapa, Ngāi Tumapuhia) discusses how a “lasting peace was brought about and cemented through intermarriage, Ngā-rangi- topetope and Hineitārewa is one such marriage”.686
  • Te Whaiti also talks about a significant tipuna, Ngaoko-i-te-rangi, who was important to all of the coastal people of Wairarapa, including Ngāi Tūmapuhia-a-rangi in the north and Ngāti Ira in the south. He explains that his death caused a huge backlash that saw several avenging taua coming from as far away as Whāngārā and resulted in some redistribution of authority and intermarriage.687
  • Ross Gregory (Te Rārawa, Te Aupōuri, Ngāti Kahu, Ngāpuhi, Ngāi Tahu) explains that Ereonora and Whangatauatia were extremely influential in the north in their own right. He says, “It was no doubt this fact which influenced Panakareao’s mātua in arranging the marriages with those women ... His right to become a Kaitiaki was consolidated by those marriages.”688
• 4.310 There were some differences on the extent to which intermarriage resulted in the transference of land based rights and mana whenua.

⁶⁸³ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A71 Rereata Makiha at [17].

⁶⁸⁴ The Fisheries Settlement Report, Wai 307, #B9 Tipene O’Regan at 2–3.

685. Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Affirmation of Sir Tipene Gerard O’Regan (17 September 2020) at [31].

⁶⁸⁶ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Summary of Evidence of Haami Te Whaiti at [38].

⁶⁸⁷ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Brief of Evidence of Haami Te Whaiti at [6].

⁶⁸⁸ Muriwhenua Land Report, Wai 45, #F28 Ross Gregory at 2–3.

• 4.311 Nigel Te Hiko (Raukawa, Waikato-Tainui, Ngāti Tūwharetoa, Ngāti Kauwhata, Ngāti Tukorehe, Ngāti Raukawa ki te Tonga) explains:689

[A] marriage did not automatically grant rights to land to the spouse or the spouse’s people. Rather, rights to lands fell to their progeny. When rights have been established through marriage then it is through that whakapapa connection to the eponymous tūpuna, who had the pre-existing mana whenua.

...

The point of marriage is to provide a connection into the mana whenua that the existing tangata whenua has. When Raukawa marries into Ngāti Kahupungapunga it is to access the mana whenua that comes from that whakapapa and add those connections to other take that Raukawa might have. What it doesn’t do is somehow pick up mana whenua and simply transplant it to the Raukawa whakapapa.

• 4.312 According to Wikitōria Hepi-Te Huia (Ngāti Tahu), alliances and peace settlements between neighbouring hapū sometimes provided for intermarriage/naming rights but that did not often confer mana whenua status, rather only access rights.690 To this end, Hepi- Te Huia disputes that Ngāti Tūwharetoa have mana whenua in respect of Rotokawa and that they only have access. She claims that Ngāti Tahu/Ngāti Whaoa maintain ahi kā roa and mana whenua over Rotokawa.691
• 4.313 David Wilson (Te Ākitai Waiohua, Ngāti Te Ata) emphasises the connection that intermarriage creates in an inclusive way:692

Ngāti Whātua claim that these strategic intermarriages cemented their rights and interests in the whenua. But this is like saying that they intermarried with us but not us with them. Whakapapa has two sides and you can’t wipe out one. We see these marriages not only as a means of peace making between Waiohua and Ngāti Whātua to avoid further conflict but as a way of continuing to connect us by whakapapa to the land that our tūpuna held.

• 4.314 Margaret Kawharu (Ngāti Whātua Ōrākei) says:693

Well, as far as I understand, it was relatively common practice to fight and then find a way to make peace. And there are a number of ways of doing that. Dog skin cloaks and various ceremonies, gift exchanges, women also come into this ... there’s two things going on with intermarriage. There’s a reconciliation and there’s also a slight, there’s a connection with the people that were there, have been there, but also a dominating influence also I think.

• 4.315 Kawharu agrees that the intermarriages between Te Ākitai Waiohua and Te Taoū are an example of whanaungatanga and the joining of whakapapa and agrees that it preserves a Te Waiohua link to the whenua.694 However, she qualifies this and states that it is “under the auspices of” Ngāti Whātua Ōrākei.695 She says, “I mean there’s a peace and there’s a

⁶⁸⁹ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Affidavit of Nigel Te Hiko at [7.3] and [7.8].

690. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Rebuttal Evidence of Wikitōria Hepi-Te Huia on behalf of Tauhara North No.2 Trust (23 June 2017) at [2.6].
691. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Rebuttal Evidence of Wikitōria Hepi-Te Huia on behalf of Tauhara North No.2 Trust (23 June 2017) at [2.8]–[2.12].
692. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, brief of evidence of David Wilson (13 October 2020) at [34].

⁶⁹³ Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Notes of Evidence at 295. ⁶⁹⁴ Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Notes of Evidence at 296. ⁶⁹⁵ Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Notes of Evidence at 295.

reconciliation but there’s a recognition that the balance of power has shifted also, I would say.”696

• 4.316 Tā Hugh Kawharu (Ngāti Whātua) notes the nature of land ownership in accordance with iwi and hapū rights has changed with colonial introduction of land titling:697

Rights of use in land once allocated by an iwi/hapū authority and held by individuals subject to the paramount right of the iwi or hapū have been transmuted into ownership of shares and protected in law. Such rights no longer require, for example, occupation of the land, application of the occupier’s labour to it and community service which, in the ultimate, was a preparedness to die in defence of the community ... Such ownership may now of itself confer tangata whenua status on the owner in the tribal area where the land is located.

• 4.317 Tāmati Kruger (Ngāti Koura, Ngāti Rongo, Ngāi Tūhoe) says:698

A marriage alone does not confer mana whenua, rather it is contingent on the permanency value of those arrangements.

This arrangement plays out in relation to whenua as well. The spouse who moves to live with the other iwi becomes part of the whakapapa of that iwi. However that spouse does not gain mana whenua rights over the land. Instead the spouse of the iwi with mana whenua has a duty to give protection, honour, security and appropriate livelihood lifestyle to their spouse while they live there together ... Their children from their marriage however inherit mana whenua rights to the land.

Other dispute resolution principles or mechanisms

• 4.318 Shadrach Rolleston (Ngāi Te Rangi, Ngāti Ranginui, Ngāti Hāua) provides a number of central principles that guide dispute resolution within the context of the MV Rena disaster and kōrero with tangata whenua groups. They are:699
  • rangatira ki te rangatira – engaging chief to chief;
  • kanohi ki te kanohi – engaging face to face;
  • te kanohi kitea – ‘seen face’ or fronting up;
  • nā te kakano – from the seed (engaging early); and
  • ki tai wīwī, ki tai wāwā – flexibility in the engagement process.
• 4.319 Associate Professor Khylee Quince (Ngāpuhi, Te Roroa, Ngāti Porou, Ngāti Kahungunu) also emphasises the importance of kanohi ki te kanohi in resolving disputes:700

Face to face (kanohi ki te kanohi) reconciliation between parties involved in conflict is the centrepiece of Māori dispute resolution practice ... it is essential that wrongdoing is addressed directly, so that parties can air their mamae (grievances/hurt), attempt to forge

⁶⁹⁶ Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Notes of Evidence at 295.

⁶⁹⁷ Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Professor Sir Hugh Kawharu for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [14(b)].

⁶⁹⁸ Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger in reply (4 December 2020) at [31]–[32].

⁶⁹⁹ Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Shadrach Rolleston (28 October 2016) at [4.4].

⁷⁰⁰ Solicitor-General v Heta [2018] NZHC 2453, s 27 report by Khylee Quince (18 September 2018) at 10.

consensus solutions if necessary, and move on. The personal price for wrongdoing is shame.

• 4.320 Paul Meredith (Ngāti Maniapoto) discusses hākari and other actions that were traditionally used to resolve disputes. To sort out disputes, people would often have kōrero around a hākari to show manaakitanga. It was mana enhancing about how much food you could give your visitors.701 Meredith provides examples of dispute resolution such as:
  • when some people didn’t have the resource to be able to give a paremata or return hākari so “in the end, ka tuku whenua ...” (they ended up giving whenua instead);702
  • tāpae toto – when taonga was gifted;703
  • uru maranga – justified killing as opposed to kōhuru or murder;704
  • whakawā – after church when the community will gather and people will raise issues and there would be redress given;705
  • panaia – banishment;706 and
  • raupatu and raukatau.707
• 4.321 Marjorie Huingapani Kurei (Ngāi Tamahaua hapū) notes that the tikanga of collectiveness meant that, where there was a conflict, “the whole community was involved in finding a resolution”.708
• 4.322 Dr Moana Jackson (Ngāti Kahungunu, Ngāti Porou) was asked by the Court whether a hui would occur in te ao Māori dispute resolution process in circumstances where someone has committed wrongdoing, been arrested and accepted responsibility for their actions. He says in reply:709

Admission of the wrong or even a denial of the wrong, would trigger a process ... you would expedite the process of reconciliation. That wouldn’t then necessarily lead to a hui ... that sort of large public gathering ... can further victimise and traumatise the person hurt and our people were really aware of that and so there would be a hui, but it wouldn’t be the sort of hui that we’ve come to accept with the term. It would be a meeting with a particular purpose and the people who were there would have been trained, they were indeed tohunga to work towards a reconciliation and try to find a solution.

• 4.323 In the Wairarapa ki Tararua district inquiry, a tikanga wānanga on redress was held where the participants discussed the impact of redress concerning land on third parties. In this context, Paul Meredith (Ngāti Maniapoto) explains, “Whenever you have a dispute, the

⁷⁰¹ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Paul Meredith) at 47.

⁷⁰² Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Peter Adds and Paul Meredith) at 53–54.

⁷⁰³ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Paul Meredith) at 48. ⁷⁰⁴ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Paul Meredith) at 48. ⁷⁰⁵ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Paul Meredith) at 48. ⁷⁰⁶ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Paul Meredith) at 48.

⁷⁰⁷ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Paul Meredith) at 48–49.

⁷⁰⁸ Affidavit of Marjorie Huingapani Kurei (20 February 2020) at [10].

⁷⁰⁹ R v Tamati Mason [2012] NZHC 1361, Notes of Evidence (3 May 2012) at 24–25.

main thing is that everyone involved has to walk away with their mana intact or the ability to restore their mana.”710 In terms of third parties, Meredith raises:711

... the concept of “hau” whereby “you gift this taonga to someone else, then this taonga is taken by someone else. That person then has to redress your – the relationship of the person who they stole it off, but also that the hau of that original owner also is included ... there’s some restoration there needed”. Hau is not so much about third parties but acknowledges there are parties who had original interests in that taonga, that property.

Evolution and continuity of dispute resolution

• 4.324 Tā Tipene O’Regan (Ngāi Tāhu) discusses how tikanga around dispute resolution has evolved over time. He states, “Over time, practices evolve. Disputes over the kawa of a marae that would have resulted in the launching of a war party in the past are now determined by negotiating and renegotiating matters.”712
• 4.325 Paki Nikora (Ngāti Rongo, Tūhoe) discusses how their marae disciplined Tame Iti following 16 January 2005, where he discharged a firearm at the New Zealand flag at the welcoming ceremony of the Waitangi Tribunal. They convened their “own Court hearing” inside of their “ancestral meeting house” where the kaumatua “considered all the matters to be adjudged and that they too, disciplined Tame”.713

MAURI

• 4.326 Tahu Potiki (Ngāi Tahu, Ngāti Māmoe) explains that:714

Mauri is the actual life force connection between the gods and earthly matter. It is stated that all things have a mauri including inanimate objects so it can be found in people, animals, fauna, fish, waterways, rocks, mountains. The mauri is ... also the generator of the health of a person or place.

Mauri ... is transportable by the experts familiar with appropriate protocols. Barlow states:

Everything has a mauri. The mana of kaitiaki and atua can be utilised to create a

mauri to protect a particular hunting ground. This was done through imbuing a mauri into a physical object such as a stone or stick.

The mauri is ... a life.

• 4.327 Mauri can be restored. In fact it is arguable that it cannot be extinguished at all merely diminished or caused to lie dormant.715
• 4.328 Mauri is described by various people:

⁷¹⁰ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Notes of Evidence (Paul Meredith) at 69.

⁷¹¹ Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654 (Paul Meredith) at 69.

712. Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Affirmation of Sir Tipene Gerard O’Regan (17 September 2020) at [26].

⁷¹³ R v Iti [2007] NZCA 267/06, Notes of Evidence, (Paki Nikora) at 104.

714. Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tahu Potiki (23 December 2016) at [8.1]–[8.10].
715. Taranaki-Whanganui Conservation Board v Environmental Protection Authority [2018] NZHC 2217, Cultural Values Assessment and Analysis by Tahu Potiki (August 2016) at [9.13].
     • Mason Durie (Ngāti Kauwhata, Rangitāne) describes mauri as:716

[embodying] familiar notions of wellness, health, levels of vitality, energy, spirituality, awareness, identity, integrity and alertness and engagement beyond the self.

A flourishing mauri is evidenced by vitality, spiritual enlightenment, enthusiasm, emotional strength, a capacity to engage – all experienced within social and physical environments that align with human resilience.

A languishing mauri has the opposite associations: low energy, despondency, uncertainty, shame, a reluctance to engage, and environments that aggravate personal bleakness.

• Desmond Kahotea (Ngāi Te Rangi, Ngāti Ranginui, Ngāti Pūkenga), explains that mauri is sometimes referred to as being “a framework for which specific and measurable social, cultural, environmental, and economic values are understood”.717 Mauri is also a metaphysical value that can be managed by karakia conducted by experienced tohunga.718 Karakia was conducted to mitigate the negative impact of the MV Rena wrecked on the reef for the purpose of placing a rāhui over the area to protect the mauri.719
• Haami Piripi (Te Rārawa) explains that “the significant habitats of our flora and fauna house the mauri and spiritual essence of our ancestors”.720

• 4.329 Specific examples of mauri are also provided:
  • In Te Maru o Ngāti Rangiwewehi v Bay of Plenty Regional Council, Ngahihi o Te Ra Bidois (Ngāti Rangiwewehi) highlights that the negative effect on the Awahou River from water extraction had a negative effect on their mana.721
  • Reverend Māori Marsden (Ngāi Takoto, Ngāti Warara) says:722

Allow me to conclude with a special reference to the ‘Mauri’ of the toheroa ... I remember at a special meeting of Ngāitakoto where the elders expressed misgivings about the Mauri of the Toheroa being made ‘noa’ and being depleted in the near future because they were being [sic] commercialised, a grave ‘hara’ or sin against the Atua for a freely bestowed gift. They predicted that in less than 20 years the toheroa would disappear because the Mauri would remove itself, and the removal of Mauri or life-force, would spell doom to the toheora. For them, it was not so much the use or even over-use of the resource but rather the abuse and misuse of the mauri and its tapu. It would create an imbalance in the fragile network of the eco-systems of the Oneroa-a-Toohe and even the abundance of Schnapper and other seafoods would be seriously depleted.

716. Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Mason Harold Durie (23 December 2016) at [22]–[24].
717. Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Desmond Tatana Kahotea (28 October 2016) at [9.4], referring to Dr Kepa Morgan.
718. Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Desmond Tatana Kahotea (28 October 2016) at [9.6].
719. Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Desmond Tatana Kahotea (28 October 2016) at [9.1]–[9.7].

⁷²⁰ Ko Aotearoa Tēnei, Wai 262, #P3 Haami Piripi at [36].

721. Te Maru o Ngāti Rangiwewehi v Bay of Plenty Regional Council [2008] NZEnvC 24; [2008] NZRMA 395, Statement of Evidence of Ngahihi o Te Ra (19 November 2007) at [5.4].

⁷²² Muriwhenua Land Report, Wai 45, #C17 Reverend Māori Marsden at 8.

• Waiohau Te Haara (Ngāti Rangi) says, “All things have their own Mauri. Takauere (taniwha) embodies the mauri of the geothermal waters of Ngāwhā.”723
• Joseph Davis (Ngāti Hei) explains, “The land and the sea are the source of spirituality and mauri for Ngāti Hei. Our history and whakapapa are intimately tied to the spiritual stories and beliefs that have been passed down from generations before. We have traditions and values that we associate with our rohe and we are protective of them.”724
• Tamati Waaka (Te Whānau-ā-Apanui, Ngāi Tai, Te Whakatōhea, Ngāti Awa, Ngāti Pūkeko, Tūhoe) gives an example of the large boulders at the mouth of the Motu River having the mauri of the kahawai in the boulders, which is one example of a hapū being connected to certain fish through mauri.725
• Dr Te Kei Merito (Ngāti Awa, Ngāti Pūkeko, Ngāti Rangataua, Ngāti Hokopū, Ngāi Tamapare) and Dr Hohepa Mason (Ngāti Awa, Ngāti Pūkeko) say, “Te mauri o te wai is paramount for life, our eco-system and for Ngāti Awa generally.”726
• Hemana Manuera (Ngāti Awa) states that it is possible for mauri of water to be degraded. “Hypothetically, the mauri of water could be negatively affected through human involvement. For example, by diverting water or extracting it so much that it is depleted.”727
• Tania Hopmans (Ngāti Marangatūhetaua, Ngāti Kurumōkihi, Ngāi Tauira, Ngāti Whakaari, Ngāi Tahu) explains that the use and occupation of Tangitū is integral to the distinct identity and mana of the hapū. “Tangitū has a mauri of its own. This mauri binds the spiritual world with the physical world. All elements of the natural world have mauri and it is this mauri that connects the Hapū with Tangitū”.728
• Te Ringahuia Hata (Ngāti Patumoana) says, “All beings in this realm possess a mauri, or a life force, they have something to say an something to share, the sea, the fish, the shellfish, the crabs, the shells, the pebbles and gravel, the rocks and boulders, the sand and earth, the trees, the birds, and the winds. They speak to each other just as we communicate daily.”729

723. Beadle v Minister of Corrections, NZEnvC Wellington A074/2002, Evidence of Waiohau (Ben) Te Haara in Reply (undated) at [49].

⁷²⁴ Wilson v Waikato Regional Council [2021] NZEnvC 131 Statement of Evidence of Joseph Davis (28 August 2020) at [80].

725. Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tamati Waaka (4 January 2017) at [64]–[65].
726. Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, Joint Statement of evidence of Te Kei Merito and Hohepa (Joe) Mason at [52].
727. Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, Statement of Evidence of Hemana Eruera Manuera (29 March 2019) at [46].

⁷²⁸ Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit of Tania Marama Petrus Hopmans (3 April 2017) at [73].

⁷²⁹ Re Edwards [2021] NZHC 1025, Affidavit of Te Ringahuia Hata (29 January 2020) at [65].

KAITIAKITANGA

• 4.330 Kura Paul-Burke (Ngāti Awa, Ngāti Whakahemo) describes kaitiakitanga as incorporating “one universe, where all living things are connected. This includes animals, fish, plants, forests, sea and humans. Kaitiaki are manifested in tangible and intangible forms and are not always human.”730
• 4.331 Colin Reeder (Ngā Pōtiki) describes the closest English equivalent to kaitiakitanga “is protection, guardianship, stewardship or trusteeship. However, these words merely form the basis of what this concept means”. He adds that for his iwi, “Ngā Pōtiki, kaitiakitanga has manifested in different forms over time. Despite its different manifestations, its underpinning [sic] principle and inherent obligation of guardianship remains constant. It is a principle that is intrinsically connected to assertions of tino rangatiratanga, mana whenua, mana moana and ahi kā.”731

Invokes obligations

• 4.332 The concept of kaitiakitanga is said to invoke particular obligations and duties:
  • Angeline Greensill (Kokako, Tainui, Ngāti Tahinga, Ngāti Rangatiratanga, Ngāti Mahanga, Ngāti Te Ata, Waiohua, Ngāti Ruanui) says, “Our hapū are obliged to actively protect our area for future generations through the practice of kaitiakitanga no matter what the cost. It is our responsibility to keep and guard hapū interests and taonga. It is us (Tainui o Tainui ki Whaingaroa) who are responsible for the preservation and guardianship of Whaingaroa Harbour. It is we who are obligated to nourish and control the relationship between our peoples and our natural world.”732
  • According to David Topia Rameka (Ngāti Tūwharetoa, Ngāti Kurapoto, Waikato- Tainui, Ngāti Rangitihi, Ngāti Tahu) on behalf of Tūwharetoa Māori Trust Board, kaitiaki “have an intrinsic duty to safeguard the mauri of the environment, including to ensure the physical and spiritual health of the environment is maintained, protected and enhanced”.733
  • Nganeko Minhinnick (Ngāti Te Ata) highlights, “It is our role as kaitiaki to protect our tupuna and our culture, so that future generations can exercise their kaitiakitanga.”734
  • Waiohau Te Haara (Ngāti Rangi) explains that being a kaitiaki means being responsible for the land, and for the water that flows through and under it, for future generations.735 He goes on to say that “kaitiakitanga is a contemporary concept that

730. Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence by Kura Paul-Burke (22 December 2016) at [3.3].

⁷³¹ Re Reeder on behalf of Ngā Pōtiki [2021] NZHC 2726, Affidavit of Colin Francis Reeder (6 July 2020) at [18].

732. Tainui Hapū v Waikato Regional Council, ENC Auckland A063/2004, Statement of Evidence of Angeline Greensill on behalf of Tainui Hapū (undated) at [24].
733. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Statement of Evidence of David Topia Rameka (4 June 2017) at [21].
734. Minhinnick v Minister of Corrections [2004] NZEnvC A43/04, 6 April 2004, Statement of Evidence of Nganeko Minhinnick of Ngāti Te Ata Waiohua (undated) at [6].
735. Beadle and Wihongi v Minister of Corrections, EnvC Wellington A074/2002, Statement of Evidence of Waiohau (Ben) Te Haara (undated) at [6]–[7].

has appeared in legislation recently and kaitiaki have the responsibility to ensure the land is used creatively to bring harmony; we look after it and it looks after us”.736

• Margaret Kawharu (Ngāti Whātua Ōrākei) says, “Duties of kaitikitanga meant trying to protect significant sites from desecration by non-Māori. Sometimes that also meant exercising kaitiakitanga on behalf of or in cooperation with those who had historical associations but who lived at a distance.”737
• Puhanga Tupaea (Ngāti Koata, Ngāti Kuia) talks about the “severe obligations” that are imposed on people to act as kaitiaki and protectors of knowledge (in this context of the artistic expression of mātauranga Māori).738
• Theona Heaslip (Ngāi Tahu) says, “Each whānau on a manu [family muttonbirding territory] is responsible for caring and protecting the environment on land and around their manu coastal areas, which encompasses foreshore and seabed. Although we may express our opinion how a whānau or individual treats and respects their coastal area adjacent to their manu, we don’t have the right to tell them to stop doing it.”739
• Gerald Brenton Aranui (Ngāti Pāhauwera) on behalf of Ngāti Pāhauwera states, “Ngāti Pāhauwera whānau have strong kaitiakitanga views about caring for the beach and the people who go there.”740 He continues to provide examples on the ways this duty has been enforced in recent times stating, “We try and make sure people don’t dumb rubbish everywhere and we put rubbish bins in the area. We also erected some long drop toilets. Sometimes we have to mow the sides of the roads for safety reasons. My uncle has also taken his digger down there to open up the bar when the river is blocked or the mouth is in a position that puts beach users at risk.”741
• Bevan Taylor (Ngāti Marangatūhetaua, Ngāti Kurumokihi, Ngāi Tauira and Ngāi Tahu) in respect of Maungaharuru-Tangitū hapū says, “The gathering of kai and resources has a reciprocal obligation on the Hapū as kaitiaki (guardians). Tangitū has a mauri (life force), so if we do not look after or respect Tangitū in accordance with our kawa and tikanga, its mauri will be detrimentally affected and there will be dire consequences for our Hapū.”742
• Tama Hata (Te Whakatōhea, Te Whānau-ā-Apanui, Ngāi Tūhoe, Waikato) states, “Māori alike have their customs to manage, to preserve and restore the marine and coastal areas under the responsibilities of guardianship. We, the caretakers of the tribes and sub-tribes have the task of retaining the health of the oceans and its sacred mana, its great mana.”743

736. Beadle and Wihongi v Minister of Corrections, EnvC Wellington A074/2002, Statement of Evidence of Waiohau (Ben) Te Haara (undated) at [19].
737. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Margaret Anne Kawharu in reply (4 December 2020) at [41].

⁷³⁸ Ko Aotearoa Tēnei, Wai 262, #H10 Puhanga Tupaea at [29].

739. Re Tipene [2016] NZHC 3199, Affidavit of Sandra Helen Cook (30 October 2014), Annexure: Submission against Denis Tipene’s Customary Marine Title Application by Theona Heaslip (undated) p.68.

⁷⁴⁰ Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit of Gerald Brenton Aranui (26 November 2013) at [8].

⁷⁴¹ Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit of Gerald Brenton Aranui (26 November 2013) at [8].

⁷⁴² Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit Bevan Maihi Taylor (11 August 2020) at [34].

⁷⁴³ Re Edwards [2021] NZHC 1025, Affidavit of Tama Te Waiwhakaruku Hata (14 February 2020) at [48].

• David Williams (Pākehā) states that kaitiakitanga is “a term which denotes the obligation of stewardship and protection. These days it is most often applied to the obligation of whānau, hapū and iwi to protect the spiritual wellbeing of the natural resources within their mana. It is difficult to divorce kaitiakitanga either from mana, which provides the authority for the exercise of the stewardship or protection obligation; and tapu, which recognises the special or sacred character of all things and hence the need to protect the spiritual wellbeing of those resources subject to tribal mana.”744
• Te Riaki Amoamo (Te Whakatōhea, Ngāti Patumoana, Ngāti Ruatakenga) notes, “Under our tikanga, our ancestral connection to Tangaroa gives us the right to enjoy the bounty of the sea, but those rights are conditioned by our responsibility to nurture our ancestor. We must exercise kaitiakitanga as the custodians of our rohe moana (customary sea territory). Acting as the kaitiaki includes a responsibility to maintain the spiritual connection and respect for Tangaroa. Spiritual protocols need to be conducted when there are deaths at sea, whether they be people or taonga species such as whales, and karakia performed to whakawatea te tapu (clear the tapu). It may be necessary to impose a rāhui for a period. Rāhui can also be imposed if resources are under threat.”745
• Te Rua Rakuraku (Te Whakatōhea, Ngāti Ira) states:746

An obligation for us as mana whenua and as kaitiaki is the need to protect resources when they have been under threat or to avoid exploitation of limited taonga. This obligation is derived from our whakapapa connections to the area. In spite of legislation and the raupatu of our lands over successive government and generations, for Ngāti Ira, mana tuku iho never dies but it endures forever. The same applies to the Takutai Moana. We have always asserted our mana moana and kaitiakitanga and that will never change. The knowledge about these processes were passed down from our parents and grandparents and have able equipped our generations to carry on the obligations of kaitiakitanga today and into the future.

Connected to whakapapa/mana

• 4.333 Gregory Lloyd White (Ngāti Tama) sees whakapapa to an area as being a vital component of kaitiakitanga. He considers that kaitiaki can only exercise kaitiakitanga in their own rohe

– they are part of the whenua with tūpuna descending from the whenua itself. A person cannot call themself a kaitiaki just because they carry out activities similar to a kaitiaki. It is culturally offensive to have persons who are not kaitiaki referred to as such. He says:747

The fundamental component of kaitiakitanga is whakapapa. It is whakapapa that links individual kin to each other, to a specific location, resources, ngā Atua, as well as the dearly departed.

• 4.334 Te Ringahuia Hata (Ngāti Patumoana) explains, “Traditionally, only coastal hapū were allowed access to the kaimoana grounds at Ōhiwa. If food was required by inland whānau,

⁷⁴⁴ Re Edwards [2021] NZHC 1025, Affidavit of David Vernon Williams (30 July 2020) at [63].

⁷⁴⁵ Re Edwards [2021] NZHC 1025, Affidavit of Te Riaki Amoamo (3 August 2020) at [6.1].

⁷⁴⁶ Re Edwards [2021] NZHC 1025, Affidavit of Te Rua Rakuraku (19 February 2020) at [53].

747. Director-General of Conservation v Taranaki Regional Council [2019] NZEnvC 203, Statement of Evidence (Cultural) of Gregory Lloyd White on behalf of Te Rūnanga o Ngāti Tama (14 June 2019) at [69]–[77].

then those on the coast would be called and it was they, and only they who were permitted to harvest from Te Kete o Tairongo. Such measures and controls were in place to ensure the resource was adequately looked after – the exercise of kaitiakitanga.”748

• 4.335 Kaitiakitanga is not a birth right but a birth obligation that is inherited from generations past and passed down in perpetuity. The obligation can be impacted (but not extinguished) by land loss, whether by confiscation or sale. It can also be restored by the acquisition of more land within the kin group rohe. It is not transient and cannot be imposed outside the rohe. Another aspect of kaitiakitanga is that it incorporates communication between the ever present dead, the environment, the living, and usually the relevant matter(s) at hand. Sean Ellison (Taranaki, Ngāi Tahu, Ngāti Porou, Te Arawa) makes a similar point by implication. He explains, “The tribal groups of Whaingaroa are the custodians and guardians of the harbour, the sea and waterways, and the land. This is a right from ancient times. It comes from Maui, from Kupe, from Rakataura, from Hoturoa and the old people.”749
• 4.336 Hetaraka Biddle (Ngāi Tamahaua hapū) notes:750

It is important for our hapū to retain the ability to exercise kaitiakitanga over these areas keeping the site and people safe. That goes hand in hand with recognising and respecting hapū rangatiratanga to monitor, protect and preserve these important areas in accordance with our tikanga. It is also important that the hapū maintains the mana to determine what historical information is provided to the general public about these sites and in what manner that information will be delivered.

...

It is our duty as kaitiaki to protect and preserve these areas for our people and for future generations.

• 4.337 Similarly, Te Rua Rakuraku (Te Whakatōhea, Ngāti Ira) discusses mana moana and kaitiakitanga:751

In te ao Māori, there are tikanga values that guide our relationship to the takutai moana. They are built on mana Motuhake, mana whakahaere, mana taketake and notions of kaitiakitanga, aroha, and manaakitanga.

While our ability to carry out our customary rights has been continually threatened and put under pressure by the actions of the Crown, the underlying rights, including those to the coastal area within our rohe, remains. Our customary right to the moana takes into account the needs of our future generations to retain and manage the ancestral inheritance that our tīpuna entrusted to us.

⁷⁴⁸ Re Edwards [2021] NZHC 1025, Affidavit of Te Ringahuia Hata (21 February 2020) at [101].

⁷⁴⁹ Tainui Hapū v Waikato Regional Council, ENC Auckland A063/2004, Statement of Evidence of Sean Ellison on behalf of Tainui Hapū (undated) at [8].

⁷⁵⁰ Re Edwards [2021] NZHC 1025, Affidavit of Hetaraka Biddle (20 February 2020) at [14] and [48]. See also Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Principles for the Allocation of Quota: Report for the Māori Fisheries Commission; Exhibit A Apirana Mahuika Nga Tikanga Māori e pa ana ki a Tangaroa (22 November 1991) at 10–11.

⁷⁵¹ Re Edwards [2021] NZHC 1025, Affidavit of Te Rua Rakuraku (19 February 2020) at [32] and [33].

• 4.338 Tamati Waaka (Te Whānau-ā-Apanui, Ngāi Tai, Te Whakatōhea, Ngāti Awa, Ngāti Pūkeko, Tūhoe) explains the interrelationship between kaitiakitanga and mana:752

For example, if hapū and iwi care for the pipi bed, or fishing grounds well, they are viewed favourably, it enhances their mana and reputation, and also strengthens their connection to those taonga and their rohe. This also works in reverse. If iwi and hapū fail to care for their taonga, this reduces their mana and their connection to the taonga. Such a failure therefore has both spiritual and practical implications for tangata whenua. Their rights of possession and occupation of their whenua, moana or taonga can be lost where they fail to uphold their kaitiaki responsibilities.

• 4.339 He sees kaitiakitanga as being “essentially the responsibility aspect of mana. It recognises the responsibility of iwi and hapū to protect and look after the whenua, moana and taonga within their rohe. It also reflects the fact that iwi and hapū do not see themselves as owning the whenua, or moana, in the sense that we understand ownership today.”753
• 4.340 Agnes Clarke (Ngāti Rangi) makes a similar point: “As kaitiaki we are responsible for not only the physical but the spiritual well-being of Ngāwha. We must ensure that the mauri of our taonga remains healthy and our ability to do that through generations reflects directly on our mana.”754
• 4.341 Dr Hohepa Mason (Ngāti Awa, Ngāti Pūkeko) and Dr Te Kei Merito (Ngāti Awa, Ngāti Pūkeko, Ngāti Rangataua, Ngāti Hokopū, Ngāi Tamapare) explain:755

When you are a kaitiaki you are the guardian of the resource for everybody. That doesn’t necessary [sic] mean you have the sole mana over the resource; kaitiaki need to exercise their guardianship for the benefit of the eco-system as a whole. The guardianship is over all living things and is not just restricted to human sustenance. If all living things are sustained then the people are sustained.

• 4.342 They go on to explain:756

In our view, the erosion of te mauri o te wai has a negative effect on the ability of the hapū to be kaitiaki and Te Rūnanga to support that. This is particularly the case if the mauri has departed te wai. The ability for the hapū to exercise kaitiakitanga at this stage is gone.

If the mauri is diminished, or gone, the kaitiaki are not fulfilling their responsibility.

Informs relationships

• 4.343 Te Ururoa Flavell (Ngāti Rangiwewehi) explains how the kaitiakitanga relationship is reciprocal between Ngāti Rangiwewehi and their awa. He states that “an integral part of

⁷⁵² Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tamati Waaka (4 January 2017) at [49].

⁷⁵³ Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tamati Waaka (4 January 2017) at [55].

⁷⁵⁴ Beadle and Wihongi v Minister of Corrections, EnvC Wellington A074/2002, Statement of Evidence of Agnes Te Haara Clarke (August 2001) at [4].

⁷⁵⁵ Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, Joint Brief of Evidence of Hohepa Joseph Mason and Te Kei (O Te Waka) Wirihana Merito (29 April 2019) at [56]. See also Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Principles for the Allocation of Quota: Report for the Māori Fisheries Commission; Exhibit A Apirana Mahuika Nga Tikanga Māori e pa ana ki a Tangaroa (22 November 1991) at 11–12 and 19.

⁷⁵⁶ Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, Joint Brief of Evidence of Hohepa Joseph Mason and Te Kei (O Te Waka) Wirihana Merito (29 April 2019) at [67]–[68].

this is the Awahou Stream. It forms part of our marae and the activities we conduct here. The stream, together with the springs from which it derives, continues to be intertwined with our people in a mutually beneficial relationship of kaitiakitanga and respectful reciprocal use and protection.”757

• 4.344 Tania Hopmans (Ngāti Marangatūhetaua, Ngāti Kurumōkihi, Ngāi Tauira, Ngāti Whakaari, Ngāi Tahu) cites the statements of association in the Maungaruru-Tangitū Hapū Deed of Settlement to explain what the role of kaitiaki means to Maungaharuru-Tangitū hapū:758

The Hapū as kaitiaki (guardians) have the responsibility to take care of ngā awa within their takiwā. Central to these responsibilities is the maintenance of customary practices and the sustainable use of natural resources. This kaitiaki role is an all-encompassing one, providing for the protection of biodiversity, the utilisation and maintenance of resources, for present and future generations and the restoration and enhancement of damaged ecosystems. Decisions about how to look after taonga species and places within the takiwā are based on mātauranga Māori and implemented through tikanga practised by the Hapū as tāngata whenua for many generations.

Actively exercised

• 4.345 Ngarimu Blair (Ngāti Whātua Ōrākei) emphasises the active dimension of kaitiakitanga:759

Most importantly I have visited most of the sites I talk about in this evidence, and continue to visit them on a regular basis. I frequently wānanga (meet and discuss) at these sites with whānau, iwi members, students as part of a walking lecture and for anyone who is interested in learning more about these sites. I consider this as an active expression of my obligations as a kaitiaki for these kōrero and these sites our tūpuna lived and loved.

• 4.346 Tracy Hillier (Ngāi Tamahaua hapū) discusses examples of kaitiakitanga in practice, some of which encompassed modern examples, including monitoring of boats and their catch, rubbish collections, planting days, monitoring freedom campers, monitoring vehicles on Opape Beach, projects focused on maintaining kaimoana levels, programmes aimed at teaching hapū members customary fisheries and wai Māori skills, care and protection of wildlife and rāhui.760

Distinct from ownership

• 4.347 David Topia Rameka (Ngāti Tūwharetoa, Ngāti Kurapoto, Waikato-Tainui, Ngāti Rangitihi, Ngāti Tahu) makes the point that kaitiakitanga obligations apply irrespective of ownership: “This issue concerns the responsibility of Ngāti Tūwharetoa to undertake their duties of custodianship, stewardship and guardianship over their lands, resources and taonga. The Kaitiaki principle applies in respect of all Tūwharetoa taonga whether in the ownership of Ngāti Tūwharetoa or not.”761

757. Te Maru o Ngāti Rangiwewehi v Bay of Plenty Regional Council [2008] NZEnvC 24; [2008] NZRMA 395, Brief of Evidence of Te Ururoa Flavell (undated) at [4.2].

⁷⁵⁸ Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit of Tania Marama Petrus Hopmans (3 April 2017) at [105].

759. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Ngarimu Alan Huiroa Blair (2 June 2020) at [11].

⁷⁶⁰ Re Edwards [2021] NZHC 1025, Affidavit of Tracy Francis Hillier (20 February 2020) at [93].

761. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Statement of Evidence of David Topia Rameka (4 June 2017) at [32].

• 4.348 A different point in relation to ownership is made by Hemana Manuera (Ngāti Awa) who states, “A person or iwi may be kaitiaki over land or water, but that is not ownership as once we leave this world someone else will take over as kaitiaki or guardian.”762
• 4.349 Karen Mokomoko (Ngāti Patumoana, Te Upokorehe, Ngāi Tamahaua hapū) reiterates the sentiments above: “We do not own the takutai moana in a Western sense. Under our tikanga we are ‘of’ the takutai moana and of the moana as a whole. It is our duty to take care of it for future generations, whoever they may be.”763
• 4.350 In discussing the idea of ownership, Te Rua Rakuraku (Te Whakatōhea, Ngāti Ira) states:764

The old people always said the moana was ours. I struggle with the word “ownership”. That term does not fit with our thinking. But I do not follow the Pākehā idea that Māori only occupy places in their lifetime. I have always been brought up that the moana belongs to us, it is ours, and it always has been. We belong to the moana and the moana belongs to us. This is even more so for me whose connections to Te Whakatōhea and Ngāti Ira have been maintained by other whānau members who like our grandfather fiercely protected all that we inherited to maintain for future generations.

We do not use the word ownership, but that does not mean that we accept that we have lesser rights. They are different in kind, but they equate to the same thing: absolute authority and control over what is ours. We claim ownership, because we are working within a Pākehā system.

• 4.351 Wiremu Hodges (Ngāti Pāhauwera) conceptualises kaitiakitanga as a protective mechanism to preserve mauri or life essence:765

Kaitiakitanga principles provided the foundation for the ease with which this duty and responsibility is carried out. For Pāhauwera, the principle of Kaitiakitanga in concise terms is the “preservation of mauri and the conservation of species”. This description of Kaitiakitanga was fully endorsed by our late revered Tribal Rangatira Tohara Mohi. It applies to Ngāti Kahungunu generally and Ngāti Pāhauwera specifically. He emphasised the belief of all Māori that everything in this world has its own Mauri – life essence – which is extinguishable if not properly protected, or wisely conserved, as in unsustainable over use to the point of depletion.

Comes in many forms

• 4.352 Te Riaki Amoamo (Te Whakatōhea, Ngāti Patumoana, Ngāti Ruatakenga) explains:766

Taniwha can be loosely defined as ‘guardians’ or ‘spirit-beings’ of waterways. Taniwha also occupy parts of the takutai moana within their area providing spiritual protection to the resources of the waters and all its beings (both above and below the waters) and in a variety of ways. Taniwha take many physical and spiritual forms in Te Whakatōhea.

...

762. Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, Statement of Evidence of Hemana Eruera Manuera (29 March 2019) at [54].

⁷⁶³ Re Edwards [2021] NZHC 1025, Affidavit Karen Stefanie Mokomoko (30 January 2020) at [27].

⁷⁶⁴ Re Edwards [2021] NZHC 1025, Affidavit of Te Rua Rakuraku (19 February 2020) at [51] and [52].

⁷⁶⁵ Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit of Wiremu Itereama Sylvester Hodges (11 December 2013) at [29].

⁷⁶⁶ Re Edwards [2021] NZHC 1025, Affidavit of Te Riaki Amoamo (25 January 2022) at [27] and [29].

The taniwha’s protective role is why some taniwha are also referred to as kaitiaki – those that ‘look after the area or resource’. Kaitiaki is a more contemporary word used nowadays and has a less fearful connotation attached to it.

• 4.353 Amoamo goes on to give examples and descriptions of taniwha:
  • “Ngāti Rua has a taniwha in the Tirohanga stream named Tama Ariki. We do not view taniwha as dangerous or bad demons: this is the way Pākehā narratives tend to describe taniwha. However they are spiritual deities that can be invoked and called upon in times of need, or if there is imminent danger to the people. If a person knows the relevant tikanga or kawa for the taniwha, then they will not run into any trouble or be harmed.”767
  • “The most commonly known taniwha is located at Pakihikura mouth where the taniwha Whanaunga Kore resides. Anyone who crosses the bar without paying heed to the proper ritual or karakia will find themselves stranded on the bar.”768
• 4.354 Taniwha or kaitiaki can come in different forms.769 For example, Himiona Munroe (Ngātiwai) talks about how taniwha appeared as animals to warn of danger and are considered tūpuna.770 He points out kaitiaki that are stingrays, seals, dolphins and whales.771 He also talks about the relationship between certain people and specific taniwha

– it was considered that those people had been selected to look after the taniwha.772

• 4.355 Tahu Potiki (Ngāi Tahu, Ngāti Mamoe) says:773

Kaitiaki took many forms such as eels, sharks, lizards and birds. Some were merely carriers of a message or warning whilst others were dedicated to protect certain areas or individuals.

The extent of their mana or the level of dedication to one particular location determined the levels of restriction. Kaitiaki not only protected people but also resources often being the first to be seen at the beginning of a hunting season for example.

Where they were known to reside then the area had a wāhi tapu status. To the extent these areas are still known then they continue to dictate levels of ritualistic behaviour amongst Māori.

• 4.356 Tā Pou Temara (Tūhoe) discusses “those deities in the natural world that mediate the relationships between humankind and act as indicators of events that may befall tangata at any given place”.774 He provides the following examples:
  • Rehutai “the sentinel of the foreshore waters who resides in the Pōhutukawa”.775

⁷⁶⁷ Re Edwards [2021] NZHC 1025, Affidavit of Te Riaki Amoamo (25 January 2022) at [32].

⁷⁶⁸ Re Edwards [2021] NZHC 1025, Affidavit of Te Riaki Amoamo (25 January 2022) at [33].

⁷⁶⁹ Ko Aotearoa Tēnei, Wai 262, #H11 Benjamin Hippolite at [40].

⁷⁷⁰ Ko Aotearoa Tēnei, Wai 262, #B11 Himiona Munroe at [66].

⁷⁷¹ Ko Aotearoa Tēnei, Wai 262, #B11 Himiona Munroe at [58], [61] and [63].

⁷⁷² Ko Aotearoa Tēnei, Wai 262, #B11 Himiona Munroe at [58].

773. Taranaki-Whanganui Conservation Board v Environmental Protection Authority [2018] NZHC 2217, Cultural Values Assessment and Analysis by Tahu Potiki (August 2016) at [8.8]–[8.10].

⁷⁷⁴ Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [23].

⁷⁷⁵ Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [24].

• The koeau lizard “is responsible for guarding the fresh waters who resides in the Tōtara the spouse of the Pōhutukawa”.776
• “The kaikawaka is the mediator for the Tōtara and the Pōhutukawa”.777
• The tuatara “resides at the islands. Its role is to warm the swirling winds and tidal winds to maintain the divine energy that belongs to Tangaroa ... the mutton bird is the mediator ...”778

• 4.357 Temara also provides the example of Te Tahi, the kaitiaki of Whakaari. He tells of his origin and the ongoing protection he provides in the area:779

In Mātaatua, Te Tahi, according to Ngāti Awa narratives, is one of those tipua who is now the kaitiaki of Whakaari. Te Tahu was a Tohunga of Ngāti Awa. His people suspected him of causing floods on the lowland crops using his power as a Tohunga so one day his people abandoned him on Whakaari. Te Tahi summoned up the taniwha that dwelled off the shore of Whakatāne and capsized the waka killing all his people. He uttered the saying: Waiho mā te whakamā e patu – let shame be their punishment.

I also know that kaitiaki personally. It is because of Te Tahi one my own nephews is still alive. He was stubborn and didn’t want to come back to Ruatāhuna during the Whakatāne river floods. He was swept away on his gorse in the flood and went missing. When I was told, I began to pray hard to Te Tahi. Not long after, one of my relations found him swept ashore on the bank of the Whakatāne river still alive and walking back. He asked him what happened and that we all thought he was swept away, he said he was underwater drowning and near death and then he felt something push him up out of the flood and threw him on the bank. I believe in taniwha and kaitiaki to this day and often recite karakia to them. Kaitiaki protect areas where we gather kai. Only the kaitiaki will allow us to gather kai by way of signs (tohu). You cannot be arrogant as if its your right to just take kai – it isn’t.

• 4.358 Other examples in evidence:
  • Laly Haddon (Ngātiwai) explains that “the Tukaea bird is the guardian of all waters of Ngātiwai”.780
  • Dr Te Kei Merito (Ngāti Awa, Ngāti Pūkeko, Ngāti Rangataua, Ngāti Hokopū, Ngāi Tamapare) says that “the taniwha/guardian of Ōhiwa is Tutarakauika who is physically manifested as a whale”.781
  • Benjamin Hippolite (Ngāti Koata, Ngāti Toa, Ngāi Tahu, Ngāti Kuia) lists octopus, shark, stingray and tuatara as shapes that kaitiaki or taniwha can take on. Children were told that the taniwha ensured they complied with laws, whereas the tuatara is a kaitiaki of knowledge because of its long life.782

⁷⁷⁶ Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [24].

⁷⁷⁷ Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [24].

⁷⁷⁸ Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [25].

⁷⁷⁹ Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [84]–[86].

⁷⁸⁰ Ko Aotearoa Tēnei, Wai 262, #A30 Laly Haddon at [28].

781. Re Edwards [2021] NZHC 1025, Joint Brief of Evidence of Dr Te Kei (O Te Waka) Wirihana Merito and William Bruce Stewart (24 January 2022) at [36].

⁷⁸² Ko Aotearoa Tēnei, Wai 262, #H11 Benjamin Hippolite at [40] and [80].

• Puhanga Tupaea (Ngāti Koata, Ngāti Kuia) talks about the morepork, whai or sunfish (there are competing stories), ruru, taniwha, dogs and tuatara.783
• Hetaraka Biddle (Ngāi Tamahaua hapū) notes that whai (stingray) and orca are kaitiaki for Ngāi Tamahaua. To Ngāi Tamahaha “the Whai and the Orca are at the top of the food chain and therefore preserve and protect order within the mātaitai and eco system so that the hapū are able to continue to use the moana as a food basket to sustain them”.784
• Marjorie Huingapani Kurei (Ngāi Tamahaua hapū) reiterates the significance of orca and whai, further noting that sightings of whai or octopus were considered signs. For example, a whai sighting meant “you had taken enough kai moana and it was time to stop, or it was a reminder to take your rubbish away”.785
• Tracy Hillier (Ngāi Tamahaua hapū) states that, due to the significance of orca to the hapū, the tikanga following a stranding was that “we would try to re-float the whale but if it dies that we observe the tikanga of being there with the whale and reciting karakia while it is buried on the beach at Opape”.786

• 4.359 Morehu Wilson (Ngāti Paoa, Ngāti Whanaunga, Ngāti Maru, Ngāti Tamaterā) in his evidence describes Ūreia, a taniwha of Marutūāhu:787

Ūreia frequented the waters of Te Waitematā, and in particular would scratch his back at a rock known as Te Roūtu o Ūreia (or in some dialects Te Rōtu o Ūreia), situated below Te Okā Pā, Point Erin. As noted, the naming of tohu whenua (landmarks) is steeped in customary traditions and the naming of this wāhi tapu reinforces the relationship of Marutūāhu with central Auckland.

• 4.360 Sean Ellison (Taranaki, Ngāi Tahu, Ngāti Porou, Te Arawa) tells the story of Te Ataiorongo, a taniwha of Whāingaroa (Raglan). Originally a man, Te Ataiorongo was killed by his brother-in-law Horeta who left his body at sea and lied about what happened to Te Ataiorongo’s wife. Te Ataiorongo returned as a spirit to warn his wife of what had happened and guide her to safety in Kāwhia. Te Ataiorongo’s son eventually returned to Horeta’s village, on reaching adulthood, and avenged his father’s death. Te Ataiorongo remains as a taniwha at Whāingaroa, his lair is at Te Kōpua, in the Pokohue Stream.788
• 4.361 Lanning Simpkins (Ngāti Rangiwewehi) gives evidence about Waipupu Mahana, the name of a small hot water spring lake owned by the Haira whānau at Horohoro. He discusses

⁷⁸³ Ko Aotearoa Tēnei, Wai 262, #H10 Puhanga Tupaea at [34], [39]–[44] and [59].

⁷⁸⁴ Re Edwards [2021] NZHC 1025, Affidavit Hetaraka Biddle (20 February 2020) at [94]–[96].

⁷⁸⁵ Re Edwards [2021] NZHC 1025, Affidavit of Marjorie Huingapani Kurei (20 February 2020) at [45]. Kurei notes further that certain sea creatures had symbolic meaning, the sighting of which were viewed as omen. She discusses an example of the sighting of a pink and white whale not far from the marae, which resulted in a gathering at the wharenui for karakia (at [46]).

⁷⁸⁶ Re Edwards [2021] NZHC 1025, Affidavit of Tracy Francis Hillier (20 February 2020) at [108].

⁷⁸⁷ Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Morehu Anthony Dean Wilson (13 October 2020) at [53].

⁷⁸⁸ Tainui Hapū v Waikato Regional Council, ENC Auckland A063/2004, Statement of Evidence of Sean Ellison (undated) at [7].

how the spring has its own kaitiaki named ‘Korowhakatipua’ and gives the appearance of a crocodile/log.789

• 4.362 Te Rangikahere Bidois (Ngāti Rangiwewehi) talks about a spring traditionally known as Te Waro-uri. The common name is Te Puna o Pekehāua or Taniwha Springs. The springs are celebrated as the lair of the taniwha Pekehāua.790
• 4.363 Kaitiaki also extend beyond animals. Rapata Romana (Te Aupōuri, Ngāti Kuri, Ngāti Rehia, Te Ringa Maui, Te Ringa Matau, Te Ringa Kaha, Ngāti Here, Ngāti Kohatu) refers to Iranui, the sleeping lady who is one of the kaitiaki of Muriwhenua:791

I would like to talk about Iranui, the sleeping lady. In appearance, this mountain range looks like a woman asleep. When you are travelling on the road to Waitiki and you look North to Maunga Unuwhao in the area of Kapowairua, you will see this lady Iranui, resting. Our ancestors have said that she is one of the guardians of Muriwhenua.

Kaitiaki taniwha

• 4.364 Benjamin Hippolite (Ngāti Koata, Ngāti Toa, Ngāi Tahu, Ngāti Kuia) explains that kaitiaki are stories used to preserve natural resources and to warn people of the consequences of disobeying tikanga.792 He describes how:793

... if we disobeyed laws, our old people would say that a taniwha would come after us. All we had to see was a shape, and we would quickly get out of the water. We did not want to risk the possibility of a taniwha coming after us, so we would obey the tikanga of our elders. The stories of our old people were used that way to ensure that our kai would always be there.

• 4.365 The presence and function of kaitiaki therefore ultimately played a role in regulating the behaviour of people. Himiona Munroe (Ngātiwai) explains there are rules around ensuring taniwha are looked after and do not appear to criticise breaches of tikanga such as not breaking kina on the rocks.794
• 4.366 Eru Koopu (Te Whakatōhea, Te Whānau-ā-Apanui, Ngāti Awa) notes the taniwha Whanaungakore watches over the people of Pākowhai (or Māori Town as it is known to some) to ensure that they are not doing bad things.795
• 4.367 Waiohau Te Haara (Ngāti Rangi) says:796

The tikanga concepts of taniwha was a term used by tohunga to determine either the appropriateness or inappropriateness of certain action that must be taken by the tribe whenever there was a disaster or mishap within the tribe that was about to occur. There

789. Te Maru o Ngāti Rangiwewehi v Bay of Plenty Regional Council [2008] NZEnvC 24; [2008] NZRMA 395, Statement of Evidence of Lanning Patrick Tutakiahani Simpkins (16 November 2007) at [4.1].
790. Te Maru o Ngāti Rangiwewehi v Bay of Plenty Regional Council [2008] NZEnvC 24; [2008] NZRMA 395, Brief of Evidence of Te Rangikaheke Bidois (November 2007) at [6.11].

⁷⁹¹ Muriwhenua Land Report, Wai 45, #F31 pp.11–12.

⁷⁹² Ko Aotearoa Tēnei, Wai 262, #H11 Benjamin Hippolite at [39], [40] and [58].

⁷⁹³ Ko Aotearoa Tēnei, Wai 262, #H11 Benjamin Hippolite at [40].

⁷⁹⁴ Ko Aotearoa Tēnei, Wai 262, #B11 Himiona Munroe at [66].

⁷⁹⁵ Re Edwards [2021] NZHC 1025, Affidavit of Eru Koopu (21 February 2020) at [11].

796. Beadle and Wihongi v Minister of Corrections, EnvC Wellington A074/2002, Statement of Evidence of Waiohau (Ben) Te Haara (undated) at [15] and [16].

were occasions when the interpretation of the tribes [sic] future was at stake in terms of battles or loss of leadership.

The seer or tohunga had a kaitiaki role. His role was to interpret any unnatural phenomena or occurrence like an unusual sighting, such as a log floating upstream against the current. That sighting would be deemed a taniwha. In summary a taniwha was regarded as the manifestation of an unnatural occurrence. Taniwha were used to support the decision making of a tohunga. They are not regarded as a taonga and should not be confused with what is tapu. This is an entirely different matter.

• 4.368 He goes on to say, “In the old days Taniwha were used to explain the inexplicable and if bad things occurred, it might be explained as the Taniwha being offended”.797
• 4.369 For example, Tania Hopmans (Ngāti Marangatūhetaua, Ngāti Kurumōkihi, Ngāi Tauira, Ngāti Whakaari, Ngāi Tahu) describes the regulatory effect of kaitiaki:798

Kōrero tuku iho recount that Tangitū is named after a strong-willed young woman from the takiwā. Tangitū was an excellent diver and collector of kaimoana who could stay submerged for long periods of time. Against advice, Tangitū went diving into a hole from which she never returned. Tangitū manifested herself as a whale and is an important kaitiaki for the Hapū. According to tradition, if tikanga or kawa were not properly observed when gathering kaimoana or other resources, Tangitū the kaitiaki would appear. The Hapū believe that, as a kaitiaki, Tangitū has the power to protect her people, particularly in the event of natural disasters. She has been known to use her tail to unblock the mouth of Te Ngarue and Pākuratahi Streams, or lie across the mouth as protection in the event of high seas. There are other kaitiaki who live in Tangitū, including Uwha, at Arapawanui, who takes the form of an eel or octopus, and Moremore, the son of Pania (of the reef), who swims the coastline in the form of a mako.

• 4.370 Rihi Vercoe (Ngāti Awa) points out the spiritual dimension of kaitiaki. She states, “Kaitiaki values and practices are integral sacred components of Kauae Runga-Kauae Raro, the Celestial (Spiritual) and Terrestrial (Physical) domains.”799
• 4.371 A similar point is made by Puhanga Tupaea (Ngāti Koata, Ngāti Kuia) who explains that spiritual concepts such as the belief in taniwha and in the knowledge of animals “have a reality for Māori and are part of our natural laws. We have a different mindset, where we see the spiritual beyond the purely physical, and accept things beyond what is obvious without requiring explanations.”800

MOVEMENT OF TANIWHA

• 4.372 Paraone Gloyne (Raukawa ki Wharepūhunga) explains how some of the Raukawa taniwha have moved with their people:801

797. Beadle and Wihongi v Minister of Corrections, EnvC Wellington A074/2002, Evidence of Waiohau (Ben) Te Haara in Reply (undated) at [50].

⁷⁹⁸ Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit of Tania Marama Petrus Hopmans (3 April 2017) at [84].

799. Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, Statement of Evidence of Rihi Vercoe at [11].

⁸⁰⁰ Ko Aotearoa Tēnei, Wai 262, #H10 Puhanga Tupaea at [33].

⁸⁰¹ The Wairarapa ki Tararua district inquiry, Wai 863, #J21 Paraone Gloyne at [5.3]–[5.4] and [5.6]–[5.10].

Part of the Raukawa connection to the area is that we have a relationship with taniwha who live in the Waikato River. The saying is – he ‘piko he taniwha’ – at every bend a taniwha.

In the Mangakino area that taniwha is Rangikakeke. He is still there today.

...

I have never heard any kōrero around any taniwha associated with Ngāti Kahungunu following them when they settled at Mangakino.

That is important because taniwha are spiritual creatures. When they follow an iwi who move to a different area this is a sign of support, a sign that they continue to be the kaitiaki of the iwi. That is an important part of establishing the deeper spiritual connections to any area. It is part of what makes it more than just staying somewhere.

When Raukawa hapū moved south to the Ōtaki area then some taniwha moved with them. They can do that because they are spiritual beings and use the water as a spiritual medium to travel so that can be wherever people need them to be.

When you talk to Ngāti Raukawa ki te Tonga now they can tell you about the taniwha who live the rivers in the Horowhenua.

This is part of the connection that Ngāti Raukawa ki te Tonga have which gives mana whenua in that area. They have established that spiritual connection and have rights based in tikanga.

• 4.373 Wallace Wihongi (Ngāti Mahia, Te Uri o Hua, Ngāti Hine) explains, “A taniwha adapts to its environment and if its home is affected, it moves on.”802

802. Beadle and Wihongi v Minister of Corrections, EnvC Wellington A074/2002, Statement of Evidence of Wallace Wihongi (undated) at [12].

SECTION FIVE

The environment

• 5.1 Many people emphasise the centrality of the environment to Māori. For example, Laly Haddon (Ngātiwai) states, “When you look at the principles of the Māori people, not just Ngātiwai, their whole philosophy and doctrine is built around a concern for their environment.”1
• 5.2 The environment was seen as a source of:2
  • identity;
  • food;
  • livelihood;
  • a place of recreation.
• 5.3 The hapū of Te Whānau ā-Nuku and Te Whānau ā-Kahurautao, for example, explain that their lives are intimately intertwined with the moana. They rely on the moana “firstly as a source of food, secondly as a livelihood and thirdly as a place of recreation”.3 The hapū describe their fishing rights as encompassing a “body of tradition and historic working knowledge gained over hundreds of years. These rights form an inseparable part of our language, our spiritual and social customs, our education, our leadership training and our self-esteem.”4 We see the inseparable relationship these hapū have with their rohe moana from the time of their tīpuna to now. It influences almost every aspect of their everyday lives, and the strength of these matters reflect on their mana. To act other than in accordance with “the guardianship bestowed on our hapū by our tīpuna” is considered by them as a “betrayal of our responsibilities”.5
• 5.4 Apirana Mahuika (Ngāti Porou) describes how Ngāti Porou are a coastal people, and since the beginning, the iwi have relied on the sea for “cultural, economic and spiritual needs”.6 Fishing traditions and their historical significance are embedded in Ngāti Porou history. Mahuika says “[t]he story of Māui, our ancestor, attests to our fishing tradition, as his

¹ Ko Aotearoa Tēnei, Wai 262, #A30 Laly Haddon at [23].

² The Fisheries Settlement Report, Wai 307, #A30 Te Whānau ā-Nuku and Te Whānau ā-Kahurautao p.1.

³ The Fisheries Settlement Report, Wai 307, #A30 Te Whānau ā-Nuku and Te Whānau ā-Kahurautao p.1.

⁴ The Fisheries Settlement Report, Wai 307, #A30 Te Whānau ā-Nuku and Te Whānau ā-Kahurautao p.4.

⁵ The Fisheries Settlement Report, Wai 307, #A30 Te Whānau ā-Nuku and Te Whānau ā-Kahurautao p.4.

⁶ The Fisheries Settlement Report, Wai 307, #B8(c) Apirana Mahuika at [3]–[4].

canoe Nukutaimemeha rests in petrified form on Mt Hikurangi”.7 Ngāti Porou haka and waiata attest to their long-held fishing tradition – “Hara mai ki rato o Waiapu, Kia kite koe Te Awemapara, E te paripari Ti hei Taruke”. Mahuika says Maunga Hikurangi is their beacon and a navigational point for deep sea fishermen of their tribe.8

• 5.5 Sean Ellison (Taranaki, Ngāi Tahu, Ngāti Porou, Te Arawa) describes the foreshore as “a special place of learning [where] one may watch and study the stars and sea” as well as gather resources for kai, for weaving and for rongoā.9 It is a “landing places for canoes and sea vessels, both past and present are here – physical vessels and spiritual vessels”.10
• 5.6 Carol Hemoana Gage (Ngāti Ira) notes the importance of the moana to Ngāti Ira, saying it continues to be “a life source for our whānau, hapū and iwi”.11 This is reiterated by Hemaima Mairana Hughes (Ngāti Ira), who notes that not only does the “Takutai Moana provide us with bounteous food, it is also a rich source of rongoā”.12
• 5.7 Te Kahautu Maxwell (Te Whakatōhea, Te Whānau-ā-Apanui, Ngāi Tai, Ngāti Awa, Tūhoe, Ngāti Porou, Ngāti Maniapoto) describes the interconnected understanding Māori share in respect of te taiao:13

The Māori worldview on the takutai moana is a whakapapa, a genealogical link, a god, a living being a god, an ancestor.

Takutai Moana is a part of the moana where the gods reside; Tangaroa, the personification of all fish, Kiwa, the lord and guardian of the ocean, which is called the Great Ocean of Kiwa (Te Moana nui a Kiwa) and his wife is Hinemoana the ocean goddess (Best). Within the moana, there are many gods; Rakahore the personification of the rocks, Rimurapa the personification of seaweed, Hinetūākirikiri personification of sand, Hinekarikari the personification of the rippling wave, Pūwhakaharahara personification of the whales, Takaaho personification of the sharks etc. All beings have a whakapapa that link all beings to lo-matua-te-kore the Supreme Being this includes man, te tangata.

CONNECTED TO THE SPIRITUAL WORLD

• 5.8 The whakapapa connection that links humans to the environment and all beings into an interconnected web is discussed by Tahu Pōtiki (Ngāi Tahu, Ngāti Mamoe) when drawing the connection back to Ranginui and Papatūānuku.14 Sean Ellison (Taranaki, Ngāi Tahu, Ngāti Porou, Te Arawa) makes an additional point about the atua manifested in the

⁷ The Fisheries Settlement Report, Wai 307, #B8(c) Apirana Mahuika at [3]–[4].

⁸ The Fisheries Settlement Report, Wai 307, #B8(c) Apirana Mahuika at [3]–[4].

9. Tainui Hapū v Waikato Regional Council, ENC Auckland A063/2004, Statement of Evidence of Sean Ellison (undated) at [6].
10. Tainui Hapū v Waikato Regional Council, ENC Auckland A063/2004, Statement of Evidence of Sean Ellison (undated) at [6].

¹¹ Re Edwards [2021] NZHC 1025, Affidavit of Carol Hemoana Gage (13 February 2020) at [101] and [103].

¹² Re Edwards [2021] NZHC 1025, Affidavit of Hemaima Mariana Hughes (30 January 2020) at [51].

¹³ Re Reeder on behalf of Ngā Pōtiki [2021] NZHC 2726, Affidavit of Te Kahautu Maxwell (7 August 2020) at [117].

14. Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tahu Potiki on behalf of the Applicant (23 December 2016) at [4.1]–[4.12].

environment being the lens through which Māori explain the natural world and what happens in it:15

The seashore is the space where one can clearly witness the movement and exchange of energies, and the preparation, bustling and adaptation made by the divine influences of the gods as they perpetually seek to express the inherent universal balance and harmony, one with another, within the ever-changing reality of the physical world. It is the open space, the courtyard on which the voices of all the divine influences of the gods are heard, seen, felt and sensed. As the tide comes in so Tangaroa stands to deliver his speech, and Hinewainui and Hinemoana move forward with cries of welcome and support, as they gently massage Papatūānuku. As the tide recedes it is Papatūānuku, and Tāne, and Hinewao, and Rakahore, and Hinetuakirikiri, and Hineone, and others who reach out to take hold of the life essence of the courtyard, and allow their individual and collective influences to be expressed and felt by all present. Each one of them has their own story, and each one of them has something to say. According to some, during the creation of the world, the gods began to fight, one with another, and Tangaroa and Tane continue to quarrel. The physical manifestation of their dispute may be seen on the foreshore.

• 5.9 Tā Eddie Taihakurei Durie (Rangitāne, Ngāti Kauwhata, Ngāti Raukawa) gives the following account of the interplay of tangata, whenua and atua:16

It may reveal that Māori saw themselves not as masters of the environment but as members of it. The environment owed its origins to the union of Rangi, the sky, and Papatūānuku, the earth mother, and the activities of their descendant deities who control all natural resources and phenomena. The Māori forebears are siblings to these deities. Māori thus relate by whakapapa (genealogy) to all life forms and natural resources. There are whakapapa for fish and animal species just as there are for people. The use of a resource, therefore, required permission from the associated deity. In this order, all things were seen to come from the gods and the ancestors as recorded in whakapapa.

Also in this world-view, Māori were the land. It was part of them by direct descent from the earth mother. Land, or whenua, is represented in the whenua, or placenta, of women. Māori are born out of the whenua. There are whakapapa today that trace living persons from Papatūānuku.

The whenua, or land, thus passes through the whenua, or placenta. The right to the land in an area is by descent from the gods and the original ancestors of that place. Tangata whenua were thus the descendants of the original people of a particular locality.

• 5.10 Wiremu Paraone17 also explains how atua Māori and spiritual concepts are central to and dictate how the tribe interact with and manage their relationship with te taiao (the natural world). Paraone explains:18

To be able to understand the depth and the foundation upon which our people lived their lives, we must first understand their spiritual beliefs as practiced by their leaders, priests, and people as a whole, in their time. In the matter before us in regards to our fishing rights

15. Tainui Hapū v Waikato Regional Council, ENC Auckland A063/2004, Statement of Evidence of Sean Ellison (undated) at [4].
16. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Sixth affidavit of Reuben Brian Perenara in support of the applicant’s case regarding the High Court rule 418 preliminary questions as referred back to this court by Her Majesty’s Privy Council; Exhibit C Custom Law: Address to the New Zealand Society for Legal and Social Philosophy, Chief Judge ET Durie (22 July 1994) at 328.

¹⁷ Hapū/iwi affiliations not stated.

¹⁸ Muriwhenua Fishing Report, Wai 22, #B33, Wiremu Paraone at [2(b)].

and traditional and customary grounds, we must first examine their spiritual concepts before we are able to understand how they were able to control their fishing areas and all that entails.

Let me explain; if one of the tribe wished to build a canoe, he first prayed to his guardian. The well known guardian of forest life was Tāne, and the guardian of the essence of life in the sea was Tangaroa. In all decided tribal areas, there were different spiritual guardians. These were the guardians of each tribal boundary. These guardians in their work was and is their life force. They were the guardians of the land and sea with the help of different tribes. The reserves that had tapu places on them was complete – you transgressed under pain of death. The fish life and shellfish that we know was kept in abundance because of this.

• 5.11 Bevan Taylor (Ngāti Marangatūhetaua, Ngāti Kurumokihi, Ngāi Tauira and Ngāi Tahu) similarly discusses the importance of Tangaroa to the identity of Maungaruru-Tangitū hapū and their takiwā:19

Tangitū (the sea within our takiwā) is within the domain of Tangaroa-i-te-Rupetu (also known as Tangaroa). Tangaroa is the spiritual guardian of the moana (sea), waterbodies, and all within them. The descendants of Tangaroa and our Hapū are connected by whakapapa. Tangaroa’s descendants include the whales, waves, ocean currents and fish life. Tangaroa is seen as a whole and indivisible entity including the moana, coastal waters, beds, rocks, reefs and beaches, springs, streams, rivers, swamps, estuaries, wetlands, flood plains, aquifers, aquatic life, vegetation and coastal forests. So the domain of Tangaroa goes from the tihi tapu (sacred peaks) of Maungaharuru to Tangitū – ki uta ki tai – from mountain to sea.

• 5.12 Tā Pita Sharples (Ngāti Kahungunu) gives a view that whakapapa to Ranginui and Papatūānuku is greater than any iwi whakapapa and gives the ultimate right to fishing and its benefits. “The conclusion that all Māori whakapapa back to Papa and Rangi is universally accepted as correct. Therefore, given our ancestral connection to those atua and to Tangaroa, it must be right that all Māori are entitled to enjoy the benefits of the sea. The submission that the rights of the sea were only traditional tribal rights is self serving. Whakapapa to Rangi and Papa, and not necessarily our whakapapa to our tribes, provides us with the claim right to enjoy the fruits of the sea.”20
• 5.13 Te Ringahuia Hata (Ngāti Patumoana) describes the foreshore as a culturally significant place: “It is where we may witness the presence of all the divine influences of Ngā Atua at the same time in the aspects that they themselves choose to us, approaching and retreating, ascending and descending, tussling with one another, caring for and nurturing one another, teaching us lessons and warning us when danger is near. This is the universe in miniature, being played out on the courtyard of Ngā Atua Māori for us to witness, and learn from, and understand. The foreshore is a special wānanga and our sacred space.”21
• 5.14 When discussing rāhui, Te Rua Rakuraku (Te Whakatōhea, Ngāti Ira) states, “The placing of Rāhui are part of the matrix of understandings that arise from our whakapapa relationships to Tangaroa and Tānemahuta and the deep respect we have to ensure there

¹⁹ Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit of Bevan Maihi Taylor (11 August 2020) at [19].

20. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Second affidavit of Professor Pita Sharples in support of the second to fourth plaintiffs in relation to the hearing of the preliminary question (11 March 1998) at [23].

²¹ Re Edwards [2021] NZHC 1025, Affidavit of Te Ringahuia Hata (29 January 2020) at [64].

is a balance in these relationships for the mutual survival of us all that a are protected by these deities both in the physical and spiritual realms that we live. The practices of Rāhui and karakia do not exist in isolation from this other. They are part of how we maintain these connections every day.”22

• 5.15 Karen Mokomoko (Ngāti Patumoana, Te Upokorehe, Ngāi Tamahaua hapū) states, “Our tikanga relating to the takutai moana stretches back to the creation of the land and the sea. In Māori lore, we are spiritually connected to Pāpātuānuku, Ranginui, their children and all beings created on earth. Our connection with Tangaroa can be inconceivable for some non-Māori, but to us the connection is spiritual and shapes who we are and the way we live.”23
• 5.16 Ani Keefe (Ngāti Pāhauwera) recognises that “we maintain our spiritual connection to the area when we sing the waiata about the awa and the moana”.24 This exemplifies one of the many ways Māori continue to spiritually exist with the environment in traditional and modern times.
• 5.17 Colin Reeder (Ngā Pōtiki) states that, although “physical use and occupation is important

... our tikanga also involves the connection in a spiritual non tangible sense. Both the physical and spiritual worlds are connected in a state of balance.”25 Accordingly, he goes on to explain that what “this means is that our connection to Rangataua must be viewed through a variety of lenses. For example, our tikanga dictates that we do not need to be physically occupying and using in a physical sense ever part of Rangataua. As long as we retain and maintain the spiritual connection our mana and connection will continue.”26

• 5.18 Building upon Reeder’s kōrero, Matire Duncan (Ngā Pōtiki) details, “There is a very strong spiritual dimension to our moana and awa including Rangataua. There is tikanga about their names, their use and their past and their future. A spiritual connection is as strong as a physical connection, just as spiritual adverse effects are as legitimate and painful to Ngā Potiki as are the physical adverse effects.”27

CENTRAL TO IDENTITY

• 5.19 The environment was seen as being central to the identity of hapū and iwi.
• 5.20 Tamati Waaka (Te Whānau-ā-Apanui, Ngāi Tai, Te Whakatōhea, Ngāti Awa, Ngāti Pūkeko, Tūhoe) explains how many hapū and iwi identities are shaped by significant natural features in their rohe. He also says:28

²² Re Edwards [2021] NZHC 1025, Affidavit of Te Rua Rakuraku (19 February 2020) at [63].

²³ Re Edwards [2021] NZHC 1025, Affidavit of Karen Stefanie Mokomoko (30 January 2020) at [25].

²⁴ Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit of Ani Keefe (21 November 2013) at [4].

²⁵ Re Reeder on behalf of Ngā Pōtiki [2021] NZHC 2726, Affidavit of Colin Francis Reeder (6 July 2020) at [54].

²⁶ Re Reeder on behalf of Ngā Pōtiki [2021] NZHC 2726, Affidavit of Colin Francis Reeder (6 July 2020) at [56].

²⁷ Re Reeder on behalf of Ngā Pōtiki [2021] NZHC 2726, Affidavit of Matire Duncan (6July 2020) at [9].

28. Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tamati Waaka (4 January 2017) at [31].

It is also common for hapū and iwi to identify themselves by the features of their rohe, or important resources. For example, Waikato Tainui take their name from the Waikato river. Another hapū of Tūhoe, is called Te Urewera, and is located at both the northern and southern boundaries of the Urewera forest. Te Patuwai takes its name from the battle on the moana and reflects the connection to the moana. It also reflects an important association with Ngāti Pukenga and Ngāti Whakahemo. Te Whānau a Tauwhao is also known as Papaunahi due to their specialist fishing practices. Ngāti He and the other hapū and iwi of the Rangataua are known as ‘Ngā Papaka a Rangataua’. Ngā Potiki are also known as the whale people, in reference to the traditions associated with their maunga which are petrified whales, and which symbolise and attract the many beached whales in their rohe and the importance of these whales to them.

• 5.21 Te Rangikaheke Bidois (Ngāti Rangiwewehi) makes a similar point in relation to water. The puna and awa are more than a mere physical presence and resource. They are central to the identity of the iwi, as reflected in their pepeha. “Their life and ours are intertwined.”29
• 5.22 Wi Huata (Ngāti Pāhauwera) explains that the “Mohaka River, the whenua and the moana are the life force of the Pāhauwera people: they are vital to the health and well-being of the whānau, they have healing powers (for example bathing in the seawater for healing), can feed the multitudes, provide rongoa”.30
• 5.23 Often hapū relationship with the environment feature in traditional kōrero that details their identification with a certain area. Bevan Taylor (Ngāti Marangatūhetaua, Ngāti Kurumokihi, Ngāi Tauira and Ngāi Tahu) says, “The Hapū identify themselves to Tangitū, as they do with Maungaharuru. Accordingly, Tangitū features in our pepeha (tribal saying) and whakatauakī (tribal proverb) recited by our kaikōrero (orators) such as myself on Tangoio Marae, and our tamariki mokopuna (children) alike.”31
• 5.24 Justin Puna (Ngāti Kurumōkihi, Ngati Marangatūhetaua, Ngāi Tauira, Ngāi Te Ruruku ki Tangoio, Ngāi Tahu) similarly recognises that “Tangitū is not just a resource, it is something the Hapū are related to through whakapapa and therefore when you look at it, it is seen as an entity in its own right and needs to thrive, be nurtured, etc. It is a living entity and needs to be cared for because it is our tipuna.”32
• 5.25 Matire Duncan (Ngā Pōtiki) states, “The connectiveness of things in our world means that I view Rangataua as part of the whole. It is not a separate entity, it was part of our world, our tribal domain both physically and spiritually. But that does not mean we have mana or kaitiaki responsibilities over everything. We have our areas and others have theirs. There are layers of interests.”33

29. Te Maru o Ngāti Rangiwewehi v Bay of Plenty Regional Council [2008] NZEnvC 24; [2008] NZRMA 395, Brief of Evidence of Te Rangikaheke Bidois (November 2007) at [6.1].

³⁰ Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit of Wi Derek Huata/King (5 December 2013) at [6].

³¹ Ngāti Pāhauwera [2021] NZHC 3599, Affidavit of Bevan Maihi Taylor (11 August 2020) at [21].

³² Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit by Justin Owen Ian Puna (11 August 2020) at [38].

³³ Re Reeder on behalf of Ngā Pōtiki [2021] NZHC 2726, Affidavit of Matire Duncan (6July 2020) at [11].

SOURCE OF SUSTENANCE

• 5.26 Wikitoria Hepi Te Huia (Ngāti Tahu) states that, since the arrival of the tupuna ariki Tahu Matua, “i whāngaia e te whenua tō tātou iwi ko Ngāti Tahu” (our whenua has sustained, nurtured and nourished our people).34
• 5.27 Huia Pacey (Tūwharetoa) discusses the importance of the Tarawera River for herself and her people. “Tangata whenua have taken water and food from the river for many, many generations. Our eponymous ancestor Tuwharetoa i te Aupōuri, grew to manhood and died of old age, within sight of the Tarawera River. Tohi rites were practised at various places along the river. Generations learnt ... to take eel, kōura, kākahi, inanga, tāmure, and kahawai ... and used the river as a constant communication route with waka transporting goods and people up and down the river ...”35
• 5.28 Marama Cooper (Ngāi Tahu) uses the whakataukī “He pātaka kai mō te iwi katoa – It is the food storage for all the tribe” when referring to the foreshore and seabed around the tītī islands.36
• 5.29 In reference to a different type of sustenance, Te Rangikaheke Bidois (Ngāti Rangiwewehi) discusses the tradition for Ngāti Rangiwewehi people to bathe in the Awahou River after a long time away “to reconnect them to their whenua and their awa, and to cleanse and refresh them, spiritually and physically”.37
• 5.30 Ranginui Keefe (Ngāti Pāhauwera) states that in “former times all the hapū needed to be mobile for survival and they ranged over a wide area of coastal and inland area” to access food and other resources at times that “they were fat, ripe and plentiful” in accordance with the Māori calendar. The interchangeable nature of the land and coast as a source of sustenance is demonstrated in the recognised saying:38

Tangitū ki te Moana, Maungaharuru ki uta. Ka pa a Tangitu ka huakina a Maungaharuru. Ka pa a Maungaharuru ka huakina a Tangitū. Tangitū at sea, Maungaharuru inland

When Tangitū is closed Maungaharuru is open When Maungaharuru is closed Tangitū is open

• 5.31 For instance, various Ngāti Pāhauwera deponents discuss the integral role hāngī stones have in providing sustenance to the community both historically and continually.39 Wiremu Hodges (Ngāti Pāhauwera) describes, “If manaakitanga is central to our cultural values

34. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Statement of Evidence of Wikitōria Hepi- Te Huia on behalf of Tauhara North No.2 Trust (1 May 2017) at [5.8].
35. Marr v Bay of Plenty Regional Council [2010] NZEnvC 347 (Kawerau Paper Mill), Statement of evidence of Huia Ann Pacey (2009) at [5].
36. Re Tipene [2016] NZHC 3199, Affidavit of Sandra Helen Cook (30 October 2014), Annexure: Submission by Marama Cooper (8 October 2014) p.78.
37. Te Maru o Ngāti Rangiwewehi v Bay of Plenty Regional Council [2008] NZEnvC 24; [2008] NZRMA 395, Brief of Evidence of Te Rangikaheke Bidois (November 2007) at [6.12].

³⁸ Re Ngāti Pāhauwera [2021] NZHC 3599, Reply evidence of Ranginui Keefe (18 December 2020) at [11]–[12].

³⁹ Re Ngāti Pāhauwera [2021] NZHC 3599, Brief of evidence of Olga Ringakopi Rameka (21 August 2007) at [11].

(and it is) then hangi stones are vital to the scale of providing it. Hangi stones to Pāhauwera are like Pounamu to Ngāi Tahu in the taonga sense.”40 Angela Culshaw-Kaisa41 in her evidence cites Ann La Porta to reinforce this point, which states, “Ngāti Pāhauwera people presented specially selected hangi stones to dignitaries, to other tribes on special occasions as they were seen as a gift from the ancestors to the present and future generations.”42

• 5.32 Te Ringahuia Hata (Ngāti Patumoana) says, “The foreshore provides us with nourishment in all forms to sustain our physical, mental, emotional and spiritual wellbeing. It is a place we offer and receive prayer, a sacred space where we conduct spiritual rituals of protection and guidance, a place where we take our ill, dying and deceased to pray, heal, and embalm, a place where we may purify ourselves physically, and in spirit, mind and body, a place of leisure and of play, a place of learning and a place of life and death.”43
• 5.33 Hata further notes that Ōhiwa is referred to as ‘Te Kete o Tairongo’ or ‘the food basket of Tairongo’ and the moana referred to as ‘Ko te kai hoki i Waiaua’, ‘the food bowl that feeds the world’. These names refer to the historical abundance of food that existed in the harbours and oceans of Toi, which have sustained the hapū of Whakatōhea as well as surrounding hapū and iwi.44
• 5.34 Tracy Hillier (Ngāi Tamahaua hapū) states, “Our hapū identity is intricately tied to our whakapapa to our tīpuna and our relationship with our whenua, including our whenua Takutai and our rohe moana. To us, there is no separation, these are all one. Our spiritual and physical connection to these significant lands, forests, maunga, awa, puna and moana of Ngāi Tamahaua is what nourishes our people and therefore is what gives us our identity. It also upholds the mauri of our hapū.”45
• 5.35 Kayreen Tapuke (Ngāi Tamahaua hapū) reiterates this sentiment, stating that the Takutai moana forms part of Ngāi Tamahaua’s identity: “The moana and the taonga of Tangaroa

... is what sustains the people and nourishes them.”46

• 5.36 Charles Tawhiao (Ngāi Te Rangi) outlines, “Eating food from Tauranga Moana is an essential part of being able to identify who we are. It is not just about eating and fuelling the body, it is also about continuing the tradition that makes us who we are. I witnessed this with my father and especially the old people. I saw that eating food out of Te Awanui was their way of reconfirming their ancient and long-standing links with Tauranga Moana.”47
• 5.37 Te Rua Rakuraku (Te Whakatōhea, Ngāti Ira) states, “The moana provides us with food to sustain our physical being. It is a place where we offer prayer, a sacred space where

⁴⁰ Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit of Wiremu Itereama Sylvester Hodges (11 December 2013) at [47].

⁴¹ Iwi affiliations not provided.

⁴² Re Ngāti Pāhauwera [2021] NZHC 3599, Brief of evidence of Angela Jenny Culshaw-Kaisa (31 August 2007) at [13].

⁴³ Re Edwards [2021] NZHC 1025, Affidavit of Te Ringahuia Hata (29 January 2020) at [63].

⁴⁴ Re Edwards [2021] NZHC 1025, Affidavit of Te Ringahuia Hata (29 January 2020) at [100].

⁴⁵ Re Edwards [2021] NZHC 1025, Affidavit of Tracy Francis Hillier (20 February 2020) at [43].

⁴⁶ Re Edwards [2021] NZHC 1025, Affidavit of Kayreen Tapuke (20 February 2020) at [65].

⁴⁷ Re Reeder on behalf of Ngā Pōtiki [2021] NZHC 2726, Affidavit of Charlie Wahia Tawhiao (14 December 2017) at [38].

we conduct rituals, a place where we may purify ourselves in spirit, mind and body, a place of leisure and play, and a place of learning.”48

• 5.38 Ariana Edwards (Te Whakatōhea) states, “The whānau of Ngāti Muriwai have utilised the takutai moana resources from times of old. The takutai moana has been the main source [of] sustenance and survival for the descendants of Ngāti Muriwai Hapū. The takutai moana is steeped in our whakapapa, heritage and cultural beliefs and values.”49
• 5.39 In discussing the relationship of Te Whakatōhea to the marine environment, Tuwhakairiora Williams (Te Whakatōhea) notes, “The takutai moana is us and we are the takutai moana. Ko au te takutai moana, ko te takutai moana ko au. It is our soul and identity as it is our source of sustainability and well-being. Our spiritual connection is deep as it is intimate.”50
• 5.40 Karen Mokomoko (Ngāti Patumoana, Te Upokorehe, Ngāi Tamahaua hapū) states, “The association between the Mokomoko whānau and the sea has been an integral part of who we are for numerous generations. The importance of marine life is not just for sustaining the people, it’s paramount to our existence. The sea and all things in it are our pātaka, a primary source of sustenance and survival.”51
• 5.41 In terms of nourishment, some discuss the importance of wai tai as well as wai māori generally as being a source of rongoā:
  • Tracy Hillier (Ngāi Tamahaua hapū) discusses healing and bathing rituals: “It is our practice to take people who are unwell to Wainui-Atea which describes water in its natural state whether it be the ocean, awa, or puna. The sacredness of the wai is central to hāhi ringatu.”52
  • Te Rua Rakuraku (Te Whakatōhea, Ngāti Ira) says, “The moana has also always been a place of healing and rejuvenation. It is a place where we as a people have gone to when we have needed purification of some sort.”53
  • Te Ringahuia Hata (Ngāti Patumoana) states, “Our hospital, the medicinal remedies of the land the bush and the sea, the salt water (Wai Tai), freshwater (Wai Māori) surround the lands and cleanse and heal us. Wai Māori was used to prepare men for battle, and Wai Tai was used to cleanse and heal their wounds on their return. I remember my aunties often speaking about how their mothers would take the deceased down to the sea to embalm them. Ancient karakia rituals before the taking of resources to make rongoā were normal practice. We continue these rituals today. The ill or sick would be led to the water to bathe their wounds and karakia recited to assist them.”54
• 5.42 Harry Tuapawa (Ngāti Pāhauwera) describes the central role of driftwood in respect of the everyday living conditions of Ngāti Pāhauwera rohe. Specifically, he says, “Ngāti Pāhauwera do not see the driftwood from the beach as being kua mate, dead, we ask

⁴⁸ Re Edwards [2021] NZHC 1025, Affidavit of Te Rua Rakuraku (19 February 2020) at [34].

⁴⁹ Re Edwards [2021] NZHC 1025, Affidavit of Adriana Edwards (21 February 2020) at [15].

⁵⁰ Re Edwards [2021] NZHC 1025, Affidavit of Tuwhakairiora (Tu) Williams (21 February 2020) at [5].

⁵¹ Re Edwards [2021] NZHC 1025, Affidavit of Karen Stefanie Mokomoko (30 January 2020) at [26].

⁵² Re Edwards [2021] NZHC 1025, Affidavit of Tracy Francis Hillier (20 February 2020) at [102].

⁵³ Re Edwards [2021] NZHC 1025, Affidavit of Te Rua Rakuraku (19 February 2020) at [50].

⁵⁴ Re Edwards [2021] NZHC 1025, Affidavit of Te Ringahuia Hata (29 January 2020) at [67] and [68].

the Gods for it and recognise that it has its own mana and that it is special because it has been through the ocean’s treatment process.”55

• 5.43 Tania Hopmans (Ngāti Marangatūhetaua, Ngāti Kurumōkihi, Ngāi Tauira, Ngāti Whakaari, Ngāi Tahu) recognises that all natural resources are regarded as gifts from “ngā atua kaitiaki, including those within Tangitū”. She says, “Tangaroa was central to the lives of the Hapū tipuna and remains significant to the Hapū whānau living today. Tangitū provides cultural, spiritual and physical sustenance, and as such, shapes the identity of the Hapū. The principal status of Tangitū is recognised by the Hapū in their mihi, whaikōrero, whakairo, kowhaiwhai and tukutuku on their marae, whakatauaki, kōrero tuku iho and waiata.”56 The vast range of natural resources available meant “the hapū had nourishment all year without having to leave their tribal boundaries”.57

INTERCONNECTED IN NATURE

• 5.44 A number of people emphasise the interconnected nature of the environment:
  • Nganeko Minhinnick (Ngāti Te Ata) describes the Waikato River as a single indivisible being: “We see the Waikato River as being the nucleus of all waterways, and this includes the Kopuera stream, within Tainui ...”.58 This description is analogous for the Māori viewpoint on whakapapa, the interconnected relationship of people with the environment. She also says that “for the local people, the river is seen as a whole, a single unity. Development which affects one part is seen to have a cumulative effect. Traditional usage and practice continue to be affected and deterioration in water quality is seen to be causing harm to fish life.”59
  • Sean Ellison (Taranaki, Ngāi Tahu, Ngāti Porou, Te Arawa) states, “When people pollute the ocean, they pollute us. And when pollution is released into the water, the water becomes polluted. That spreads to all things within the water – physically, spiritually and energetically. If water is polluted how can we cleanse ourselves.”60
  • Te Rangikaheke Bidois (Ngāti Rangiwewehi) highlights the importance of the springs and the stream as two parts of the one body. The puna cannot be separated from the awa. His point is that the awa would not exist without the springs – it is essential to the wellbeing of the awa. “This is not merely a physical reality, it is how we conceive the two. They do not exist independently and are a holistic entity which has one life, one essence, one being ... So when we see the puna being degraded, we

⁵⁵ Re Ngāti Pāhauwera [2021] NZHC 3599, Brief of evidence of Harry Ihaia Tuapawa (31 August 2007) at [21].

⁵⁶ Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit of Tania Marama Petrus Hopmans (3 April 2017) at [74].

⁵⁷ Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit of Tania Marama Petrus Hopmans (3 April 2017) at [63].

58. Huakina Development Trust v Waikato Valley Authority [1986] NZPT 87 (9 May 1986) Supporting evidence of Nganeko Minhinnick as Managing Director of the Huakina Development Trust at [4].
59. Huakina Development Trust v Waikato Valley Authority [1986] NZPT 87 (9 May 1986), Submissions in support of objections by Nganeko Minhinnick presented on behalf of the Tainui Trust Board, The Huakina Development Trust and the Trustees of Waahi Marae. Witness: James Ernest Ritchie (16 November 1984) p.3.
60. Tainui Hapū v Waikato Regional Council, ENC Auckland A063/2004, Statement of Evidence of Sean Ellison on behalf of Tainui Hapū (undated) at [9].

also see the awa as being harmed. The mauri or life force of the stream is dependant on how the springs are being treated also.”61

• 5.45 The interconnected nature of the land from the sea is also emphasised:
  • Kayreen Tapuke (Ngāi Tamahaua hapū) states, “The rohe moana meets the rohe whenua and together creates mana moana and mana whenua of the hapū. There is no disconnection between the land and the sea, they are one.”62
  • According to Maggie Ryland (Ngāti Porou), “tikanga does not separate the land from the sea for without each other there is no balance. The same philosophy may also apply to Kauae runga and Kauae raro. The conjunction of these two elements illustrate the balance of all things that begin and belong to god.”63
  • Laly Haddon (Ngātiwai) similarly says, “Ngātiwai did not measure its boundaries by the high water mark. The rohe was all one and the same whether it was on land or sea. That is why we say Ngātiwai has manawhenua, manamoana over our rohe.”64
  • Sean Ellison (Taranaki, Ngāi Tahu, Ngāti Porou, Te Arawa) describes how “Papatūānuku is the land, whether it is above the ocean or beneath it”.65
  • Joseph Davis (Ngāti Hei) explains, “The Ngāti Hei turangawaewae (place to stand) encompasses both ki uta (land) ki tai (and sea). We are people of the sea: from Tangaroa (God of the sea) and Hinemoana and guided to Aotearoa by Tangaroa. Hinemoana and another important god Ranginui (god of the Heavens and the stars), also by their many mokopuna (grandchildren), the tohorā (whales), the manu (birds) of Tāwhirimātea (god of the winds and the rain). Many other lesser gods played their part.”66
  • Under cross-examination, Te Kurataiaho Kapea (Ngāti Whātua Ōrākei, Te Uri o Hau, Ngāti Rongo) agrees that, if a tribe has mana over the land, they also have mana over the takutai moana next to that land.67
  • Henare Rakiihia Tau (Ngāi Tahu, Ngāti Mamoe, Waitaha) says, “At the Tītī islands what applied on the land also applied in the sea. The principle is that we comply with the customs and traditions of usage that were left to us by the ancestors. Those customs were implemented under our tribal rangatiratanga. That is our inheritance.”68 Rakiihia Tau also goes on to say “we consider land and sea as inseparable, but at the same time recognise that the uses of the respective resources are separate. This is the reason for a whakapapa, as taught to us by our elders, to relate all the parts of the

61. Te Maru o Ngāti Rangiwewehi v Bay of Plenty Regional Council [2008] NZEnvC 24; [2008] NZRMA 395, Brief of Evidence of Te Rangikaheke Bidois (November 2007) at [4.1]–[4.4].

⁶² Re Edwards [2021] NZHC 1025, Affidavit of Kayreen Tapuke (20 February 2020) at [66].

⁶³ Ko Aotearoa Tēnei, Wai 262, #E6 Maggie Ryland at [3.5(b)].

⁶⁴ Ko Aotearoa Tēnei, Wai 262, #A30 Laly Haddon at [32].

65. Tainui Hapū v Waikato Regional Council, ENC Auckland A063/2004, Statement of Evidence of Sean Ellison (undated) at [8].

⁶⁶ Wilson v Waikato Regional Council [2021] NZEnvC 131 Statement of Evidence of Joseph Davis (28 August 2020) at [54].

⁶⁷ Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Notes of Evidence p.46.

68. Ngai Tahu Māori Trust Board v Attorney-General CP 559/87, Affidavit of Henare Rakiihia Tau (24 November 1989) at [31].

natural world, but also to categorise the parts, and so to separate the resources of each division for the use of mankind.”69

• Tama Hata (Te Whakatōhea, Te Whānau-ā-Apanui, Ngāi Tūhoe, Waikato) states, “According to my elders, Māori regard the term Takutai Moana as a term coined by Pākehā law for a section of a marine and costal area. This area stretches from the sands on the shore to the sea shallows. According to Māori thought the great expanse and reaches of the sea are of one body. The shores are where the god Tangaroa and the god Tāne meet, and Papa-tū-ā-nuku is at the ocean floor linking these two guardians. Although Pākehā law separates the ocean into parts, the ocean is the ocean.”70
• James Rickard (Ngāti Porou) talks about the interconnection between Tangaroa and people: “Tangaroa is an Atua to be respected. His children feed us and we are obliged to protect their domain so that they can continue to sustain future generations.”71

INFORMS WHERE MĀORI LIVED

• 5.46 Some people talk about the alignment of the Māori way of life and tikanga to the environment and the seasons. For example, the environment was instrumental in informing where Māori live:
  • Maui Solomon (Moriori) explains that the environment dictated where Māori/Moriori would settle. Each settlement was strategically located around food resource – they all had a sea frontage, broadleaf forest and inland taranikau forest to catch kaimoana and kaimanu.72
  • Roger Pikia (Ngāti Tahu, Ngāti Whāoa, Ngāti Tūwharetoa, Raukawa, Waikato-Tainui, Ngāti Maniapoto, Ngāti Hikairo) describes, “The environment dictated the migration of people. Ngāti Tahu were nomadic in nature, moving between kāinga in response to different seasons. In summer there was a migration to the plateau due to the cooler weather and in winter, Ngāti Tahu would migrate to the villages along the river where the geothermal fields were.”73
  • Dr Hohepa Mason (Ngāti Awa, Ngāti Pūkeko) and Dr Te Kei Merito (Ngāti Awa, Ngāti Pūkeko, Ngāti Rangataua, Ngāti Hokopū, Ngāi Tamapare) discuss how “Ngāti Awa tīpuna always established their kāinga near clear, clean productive wai. That is the wai sustains the life of various life giving forms that live within it and it is absolutely

69. Ngai Tahu Māori Trust Board v Attorney-General CP 559/87, Affidavit of Henare Rakiihia Tau (24 November 1989) at [75].

⁷⁰ Re Edwards [2021] NZHC 1025, Affidavit of Tama Te Waiwhakaruku Hata (14 February 2020) at [47].

71. Tainui Hapū v Waikato Regional Council, ENC Auckland A063/2004, Statement of Evidence of James (Tex) Rickard (undated) at [45].

⁷² The Fisheries Settlement Report, Wai 307, #A9 Maui Solomon at [4.7].

73. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Statement of Evidence of Roger Pikia (1 May 2017) at [3.4]–[3.6].

essential for the life of the people who live close to it. The mauri of the people remains as strong as the mauri of the wai.”74

• Isobel Beronica Thompson (Ngāti Pāhauwera) reflects on her lifetime living in Pahauwera, their understanding being that “access to our coastline has always been there for all of us” and such removal or restriction to access would “mean plunging us back into a great loss ... taking away from communities their life line, their wairua”.75
• Tuariki Delamere (Ngāti Patumoana) lists the land occupied by Ngāti Patumoana prior to the British invasion and says, “These settlements were largely coastal in order to access and make use of our rich marine and coastal resources.”76
• Te Ringahuia Hata (Ngāti Patumoana) states, “The Pā was strategically placed at the entrance of Ōhiwa harbour which enabled the hapū to regulate, manage and control the costal path and harbour mouth, not just to traders, government official, settlers or missionaries but also served to regulate and control mana moana over the area of any hapū accessing kaimoana.”77
• Tā Hirini Moko Mead (Ngāti Awa), Dr Hohepa Mason (Ngāti Awa, Ngāti Pūkeko) and Dr Te Kei Merito (Ngāti Awa, Ngāti Pūkeko, Ngāti Rangataua, Ngāti Hokopū, Ngāi Tamapare) states that many pā have been established in the Ōhope and Ōhiwa due to the abundance of kaimoana, wildlife, plant life and vegetation.78 The pā provide protection to these resources.79
• Genevieve Ruwhiu-Pupuke (Ngāi Tamahaua hapū, Te Whakatōhea) explains that the establishment and location of pā sites maintained the association with the takutai moana. Specifically, she notes:80

Our pā were positioned atop pukē/hills or under or near maunga ... or in close vicinity to the moana/sea ... Other pā were located near rivers and the ngāhere/forest ... The use of such locations afforded the pā and the iwi/hapū and whānau that lived there, protection and ideal vantage points for any approaching ope taua (war party or enemy), access to kai moana and other bords and animals, and transportation both for trade and, if needed, escape routes. The common design for pā is known as Pā Maioro. These pā were designed with teihana (a lookout) that was used to scope and keep an eye on the surroundings both in war time but also in relation to weather forecast and reading of the moon cycles (known as maramataka). This played an integral role in the day to day living of our tūpuna.

74. Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, Joint Brief of Evidence of Hohepa Joseph Mason and Te Kei (O Te Waka) Wirihana Merito (29 April 2019) at [40].

⁷⁵ Re Ngāti Pāhauwera [2021] NZHC 3599, Brief of evidence of Isobel Beronica Thompson (10 December 2019) at [17].

⁷⁶ Re Edwards [2021] NZHC 1025, Affidavit of Tuariki John Edward Delamere (18 February 2020) at [13].

⁷⁷ Re Edwards [2021] NZHC 1025, Affidavit of Te Ringahuia Hata (29 Jnauary 2020) at [43].

78. Re Edwards [2021] NZHC 1025, Affidavit of Tā Hirini Moko Haerewa Mead, Dr Hohepa (Joseph) Mason and Te Kei (O Te Waka) Wirihana Merito (19 May 2020) at [75].
79. Re Edwards [2021] NZHC 1025, Affidavit of Tā Hirini Moko Haerewa Mead, Dr Hohepa (Joseph) Mason and Te Kei (O Te Waka) Wirihana Merito (19 May 2020) at [75].

⁸⁰ Re Edwards [2021] NZHC 1025, Affidavit of Genevieve Ruwhiu-Pupuke (30 January 2020) at [22]–[25].

• Ruwhiu-Pupuke notes further, “Māra kai (food gardens) were set up within the centre of the Pā Maioro. This allowed for both constant working and harvesting of the māra and provided resources during confinement to the pā during war or bad weather.”81

THE SEASONS AND THE MARAMATAKA

• 5.47 The seasons and the maramataka also influence Māori life:
  • Benjamin Hippolite (Ngāti Koata, Ngāti Toa, Ngāi Tahu, Ngāti Kuia) explains that the right time and way to do things was determined by nature, seasons, weather – “everything has a season and a reason”.82
  • Moe Milne (Ngāti Hine) discusses the tupuna Hine-ā-Maru and her approach to agriculture and sustaining her people. “Te Maara ā Hine-ā-Maru can be considered as her strategic planning framework. It determined the activities of the hapū. It meant aligning activities of the hapū to the environment and its seasons ... This is an important lesson Hine-ā-Maru has left for us; to remember to not get caught up in the battle and neglect the māra kai. Ko te māra kai, ko te tangata. The people are our garden, and we must nurture them before anything else.”83
  • Chris Winitana (Ngāti Tūwharetoa) says, “The tikanga set in place to establish how we relate to the natural environment in the best interests of all parties, are laid down in nature’s own calendar. The children of Rangi and Papa (Tāne Māhuta, Tangaroa etc) oversee as guardians these natural calendars and systems whereby all things fit.”84 Maramataka is the traditional resource management system of Māori. Its basis is in whakapapa and whanaungatanga. Its implementation is holistic.85
  • Rapata Romana (Te Aupōuri, Ngāti Kuri, Ngāti Rehia, Te Ringa Maui, Te Ringa Matau, Te Ringa Kaha, Ngāti Here, Ngāti Kohatu) explains how the maramataka dictated many of the rules around fishing. “On the specific days for fishing (thus according to the Māori Maramataka/Calendar) the men would go out deep sea fishing. When the darkness did fall before their return the tribe would gather on the beach and light a big fire to guide the fishermen home.”86
  • Wi Huata (Ngāti Pahauwera) describes the Māori calendar as “their guide to cultivating, hunting, gathering, harvesting of food from the whenua, awa, moana”.87
  • George Hawkins (Ngāti Pāhauwera) explains the role of the Māori calendar during fishing is to “work it off the full moon and if the sea is calm you can’t go wrong”.88

⁸¹ Re Edwards [2021] NZHC 1025, Affidavit of Genevieve Ruwhiu-Pupuke (30 January 2020) at [28].

⁸² Ko Aotearoa Tēnei, Wai 262, #H11 Benjamin Hippolite at [31] and [62].

⁸³ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A62 Moe Milne at [59].

84. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Statement of Evidence of Chris Winitana (4 June 2017) at [77].
85. Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93, Statement of Evidence of Chris Winitana (4 June 2017) at [79]–[80].

⁸⁶ Muriwhenua Land Report, Wai 45, #F31 Rapata Romana p.4.

⁸⁷ Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit of Wi Derek Huata/King (5 December 2013) at [6].

⁸⁸ Re Ngāti Pāhauwera [2021] NZHC 3599, Statement of George Albert Hawkins (11 December 2013) at [17].

• Marjorie Huingapani Kurei (Ngāi Tamahaua hapū) explains, “We were taught that the stars and the moon signal to the fish that it is the time to migrate and this signals to the people that the season is to start and that they are fat. The sun, the moon and stars are all related to the sea and the land and when harvesting is to take place. Our stories show the seasons whakapapa to our atua. Our understanding of the seasons and the sea and the land is that they are all interlinked.”89
• Pepper Hudson (Ngāi Tamahaua hapū) notes, “My parents used the Māori calendar and were guided by the tides and moon for net fishing, spearing, or line fishing.”90
• When talking about tūpuna, Leelyn Ruwhiu (Te Whakatōhea, Tūhoe, Ngāti Porou) says, “They moved with the seasons, often retreating inland to Toatoa in the winter months for hunting and utilising the inland resources and returning to the seaside in the warmer months to dive or fish, grow māra kai and orchards of fruit and nuts. This was a traditional practice that followed the cycle of the moon, known as maramataka, which sustained their life and survival and interaction with the natural world.”91

• 5.48 Henare Rakiihia Tau (Ngāi Tahu, Ngāti Mamoe, Waitaha) describes how his tīpuna migrated around Te Waipounamu from natural resource to natural resource depending on the season. “Our people ranged around most of the South Island following the trails that led from one natural resource to another. The seasons were important because one source of food or clothing would often only be available at one season of the year, so the ranging of the people tended to be controlled by the seasons.”92 He goes on to say that “my people ranged widely for a wide variety of different things. They had places of permanent settlement, but the people living there depended on the produce of nature from sources which were distant from those settlements and which were themselves distant from each other.”93
• 5.49 Henare Rakiihia Tau (Ngāi Tahu, Ngāti Mamoe, Waitaha) also describes how the maunga and stars were used to navigate when fishing:94

For fishing at great distances from land we were taught that directions were taken both from the prominent mountains of the South Island, and also from the stars ... the stars were important in estimating the distance offshore, from alignments at certain times of year, and in relation to the Maunga Karanga. By this term is indicated the locator or guiding mountains to which we look back when we go out to sea.95

• 5.50 Leeann Martin (Ngāi Tamahaua hapū) notes, “There is a cycle that goes from the top of the maunga to the sea; it is all connected and seasonal and there is a special time to go to certain areas when the kai is fat and in prime condition. With fishing and kai from the

⁸⁹ Re Edwards [2021] NZHC 1025, Affidavit of Marjorie Huingapani Kurei (20 February 2020) at [40].

⁹⁰ Re Edwards [2021] NZHC 1025, Affidavit of Pepper Hudson (20 February 2020) at [53].

⁹¹ Re Edwards [2021] NZHC 1025, Affidavit of Leelyn Raiha Ruwhiu (30 January 2020) at [45].

92. Re Tipene [2016] NZHC 3199, Brief of Evidence of David Armstrong (31 August 2015), Exhibit marked DA-55, Wai 27, #J- 10 Evidence of Henare Rakiihia Tau, David Higgins, Trevor Howse, Peter Ruka and Barry Brailsford at [4.4].
93. Re Tipene [2016] NZHC 3199, Brief of Evidence of David Armstrong (31 August 2015), Exhibit marked DA-55, Wai 27, #J- 10 Evidence of Henare Rakiihia Tau, David Higgins, Trevor Howse, Peter Ruka and Barry Brailsford at [4.5].
94. Ngai Tahu Māori Trust Board v Attorney-General CP 559/87, Affidavit of Henare Rakiihia Tau (24 November 1989) at [47].
95. Ngai Tahu Māori Trust Board v Attorney-General CP 559/87, Affidavit of Henare Rakiihia Tau (24 November 1989) at [46].

moana the tides, winds, sea currents and migration patterns are aligned with the sun, the moon and the stars. The cycle is all interlinked. I have learned to respect the whenua and the moana as kaitiaki.”96

• 5.51 Carol Hemoana Gage (Ngāti Ira) notes, “Mahi at the moana was seasonal and followed the moon and the stars ... We also followed the weather patterns, the tides, the direction of the winds and the behaviours of nature. Our tīpuna would also read the signs from Whakaari. The direction of the plume would tell them about the winds and when it was a good time to fish or dive. It would tell them a lot about the weather and change of the tides.”97 For example, it dictated whether the koroua went out to gather tītī.98
• 5.52 Hetaraka Biddle (Ngāi Tamahaua hapū), in discussing historical pā site Te Taiharuru, notes that it “is a good place to watch for signs of changes in the sea and tides. I remember my brother Matenga speaking of Te Taiharuru as being our natural warning system. Our kōrero is that no matter where you are in the world, if you hear a certain type of sound (waves rushing is) you know it is Taiharuru warning of a Tsunami.”99 Biddle further notes that “specialists within the hapū would use the Māori calendar, the stars and the moon, and their surrounds as tohu (signs) for the right time of the year. I have heard kōrero that some hapū members could predict by the phases of the moon what type of fish would be available. When certain stars appeared, such as Autahi (the morning star) or Meretuahiahi (the afternoon star) they would know that certain fish would appear.”100
• 5.53 Hohepa Te Kahika (Te Whakatōhea) notes, “There was a season for everything. There is a season for the harvesting time of the mussel, the kina. When you see the Pōhutukawa, the flowers, and the colouring of the flowers ... that’s when you are best to harvest your kina.”101

PROVIDES MARKERS AND TOHU

• 5.54 Environmental features can create natural boundaries and serve as markers or tohu:
  • Tāmati Kruger (Ngāti Koura, Ngāti Rongo, Ngāi Tūhoe) describes how “iwi boundaries were often marked by natural geographical features such as rivers, streams, plains and mountains” but goes on to say that “these physical markers were just one consideration in defining the rohe of an iwi”.102 David Wilson (Te Ākitai Waiohua, Ngāti Te Ata) similarly says, “Tikanga does not define tribal boundaries by formal straight

⁹⁶ Re Edwards [2021] NZHC 1025, Affidavit of Leeann Martin (20 February 2020) at [41].

⁹⁷ Re Edwards [2021] NZHC 1025, Affidavit of Carol Hemoana Gage (13 February 2020) at [54] and [55].

⁹⁸ Re Edwards [2021] NZHC 1025, Affidavit of Carol Hemoana Gage (13 February 2020) at [57].

⁹⁹ Re Edwards [2021] NZHC 1025, Affidavit of Hetaraka Biddle (20 February 2020) at [83].

¹⁰⁰ Re Edwards [2021] NZHC 1025, Affidavit of Hetaraka Biddle (20 February 2020) at [90].

101. Re Edwards [2021] NZHC 1025, Affidavit of Hohepa Te Kahika (20 February 2020) at [22]. This was also discussed by Heremaia Warren in his affidavit of 21 February 2020 at [121]–[131]. He described different types of tohu such as the smoke above Whakaari, clouds above Moutohorā, flowers in bloom and ripeness of berries to indicate weather patterns, harvesting times and gathering times for kaimoana.
102. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [109].

lines. There is more of an emphasis on resources, landmarks and significant geographical features.”103

• Te Ururoa Flavell (Ngāti Rangiwewehi) sets out the area and specific land blocks surrounding the rohe of Ngāti Rangiwewehi and the two springs, Hamurana and Taniwha, “which are cornerstones of our Ngāti Rangiwewehi identity”.104
• Tahu Potiki (Ngāi Tahu, Ngāti Mamoe) discusses how the environment holds tohu that serve as markers for certain knowledge or activities. “There are an absolute, myriad of sacred stones, rocks, and reefs that dominate the coastline. They often serve a purpose rather than create an obstacle. They are points to stop and pray on a journey, markers to direct travellers or hunters, or they make up part of a map that recalls ancestral tale.”105
• Toro Waaka (Ngāti Pāhauwera) says in “reciting the boundary of Te Kahu o Te Rangi in 1879, my ancestor Wepiha Wainohu also explicitly confirmed that the area of Te Kahu o Te Rangi includes the moana, because it points out two mahinga kai in the area, Maungaharuru inland, and Tangitū in the sea. The translation is: ‘Out in the sea is a rock, its name is Tangitū, it is a fishing ground. From there he looked shoreward to Maungaharuru a mountain which abounds with pigeon.’”106
• Hetaraka Biddle (Ngāi Tamahaua hapū) discusses the use of reference points within the environment such as the marae hilltop and surrounding hills to locate various fishing grounds.107
• Te Rua Rakuraku (Te Whakatōhea, Ngāti Ira) states, “We as a people operate and live by the motions of the Taiao ... Everything we did as a hapū depended on the motions of the Taiao happening at the time, and our actions naturally aligned with our Tikanga. The notions of protection, tapu, aroha, manaakitanga etc. were all at the forefront of what we did. Our Tohunga and Pou Tikanga were key elements in this process. They would all observe elements in this process. They would observe the elements of the environment and watch for tohu to determine whether it was safe to gather kai, whether a natural disaster was going to occur and whether it was the right time to voyage among other things. This Tikanga is still practiced today. Whakaari remains to be a common place where our Tohunga watch regularly.”108
• Te Ringahuia Hata (Ngāti Patumoana) also refers to Whakaari, indicating, “One of the key Tohu ... was whether Whakaari was smoking or not and how dark the clouds were above her. So long as there was a consistent ‘letting off of steam’ then she didn’t pose any risk and it meant we could go fishing.”109

103. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, brief of evidence of David Wilson (13 October 2020) at [63].
104. Te Maru o Ngāti Rangiwewehi v Bay of Plenty Regional Council [2008] NZEnvC 24; [2008] NZRMA 395, Brief of Evidence of Te Ururoa Flavell (undated) at [3.9]–[3.10].
105. Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tahu Potiki (23 December 2016) at [7.11].

¹⁰⁶ Re Ngāti Pāhauwera [2021] NZHC 3599, Brief of evidence of Toro Edward Reginald Waaka (19 December 2019) at [66].

¹⁰⁷ Affidavit of Hetaraka Biddle (20 February 2020) at [91].

¹⁰⁸ Re Edwards [2021] NZHC 1025, Affidavit of Te Rua Rakuraku (19 February 2020) at [60] and [61].

¹⁰⁹ Re Edwards [2021] NZHC 1025, Affidavit of Te Ringahuia Hata (29 January 2020) at [117].

• Donald Kurei (Te Whakatōhea, Ngāti Ira) also discusses tohu for reading the season, weather patterns and to warn of imminent risks.110 The kuia would look at the mist and visibility at the Waioweka Gorge to determine whether swimming in the river could occur and at the clouds and weather patterns above Whakaari to determine whether it was safe.111 Kurei notes further that these tohu guided Ngāti Ira tikanga and kawa. If the tohu weren’t followed, an aituā such as sickness or death would follow.112
• Henare Tau (Ngāi Tahu, Ngāti Mamoe, Waitaha) draws the example “that the distance from Aoraki (Mount Cook) to Kaiapoihia could be estimated at sea so as to travel an approximately equal distance in that direction out to sea, to locate one of our important fishing grounds and that in this navigation one relied on the stars at the appropriate time of year for catching fish”.113
• Tony Walzl (Pākehā) on behalf of Maungaharuru-Tangitū discusses the relationship of hapū with respect to observing the environment while gathering kai:114

[T]he fact that a certain tree was in leaf or flower would be a sign that a certain species of kaimoana was ready to harvest. Kaumātua referred to several flowering plants that were used as signals. Harakeke in bloom was a signal that the crayfish were starting to come in. When the pōhutukawa or kōwhai was in flower, the kina were fat. Flowering of harakeke and kowhai were signs that pāua and mussels were also ready to harvest. Aside from plants, the presence of certain moths indicated that it was a good time to catch eels ... The presence of some species could be an indicator that certain kaimoana would be in the same area: for example, the presence of octopus and the likelihood of there being pāua and crayfish in the area. Being able to read the weather and closely observe the sea was vital for the safety of Hapū fishers.

• 5.55 Irene Huka Williams (Tūhoe) discusses the use of tahu for alerting people to their presence:115

In previous time our people used tahu as that symbol and tahu were dug out trunks of tōtara tree, some of them were made out of tōtara tree or other, other species and they were pulled up in – they were still standing trees. They were still alive trees and they were dug out into hollow shells. Um, they struck these trees and these trees um, made a bellowing sound. Okay bellowing sound, not much difference from what you hear when you hear a shotgun fired and those bellowing sounds alerted other neighbouring hapū and other lwi that you were in the vicinity, vicinity of the area. Also it alerted to um, it alarmed people of encroaching enemies.

• 5.56 Williams clarifies that the use of the shotgun by Tame Iti was symbolic of the tahu and the “sound to make people aware that there’s an incoming manuhiri ... or there’s an encroaching enemy onto the Marae out there, to prepare themselves”.116 She elaborates further that this type of ritual and ceremony with guns has been practised at tangihanga

¹¹⁰ Re Edwards [2021] NZHC 1025, Affidavit of Donald Ati Kurei (19 February 2020) at [49]–[52].

111. Re Edwards [2021] NZHC 1025, Affidavit of Donald Ati Kurei (19 February 2020) at [49]–[52]. Hemaima Mariana Hughes (Ngāti Ira) reiterated the kōrero regarding ngā tohu a Whakaari in her affidavit dated 30 January 2020 at [44] and [45].

¹¹² Re Edwards [2021] NZHC 1025, Affidavit of Donald Ati Kurei (19 February 2020) at [52].

113. Ngai Tahu Māori Trust Board v Attorney-General CP 559/87, Affidavit of Henare Rakiihia Tau (24 November 1989) at [47].

¹¹⁴ Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit of Tony Walzl (10 August 2020) at [235].

¹¹⁵ R v Iti [2007] NZCA 267/06, Notes of Evidence, Irene Huka Williams p.30.

¹¹⁶ R v Iti [2007] NZCA 267/06, Notes of Evidence, Irene Huka Williams pp.35–36.

before at the late Sir John Turei and Dr Hirini Melbourne’s tangihanga (which the Prime Minister and High Commissioner of Police attended and no arrests were made), and this responsibility and role lay with Tame Iti on all occasions.117 Tame Iti (Tūhoe) says, “At the signal of the firing of the gun, that was when all the other rituals began. The rituals of manuwera, the chants – the chants, recitals, that’s when they began, and they began to move forward and the fires were lit – the fire was lit and the cars were burnt.”118

• 5.57 Tania Hopmans (Ngāti Marangatūhetaua, Ngāti Kurumōkihi, Ngāi Tauira, Ngāti Whakaari, Ngāi Tahu) says, “The principal status of Tangitū is recognised by the Hapū in their mihi, whaikōrero, whakairo, kowhaiwhai and tukutuku on their marae, whakatauaki, kōrero tuku iho and waiata.”119

SPECIFIC RULES DEVELOP AROUND IT

• 5.58 Puhanga Tupaea (Ngāti Koata, Ngāti Kuia) discusses how there were strict rules around who could gather materials and how much could be gathered in the context of weaving. It was obvious that there was a full list of laws and practices that were known and enforced by all the adults amongst Ngāti Koata and anyone else in the area, and they had been through generations.120 It is clear from Tupaea’s evidence that tikanga and rules around gathering resources derive from everyday use and practice and are continually made and remade based on interactions between people and the environment.121
• 5.59 There were specific rules governing behaviour in relation to the environment:
  • Winiata and Marian Paraone (both Te Aupōuri, Ngāti Kuri) discuss the various rules around fishing. “One of the first things to be affected was the fishing ... They would fish by the moon and the tide. You didn’t catch fish in certain conditions, they had to be fat, and the same for shellfish.”122
  • James Rickard (Ngāti Porou) in support of Tainui hapū speaks of tikanga that governed how to gather kai within the domain of Tangaroa, including giving the first fish caught back to Tangaroa, never eating Tangaroa’s children on the beach, fishing by the moon and obeying the natural laws and placing rāhui when there is a drowning.123
  • Rangimorehu Kereopa (Ngāti Tahinga, Tainui, Ngāti Hine) in support of Tainui hapū says that tikanga was given to us that governed how we interacted with our environment – do not eat kaimoana or open them by the sea, only collect what you need, leave the small ones and so on. These tikanga are intergenerational and passed

¹¹⁷ R v Iti [2007] NZCA 267/06, Notes of Evidence, Irene Huka Williams pp.36–37.

¹¹⁸ R v Iti [2007] NZCA 267/06, Notes of Evidence, Tame Wairere Iti p.66.

¹¹⁹ Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit of Tania Marama Petrus Hopmans (3 April 2017) at [74].

¹²⁰ Ko Aotearoa Tēnei, Wai 262, #H10 Puhanga Tupaea at [82].

¹²¹ Ko Aotearoa Tēnei, Wai 262, #H10 Puhanga Tupaea.

¹²² Muriwhenua Land Report, Wai 45, #F29 Winiata and Marian Paraone p.5.

123. Tainui Hapū v Waikato Regional Council, ENC Auckland A063/2004, Statement of Evidence of James (Tex) Rickard (undated) at [12]–[13].

down. Tikanga does not allow for the support of discharges of polluted waters into Tangaroa.124

• Rereamanu Wihani (Tūhourangi, Tapuika) provides some of the rules for fishing they were taught, for example, seafood was not to be eaten or shelled (koha) on the beach. It must be taken home. It would bring bad luck (makutu) to do that, and it was a sign of disrespect to Tangaroa.125 It is important to give back to Tangaroa with either a kuku (mussel) or fish thrown back along with the final karakia.126
• David Potter (Ngāti Rangitihi) describes that large catches were distributed throughout the town in the traditional way, starting with the sick and elderly. His father always made certain that the nuns at the Convent had fresh fish for Friday.127
• Theresa Thornton (Ngāti Pāhauwera) outlines the continuing practices around fishing passed down by older generations and regularly taught to tamariki and mokopuna such as karakia before you start and “no gutting your fish on the beach, no scaling them there either”.128 Owen Jerry Hapuku on behalf of Ngāti Pāhauwera reiterates that environmental indicators would often signal, for example, “that the day was not so good so you’d just stay home”.129
• Hauata Palmer (Ngāi Te Rangi) explains, “In order to take fish or any other resource from the moana, the right way to approach this is to ensure to ‘tono’ or ask permission from the tangata whenua that hold the mana whenua. This is done out of respect and acknowledgement that the right to access or utilise those resources comes first and foremost from tangata whenua. Breaking this tikanga, as with all transgressions, causes offence and can lead to disputes.”130
• Robert Selwyn (Ngāi Tamahaua hapū) notes, “A common practice for our hapū was the distribution of kaimoana to whānau and particularly kaumātua, following a fishing expedition or the gathering of shellfish. In turn this would be repaid in kind when one had the next opportunity.”131
• Hetaraka Biddle (Ngāi Tamahaua hapū) notes that a key tikanga was bringing enough kaimoana for those unable to collect their own such as whānau with tamariki or kaumātua.132

124. Tainui Hapū v Waikato Regional Council, ENC Auckland A063/2004, Statement of Evidence of Rangimorehu Kereopa (undated) at [10] and [12].
125. Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Primary statement of evidence of Rereamanu Wihapi (22 December 2016) at [19].
126. Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Primary statement of evidence of Rereamanu Wihapi (22 December 2016) at [20].

¹²⁷ Marr v Bay of Plenty Regional Council [2010] NZEnvC 347 (Kawerau Paper Mill) Statement of David Potter at [3.4].

¹²⁸ Re Ngāti Pāhauwera [2021] NZHC 3599, Reply evidence of Theresa Pauline Thornton (21 December 2020) at [13].

¹²⁹ Re Ngāti Pāhauwera [2021] NZHC 3599, Brief of evidence of Owen Jerry Hapuku (17 December 2019) at [12].

¹³⁰ Re Reeder on behalf of Ngā Pōtiki [2021] NZHC 2726, Evidence of Hauata Palmer (6 July 2020) at [22].

¹³¹ Re Edwards [2021] NZHC 1025, Affidavit of Robert Selwyn (21 February 2020) at [8].

¹³² Re Edwards [2021] NZHC 1025, Affidavit of Hetaraka Biddle (20 February 2020) at [105].

• Arapeta Mio (Ngāi Tai) notes that the mussels had to be fat to be gathered. If they were small, you gave them back and gathered something else. Further, kai would be split to feed those unable to gather and those that were sick.133
• Marjorie Huingapani Kurei and Pepper Hudson (both Ngāi Tamahaua hapū) note the use of special kete for gathering kai. There was strict tikanga observed to prevent cross-contamination, with specific kete for kaimoana and māra kai and kete for general uses.134
• In respect of gathering kaimoana, Awhina Waaka (Ngāti Pāhauwera) lists additional rules including “kaimoana is never gathered for personal gain or for sale and if people got a lot of fish it was dropped off at the homes of the old people; bags that have carried or cooked meat or fish were not ... used for diving; and if you turn rocks over whilst searching for Kaimoana put them back the way you found them”.135
• Tony Walzl (Pākehā) on behalf of Maungaharuru-Tangitū hapū adds that traditional methods of regulation in respect of kaimoana also includes using “their hand to assist in measuring shellfish” as well as monitoring the colour of pāua to assess its age and condition. The objective was never to take the largest shellfish or fish. He explains the key rationale amongst hapū interviewees was “to leave some of the bigger shellfish to ensure a good gene pool for the future”.136
• Dylan Harvey (Ngāi Tahu) similarly notes that “our tikanga dictates and guides our relationship with our takutai moana. Some of the people I go with, mainly my uncles, do karakia before they start fishing. We follow tikanga to protect our takutai moana and to make sure that there are enough resources for everyone.”137
• Carlo Ellis (Ngāi Tukairangi) discusses the role of reading environmental indicators to manaaki the area. He states, “For instance there are times where we see an overabundance of a particular species and we can cull by targeted fishing like Parore. While at other times we notice a lack of species and reduce the frequency of fishing especially for particular species that needs to thrive. This may involve self-imposed rāhui, community rāhui, informal restrictions and other methods.”138
• Rehua Smallman (Ngāti Pūkenga) states, “As with all things in Te Ao Māori, there is a tikanga associated with the use of the Tāhuna and its resources. In general, the tikanga or practices of our ancestors in managing the resources of the Tāhuna are mostly applied common sense. For example when harvesting from the Tāhuna – taking only sufficient for immediate needs; leaving the smaller stocks behind and applying the occasional rāhui for conservation purposes to allow stocks to replenish.”139

133. Re Edwards [2021] NZHC 1025, Affidavit of Arapeta Mio (14 April 2020) at [39]; Affidavit of David Peters (24 July 2020) at [12].
134. Affidavit of Marjorie Huingapani Kurei (20 February 2020) at [43]; Affidavit of Pepper Hudson (20 February 2020) at [54].

¹³⁵ Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit of Awhina Evelyn Waaka (21 November 2013) at [9].

¹³⁶ Re Ngāti Pāhauwera [2021] NZHC 3599, Affidavit of Tony Walzl (10 August 2020) at [230]–[231].

¹³⁷ Re Ngāti Pāhauwera [2021] NZHC 3599, Brief of evidence of Dylan Kane Harvey (11 August 2020) at [18].

¹³⁸ Re Reeder on behalf of Ngā Pōtiki [2021] NZHC 2726, Evidence of Carlo Jason Ellis (7 July 2020) at [31].

¹³⁹ Re Reeder on behalf of Ngā Pōtiki [2021] NZHC 2726, Affidavit of Rehua Tom Smallman (7 July 2020) at [41].

REQUIRES SUSTAINABILITY

• 5.60 Conservation and sustainability are central features in descriptions of the relationship of Māori to the environment:
  • Laly Haddon (Ngātiwai) describes, “Thousands of shellfish were born and died. The tangata whenua ate hundreds, but they were always careful not to take too many or from the wrong place, for their gift was precious and forever.”140 She goes on to explain that her tūpuna practised resource sustainability such as protection of mahinga kai.141
  • Benjamin Hippolite (Ngāti Koata, Ngāti Toa, Ngāi Tahu, Ngāti Kuia) explains, “We always looked after our kaimoana. We never took more than what was required, because we know that one day we would need extra for hui, tangi or manuhiri.”142 Although he does not make the point explicitly, Hippolite emphasises using natural resources in a way that is sustainable through the use of several examples such as the gathering of harakeke, eeling, hunting kererū, fishing, transplanting kaimoana and gathering tītī.143
  • Mereraina Uruamo (Ngāti Kuri) states, “Conservation principles underpinned gathering of fibres – like cutting the outer leaves only of the harakeke.”144
  • Maria Horne (Ngāti Whakaue, Ngāti Whakahemo, Ngāti Awa) says that, when whānau dive, then they share the catch with aunties and uncles who can no longer go for themselves. They take only enough to feed themselves, leaving the rest for future days. This is manaakitanga (to care) for whanaunga (relatives) in Maketū and the marine environment.145
  • Wayne Ngata (Ngāti Porou) describes the important principle that can be derived from the story of Ngae is Ngae’s greed in eating not part of but all of Tinirau’s pet whale Tutunui. He says that this sets the resource conservation ethic.146
  • Winiata and Marian Paraone (both Te Aupōuri, Ngāti Kuri) talk about sustainability and limits: “They [the local hapū] would protect the fishing ground, let it build up again. Also, what you catch, you eat, if it’s not for kai, you leave it there.”147
  • Te Rua Rakuraku and Donald Kurei (both Te Whakatōhea, Ngāti Ira) say, “The moana

... is a place where we offer prayer, a sacred space where we conduct rituals, a place where we may purify ourselves in spirit, mind, and body, a place of leisure and play, and a place of learning. Our obligation is to ensure that what human activity that

¹⁴⁰ Ko Aotearoa Tēnei, Wai 262, #A30 Laly Haddon at [27].

¹⁴¹ Ko Aotearoa Tēnei, Wai 262, #A30 Laly Haddon at [58].

¹⁴² Ko Aotearoa Tēnei, Wai 262, #H11 Benjamin Hippolite at [39].

¹⁴³ Ko Aotearoa Tēnei, Wai 262, #H11 Benjamin Hippolite at [11], [13], [15], [31], [39], [40], [49] and [99].

¹⁴⁴ Ko Aotearoa Tēnei, Wai 262, #D7 Mereraina Uruamo at [5] and [11].

145. Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Primary Statement of Evidence of Maria Brenda Horne (3 January 2017) at [45].

¹⁴⁶ Ko Aotearoa Tēnei, Wai 262, #E3 Wayne Ngata at [4.8.4].

¹⁴⁷ Muriwhenua Land Report, Wai 45, #F29 Winiata and Marian Paraone p.5.

occurs in that spiritual realm is done to ensure balance for mutual well-being and survival.”148

• Danny Pohipi (Te Whānau-ā-Apanui) reiterates these ideas noting that they made sure food stocks weren’t plundered and bird stocks were rotated to ensure sustainability.149
• Rikirangi Gage (Te Whānau-ā-Apanui, Ngāti Porou) notes further:150

If too much kai (food) is taken, the offender is told. We know that pāua grow small in our rohe, so we don’t mind undersized pāua. But we do mind if people take too many and we care about the sustainability of the stocks.

...

Kaitiakitanga (guardianship) is not only exercised when people are breaching tikanga. But it also informs and regulates our own behavior towards our resources. For example, when planning a hui whānau or family reunion, it is important to plan it around when the kaimoana (food) is fat and ready. It would not be wise to have an event during winter when the food stocks such as mussels and pāua were not available. This is based on common sense as well as our close relationship with the moana.

• Gage, in discussing the significance of whaling to Whānau-ā-Apanui, notes that “as kaitiaki, we ensured that the hunting of whales was regulated by strict tikanga to ensure their sustainability”. Further, practices relating to whales evolved to the exercise of kaitiakitanga through advocacy rather than use to ensure their survival.151 Gage also notes that “each hapū within Whānau-ā-Apanui are kaitiaki of seaweed within their rohe. It is their duty to ensure seaweed is gathered properly ... and not damaged ... as part of the sustainable management of the seaweed.”152
• Hetaraka Biddle (Ngāi Tamahaua hapū) notes that, as part of their kaitiaki role, certain members of the hapū check in with whanaunga to ensure they are keeping within limits to protect the kaimoana stock.153
• Marjorie Huingapani Kurei (Ngāi Tamahaua hapū) notes that gathering of kaimoana was based on an understanding of when was the best time to gather, for example, when the crays or other food was at its best and also when it would do the least damage to the population. Sustainability of the kaimoana resources is a vital part of their tikanga.154
• Pepper Hudson (Ngāi Tamahaua hapū) states, “We were taught only to take from the moana what was needed in order to preserve those resources in accordance

¹⁴⁸ Re Edwards [2021] NZHC 1025, Joint affidavit of Te Rua Rakuraku and Donald Kurei (21 January 2022) at [21].

¹⁴⁹ Re Edwards [2021] NZHC 1025, Affidavit of Danny Craven Pohipi (21 February 2020) at [21].

¹⁵⁰ Re Edwards [2021] NZHC 1025, Affidavit of Danny Craven Pohipi (21 February 2020) at [45] and [47].

¹⁵¹ Re Edwards [2021] NZHC 1025, Affidavit of Te Kou Rikirangi Gage (21 February 2020) at [128] and [129].

¹⁵² Re Edwards [2021] NZHC 1025, Affidavit of Te Kou Rikirangi Gage (21 February 2020) at [130].

153. Re Edwards [2021] NZHC 1025, Affidavit of Hetaraka Biddle (20 February 2020) at [104]. This is reflected in the affidavit of Leeann Martin (Ngai Tamahaua) of 20 February 2020 who notes at [40] and [42] the importance of respecting areas as kaitiaki to ensure the preservation of taonga and kai resources for the future generations. This included practices that allowed kai to rest and rejuvenate to ensure the mana and mauri of an area was looked after. This included avoiding areas overfished or overused and not using a resource for a time.

¹⁵⁴ Re Edwards [2021] NZHC 1025, Affidavit of Marjorie Huingapani Kurei (20 February 2020) at [40].

with kaitiakitanga ... Our Ngāi Tamahaua practices have been put in place to protect our ancestral knowledge, and also to maintain kaitiakitanga over our environments and food sources, for the future of our hapū and future mokopuna.”155

• Toni Ngoungou-Martin (Ngāi Tamahaua hapū) states, “When gathering kai, we only ever took enough to feed our whānau. The environment of the rocks and sea would not be disturbed just to look or play. Respect was a big thing taught to us; we must respect the moana, the tamariki of Tangaroa, all whānau, and care for the environment. The sea, everything in the sea, the land and the people, all these things are an interlinking system that must be cared for as a whole. If one part of the whole is suffering, it affects all the other parts. These practices serve to reinforce our respect for this environment and what it provides for us, as well as helping us to be good kaitiaki of this area.”156

• 5.61 Maggie Ryland (Ngāti Porou) links the idea of sustainability to the placing of tapu and rāhui, which ensure the continuity of fish stock. She says, “The placement of tapu, taniwha and kaitiaki over nurseries and spawning ground [is a] protective system still classified as the most effective.”157
• 5.62 The evidence of Huitau Te Hau (Rongomaiwahine) speaks to the multi-generational dimension of sustainability – the role of the tribe to protect their rohe moana as similar to a legal duty they must abide by. This duty has been passed down from ngā atua and is very real for Rongomaiwahine. He uses a whakataukī to describe the very real consequence it may have for them:158

Ka huri he rangai maomao ki tua atu o Nukutaurua, e kore a muri e hoki atu – Once the fish has gone from Nukutaurua, it is indeed gone forever.

• 5.63 This illustrates Rongomaiwahine are not only concerned about the impact of the Sealord deal on them but mō ngā uri whakaheke. What emerges is that tikanga and the role it plays between relationships of people and the taiao are multi-generational and always prioritises the collective.

IMPACT OF ENVIRONMENTAL DECLINE

• 5.64 A Chadwick (Te Whānau-ā-Apanui) describes how the decimation of natural resources, including the fisheries and kahawai, has a very real and long-lasting impact that is felt by the hapū and wider hāpori at a variety of levels.159 These impacts include:160
  • a decrease in the numbers of fish, including significant species such as kahawai and the resulting biological effect that has in their awa and moana;

155. Re Edwards [2021] NZHC 1025, Affidavit of Pepper Hudson (20 February 2020) at [52] and [79]; Affidavit of Marjorie Huingapani Kurei (20 February 2020) at [43].

¹⁵⁶ Re Edwards [2021] NZHC 1025, Affidavit of Toni Cherie Ngoungou-Martin (20 February 2020) at [21].

¹⁵⁷ Ko Aotearoa Tēnei, Wai 262, #E6 Maggie Ryland at [3.7].

¹⁵⁸ The Fisheries Settlement Report, Wai 307, #A22 P Ricky, H Te Hau and H Christy, p.3.

¹⁵⁹ The Fisheries Settlement Report, Wai 307, #B10(a) A Chadwick p.3.

¹⁶⁰ The Fisheries Settlement Report, Wai 307, #B10(a) A Chadwick p.3.

• an inability to partake in important cultural occasions such as the harvesting of kahawai;
• a detrimental affect on the ability to transmit mātauranga to younger generations;
• the hāpori having to look elsewhere for a stable food resource, to make up for it or to go without; and
• loss of money to the local hāpori because the sale of fish is key to the local economy.

• 5.65 Some people indicate that there are practical consequences of hara towards the environment and tikanga not being followed:
  • According to Te Whānau ā-Nuku and Te Whānau ā-Kahurautao, it is related to mana, and the impoverishment of the environment has the impact of weakening their hapū in numerous ways.161
  • According to James Rickard (Ngāti Porou) in support of Tainui hapū, the existing pipelines and ponds in Raglan have caused significant damage throughout Poihākena, Te Kōpua and the harbour. Kaumātua went to Te Rua o Te Ataiorongo to apologise to him and request his help to stop the hara and protect his land. Eight drownings occurred off the Raglan coast (directly related to the hara).162
• 5.66 Many discuss their concerns with the health of the resources as a result of overfishing and overuse as well as from increased pollution to waterways and loss of habitat.163

¹⁶¹ The Fisheries Settlement Report, Wai 307, #A30 Te Whānau ā-Nuku and Te Whānau ā-Kahurautao p.4.

162. Tainui Hapū v Waikato Regional Council, ENC Auckland A063/2004, Statement of Evidence of James (Tex) Rickard (undated) at [23].
163. Re Edwards [2021] NZHC 1025, Affidavit of Leeann Martin (20 February 2020) at [18]. Martin also notes that participation in conservation projects is a way of maintaining her connection to her whenua as well as fulfilling her obligation of kaitiakitanga (at [46]); Affidavit of Hohepa Te Kahika (20 February 2020) at [31].

SECTION SIX

Social organisation

THE IMPORTANCE OF THE COLLECTIVE

• 6.1 According to Reverend Māori Marsden (Ngāi Takoto, Ngāti Warara):1

The basic thesis is that within any waka grouping, the members of that group are required to subscribe to various principles. These are loyalty and commitment to the group, adherence to the traditions, customs, and value systems of the group, commitment to waka, iwi, hapū, whānau obligations deriving from kinship and blood relations. Each individual was conditioned to regard his social grouping to which he belonged as an organism rather than organisation. In other words, he was a member of an organ with a body sharing a common life. That was the basic thesis on which the Māori social structures were founded.

• 6.2 Dr Moana Jackson (Ngāti Kahungunu, Ngāti Porou) explains that “[individual] rights always depended upon collective responsibilities which ensured that the ultimate welfare of the Iwi, Hapū or whānau was both the determinant and arbiter of a person’s interests”.2
• 6.3 Jackson also says:3

“Kāore te tōtara e tū mokemoke ai,” that is, “A totara tree never stands alone.” And so whether it’s a person hurt or the person doing the harm, they can never be seen alone. They are always part of that wider grouping and therefore the consequences of any wrong impact on the whole grouping ...

• 6.4 Sandra Cook (Ngāi Tahu) makes a similar observation when she says that “the consistent tribal position is that customary rights are collective rights which, depending on the circumstances, are exercised by individuals in accordance with the relevant customs and tikanga”.4
• 6.5 Owen Hapuku (Ngāti Pāhauwera) provides examples on the many roles one can carry out to contribute to the wider collective and that when “you are a child, your parents work out how you can contribute to the whānau. Some contribute as divers, some contribute as fisherman, and some people contribute in other ways.” He also says it “is the role of

¹ Muriwhenua Land Report, Wai 45, #F25 Māori Marsden p.3.

² R v Tamati Mason [2012] NZHC 1361, Brief of Evidence of Moana Jackson (10 January 2005) at [92].

³ R v Tamati Mason [2012] NZHC 1361, Notes of Evidence (3 May 2012) p.20.

⁴ Re Tipene [2016] NZHC 3199, Affidavit of Sandra Helen Cook (30 October 2014) at [15].

our parents, aunts, uncles and grandparents to pass on these traditions – instructing us, for our future, for our wellbeing, about where to go, so we could feed ourselves”.5

• 6.6 Rikirangi Gage (Te Whānau-ā-Apanui, Ngāti Porou) similarly explains:6

All resources within the rohe for want of a better description, were generally collectively owned. An individual might have exclusive ownership over personal articles of clothing, adornments, weapons, tools or a particular māra (garden). Certain families might also have what would amount to an exclusive claim over certain mussel rocks or fishing grounds. However, it is important to note that those rights are hapū-derived.

The key point is that those rights stem from belonging to a hapū group. Families may contribute to the mana of the hapū group by the exercise of traditional kaitiakitanga over certain resources, and by the act of keeping the home fires burning within the hapū territory.

The mana over the whenua and moana was therefore collective; and that system of ownership continues to exist today particularly in relation to the moana.

• 6.7 Dr Te Maire Tau and Pat Hutana (both Ngāi Tahu) orient individual rights as being derived from the collective:7

An important principle is that we are Ngāti Tahu and therefore part of the Ngāi Tahu/Ngāti Mamoe community. We do not exist on our own simply because we are land owners of beneficiaries. We are land owners and beneficiaries because of our iwi and hapū identity. Our rights are exclusive because we belong to a collective whole called Ngāi Tahu.

• 6.8 Paul Cleaver (Ngāi Tahu) reiterates the importance of the collective. He says that “[tikanga] is about doing what is right for all, not just for one whānau. There are copious amounts of Tītī gathers and fisherman, that have the same rights that Mr Tipene is asking for. This would be a disaster and a breakdown of Tikanga, which would cause division and discord.”8 Lesley Rewi (Ngāi Tahu) also says “[tikanga] is a fundamental belief practised for the protection, interests, and wellbeing of a community hapū/iwi in this case the tītī community. Not to their exclusion.”9
• 6.9 Pepper Hudson and Toni Ngoungou-Martin (both Ngāi Tamahaua hapū) discuss the importance of the Ōpape pā community for the survival of the hapū. Kaimoana and māra kai sustained the pā and all was shared.10 Ngoungou-Martin states:11

Mum talked about the families that she grew up with at Ōpape, and how everyone in Ngāi Tamahaua worked towards hapū wellbeing and development. Hunting, fishing, diving, kai from the ngāhere, fruit and berries were all shared between whānau. The families shared

⁵ Re Ngāti Pāhauwera [2021] NZHC 3599, Brief of evidence of Owen Jerry Hapuku (17 December 2019) at [11].

⁶ Re Edwards [2021] NZHC 1025, Affidavit of Te Kou Rikirangi Gage (21 February 2020)at [103]–[105].

7. Re Tipene [2016] NZHC 3199, Affidavit of Sandra Helen Cook (30 October 2014), Annexure: Memorandum of meeting with Dr Te Maire Tau/Pat Hutana (12 October 2014) at [26].
8. Re Tipene [2016] NZHC 3199, Affidavit of Sandra Helen Cook (30 October 2014), Annexure: Submission by Paul Cleaver (7 October 2014) p.77.
9. Re Tipene [2016] NZHC 3199, Affidavit of Sandra Helen Cook (30 October 2014), Annexure: Questionnaire – Customary Marine Title Application by Lesley Rewi (undated) p.104.
10. Re Edwards [2021] NZHC 1025, Affidavit of Pepper Hudson (20 February 2020) at [33] and [36] and Affidavit of Toni Cherie Ngoungou-Martin (20 February 2020) at [13].

¹¹ Re Edwards [2021] NZHC 1025, Affidavit of Toni Cherie Ngoungou-Martin (20 February 2020) at [8], [9] and [13].

all resources and kai, especially to the elderly and those who could not go out due to disability or illness.

The Pā at ōpape was the core of Ngāi Tamahaua life, everyone went, everyone contributed to what was being held at the marae. The kaupapa of mahitahi, kaitahi, manaakitanga, kaitiakitanga and looking after each other was what they lived by. Diving and fishing in the moana out the front of the marae, working in the extensive gardens in front of the beach, and working in their various roles and responsibilities on the marae was a typical part of their lives and up-bringings.

...

In Ngāi Tamahaua, the concern has always been for the whole community. Everything was shared, so that everyone would benefit ... these teachings and practices of community care for one another are being handed done from my generation to the next generation. For example, if anyone in our family collects mussels, kina, crayfish or fish, it will be shared among the whānau.

• 6.10 Te Rua Rakuraku (Te Whakatōhea, Ngāti Ira) also discusses the importance of the community for hapū survival, noting, “Each whānau had different roles in kai gathering ... We would bring it all together at the end of the day and allocate it out to whose whānau at the Pā.”12 Rakuraku notes further, “Each whānau had their areas to look after and take care of and that’s how we survived as a community and hapū for generations. Sharing everything and feeding all the whānau was our norm.”13
• 6.11 Although there is an emphasis on the collective, the individual is not irrelevant. As Ani Mikaere (Ngāti Raukawa, Ngāti Porou) explains:14

Whether female or male, young or old, teina or tuakana, each person plays their part in establishing the precedents that are bequeathed to later generations. Without the unique characteristics of each and every individual, the strength of the collective is diminished.

THE MARAE

• 6.12 The marae is one of the central collectives around which life revolved:
  • Matemoana McDonald (Ngāti Hē) describes Maungatapu Marae as “a place that is functional in all things important to us. It is a place that can cater to the needs of manuhiri (visitors), a place we effectively practice our tikanga and manaakitanga (hospitality), where we farewell our loved ones when they passed over, where we celebrate and where we come together as whānau.”15
  • David Taipari (Ngāti Maru, Ngāti Whanaunga, Ngāti Pāoa, Ngāti Tamaterā) explains that “Hotunui [a marae] is an iconic taonga of Ngāti Maru and all the Marutūahu tribes,

¹² Re Edwards [2021] NZHC 1025, Affidavit of Te Rua Rakuraku (19 February 2020) at [40] and [41].

¹³ Re Edwards [2021] NZHC 1025, Affidavit of Te Rua Rakuraku (19 February 2020) at [40] and [41].

¹⁴ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A17 Ani Mikaere at [44].

15. Tauranga Environmental Protection Society Inc v Tauranga City Council [2020] NZEnvC 43, Statement of Evidence of Matemoana McDonald (8 April 2019) at [21].

embodying the spiritual presence of the ancestors and tribal histories”.16 He goes on to draw an analogy between the marae and an ancestor:17

At the deeper level, the house represents the body of the ancestor. Hence, the carved koruru at the apex of the bargeboards is his face, the bargeboards are his arms ending in the raparapa which are his fingers, the ridgepole is his backbone supported on the poutokomanawa (“heart-supporting post”), the rafters are his ribs, and the interior his belly or bosom.

At a cosmological level, the whole structure of the house constitutes a whakapapa and mātauranga ecosystem ... The visual similarity of the curling painted kōwhaiwhai patterns to the curling tendrils of the gourd (hue) reflects a deeper cultural symbolism, which compares a geneological tree to the growth of the gourd.

• David Wilson (Te Ākitai Waiohua, Ngāti Te Ata) on behalf of Te Ākitai Waiohua says that “[for] Te Ākitai Waiohua, the marae is central to our tikanga. That is where we go to deal with our issues. That is because the marae is a space that we can control. Our practices and kawa there are followed. If we have issues between our whanaunga the marae is where we go to resolve it. We do things our way on our marae.”18
• Charles Tawhiao (Ngāi Te Rangi) agrees with Ngarimu Blair (Ngāti Whātua Ōrākei) that marae are an indicator of one’s mana whenua. “Absolutely, it speaks to cultural authority. It would not be possible to establish a marae without that authority, either by you asserting that authority or by having that authority granted to you by mana whenua.”19

• 6.13 Tā Hirini Moko Mead (Ngāti Awa) draws together the threads of whakapapa and use when explaining the status of the marae:20

Because it is characteristically named after an ancestor and because hundreds of members of the group from several generations long since gone played their part in maintaining the mana of the hapū, there is also a mystical quality to the meeting house, an element of ihi, wehi, and wana. In other words the whare tipuna has awe, it has authority, it is imbued with the mana of those gone by and it is tapu, highly respected and symbolic of the group and all that it stands for. The members of the hapū identify with the wharenui as a physical representation of their ancestor long departed from whom there are all descended. The marae was and indeed is the place where important decisions were and are made.

• 6.14 Tā Tipene O’Regan (Ngāi Tahu) explains that having a marae does not always equate to having mana whenua:21

16. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of David Errol Taipari (13 October 2020) at [14].
17. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of David Errol Taipari (13 October 2020) at [17] and [18].
18. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, brief of evidence of David Wilson (13 October 2020) at [46].
19. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Notes of Evidence p.1268 in agreement with Ngarimu Blair, Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Notes of Evidence, p.670.
20. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Hirini Moko Mead for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [37].
21. Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, Affirmation of Sir Tipene Gerard O’Regan (17 September 2020) at [23]–[24].

Māori may sometimes build a marae outside of their takiwā e.g. urban marae. This does not, however, give them mana whenua or create a connection, in tikanga [sic], with the whenua itself.

I can draw parallels with the experiences at the marae in Mangakino from my own background within Kāi Tahu. The situation seems comparable to Ngā Hau e Whā Marae and the Rehua Marae in Ōtautahi which are not traditional Kāi Tahu marae. The kaumātua and/or the paepae is normally, but not necessarily, a Kāi Tahu speaker. In the case of Rehua Marae the land is vested in the Upoko Runaka of Kai Tahu from Kaikoura to Arowhenua in South Canterbury. The classic example, however is the Mataamua Marae in Rotorua which was vested in Tuhoe by Te Arawa as I understand it for their own convenience. On that marae the kawa is Tūhoe (paeke) but there is no suggestion that Tūhoe holds mana whenua.

• 6.15 The importance of Hoani Waititi marae for urban Māori in Auckland mirrors the role of marae for hapū within their traditional takiwā:
  • Tā Pita Sharples (Ngāti Kahungunu) explains, “As marae in a very traditional sense could only be administered by a tribe and built on tribal land, many Māori first discouraged the establishment of Hoani Waititi. However we endeavoured to create an identity for ourselves, thereby accommodating the needs of our new people. The significance of this is that marae is the focal point in the social, cultural, political and spiritual development and well being of Māori people. The marae is the basis for our identity, our tūrangawaewae – our birthright in Māoridom and which establishes our place in Māori society. The marae provides a place where various Māori customs can be carried out with their full dignity and spirituality such is the case with tangihanga (funerals).”22
  • Tā John Tūrei (Tūhoe) relates the experiences to a collective identity: “Combined, the practices of burying whenua and the dead at Waipareira clearly demonstrate in accordance with my understanding of tikanga Māori, that the people of Waipareira have taken on particular identity of their own. While many of my contemporaries relate to their traditional tribal homelands, many of our children and grandchildren do not. Instead, they have joined together under the umbrella of the Whānau and Hoani Waititi marae, providing for themselves a contemporary Māori identity. In doing, so they are able to provide emotionally, financially and culturally for one another as do the traditional groups which exist by kinship.”23
• 6.16 Tā Pita Sharples (Ngāti Kahungunu) goes on to describe the general development of marae outside of the traditional hapū takiwā, which is not exclusive to the urban or pan- iwi experience:24

It is important to note that now, marae exist beyond their traditional sense. For example there are tribal marae which rest outside the rohe of their respective people,

22. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), First affidavit of Professor Pita Sharples in support of the second to fourth plaintiffs in relation to the hearing of the preliminary question (28 January 1998) at [43].
23. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), First Affidavit of John Te Ahikaiata Joseph Turei (28 January 1998) at [38].
24. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), First affidavit of Professor Pita Sharples in support of the second to fourth plaintiffs in relation to the hearing of the preliminary question (28 January 1998) at [48].

accommodating the migration of hapū members from a particular tribe in a new location. Examples of these marae include Te Mahurehure Marae in Pt Chevalier and Tira Hou in Panmure. Secondly, there are other pan-tribal maraes in existence which cater for collectives of people who are not linked by genealogy, but by a common purpose or shared existence. These include University maraes, Anglican maraes and Catholic maraes throughout Auckland.

• 6.17 Takirirangi Smith25 discusses the traditional marae and how it was a space for healing:26

So in terms of my knowledge about kawa is that it’s a really important part of the – relates to the kawa of the marae and the kawenga whare occurs around the doorway. And on the doorway, you have a figure up there, Hinenuitepō and Hinenuitepō separates te ao mārama from the pouritanga or from the pōuri within the whare. So, in daylight, like you have the light – you have all the light and the traditional whare is on the marae ātea and the old whares had no windows, so they tended to be really dark right at the back and the light sort of got a bit more as you go to the front.

The traditional whare was a healing space, the internal during daylight, if anybody was like suffering from a patu ngākau there’s two places that they would either go. Inside of the whare the darkest place at the back, or if there was a kumara pit around, they put them in the kumara pit and close the door. So, that darkness is associated with healing and in particular, a hole healing from pouritanga. And tied up with that are two tipuna, Rongo and Hinenuitepō. A lot of the times you will see that those figures are at the entrance of the doorway. And the reason for that is because they are the kaitiaki of what’s inside that whare to protect [sic] the inside of that whare.

• 6.18 Tāmati Kruger (Ngāti Koura, Ngāti Rongo, Ngāi Tūhoe) connects both the marae and hapū together:27

In Tūhoe tradition, as with the traditions of many other iwi, the marae-hapū is where community and leadership are concentrated. This has remained so for Tūhoe even throughout the period of colonisation ... We meet monthly to discuss matters that require marae-hapū leadership, provide feedback to other marae-hapū in the rohe and enhance networking, collaboration with other marae-hapū in the rohe to serve the purpose of the iwi.

For example, if a dignitary would visit Tūhoe, Te Uru Taumatua will consult with our marae- hapū as to the most appropriate venue to host them. Depending on the Kaupapa (purpose/issue) for the visit, Te Kura Whare may be appropriate, but equally it may be a marae-hapū in a different part of the rohe. Those decisions lie with the marae-hapū leadership, to be determined in accordance with our Tūhoe tikanga (which we sometimes call “Tūhoetanga”).

• 6.19 Tāmati Kruger (Ngāti Koura, Ngāti Rongo, Ngāi Tūhoe) in a different legal context discusses the marae ātea. He explains that Ngāti Rongo governs the marae ātea at Tauarau and Tūhoe governs the marae ātea in the valley of Rūātoki.28 Kruger goes on to say that:29

²⁵ Iwi affiliation not provided.

²⁶ The Wairarapa ki Tararua district inquiry, Wai 863, #4.11 Takirirangi Smith p.81.

27. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [7]–[8].

²⁸ R v Iti [2007] NZCA 267/06, Notes of Evidence, Tāmati Kruger, pp.90–91.

²⁹ R v Iti [2007] NZCA 267/06, Notes of Evidence, Tāmati Kruger pp.91–92.

... the Marae ātea is the expanse of dirt that is in front of the ancestral meeting house. The ancient name of this space is the Marae ātea of Tūmatauenga and Tāne Te Wanganga. The other name that is given to this space, the other name given to this space by Tūhoe is Tumo Pukapuka and – it is there that the word is – there is verbal fight. That a person can be killed or challenged.

... it is called the Marae Ātea of Tūmatauenga and Tāne Te Wananga because the anxious for their manuhiri. Firstly, if the manuhiri is coming with a purpose – with an intent to trample the customs and the protocols and the procedures of the Marae then the application of Tūmatauenga, then the rules of Tūmatauenga are replied to the welcome. But if the intent of the visiting party or the visitors is to come and discuss and it is for discussing or debate, discussion of matters of peace, that are peaceful in nature, then the protocols, the domain becomes the protocol of Tāne Te Wananga. Although it is important that Tūhoe carries both. The Marae Ātea is likened to the entire boundary of Tūhoe. For those – the people who are seated on the oratory seat on the Pae, on the sacred seat of orators, they are caring for the life force in the essence of Tūhoe. It is the senior who stands before this sacred seat, and it is that person who is responsible – who is charged with the responsibility of welcoming or determining how the people are coming to approach ... Their task, their responsibility for the welcome is to take care of, is to be responsible for the welcoming of the visitors. That is why the Marae Atea is considered to be the sovereignty place of Tūhoe, the whole entire tribe of Tūhoe, the Marae Atea can be considered as the entire area of Tūhoe.

• 6.20 Tame Iti (Tūhoe) says, “The Marae Ātea is the realm of Tūmatauenga, the Lord of Conflict. This is the place where I may spit, I may show my penis, I may shoot at their flag. I am allowed. I am permitted under the ritual law of Tūmatauenga to do these things on the Marae Ātea, that is my right.”30

THE RELATIONSHIP BETWEEN WHĀNAU, HAPŪ AND IWI

• 6.21 Tā Hirini Moko Mead (Ngāti Awa) describes the relationship between hapū and iwi generally:

Characteristically the iwi embraces many hapū whose members acknowledge descent from a common ancestor. Descent from a common ancestor be that Pourourangi (Ngāti Porou), Kahungunu (Ngāti Kahunganu), Apanui Waipapa (Te Whānau a Apanui), Mahaki (Te Aitanga a Mahaki) or Awanuiārangi II (Ngāti Awa) is an essential and unavoidable element of what constitutes and defines an iwi. The iwi is logically larger than a hapū, is far more numerous and has access to a much wider resource base.31

In my opinion, the concept of iwi cannot be fully appreciated or understood without considering the units which underpin iwi, namely the whānau and the hapū and their critical importance to the entire structure. The defining features of the building blocks flow into the unit called iwi and give significance and meaning to the whole. These traditional categories have retained a contemporary relevance by at the very least providing a means of identification and belonging that is based on common and shared descent through blood. There can be no stronger ties and connections. The antiquity of the concept of iwi

³⁰ R v Iti [2007] NZCA 267/06, Notes of Evidence, Tame Wairere Iti p.79.

31. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Hirini Moko Mead for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [49].

is beyond any sustainable doubt and its ancestry predates the Treaty of Waitangi and indeed, European contact itself.32

• 6.22 The relationship between iwi and hapū in the specific context of the Ngāti Awa confederation is also explained by Mead in separate but related proceedings:33

Ngāti Awa sees itself as a confederation of iwi and not strictly as a collection of hapū. It is made up of iwi (tribes) that have a long history of association with one another ...

The principal tribes of Ngāti Awa can be described as “iwi hapū” a term which highlights their present reality. The term “iwi hapū” was introduced into the literature by the late Ruka Broughton in his thesis on Ngā Rauru ... He described Ngā Rauru as an “iwi hapū” that is, as something larger than a hapū ... Implied in his scheme is that an iwi hapū is of the statute of an iwi, that it has a long history, has several hapū associated with it [sic], is politically and economically important and it is part of an alliance or confederation of other iwi hapū.

Ngāti Rauru is thus different from Tūhoe or Te Whānau a Apanui or Ngāi te Rangi in that it is not an independent stand alone iwi. Ngāi Tahu, Ngāti Awa and Tūhoe are similar entities but of differing population sizes. Each is an independent, fully separated iwi that has stood the test of history, has survived many threats to its integrity and is recognised by all other iwi as being iwi, meaning tribe. Each has many marae-owing social units within it and when all are added together the resources of the larger unit are considerable. Each can be described as an effective political unit which protects the interests of all groups within it and will act when the integrity of the unit is threatened either from within or from outside of it.

...

The iwi hapū might well be the units O’Regan describes as primary hapū. They are the most important groups within the confederation now called iwi or tribe. They hold it together, give mana (prestige) and economic power to threaten the unity of the confederation.

Within Ngāti Awa there are several groups capable of upsetting the unity, cohesion and strength of the tribe. What holds them all together are:

(a) common interlocking whakapapa;

(b) an important historical event which forced them to unite;

(c) a history of working together;

(d) a perceived advantage to stay together; and [sic]

(e) an inability to stand alone.

...

Ngāti Awa is acting on the principle that the social organisation reflects the realities and the needs of the people only. The system of whānau, hapū and iwi was dynamic and ever changing. A split off into other iwi is shown in the case of Ngāti Awa. Today’s iwi consists of well-established ‘iwi hapū’ who hold the confederation together and hapū who are expected to be marae-based. The hapū is the group that owns and runs a marae, that holds the ceremonies of life and death, that organises various fund raising activities on behalf of the group and who anchors the whole social organisation upon the ground ...

32. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Hirini Moko Mead for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [101].

³³ The Fisheries Settlement Report, Wai 307, #B16 Hirini Moko Mead p.6–9.

In traditional times there was a village located on the land of the group and the layout of the village reflected the organisation of whānau that made up the hapū. People could see the organisation and understand how it worked by observing the behaviour of villagers ...

• 6.23 Cleve Barlow (Ngāpuhi) says, “Moving from the invariant meaning to the general use of the term, “iwi” has a number of different meanings in different contexts and is a fluid concept.”34
• 6.24 A Chadwick (Te Whānau-ā-Apanui) gives an example of hapū coming together into their iwi groups and even inter-iwi groups for specific take. He explains how Te Whānau ā- Kaiao did this in order to protect their moana:35

Te Hapū joined the rest of Te Whānau-ā-Apanui in the Horouta Tribal Council around the 1900 when the Council laid down its own “Regulations” for the management of coastal kai moana gathering. These included fines, permits and rāhui of various areas, and reinforced the mana hapū over our waters.

• 6.25 Tā Tīmoti Kāretu (Tūhoe, Ngāti Kahungunu) and Professor Te Wharehuia Milroy (Tūhoe) say, “Though hapū and whānau each have their own mana, iwi also have mana, the mana to protect the whānau and hapū, a mana which is truly ancient.”36
• 6.26 Manuka Henare (Ngāti Hauā, Te Aupōuri, Te Rarawa, Ngāti Kahu) similarly states, “Iwi, was and is a term which includes a larger grouping of hapū or what is commonly known as a tribe. Iwi were often alliances of hapū who from time to time collected together as a mutually interdependent political or military unit.”37 Henare describes a historical scenario regarding the practical aspect to traditional collective formation occurrences. He says that “if you’re living in Waikato and 10,000 British troops are tramping through your land you need something bigger than a whānau to protect yourself, iwi has become very important to Māori since colonisation since the Courts have worked against Māori in terms of the Treaty and all its promises”.38
• 6.27 In addition, Henare explains the term iwi was used for “describing non-hapū or more correctly, pan-hapū collectives which were present in the 19th Century”.39 Henare states, “Migrations within Aotearoa have been a feature of Māori life before Pākehā and colonisation.” He sets out that, “Māori have formed small, then larger groupings of communities depending on the state of the economy, the environment, population

34. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), First Affidavit of Dr Cleve Dufty Barlow at [23].

³⁵ The Fisheries Settlement Report, Wai 307, #B10(a) A Chadwick p.1.

36. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Professor James Te Wharehuia Milroy and Professor Timoti Samuel Karetu for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (unsigned) at [13].
37. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), First Affidavit of Manuka Henare in support of the second to fourth plaintiffs in relation to the hearing of the preliminary question (29 January 1998) at [8].
38. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Notes of Evidence (Manuka Henare) at 30.
39. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), First Affidavit of Manuka Henare in support of the second to fourth plaintiffs in relation to the hearing of the preliminary question (29 January 1998) at [10].

growth and politics of each generation. The large pā communities of Maungakiekie (Mt Eden), Pouerua, Parihaka and so on are evidence of this pattern of living.”40

• 6.28 Henare also touches on the historical development of Māori social classification: “All Māori knowledge refers to whānau first, then later on in the story of your tribe you became a hapū or whatever, so when you analyse this very carefully there is a logical order of things and the iwi today or since the 1850s might be part of that continuing story of people.”41
• 6.29 Professor Ngapere Hopa (Waikato, Ngāti Tūwharetoa) states that “there is very little evidence that the so-called “iwi” existed as the whole cloth in 1840. Traditionally, the ideal was translated on the ground only when some lineage/hapū actualised it temporarily to resolve disputes or to take up arms against their own kin in some cases and non-kin in others.”42
• 6.30 Hopa also describes the evolving dynamics and understandings of hapū and iwi over time:43

I think that while the term hapū refers to lineages has also persisted, that new groupings emerge, there is heaps of evidence to point to those kinds of new forms that sometimes involve hapū or involve members or reps from different hapū into new groupings and I think that among those groupings that the whole issue of iwi the fleshing out of it to represent to convey a grouping with some permanency, a socio political unit is a product of a kind of organic evolutionary but nonetheless normal pattern that occurs in human society in interaction with another.

... iwi is not just limited to groups who can claim their whakapapa, that historically and continuing it has been used loosely to refer to people of a place, of another culture, and so on.

• 6.31 Tā Hugh Kawharu (Ngāti Whātua) emphasises the hapū as the central political power of Māori society:44

It was the subtribe or hapū that was the politically and economically viable unit of Māori society, exercising and defending its dominion over a given tract of land and water, and organising its social and cultural activities within it.

• 6.32 Ultimately, Kawharu concludes “as traditionally, both hapū and iwi structures are strong, and the age old tension between these two political and social units remains. Yet tribal

40. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), First Affidavit of Manuka Henare in support of the second to fourth plaintiffs in relation to the hearing of the preliminary question (29 January 1998) at [25].
41. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Notes of Evidence (Manuka Henare) at 30.
42. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), First Affidavit of Professor Ngapare Kaihina Hopa in support of the second to fourth plaintiffs in relation to the hearing of the preliminary questions (30 January 1998) at 11.4.
43. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Notes of Evidence (Ngapare Kaihina Hopa) at 38–39.
44. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Professor Sir Hugh Kawharu for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [7].

lore teaches us and modern experience confirms, that neither can function properly without the other.”45

• 6.33 Tā Eddie Taihakurei Durie (Rangitāne, Ngāti Kauwhata, Ngāti Raukawa) gives the following account of hapū:46

The historical record is that previously the land was occupied by autonomous hapū – or smaller bands bound by descent from common ancestors for whom the groups were named. These regularly divided or regrouped, adopting new titles demonstrative of their changing identities.

In those days, unity depended on the leadership of rangatira and the maintenance of alliances with local hapū and distant iwi on the basis of ancient ancestral links reinforced by subsequent marriages. It may also be considered that until they reached the zenith of their ascendancies, the rangatira had need to be responsive to the will of their constituents.

In brief, hapū names and allegiances changed regularly, hapū divided or fused according to the demands of the day and the extent to which individual leaders could draw several hapū about them. Some ancient names survived, the names of recent leaders in the genealogical tree were introduced and some old names were subsequently resurrected.

The hapū were also so mobile, and genealogies were so maintained, that the hapū of one place could link to others throughout the main islands of New Zealand.

• 6.34 Tā Hirini Moko Mead (Ngāti Awa), by contrast, places less emphasis on power sitting with the hapū themselves:

The iwi is a political entity that maintains an alliance of hapū which can be difficult to maintain as each hapū also engaged in arranging alliances of its own. Nonetheless it would be completely incorrect to suggest that hapū were free agents. They were significantly affected by iwi obligations and the mana of the iwi leadership.47

In the context of traditional era when many political issues settled through warfare so during that time there was constant shifting of alliance while battles fought out and while wrongs committed in the past were then put right. So in that context yes a fair bit of fluidity but once you removed warfare from the equation then tribal group settled down into more settled groupings.48

• 6.35 Tā Hugh Kawharu (Ngāti Whātua) agrees that kinship is a common cause for alliance:49

Nevertheless recognition of the wider descent group, the iwi or tribe, was more than a recognition of a common origin. It provided a rationale for alliances internally and externally,

45. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Professor Sir Hugh Kawharu for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [17].
46. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Sixth affidavit of Reuben Brian Perenara in support of the applicant’s case regarding the High Court rule 418 preliminary questions as referred back to this court by Her Majesty’s Privy Council; Exhibit C Custom Law: Address to the New Zealand Society for Legal and Social Philosophy, Chief Judge ET Durie (22 July 1994) at 327.
47. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Hirini Moko Mead for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [57].
48. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Notes of Evidence (Hirini Moko Mead) at 403.
49. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Professor Sir Hugh Kawharu for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [8] and [9].

in peace and in war. The iwi had its own infrastructure, objectives and responsibilities. For certain purposes, usually war or fisheries, iwi obligations were remembered, iwi infrastructure invoked and iwi resources mobilised in pursuit of a common objective.

This iwi responsibility of protecting the resource base and hence survival of its constituent hapū is a constant theme in Māori tradition both pre and post contact. In Ngāti Whatua’s case, the iwi had no prerogative of rule over hapū by fiat. Instead the iwi had an obligation to protect the interests of each of its hapū – and this for the reason that if one hapū was picked off, as it were, those who remained where made significantly weaker by the loss. So it was in the area of fisheries. Rather than fishing rights inhering at iwi level, it is, in my experience, more correct to speak of fishing obligations at iwi level – the obligation ... to ensure the sustainability of the resource itself; and the obligation to ensure access to it as against the designs of competing iwi.

• 6.36 Tā Hirini Moko Mead (Ngāti Awa) goes on to say, “The iwi unit was very much a self- contained entity that took care of its affairs with as much diplomacy as was necessary and with the threat of resorting to warfare when diplomacy failed. The iwi acts like an independent tribal nation that was jealous of its mana and was prepared to fight even its neighbours to maintain its political standing.”50 Indeed, Hirini explains that such action is expected of an iwi: “Many groups wanting to be recognised as iwi are actually not capable of carrying out the functions of iwi and the iwi they claim does not actually exist on the ground, that is, there is no structure, no organisation and no marae.”51
• 6.37 But it is not common cause alone that unites hapū into an iwi:52

It cannot be said that if people are brought together under a single issue or kaupapa that group can be called an iwi. In our view, if a genealogical connection to an ancestor is not present it cannot be said that that group is a true iwi. If the group is cultivating food, for example clearing land for gardens, then that group would be called an ohu; if going to do battle, then a taua; if gathering for a tangihana, then an ope; if travelling along the road, then a tira; if gathered in one place, a whakaminenga, a paenga, huihuinga, rauhiinga, rauikatanga, hunga or hanga; although however they are each of them gathered for a single purpose, none of them can be considered an iwi.

• 6.38 Dr Ranginui Walker (Whakatōhea) rejects the notion that a common ancestor is required for iwi identity:53

50. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Hirini Moko Mead for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [61].
51. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Hirini Moko Mead for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [70].
52. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Professor James Te Wharehuia Milroy and Professor Timoti Samuel Karetu for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (unsigned) at [21]. See also Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Professor Sir Hugh Kawharu for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [16].
53. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), First affidavit of Professor Ranginui Walker in support of the second to fourth plaintiffs in relation to the hearing of the preliminary question (28 January 1998) at 4.1(a).

There was no such thing as a static or immutable tribal polity comprised of related hapū deriving from a common ancestor. The boundaries of hapū collectives shifted according to need and purpose as hapū entered or departed from the collective.

• 6.39 Tā Hugh Kawharu (Ngāti Whātua) does not place the responsibility with either hapū or iwi but simply notes the responsibilities of collective whakapapa:54

... but if we look at other kinds of resources in addition to the human, that is the concern for the exercise of the rangatiratanga of hapū and iwi land, forests, fisheries, esoteric law, these dimensions of rangatiratanga are exclusively in the domain of the kin group, the descent group, always have been and I see no reason why that should change.

• 6.40 Tā Pita Sharples (Ngāti Kahungunu) takes a similar position to Professor Walker that, while hapū must trace their whakapapa to a common ancestor, the same is not true of iwi.55 Instead, the commonalities of an iwi might include pūkōrero (traditional stories), maunga, awa, whakatauākī (proverbs) and wāhi tapu.56 Regardless, Sharples explains that the essential values of a hapū are transferable to the urban context, where members do not necessarily share whakapapa:57

... we went through a process of reconstructing our hapū value systems which involved concepts such as manaakitanga (display of kindness), awhi (to encourage) and tautoko (to prop up or support).

These concepts which form our hapū value system are parts of the all-encompassing relationship of aroha (love) which exists between all Māori, regardless of their tribal origin.

• 6.41 Tā John Turei (Tūhoe) also agrees that an iwi is a collective of people around common cause rather than common whakapapa, providing examples he considered could be called iwi:58

I have always understood iwi to mean “people” or “the people of”. There are many phrases which are used in general conversation between people or by speakers in a formal setting on the paepae, which incorporate the term iwi. For example, when a speaker on the paepae uses the expression “e ngā iwi” to greet manuhiri, that person greets the group in its entirety without distinguishing people within that group. This is because the expression “iwi” captures all those people present who have gathered for the purpose of formally coming onto the marae and does not involve a kinship requirement.

I do not disagree that traditional tribal groupings, whose members are genealogically linked to an eponymous ancestor, such as Ngāti Porou, Waikato or Ngāti Kahungunu are “iwi”.

54. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Notes of Evidence (Hugh Kawharu) at 547.
55. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), First affidavit of Professor Pita Sharples in support of the second to fourth plaintiffs in relation to the hearing of the preliminary question (28 January 1998) at [26]–[28]. See also Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Second Affidavit of John Te Ahikaiata Joseph Turei in Reply (11 March 1998) at [3].
56. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), First affidavit of Professor Pita Sharples in support of the second to fourth plaintiffs in relation to the hearing of the preliminary question (28 January 1998) at [34(a)].
57. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), First affidavit of Professor Pita Sharples in support of the second to fourth plaintiffs in relation to the hearing of the preliminary question (28 January 1998) at [37]–[38].
58. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), First Affidavit of John Te Ahikaiata Joseph Turei (28 January 1998) at [21] and [22].

However a large group of people who exist together for a common purpose do not have to be joined by kinship to be called an “iwi”. For example the people of Parihaka, Kotahitanga and Ringatū are all examples of pan tribal collectives which could be referred to as “iwi”. This is because, iwi is an all-embracing term such that it is used to gather together and distinguish certain large groups from other large groups, but not to exclude individuals.

• 6.42 Various witnesses give their thoughts on the meaning of “iwi”, etymologically and practically:
  • Tā Pita Sharples (Ngāti Kahungunu) says “iwi is not used by the Māori Language Commission to mean tribes, rather it has been applied to include, for example, community, broader social group and race”.59 Sharples also says, “Every Māori knows that in today’s common usage iwi can be used to mean both ‘the tribe’ and ‘the people’. The Treaty of Waitangi uses hapū for ‘tribe’ and iwi for ‘people’.”60
  • Tā Hugh Kawharu (Ngāti Whātua) says, “Such a group would probably consist of a number of semi autonomous subgroups whose ancestor was a descendant of the ancestor of the parent tribe. Such subgroups might also be called tribes. More generally, however, they were called a subtribe or hapū of some 8–10 generations’ depth, and were themselves made up of a number of extended family groups of 3– 5 generations’ depth.”61
  • Tā Tīmoti Kāretu (Tūhoe, Ngāti Kahungunu) and Professor Te Wharehuia Milroy (Tūhoe) are “of the firm view that current attempts to broaden or dilute the original meaning of the word iwi reflect the fact that as the Māori language is used less and less, people forget the original meaning of the word iwi and use it incorrectly or inappropriately. As the language loses ground as a language of ordinary use amongst people, these people lose the ability to express themselves in a full way in Māori as a language of ordinary discourse for everyday purposes. We consider that that is the essential reason for the fact that the view of people who are not speakers of the Māori language as a first language of communication is different to the view of those whose primary language of communication has been and remains Māori. The purport of spoken Māori is increasingly lost to those whose language of preference is now English. In our view there is no doubt as to the meaning of the word iwi, it has one true or correct meaning, that is a group which takes its source from the mana of a single ancestor to whom the group is genealogically connected – a tribe.”62

59. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Second affidavit of Professor Pita Sharples in support of the second to fourth plaintiffs in relation to the hearing of the preliminary question (11 March 1998) at [14].
60. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Second affidavit of Professor Pita Sharples in support of the second to fourth plaintiffs in relation to the hearing of the preliminary question (11 March 1998) at [25].
61. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Professor Sir Hugh Kawharu for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [4].
62. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Professor James Te Wharehuia Milroy and Professor Timoti Samuel Karetu for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (unsigned) at [9].

• 6.43 Tāmati Kruger (Ngāti Koura, Ngāti Rongo, Ngāi Tūhoe) says:63

... the centre of an iwi is its hapū or community and so it is there that the iwi’s power is concentrated. Physical centres of the hapū then become sites of power, authority and influence within the iwi’s rohe (heartland). These sites comprised of marae ātea, which was reserved for political debate and decision-making, papakāinga, which contained the family homesteads and the village, pā being the wider neighbourhood and includes an gardens and areas of industry such as fishing and clothing production and urupā, the burial sites. Geographically then, most members of the iwi were concentrated in the centre of the rohe, as was the power and authority of that group. Towards the boundaries of the site of influence there would be a decentralising of power and so there any influence and power over whenua along the margins of the boundary would be shared with neighbouring iwi.

• 6.44 Tā Eddie Taihakurei Durie (Rangitāne, Ngāti Kauwhata, Ngāti Raukawa) makes the following comments on iwi groupings:64
  • “Iwi” was a term of general description for the people of a locality, district or region and denoted that they generally came from a common source. “Iwi” also came to be used for the Māori as a people (te iwi Māori).
  • “Iwi” referred also to the connected hapū of a district.
  • “Iwi” was also used for a combination of hapū for a particular war or expedition that included some only of the district hapū, or individuals of different hapū.
  • “Iwi” combinations took various names in the same manner as hapū, but usually from a more remote and thus common ancestor.
  • As the combination varied, different names were used, the most recent, common ancestor, the main ancestor of the prime leader or the name of the leaders hapū.
  • Combinations of related hapū fought each other under different iwi titles.
  • “Iwi” was also applied to unrelated hapū or individuals when several hapū embarked on a common venture. Non-kin combinations became more usual in the 19th century. Alternatively, the several groups stood under the hapū name of the most prominent leader.
  • Hapū could fuse for a combined venture or could retain their separate identities but they generally divided into their autonomous units when the venture was over.
  • District hapū generally stood united in war but independent in peace.
  • During the 19th century, however, “iwi” became more regularly to mean the several hapū of a region standing under the name of a common, remote and famous ancestor.
• 6.45 Tā Hirini Moko Mead (Ngāti Awa) explains that hapū have their origin in whānau:

63. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger (2 June 2020) at [108].
64. Custom Law, Chief Judge Eddie Durie, January 1994 at pp.24–25 as cited in Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), First affidavit of Professor Ranginui Walker in support of the second to fourth plaintiffs in relation to the hearing of the preliminary question (28 January 1998) at 6.2. See also Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), First affidavit of Professor

Pita Sharples in support of the second to fourth plaintiffs in relation to the hearing of the preliminary question (28 January 1998) at [28].

As the whānau continues to grow and generational depth increases a time comes when the whānau will become so large in number that it will either have to divide into several whānau or be regarded as a hapū. By that time it will be acting like a hapū and will be recognised by other hapū as being no longer a whānau. The promotion to hapū is signalled by the establishment of a marae or by the intention to do so.65

The first thing to say about a hapū is that it consists generally of more than one whānau and the units within it are bound as before by strong kinship ties and by the whakapapa principle. Indeed, the prerequisite that a hapū must be more than one whānau cannot be avoided. A hapū is defined in the dictionary (Williams 19;57: 36) as follows: pregnant, conceived in the womb, and as a section of a large tribe, clan, or secondary tribe. The term itself emphasises the importance of being born into the group. The metaphor used by our ancestors was that of a pregnancy (hapū), of the belly swollen by pregnancy, and of the members being born of the same womb.66

• 6.46 Manuka Henare (Ngāti Hauā, Te Aupōuri, Te Rarawa, Ngāti Kahu) explains the interpretation of iwi as people: “In the case of the earliest traders and missionaries who were first referred to as ‘tangata Pākehā’, so as to distinguish them from ordinary people, ‘tangata Māori’. As the process of European settlement intensified the establishment of a new phraseology of identification was required which did rely on kinship ties. Thus the terminology te iwi Māori, (the Māori people) and te iwi Pākehā (the Pākehā people) came into common parlance.”67 To demonstrate this point, Henare refers to a letter of Edwards Hongi, the nephew of Hongi Hika:68

A letter of 1825 written by Edward Hongi, nephew of Hongi Hika, which is possibly the earliest example of Māori writing by a Māori author. The letter includes the sentence:

E tuhi tuhi kino pea te tuhi tuhi a te tangata Māori i te mea kino No wait e iwi pai o te tangata kino o te tangata pai a hea oti te Pākehā o reira kia kite au.

• 6.47 The accompanying translation of the sentence (which is understood to have been prepared by Edward Hongi or Reverend William Yate) reads:

Perhaps both the writing and the words of New Zealanders are bad to whom will the bad men go when they die and to whom will the good men go.

In this early stage of encounter history, Edward Hongi is referring to two sets of people, namely Māori and Pākehā. In his letter he addresses another group of people, the English, other from Māori.

• 6.48 Tā Hugh Kawharu (Ngāti Whātua) supports the position that, while hapū may always be in flux, whakapapa remains at the higher, iwi level: “Thus descent from the relevant ancestor was the key determinant of membership in the relevant hapū and its iwi.

65. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Hirini Moko Mead for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [29].
66. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Hirini Moko Mead for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [32].
67. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), First Affidavit of Manuka Henare in support of the second to fourth plaintiffs in relation to the hearing of the preliminary question (29 January 1998) at [9].
68. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Second Affidavit of Manuka Henare in reply to affidavits in opposition filed by the Fisheries Commission and Treaty tribes (11 March 1998) at [3].

Consanguineal ties could link an individual to any number of hapū and iwi...”69 but “while population numbers waxed and waned over time due, inter alia, to absorption through conquest and intermarriage, all tribes or iwi retained detailed knowledge of their links to one another and to the canoes that brought their forebears to Aotearoa,”70 the end result being that “iwi names persisted for centuries. Hapū names changed often. Migration, moreover, was common and generally made under the impetus of warfare or an increasing pressure on resources.”71

• 6.49 Whereas once residence in the takiwā might have been an essential characteristic of membership of an iwi or hapū,72 it is now recognised as a less essential element with so many Māori having migrated to urban centres.73
• 6.50 Professor Patu Hohepa (Ngāpuhi) describes the multi-dimensional nature of iwi:74

Iwi can be both all-embracing as well as restrictive, depending on its contextual use. Iwi can be used to refer to groups of various kinds: eg.

te iwi Māori the Māori people, referring to that ethnic group

te iwi Pākehā the Pākehā people, referring to that ethnic group

te iwi o Ahia the people of Asia, referring to the people that geographical area

te iwi kainga the people of the home community, referring to a discrete community nga iwi o tea o peoples of the world, referring to humanity in general.

In other words, there is no clear single structure which be said to by iwi.

• 6.51 Professor Ngapere Hopa (Waikato, Ngāti Tūwharetoa) also points out that, “the historical movement of hapū and of Māori does not lend itself to a rigid definition of iwi or the representations of iwi”.75

69. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Professor Sir Hugh Kawharu for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [6].
70. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Professor Sir Hugh Kawharu for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [11].
71. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Professor Sir Hugh Kawharu for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [12].
72. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Professor Sir Hugh Kawharu for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [6].
73. See Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Professor Sir Hugh Kawharu for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [14(a)].
74. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), First affidavit of Professor Patrick Wahanga Hohepa on behalf of second – fourth plaintiffs in relation to the hearing of the preliminary question (11 March 1998) at [7].
75. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), First Affidavit of Professor Ngapare Kaihina Hopa in support of the second to fourth plaintiffs in relation to the hearing of the preliminary questions (30 January 1998) at 8.6.

HAPŪ AS SIGNIFICANT RIGHTS HOLDERS

• 6.52 Some witnesses emphasise the centrality of hapū as rights holders.76
• 6.53 Tā Pou Temara (Tūhoe) provides the following whakatauākī coined by Te Huia Raureti, a rangatira of Ngāti Maniapoto in the 19th century:77

Ko te hapū e kore e kīa he hapū ki te kore he marae, ko te marae e kore e kīa he marae ki te kore he whare, ko te whare e kore e kīa he whare ki te kore he tangata, ko te tangata e kore e kīa he tangata ki te kore he whenua.

A hapū cannot be a hapū if there’s no marae, a marae cannot be a marae if there’s no house, a house cannot be a house if there’s no people, a people cannot be a people if there’s no whenua.

• 6.54 Temara says that this “whakatauākī highlights how the social institutions of Māori were organised within hapū with marae being the central aspect of the base of hapū decision making structures”.78
• 6.55 That position is supported by Tā Hirini Moko Mead (Ngāti Awa):79

The hapū was the basic political unit (Schwimmer 1966:34) within Māori society. It occupied an area of land, and controlled a number of resources, such as mahinga kai (seafood gardens), specific fishing grounds, wetlands and forest lands. The leader of the hapū was the chief, its rangatira or ariki (high chief). The primary function of the leader was to ensure that the group survived and that its land base and resources were protected and defended. The hapū was responsible for its own defence and could enter into alliances to protect its integrity, its resources and its people. It could count on the assistance of related neighbouring hapū of the same iwi if attacked by an outside force.

• 6.56 Tā Pou Temara (Tūhoe) says:80

One of the other key feature of Māori authority structures is the centrality of hapū. Hapū are a collective of whānau that descend from a common eponymous ancestor.

...

Hapū rangatiratanga is the assertion and maintenance of the collective rights and responsibilities of hapū to advance their own political, social economic, and cultural wellbeing for the betterment of all descendants who whakapapa to that hapū. This enables hapū to determine their own future and destiny, because what is good for the hapū, eventually benefits the iwi and other polities that may coexist with in one place upon a broader scale.

• 6.57 Further examples of people emphasising the centrality of the hapū:

76. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Principles for the Allocation of Quota: Report for the Māori Fisheries Commission at 10 and 15 where Whaimutu Dewes notes that resources from the sea belong to specific whānau or collectively to hapū, with each whānau/hapū being clear about where their rights are, with trespassing rarely occurring.

⁷⁷ Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [9]–[12].

⁷⁸ Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [12].

79. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Hirini Moko Mead for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [40].

⁸⁰ Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [10] and [13].

• Tā Hirini Moko Mead (Ngāti Awa) states that “the fisheries are in fact the properties of the hapū of Ngāti Awa” as opposed to being common property of all Māori.81 Ngāti Awa took the view that the Crown could not affect their rights in tikanga, recognising that tikanga is an established value system of Ngāti Awa law and should be recognised at the same level as the common law rights of the Crown.82
• Rikirangi Gage (Te Whānau-ā-Apanui, Ngāti Porou) notes that “[a] tikanga that relates to gathering kaimoana was that you always take care of others before you take care of yourself. This tikanga reflected that resources were shared and belonged to the hapū, not to individuals.”83
• Dr Moana Jackson (Ngāti Kahungunu, Ngāti Porou) says “[in] many rohe effective governance on a day to day level actually resided in the Hapū, and as the word ‘hapū’ itself means to be pregnant or swelling with life it was the site of power where life affirming (and life threatening) decisions were most regularly made”.84
• In a joint brief of evidence, Dr Hohepa Mason (Ngāti Awa, Ngāti Pūkeko) and Dr Te Kei Merito (Ngāti Awa, Ngāti Pūkeko, Ngāti Rangataua, Ngāti Hokopū, Ngāi Tamapare) explain that “the prerogative of kaitiakitanga is that of local hapū. The Rūnanga has a role as the iwi authority to support and enable the hapū to address these important matters.”85
• A Chadwick (Te Whānau-ā-Apanui) states that the hapū is the main rights holder although this does not preclude the sharing of rights between hapū and people.86
• Te Whānau a Nuku and Te Whānau a Kahurautao, two hapū of Te Whānau-ā-Apanui, explain that tino rangatiratanga “gives [the hapū] the authority to decide what, when and how” they wish to share their fisheries, if they so choose.87 It is their right to manage all aspects of their fisheries. These hapū say they have a “hapū right”, specific to their in-shore rocks, reefs and enclosed waters including freshwater streams and ponds and jointly to offshore grounds that are shared with neighbouring hapū and their iwi.88 They state that hapū have entitlement to every fishing activity that goes on within their rohe and an obligation of management passed down from their tīpuna.89
• Dr Ranginui Walker (Whakatōhea) states, “I would understand a traditional tribe or hapū to mean the basic functioning integrated land holding political grouping.

⁸¹ The Fisheries Settlement Report, Wai 307, #A27 Hirini Moko Mead p.6.

⁸² The Fisheries Settlement Report, Wai 307, #A27 Hirini Moko Mead pp.3–4.

⁸³ Re Edwards [2021] NZHC 1025, Affidavit of Te Kou Rikirangi Gage (21 February 2020) at [121].

⁸⁴ R v Tamati Mason [2012] NZHC 1361, Affidavit of Moana Jackson (24 April 2012) at [35].

85. Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, Joint Brief of Evidence of Hohepa Joseph Mason and Te Kei (O Te Waka) Wirihana Merito (29 April 2019) at [55].

⁸⁶ The Fisheries Settlement Report, Wai 307, #B10(a) A D Chadwick.

87. It is noted that this evidence is not attributed to a specific person but rather on behalf of these two hapū. The Fisheries Settlement Report, Wai 307, #A30 Te Whānau ā-Nuku and Te Whānau ā-Kahurautao p.3.

⁸⁸ The Fisheries Settlement Report, Wai 307, #A30 Te Whānau ā-Nuku and Te Whānau ā-Kahurautao p.3.

⁸⁹ The Fisheries Settlement Report, Wai 307, #A30 Te Whānau ā-Nuku and Te Whānau ā-Kahurautao pp.3-4.

Essential to the identity of that is possession of land, tūrangawaewae, a place to stand.”90

• Russel Gibbs (Poutama), describes hapū and whānau as having their “own autonomy” and as “the ultimate rights holders”.91
• Mandy Mereaira Hata (Ngāti Ruatakenga) notes, “In our tikanga, customary title resides in the hapū, and therefore that is the starting point in considering the MACA claims. The hapū has the mana and rangatiratanga in relation to its customary territory, even though hapū can also come together as an iwi ... It is not up to the iwi to make decisions for us. Our tikanga requires that Ngāti Rua collectively decides ... what will be done in the name of Ngāti Rua.”92
• Carol Hemoana Gage (Ngāti Ira) alludes to the centrality of hapū by reference to the kīanga “Mā Ngāti ira e kōrero mo Ngāti Ira – Only Ngāti Ira will speak for Ngāti Ira”. She notes that the kīanga is significant because “Ngāti Ira have always spoken for, and represented themselves and remained independent”, noting further that, notwithstanding that Ngāti Ira co-existed with whanaunga and other hapū, it focused on its own affairs.93 Donald Kurei (Te Whakatōhea, Ngāti Ira) further emphasises this point, noting that Ngāti Ira are the kaitiaki of their rohe whenua and moana and they respect other hapū – while Ngāti Ira are united under the iwi mantle of Whakatōhea when they leave, when they are at home, they are Ngāti Ira.94
• Hetaraka Biddle (Ngāi Tamahaua hapū) notes that mana whenua resides with the hapū.95 Tracy Hillier (Ngāi Tamahaua hapū) reiterates this, noting that “nobody represents Ngāi Tama but Ngāi Tama, no one speaks for Ngāi Tama except Ngāi Tama”.96

• 6.58 Maui Solomon (Moriori) describes how Moriori were divided into six main tribes on the main island and two on Rangiauria (Pitt Island) located near fur seal breeding colonies. Settlements were based around hapū groupings ranging between 30 and 50 individuals. There were thought to be approximately 2,300 people.97
• 6.59 Te Iwi Moriori Trust Board expands on this when discussing the importance of land boundaries and hapū groupings on the island:98

These land boundaries were acknowledged and respected by the various hapū groupings on the island. They were not transgressed nor crossed without appropriate permission’s

90. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Notes of Evidence (Ranginui Walker) at 103.
91. Director-General of Conservation v Taranaki Regional Council [2019] NZEnvC 203, Statement of Evidence of Russell Gibbs (14 June 2019) at [1]–[3].

⁹² Re Edwards [2021] NZHC 1025, Affidavit of Mandy Mereaira Hata (5 August 2020) at [8].

⁹³ Re Edwards [2021] NZHC 1025, Affidavit of Carol Hemoana Gage (13 February 2020) at [23] and [24].

⁹⁴ Re Edwards [2021] NZHC 1025, Affidavit of Donald Ati Kurei (19 February 2020) at [53].

⁹⁵ Re Edwards [2021] NZHC 1025, Affidavit of Hetaraka Biddle (20 February 2020) at [41].

⁹⁶ Re Edwards [2021] NZHC 1025, Affidavit of Tracy Francis Hillier (20 February 2020) at [39].

⁹⁷ The Fisheries Settlement Report, Wai 307, #A9 Maui Solomon at [4.2] and [4.7].

98. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), “Rekohu (Chatham Islands) Submission to Te Ohu Kai Moana on Proposed Models of Allocation for Pre-settlement Assets” at 7.

being given and granted. But sharing resources was also an essential element of tikanga Moriori. For example, whenever there was a stranding of Rongomoana or pilot whales along the coastline of a particular hapū, this was a signal for other whanau and hapū groups to share in the kai, but [there] first has to be an acknowledgement of the mana of the group upon whose whenua the whales had beached themselves. Once the tohunga has performed the rites over the first Rongomoana, their kinsmen from other settlements were invited to participate and share the kai. These occasions were accompanied by ritual and observance of tapu. The belief of our ancestors was that the whales were driven to shore by the spirit of the recently departed member of the clan. The more important the person, the larger the group of beached whales. The eye of the first whale would be plucked out and placed on the tuahu as a gift to Maru, Tangaroa and Pou, the various Moriori guardian of the ocean.

• 6.60 These statements on the rights and standing of hapū can, however, be contrasted with the comments of Tā Hirini Moko Mead (Ngāti Awa) on the limits of those rights and interests:99

... even though the hapū acted as an “autonomous” body and enjoyed a large measure of control over everyday affairs, it could not stand alone in both a military and a social sense. The hapū was part of a larger social and political entity called an iwi. The hapū formed the building blocks of the larger entity traditionally referred to as the iwi.

THE FLEXIBILITY OF SOCIAL ORGANISATION

• 6.61 A recurring theme in Tā Hirini Moko Mead’s (Ngāti Awa) evidence is that Ngāti Awa acted on the principle that the social organisation reflects the realities and the needs of the people. The system of whānau, hapū and iwi was dynamic and ever-changing. Ngāti Awa’s social organisation is flexible, yet traditional systems of leadership and organisation are still present today. Its modern hapū structure reflects efforts to meet contemporary problems that are common to other iwi.100
• 6.62 Tā Hirini Moko Mead (Ngāti Awa) describes the history of Ngāti Awa from its origins and social evolution at Rarotonga, the Hokianga to the Bay of Plenty and Taranaki. He explains that, throughout that time, various iwi and hapū formed and branched off as their own autocratic unit, for example, Te Ātiawa, Ngāti Te Rangi, Tūhoe and Te Whānau-ā- Apanui.101 He says, “Ngāti Awa social organisation has historically been flexible and still is today – new groups can be accommodated such as the urban dwelling “taura here” or formerly extinct hapū can be re-established and given new life.”102 What must be maintained, regardless of the flexibility and development, is a common whakapapa link:103

As ngare is defined by Williams (1957:229) as family or as a “number of people connected by blood.” As defined here the term best fits the whānau unit but if the principle is extended

99. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Hirini Moko Mead for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [45].

¹⁰⁰ The Fisheries Settlement Report, Wai 307, #B16 Hirini Moko Mead p.14.

¹⁰¹ The Fisheries Settlement Report, Wai 307, #B16 Hirini Moko Mead pp.4–5.

¹⁰² The Fisheries Settlement Report, Wai 307, #B16 Hirini Moko Mead p.14.

103. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Hirini Moko Mead for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [76].

to cover the capacity to whakapapa to common ancestors the word can be applied generally to all three units of the social system. The urban hapū of Ngāti Awa and taura here also qualify as ngare. Church groups and urban authorities such as MUMA and Waipareira Trust are not ngare. They are not connected by blood and so fail the primary test of shared descent from a common eponymous ancestor recognised as the founding ancestor of the iwi.

• 6.63 Dr Ranginui Walker (Whakatōhea) gives a view that the nature and evolution of iwi and hapū structures has changed in post-colonial times. However, this does not mean that it was once static. Rather, new branches formed and broke off from whakapapa lines regularly:104

Historically, it was not unusual for new tribal entities to emerge as a result of marriage, warfare, and new alliances. Not infrequently, new hapū would form from the junior line of the chief family. For instance, Tahu Pōtiki was the junior brother of Porourangi (Ngāti Porou). Tahu Pōtiki lusted after Porourangi’s wife, and after a tribal meeting over how the scandal should be dealt with, Tahu Pōtiki left and headed down to the South Island. In the process of establishing himself and his line in the new territory, Tahu Pōtiki conquered the Ngāti Mamoe people. His new tribe became known as Ngāi Tahu.

• 6.64 In disagreeing that the traditional view of Māori society based on whānau, hapū and iwi continues to apply, Walker says “this description of traditional Māori society is simplistic and incomplete. It suggests that the social units in Māori society were static, that the tribal polities were immutable and that kinship was the ‘only’ basis for association. This was not the position. Māori society has always been characterised by dynamism and adaptation. Accordingly, the types of iwi groupings varied.”105 His view extends beyond to all types of governance and collectivisation adopted by Māori:

Modern hapū are remnants of hapū or hapū collectives of traditional times. The modern reality of Māori is that they no longer live in compact kin based tribal collectives on a defined land base. People live in scattered whānau units, both within and outside the old tribal boundaries. Although tribalism survives as an ideology for many Māori, tribes become manifest only occasionally, and for particular purposes. These include trust board and rūnanga (tribal council) meetings, and hui (assemblies) for rites de passage such as weddings, birthdays, and tangihanga (funerals). To this list is added Waitangi Tribunal hearings on marae, land claim meetings and meetings of mandated claims negotiators. Except for Tribunal hearings, and hui for rites de passage, it would be unusual for more than 10% of tribal constituents to attend these assemblies.106

These large pan-tribal organisations are recognised by the state as appropriate delivery mechanisms for the devolution of state funded programmes and education, health, skills training and the rehabilitation of offenders. These major organisations, with score or so urban marae in Auckland, are the surrogate tribes for tribal refugees and victims of the

104. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), First affidavit of Professor Ranginui Walker in support of the second to fourth plaintiffs in relation to the hearing of the preliminary question (28 January 1998) at 7.2.
105. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), First affidavit of Professor Ranginui Walker in support of the second to fourth plaintiffs in relation to the hearing of the preliminary question (28 January 1998) at 6.1.
106. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), First affidavit of Professor Ranginui Walker in support of the second to fourth plaintiffs in relation to the hearing of the preliminary question (28 January 1998) at 10.1.

diaspora. They bear testimony to both the persistence of Māori culture, and the dynamic ability of Māori to remould the ideological structure of the society that bears them.107

When I first came to Auckland in 1946 to go to school I pretty soon became acquainted with a group called Ngāti Akaranga, the people of Auckland. Then I heard that there was another category called Ngāti Poneke the people of Wellington. Then in the mid and late 60s I learned of a grouping called Ngāti Ōtara and I was fascinated by what I read about this new grouping that emerged in the context of a new suburb created to house the homeless of the inner city area that I made it a subject of my study for my PhD dissertation which is called Māori in a Metropolis and as far as I could see, Ngāti Otara fulfilled all the customary procedures, the social activities and caring for each other that I remember my hapū performing when I was a little boy. So I was very impressed with that. Subsequently, they developed in the western suburbs Te Whānau Waipareira and I had – some doings with that group and as far as I was concerned, they were fulfilling the traditional functions that hapū in the home districts once fulfilled.108

• 6.65 Tā Eddie Taihakurei Durie (Rangitāne, Ngāti Kauwhata, Ngāti Raukawa) gives the view that tikanga adapts to reflect the social and political order of people, which itself changes:109

Māori currently present the iwi as the main governing unit – the iwi being a confederation of peoples, claiming authority over a prescribed area and possessed of corporate functions exercised through a central organ. Certain enactments establishing rūnanga provide examples of this. It appears, however, that the modern iwi arrangement represents the latest stage in a history of tribal restructuring. I doubt it should be seen, or represented, as having always existed.

• 6.66 Dr Ranginui Walker (Whakatōhea) holds the view that the Māori response to colonisation has been to collectivise beyond whakapapa lines.
• 6.67 He gives the example of Te Tokanganui-a-noho, the marae at Te Kūiti, gifted to Ngāti Maniapoto by Te Kooti Arikirangi:110

The conceptual design of the house, stressed ancestral links between East Coast and Tainui tribes, by depicting Mahinārangi and Tūrongo at the base of the two pillars bearing the ridge pole. Tūhoe and other tribes who supported Te Kooti are also represented among the 28 carved poupou in the house. Canoe ancestors who linked them include: Hoturoa (Tainui), Paikea (Ngāti Porou), Tamatea (Takitimu), Tamatekapua (Te Arawa), and Toro a (Mataatua). This linking of founding ancestors from different tribes, in a single house, was a political statement on the need for a pan-Māori identity to counter the cultural invasion of Pākehā.

107. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), First affidavit of Professor Ranginui Walker in support of the second to fourth plaintiffs in relation to the hearing of the preliminary question (28 January 1998) at 12.3.
108. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Notes of Evidence (Ranginui Walker) at 102.
109. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Sixth affidavit of Reuben Brian Perenara in support of the applicant’s case regarding the High Court rule 418 preliminary questions as referred back to this court by Her Majesty’s Privy Council; Exhibit C Custom Law: Address to the New Zealand Society for Legal and Social Philosophy, Chief Judge ET Durie (22 July 1994) at 327.
110. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), First affidavit of Professor Ranginui Walker in support of the second to fourth plaintiffs in relation to the hearing of the preliminary question (28 January 1998) at 8.4.

• 6.68 Tā Hirini Moko Mead (Ngāti Awa) acknowledges the common characteristics of an iwi as being of great importance are:111
  • descent from a common tupuna;
  • a cultural and historical identity supported by shared tradition;
  • political organisation;
  • multiple hapū;
  • multiple marae;
  • multiple urupā;
  • a defined rohe or takiwā;
  • acknowledgment by other iwi; and
  • common heritage, common history and common interests.
• 6.69 Mead notes that the status and function of an iwi in modern times is determined by what the members of that iwi expect, noting that the ability to deliver some, if any, of the services is firmly linked to whether settlement with the Crown has been effected and resources are available:112

(a) To protect the mauri of the iwi, hapū and whānau;

(b) To protect the taonga and heritage of the iwi, its legacy of waiata, whakapapa, whakatauki, kupu tuku iho, pakiwaitara, taonga, art work and history;

(c) To maintain, protect and develop the mana of the iwi, its constituent hapū and members and to uphold its integrity as an iwi and to uphold its essential characteristics, its protocols and its mauri.

(d) To conduct the affairs of the iwi on behalf of and in conjunction with its constituent hapū;

(e) To protect, develop and manage those assets and taonga of symbolic value which belong to all members of the iwi such as maunga, awa, moana, wāhi tapu, whenua rāhui, te marae matua, land and commercial assets;

(f) To bring benefits to all hapū and their members that are not only symbolic but are also practical such as education grants, development grants, grants to improve maintenance of marae, research facilities, assistance to establish small businesses and so on;

(g) To represent the interests of all hapū within the iwi at pan-iwi hui and when dealing with Government on issues that affect all or nearly all of the hapū;

(h) To enter into alliances with other iwi and non-iwi organisations when appropriate;

111. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Hirini Moko Mead for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [79] and [82].
112. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Hirini Moko Mead for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [84].

(i) To receive compensation from Government for grievances of the past, to receive its share of fisheries assets and any other assets and to put these to work to service the needs of all members of the iwi;

(j) To establish a central authority to carry out the functions of iwi and to obtain funding to do so.

• 6.70 Reverend Māori Marsden (Ngāi Takoto, Ngāti Warara) explains that “[whilst] the three principal groupings [Ngāti Kuri, Ngāi Takoto and Te Aupōuri] retained their identity and sovereignty, because of the intermarriages and the fact of kinship and consanguineous relationships, the political dynamics were constantly changing. Political alliances were entered into and dissolved just as quickly”.113
• 6.71 David James Alexander (Pākehā) further explains that “to survive, and to be able to retain some space within a political landscape full of other hapū equally concerned about ensuring their own survival, required the building of alliances”.114 He describes that some ways of achieving this was through commonality of ancestors or connection to the same ancestors as well as creation of new bonds and reinforcing old bonds by way of intermarriage.
• 6.72 Professor Ngapare Hopa (Waikato, Ngāti Tūwharetoa), in discussing historical Māori traditional organisation, states that “flexibility of choice was an essential feature of “traditional” Māori social organisation because whakapapa and the rule of bilateral affiliation made membership of both paternal and maternal lineages (hapū) possible. A critical determinant was however, continued occupancy if “ahi ka” (burning fires) or usufruct rights over resources were to be sustained. Kinship or relatedness meant that boundaries were not impermeable. People could move in and out of settlements whose composition might include whānau from other lineages and whose number could fluctuate through fission and fusion, through re-alignment and as events such as feuding, warfare and /or acts of vengeance warranted.”115 Hopa goes on to state that “a key feature of Māori society is the genius of its people to adapt and re-organise in order to meet the demands and challenges of a changing social environment. A proper understanding of the term “iwi” must involve appreciation of this dynamic in Māori society.”116 In particular, Hopa notes:117

... fluidity was at the core of political alliances in Māori political traditionals and that sometimes hapū came together and might have called themselves iwi in terms to pursue a common cause or resolve a problem. Once the resolution was sought they fell back traditionally into their old autonomous semi nomadic units, there was no centralisation but this fluidity underwent testing in the context of colonisation and I believe iwi not only is relating to people forming into cohesive units is itself a product of change and evolution

¹¹³ Muriwhenua Land Report, Wai 45, #F25 Māori Marsden p.3.

¹¹⁴ Re Ngāti Pāhauwera [2021] NZHC 3599, Reply evidence of David James Alexander (21 December 2020) at [25].

115. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), First Affidavit of Professor Ngapare Kaihina Hopa in support of the second to fourth plaintiffs in relation to the hearing of the preliminary questions (30 January 1998) at 1.3.
116. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), First Affidavit of Professor Ngapare Kaihina Hopa in support of the second to fourth plaintiffs in relation to the hearing of the preliminary questions (30 January 1998) at 5.1(b).
117. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Notes of Evidence (Ngapare Kaihina Hopa) at 47.

and of adaptation and that what has happened and is happening is that iwi has been devised as a concept retrospectively in the ethnogenesis process to talk about or understand aspects of Māori thought and culture including its social structure and social organisation.

• 6.73 Hopa also refers to examples surrounding Māori historical collective organisation outside the traditional notions of hapū and iwi:118

The canoe migrations of Te Arawa and Tainui (among others), the departure of Tahu Potiki to establish a new tribe in the South Island, the Confederation of Northern Tribes, the assertion of tribal unity in the form of the Kotahitanga movement and Kingitanga, Te Kooti’s pan-tribal Ringatu Church, the non-tribally based Ratana Church, the plethora of state initiated Māori trust boards, the New Zealand Māori Council, the Māori Women’s Welfare League, the National Māori Congress, the recent reincarnation of the Māori Parliament, Te Runanga Ko Huiarau, are but a few examples of the Māori genius to adapt, indigenise, construct and reconstruct social units according to their social environment and needs changed.

• 6.74 Hopa goes on to say, “As Māori enter the 21st century, urban Māori organisations have emerged as the quintessential bodies for dealing with the needs of a large urban Māori population and the social ills of urban Māori. They are representative of the revolutionary continuum of basically Māori adaption and indigenisation of a non-Māori environment.”119
• 6.75 Manuka Henare (Ngāti Hauā, Te Aupōuri, Te Rarawa, Ngāti Kahu) discusses the influence of identity on social organisation as Māori. He states that “the ability to identify yourself seems to be related to your life experience, whether born in the country, whether close to the urban marae or born in the cities, so the life experience of the people, the age has a lot to do as to which level they begin their identity as a person”.120

TRADITIONAL TRIBAL STRUCTURES ARE ENDURING

• 6.76 Henare Ngata (Ngāti Porou) says that traditional tribal structures (in that context he was speaking of Ngāti Porou) that have their origins in their culture and history cannot be displaced by a latter-day creation of statute.121
• 6.77 Tā Tīmoti Kāretu (Tūhoe, Ngāti Kahungunu) and Professor Te Wharehuia Milroy (Tūhoe) support this position and, as expert speakers of te reo Māori, made their point with reference to language:

118. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), First Affidavit of Professor Ngapare Kaihina Hopa in support of the second to fourth plaintiffs in relation to the hearing of the preliminary questions (30 January 1998) at 2 and 6.3.
119. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), First Affidavit of Professor Ngapare Kaihina Hopa in support of the second to fourth plaintiffs in relation to the hearing of the preliminary questions (30 January 1998) at 9.2.
120. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Notes of Evidence (Manuka Henare) at 29.

¹²¹ The Fisheries Settlement Report, Wai 307, #B28(f) Henare Ngata at [9].

Connection by genealogy from a single famous ancestor is the original and true meaning of this word. Ko te whanaungatanga ā-whakapapa mai i te tipuna rongonui te tūturutanga o te tikanga o tēnei kupu.122

...

To someone raised with the Māori language and Māori custom and tradition from the time of birth to adulthood there is no doubt and no argument as to the meaning of the word iwi. It has one essential characteristic that is the need for genealogical link to an ancestor. There are no doubt those whose motivations arise not from faithful adherence to the Māori language and Māori custom who would wish it otherwise but no matter how great the aroha which may be employed in the utilisation of that term iwi, aroha cannot make an iwi that which is not.123

• 6.78 Regardless, Tā Hugh Kawharu (Ngāti Whātua) states there is acceptance that some aspects of the role of iwi has changed. “Over time, the work of iwi and the infrastructure under which they operate has changed, but their basic role has remained constant – to protect, where necessary, the interests of individual members and constituent whānau and hapū, and to maintain and enhance the mana of the collective. Warfare has waned in popularity, but it remains an important role of iwi organisations to engage in less physical conflict in order to protect iwi, hapū or individual interests.”124
• 6.79 Despite progress made from traditional leadership to the Māori trust and post-settlement governance entity models, Kawharu notes that “dimensions of the iwi heritage remain important to individuals and groups alike within the tribe, and much effort is expended in maintaining them. These include marae, urupā, wāhi tapu generally, and esoteric lore.” 125
• 6.80 Dr Ranginui Walker (Whakatōhea) disagrees completely with the notion that modern iwi trust boards and settlement entities represent traditional forms of leadership:126

if we ever arrive at settlement then Whakatōhea leaders will form a corporate body and join the corporate culture. That is the choice we have, I don’t think we can in any way claim such a body is a traditional structure it has no land base, it will have a financial base.

• 6.81 When considering the use of the word ‘iwi’ in mōteatea, Tā Tamati Reedy (Ngāti Porou) states, “I conclude that in traditional song poetry, the term iwi is invariably intended to mean tribe from the earliest to the most recent examples. There is no example where iwi

122. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Professor James Te Wharehuia Milroy and Professor Timoti Samuel Karetu for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (unsigned) at [11].
123. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Professor James Te Wharehuia Milroy and Professor Timoti Samuel Karetu for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (unsigned) at [22].
124. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Professor Sir Hugh Kawharu for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [16].
125. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Professor Sir Hugh Kawharu for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [15(e)].
126. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Notes of Evidence (Ranginui Walker) at 109.

is used to describe a non-kin group. There is no example where iwi is used to describe an entire race of people.”127

• 6.82 Considering how urban Māori collectives are distinct from iwi, Tā Hugh Kawharu (Ngāti Whātua) notes, “Many have flourished and then faded, others have maintained function and identity, and a few have become complex, highly capitalised businesses. Welfare promotion, not kinship, is their keynote. Their socially and culturally integrated approach, however, gives the provision of welfare services its Māori character.” 128 He then concludes, “Urban Māori organisations lack the wairua and checks and balances of the kinship system, a specific ancestor-oriented history and heritage, and a pre Treaty mana whenua. Their operational focus is on the human resource of the Māori population without discrimination as to tribal affiliation. They are neither iwi nor hapū.”129
• 6.83 Professor Patu Hohepa (Ngāpuhi) gives examples of the enduring and changing nature of traditional Māori tribal structures with reference to the general but often vague understanding of the term ‘iwi’. “Iwi can also be used in a restrictive sense, defining what you want it to define. Ethnologists and anthropologists have used the word iwi to mean “tribe” or “tribal nation” in their various attempts to explain Māori society structures in terms of clearly defined structures. It is this perception of reality which has narrowed the meaning of the term iwi to mean tribe or tribal nation, which cannot be supported by traditional names of groups. While there are groups which continue to exist today that have defined their group solidarity with names beginning with Ngati / Nga (Group of), or Te Whanau o (The extended family of), Te Uri o (The Descendants of), there is no group with a formal name beginning with Te Iwi o (The Tribe of).”130
• 6.84 Hohepa refers to his own tribal histories to explain the enduring nature to which such traditional understandings on tribal boundaries and structure continue:131

for Ngapuhi we are different, we have many ancestors and canoes and many mountains, we do not stick to the principle of other iwi, one waka, one ancestor, one canoe, the second part is that our beginnings of being iwi was the distribution of kohiwi of the skeletons of the ancestors taken to the burial caves round our territory, those are the boundaries of our iwi and now many of our dead lie in cemetaries not only through Aotearoa but overseas and its those bones that call us as iwi to look after them.

127. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Tamati Muturangi Reedy for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [27].
128. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Professor Sir Hugh Kawharu for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [22].
129. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Professor Sir Hugh Kawharu for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998) at [23].
130. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), First affidavit of Professor Patrick Wahanga Hohepa on behalf of second – fourth plaintiffs in relation to the hearing of the preliminary question (11 March 1998) at [8].
131. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Notes of Evidence (Patrick Wahanga Hohepa) at 90.

COLLECTIVE DECISION MAKING

• 6.85 It was common for decision making to be done on a collective basis. However, there were often community-appointed rangatira who were responsible and accountable to the collective for their decisions. Waiohau Te Haara (Ngāti Rangi) explains that the traditional decision-making process of Ngāti Rangi means “[there] must be discussion which may lead to consensus. The Kaumātua (Elders) listened and continue to listen carefully and move/d towards what they believe/d to be the opinion of the hapū. After considering these opinions they would and continue to make a decision for the hapū.”132
• 6.86 Paul Meredith (Ngāti Maniapoto) discusses examples he has read of ‘rūnanga’, where “it wasn’t just the rangatira and the tohunga” who participated, rather they were public assemblies where “matters [were] brought up and redress determined”.133 Everyone was allowed to have their say, however some people, ‘mana kōrero’, held more sway.134
• 6.87 Henare Rakiihia Tau (Ngāi Tahu, Ngāti Mamoe, Waitaha) talks about decisions in relation to the management of the Tītī Islands and emphasises whakapapa as being necessary as well as the collective nature of the decisions:135

The decisions are made to the allocation of catching areas or wakawaka, the siting of houses, the welfare of the mutton birders and the protection and rules governing the environment. These decisions are determined by those who possess whakapapa or genealogy rights to our Tītī Islands. These decisions are collective decisions.

• 6.88 The importance of consensus-based decision making is emphasised:
  • According to Maui Solomon (Moriori), each tribe had its own ariki however “[decision] making was usually by consensus but invariably, views differed and sometimes issues were hotly debated for many days before arriving at a conclusion. The most dramatic example of this decision-making process in action occurred at the hui of 160 Moriori chiefs and tribes at Te Awapatiki in 1835 ... Although many of the younger chiefs advocated resisting the armed invaders, the senior chiefs and tohungas held sway over the gathering and persuaded their people not to break with their 500 year tradition of peace as was laid down by Nukunuku Whenua and his predecessors. The consensus decision was to instead hold fast to their traditions of peace and to share the island resources with the invading tribes.”136
  • Reverend Māori Marsden (Ngāi Takoto, Ngāti Warara) reiterates the point that “political decisions were arrived at by consensus”. Marsden recounts an example of Nopera Panakareao’s role in pre-Treaty land transactions where, despite identifying more closely with Te Rarawa, by virtue of his whakapapa, he regarded himself as having certain rights within Ngāti Kahu. “Therefore in many cases he was acting in terms of his Ngāti Kahu rights when dealing with Ngāti Kahu land transactions (take

132. Beadle and Wihongi v Minister of Corrections, EnvC Wellington A074/2002, Statement of Evidence of Waiohau (Ben) Te Haara (undated) at [10].

¹³³ The Wairarapa ki Tararua district inquiry, Wai 863, #4.11 Paul Meredith p.44.

¹³⁴ The Wairarapa ki Tararua district inquiry, Wai 863, #4.11 Paul Meredith pp.44–45.

135. Re Tipene [2016] NZHC 3199, Brief of Evidence of David Armstrong (31 August 2015), Exhibit marked DA-55, Wai 27, #J- 10 Evidence of Henare Rakiihia Tau, David Higgins, Trevor Howse, Peter Ruka and Barry Brailsford at [5.13].

¹³⁶ The Fisheries Settlement Report, Wai 307, #B23 Maui Solomon at [6.4].

tūpuna) while still retaining his position as a Rarawa chief. He was also a descendant of Te Whetakitini the daughter of Tuwhakatere the founding ancestor of Ngāi Takoto. By virtue of that fact he could claim certain rights within Ngāi Takoto. It was very clear those rights were neither dominant nor exclusive. He certainly could not act in a way which affected the rights of his relations – without obtaining their consent.”137 This relates to the interconnected nature of te ao Māori and the importance placed on whakapapa, whanaungatanga and obligations to whānau, hapū and iwi (the collective). This is useful in regard to political and legal decision making in te ao Māori. Panakareao could not make decisions according to tikanga if he did not obtain the consent of the collective/consensus.

• Mandy Mereaira Hata (Ngāti Ruatakenga) notes that her hapū had appointed her and “Uncle Te Riaki” “to act on their behalf”.138 She goes on to say that “it is expected that we maintain that support by regular updates to the hapū. Since we are acting on behalf of the hapū, we are accountable to the hapū, and expected to act according to the collective decisions of the hapū.”139

• 6.89 Robert Mahuta (Tainui, Ngāti Mahuta) explains that wānanga and hui are important to stress-test ideas, particularly when they affect so many. The Māori fisheries negotiators held hui around the motu where they were explaining the basis for the agreement, allaying fears and “confronting the inevitable criticism which is part and parcel of the Māori modus operandi”.140
• 6.90 Tā Pou Temara (Tūhoe) centralises the concept of wānanga. He says, with respect to Ngāti Rangi, “[there] is the tika (right way) to progress matters or provoke a deeper level of discussion before any long term commitment is made by the hapū. Whānau who may wish to progress a project within the boundaries of Ngāti Rangi, may involve other whānau, the marae would be the ideal place to bring these whānau together to discuss the matter further. Those who are uncertain as well as those who are opposed would also be encouraged to participate in the discussions. Discussions would continue right up to the time of making the decision. With the views known and the discussions nearing their conclusion the Taumata would render a final decision, based on the wellbeing of the hapū of Ngāti Rangi.”141
• 6.91 The importance of consent and permission was also emphasised as were the limits on what rangatira could do. For example, Tuini Sylva (Ngāti Kuri) asserts that her grandfather, Rewiri Hongi, chief at Kapowairua, did not sell their land because their people would have nowhere else to go and he knew he would need to seek approval from Ngāti Kuri:142

Rewiri Hongi has been blamed for something he didn’t do, selling land at Te Paki, Muriwhenua and Kapowairua. He was a rangatira, he was not so stupid as to sell his land. If he had wanted to, he would have had to get the permission of the whole tribe, Ngāti Kuri,

¹³⁷ Muriwhenua Land Report, Wai 45, #F25 Māori Marsden p.4.

¹³⁸ Re Edwards [2021] NZHC 1025, Affidavit of Mandy Mereaira Hata (5 August 2020) at [5].

¹³⁹ Re Edwards [2021] NZHC 1025, Affidavit of Mandy Mereaira Hata (5 August 2020) at [5].

¹⁴⁰ The Fisheries Settlement Report, Wai 307, #B28(e) Robert Mahuta at [6].

141. Beadle and Wihongi v Minister of Corrections, EnvC Wellington A074/2002, Statement of Evidence of Reuben Clarke in support of the Minister of Corrections (undated) at [14].

¹⁴² Muriwhenua Land Report, Wai 45, #F33 Tuini Sylva p.1.

including Te Rau Karora and the other chiefs. He never sought that permission because he knew that if he sold the land his people would have nowhere to stay.

• 6.92 Reverend Māori Marsden (Ngāi Takoto, Ngāti Warara) explains that chiefs did not have the right to sell or absolutely alienate lands because of the nature of Māori collective rights in land:143

Panakareao simply did not have the power to sell. No chiefs had the right to sell or absolutely alienate lands. The extent of their powers was to tuku with all the limitations and prohibitions attached thereto. All lands were held in common ownership and no individual, whether chief or whanaunga enjoyed individual ownership. The fact that “payments” were apparently made does not change the nature of the transaction. Any so-called “payments” for land may be explained by the institution of “manatunga” – the exchange of gifts under the concept of “tuku whenua” to establish ongoing relationships and to seal the tuku.

• 6.93 Ella Henry (Ngātikahu ki Whangaroa, Te Rārawa, Ngāti Kuri) also talks about limits:144

Mana was vested in the chief, which gave that person status and power, but the autonomous relationship between the chiefs and their tribe acted as a constraint on the power of the chief, especially in regard to the expectations which a chief could impose on the tribe. Though chiefs maintained the mana of the iwi, or hapū, each individual member of the tribe retained a high degree of autonomy.

TUAKANA/TEINA

• 6.94 Waiohau Te Haara (Ngāti Rangi) explains:145

I am recognised as a Tuakana (senior elder) of the whānau most closely associated with the land known as Tuwhakino. The Tuakana is recognised as the senior person in relation to others of a whānau or hapū. 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.

...

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 whānau, hapū and iwi. The balance between teina and tuakana has to be based on trust and transparency.

In Māori 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 by gone days it could have resulted in banishment for the offender or some other form of discipline. Today discussion and ideally consensus is the preferred option.

...

In Ngāti Rangi and I believe the wider Ngā Puhi, tuakana is important because it denotes seniority. It does not mean that that person is right and everybody else is wrong. It is not an exclusive concept. However, it is relevant to our decision making process and to the question of who has authority to speak on particular issues.

¹⁴³ Muriwhenua Land Report, Wai 45, #F25 Māori Marsden p.9.

¹⁴⁴ Mana Wāhine Kaupapa Inquiry, Wai 2700, #A63 Ella Henry at [35].

145. Beadle and Wihongi v Minister of Corrections, EnvC Wellington A074/2002, Statement of Evidence of Waiohau (Ben) Te Haara (undated) at [2], [8]–[9] and [38]–[44].

...

What I would like to emphasise, is that I have never relied on my tuakana status in coming to my opinions I have consulted with others and we have reached a consensus view ... leadership is related to ability as well as tuakanatanga. It also related to the question of who is accepted by the whānau or the hapū. I agree that it is not related solely to age or gender. However, I do not accept that the concept of tuakanatanga is not of any relevance. It is one of the bases on which I have mandate to speak in relation to the Tuwhakino block and on other matters relating to Ngāti Rangi.

• 6.95 Christina Davis (Ngāti Muriwai, Te Whakatōhea) references Tā Hirini Moko Mead (Ngāti Awa) when discussing whakapapa and specifically tuakana/teina, stating, “With whakapapa, ‘a child is born into a kinship system, which is already in place and has been for many generations’, [informs] Mead. He adds, ‘one’s whakapapa is affected by a number of principles ... the order of birth is important: the mātāmua is accorded more mana than others. It is also affected by tuakana/teina principle, which is also the order of birth. The older sibling has priority over the younger and this principle works its way to the last born ...’”.146
• 6.96 Wallace Wihongi (Ngāti Mahia, Te Uri o Hua, Ngāti Hine) also talks about the relationship between tuakana and teina:147

The elders of my hapū Ngāti Mahia and Te Uri o Hua have told me that Heta Te Haara was one of the paramount chiefs of Ngāti Rangi. He had sovereignty over the land and was one who made chiefly decisions. In keeping with the tikanga and Māori tradition, this mantle would pass to the eldest male and in this instance that would be Ben Te Haara. Associated to this mantle is the privilege of being tuakana – the ability to guide others in the whānau and Ngāti Rangi.

In the old days this order was essential and if transgressed a muru or retribution followed and if serious enough a war party would be put together to deal with the teina.

...

In our marae Ururangi we teach that Tāne was the firstborn of Io and his wife. In the primeval Ururangi, Tāne formulated a process whereby the offspring of Io would develop and grow. Typically, a teina Tūmatauenga thought he knew best and opposed the plan. A battle ensured in the place Awarua and Tū was vanquished and banished to Kaihewa. Tuakanatanga thus existed among the Gods.

• 6.97 Mac Anania (Ngāti Rangi) also says that the “matua tuakana/teina relationship stems from rangatiratanga. It is a place of standing or birth within your family structure or whakapapa. The tuakana has a preferred place of privilege as an elder over the teina.”148 Anania also says that “it is the responsibility of other teina hapū to tautoko the tuakana hapū”.149
• 6.98 Associate Professor Khylee Quince (Ngāpuhi, Te Roroa, Ngāti Porou, Ngāti Kahungunu) says that, within a young person’s peer group, the tuakana/teina (senior/junior)

146. Re Edwards [2021] NZHC 1025, Affidavit of Christina Davis (21 February 2020) at [14], quoting Mead, Tikanga Māori: Living by Māori Values, 2003, at 42.
147. Beadle and Wihongi v Minister of Corrections, EnvC Wellington A074/2002, Statement of Evidence of Wallace Wihongi (undated) at [7] and [20].
148. Beadle and Wihongi v Minister of Corrections, EnvC Wellington A074/2002, Statement of Evidence of Mac Anania (undated) at [15].
149. Beadle and Wihongi v Minister of Corrections, EnvC Wellington A074/2002, Statement of Evidence of Mac Anania (undated) at [17].

relationship between cousins and siblings of the same gender provides an additional support network for decision making and behaviour. There are particular expectations of leadership and care placed upon the tuakana or senior relatives – especially on the mātāmua or eldest child in a family.150

• 6.99 Te Riaki Amoamo (Te Whakatōhea, Ngāti Patumoana, Ngāti Ruatakenga) discusses the concept of taharua as being close with that of tuakana/teina:151

The concept of “taharua” in Whakatōhea, which loosely translates as two-sides, two tribes, or bilineal. In whakapapa terms, this applies when one of your parents is from one marae/hapū and the other parent belongs to another marae/hapū. One foot in each camp if you like. However this concept is important when it comes to relationships as it solidifies whakapapa connections to both side with equal importance. Taharua goes hand in hand with tuakana teina which determines who has speaking rights over the other according to who is older or younger in the whakapapa line.

• 6.100 Amoamo expresses that taharua is the right to stand on behalf of both of your parents. In his case, he can whakapapa to all of Te Whakatōhea but only speaks at two marae when it comes to tangihanga, stating that “I can weave whakapapa of the visitors coming on to the marae to us and in turn our values of manaakitanga and aroha ki tētahi play out through our ability to exercise our tikanga and Kawa” and that taharua doesn’t negate one side of your whakapapa – rather, it enhances both.152

RANGATIRA

• 6.101 Tamati Waaka (Te Whānau-ā-Apanui, Ngāi Tai, Te Whakatōhea, Ngāti Awa, Ngāti Pūkeko, Tūhoe) emphasises the important role that rangatira have “as someone who possesses the skills necessary to maintain mana and was regarded as the repository for the mana of the collective”.153 He goes on to provide a list of talents required of a rangatira in reference to Te Rangikaheke and Himiona Tikitu. He notes the importance both put on manaaki tangata, conducting discussions and being courageous as important attributes:154

Te Rangikaheke

1. He mōhio ki te whakahaere i ngā kōrero o te mahi kai. Has command of the knowledge, science and technology of food acquisition and production.
2. ... o te tangohanga whare, waka, pātaka, hereimu. Has command of the knowledge, technology, rituals and traditions pertaining to the construction and acquisition of houses, canoes, storehouses and cooking sheds.
3. Ka mōhio ia ki te whakahaere i ngā kōrero mo te whawhai, toa tonu ki te riri, hopu tūpāpaku tonu atu, whati rawa mai ka riri, nana ano i whakahoki atu te whati. He

¹⁵⁰ Solicitor-General v Heta [2018] NZHC 2453, s 27 report by Khylee Quince (18 September 2018) p.8.

¹⁵¹ Re Edwards [2021] NZHC 1025, Second Affidavit of Te Riaki Amoamo (21 February 2022) at [9].

¹⁵² Re Edwards [2021] NZHC 1025, Second Affidavit of Te Riaki Amoamo (21 February 2022) at [10]–[12].

153. Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tamati Waaka (4 January 2017) at [37].
154. Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073, Statement of Evidence of Tamati Waaka (4 January 2017) at [38]–[41].

knows how to conduct discussions on the strategies of warfare and is himself courageous in battle, is not afraid to kill, and can turn adversities into victories.

4. Ko te kōrero manuhiri anō tētahi. Inviting and welcoming visitors is another (talent).

5. Ko te kōrero runanga anō tētahi. Conducting meetings of the people to discuss important issues is another.
6. Ko te atawhai anō tētahi. Yet another is being able to offer hospitality and to take care of people.”

Himiona Tikitu

1. He kaha ki te mahi kai. Has the knowledge of and is industrious in obtaining or cultivating food.
2. He kaha ki te whakahaere i ngā raruraru. Able to mediate, manage and settle disputes.
3. He toa. Is courageous at war.

4. He kaha ki te whakahaere i te riri. A good strategist and leader in war.

5. He mōhio ki te whakairo. Has knowledge of the arts of carving.

6. He atawhai tangata. Knows how to look after people.

7. Te hanga whare nunui, waka rānei. Has command of the knowledge and the technology to build large houses or canoes.
8. He mōhio ki ngā rohe whenua. Has a sound knowledge of the boundaries of tribal lands.

• 6.102 Karen Mokomoko (Ngāti Patumoana, Te Upokorehe, Ngāi Tamahaua hapū) states, “Rangatiratanga can be practiced by a person or by the people. It encompasses a level of authority (as a custodian) over all your land and rohe and responsibility for the welfare and customs of your people. This includes the health and wellbeing of the people, their resources, welfare, sustenance and defence.”155
• 6.103 Rangatira are also said to have a number of other roles:
  • Being a kaitiaki of their rohe. Ross Gregory (Te Rārawa, Te Aupōuri, Ngāti Kahu, Ngāpuhi, Ngāi Tahu) says that “[in] my view Panakareao was a Kaitiaki over our lands. His mana and status as a rangatira required it. His right to become a Kaitiaki was consolidated by [his] marriages. As Kaitiaki, Panakareao was required to protect the land and its people.”156 Robin Hapi (Ngāti Kahungunu) confirms that a rangatira prevents against depletion of a resource by conservation practices. Conservation practices may include controlling access to a resource but must always be fair and equitable for all.157

¹⁵⁵ Re Edwards [2021] NZHC 1025, Affidavit of Karen Stefanie Mokomoko (30 January 2020) at [31].

¹⁵⁶ Muriwhenua Land Report, Wai 45, #F28 Ross Gregory p.2.

157. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), Affidavit of Robin Hapi in support of application to join second and third respondents (27 September 1994); Exhibit A The Report (9 November 1993) at 5.
     • Margaret Mutu (Ngāti Kahu) discusses the responsibility of a rangatira to ensure their people are behaving appropriately in the rohe of another tribe. “In establishing inter- tribal alliances, land allocations could be made. Responsibility for the tribe coming in to occupy those lands could be left in the hands of the rangatira of sufficient mana within that tribe who, it was naturally expected, would ensure that members of that tribe did not offend the host tribe in any way.”158

• 6.104 The importance of the role of rangatira in upholding mana was demonstrated in Te Iwi Moriori Trust Board’s recount of the invasion of Ngāti Mutunga and Ngāti Tama. When discussing what response should be made to the invasion, it recounts the following:159

Sickened by fighting and killings, the paramount chief Nunuku Whenua who was closely related to the disputing tribes came amongst the people and decreed that from this day forward never again would there be war. He said “Are you fish who will eat you own young?”. He decreed from that day forward that men would only fight with wooden staffs called Tupuari and on drawing first blood the fight would end and honour was satisfied. Nunuku told the people “The day you disobey, may your bowels rot”. From that time forward, the people obeyed for fear of transgressing the covenant laid down by Nunuku.

...

The rangatahi urged that they had the greater numbers and although many would fall, they would eventually prevail. But the Ariki and Rangatira of the tribes forbid any transgression of Nunuku’s law. To them, it would have meant a loss of mana to have recommenced warfare and cannibalism which had been abandoned centuries earlier. By adhering to the laws of Nunuku, our ancestors were expressing their most deepest beliefs in tikanga Moriori. They were expressing their own mana in terms of their relationship with the land and other fellow human-beings.

• 6.105 Tāmati Kruger (Ngāti Koura, Ngāti Rongo, Ngāi Tūhoe) describes the concept of kōrero rangatira as a “chiefly understanding”. “Because of the way Māori conceive of whenua as a relationship with responsibilities and consequences, land cannot be “sold”, but a right of occupancy can be extended by either he kōrero rangatira (sanction by a rangatira) or whakaritenga tikanga – a loreful choice.”160 In Kruger’s opinion, Ngāti Whātua Ōrākei offered Hobson a chiefly licence to occupy Tāmaki Makaurau and an advantage of security and safety and also provided liberty to trade. The money and goods given by Hobson were a tākoha or a taonga to acknowledge the fact that a kōrero rangatira had taken place and the two leaders had a chiefly understanding.161

TOHUNGA

• 6.106 Tohunga were specially chosen and trained repositories of knowledge. Moe Milne (Ngāti Hine) says, “Tohunga were considered experts in their particular fields and held

¹⁵⁸ Muriwhenua Land Report, Wai 45, #H10 Margaret Mutu p.11.

159. Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission (HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J), “Rekohu (Chatham Islands) Submission to Te Ohu Kai Moana on Proposed Models of Allocation for Pre-settlement Assets” at 3, 4 and 5.
160. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger on behalf of the plaintiff (2 June 2020) at [143].
161. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843, Statement of evidence of Vivian Tāmati Kruger on behalf of the plaintiff (2 June 2020) at [143]–[145].

knowledge of a spiritual kind that was passed down through the generations. There were tohunga whakapapa, mahi rongoā, matakite. Both women and men were tohunga and this knowledge or spiritual abilities have descended through whakapapa to wāhine within Ngāti Hine today.”162

• 6.107 Tā Pou Temara (Tūhoe) explains that “[esoteric] and spiritual knowledge is knowledge that is restricted or tapu and only the sagacious few, the elite, are privy to that knowledge. In the Māori world, this elite are known [sic] as Tohunga”.163 He goes on to say:164

Those that are fortunate to be raised steeped in the knowledge of whakapapa, history, and Tikanga are known as Tohunga Whakapapa, Tohunga Whaikōrero or Pou Tikanga. It is these knowledge keepers that ensure the integrity of the relationships between the various realms.

...

Tohunga, or experts in the spiritual arts are tapu as they enter the realm of tapu in order to invoke, apply and protect places and people from harm and misfortune. However, they are not as tapu as women. They are expert practitioners of rituals.

Tohunga experts are chosen spiritual practitioners of invoking, applying and removing tapu from people, areas and buildings. However you can never remove tapu from certain areas such as mountains and rivers. This is because they were placed by the Gods before humankind came along and Tohunga cannot remove their tapu.

Tohunga must also possess the right whakapapa to have authentic authority over any particular place or peoples. Unsurprisingly Tohunga are drawn from senior genealogical lines of iwi much like the whakapapa of rangatira. There are examples of rangatira having dual roles. Tohunga can also be wahine. There are many examples of Tohunga wahine in many hapū and iwi.

...

Tohunga are tapu because they are a direct link to the appropriate atua or to the pantheon of atua. Atua are tapu and tapu come from atua. Therefore, the mandate of the Tohunga come from their whakapapa and from the atua. They become repositories of esoteric knowledge and as we already know, this kind of knowledge is tapu and not for general dissemination. Tohunga are the kauwaka or the mediums and mouthpieces of the atua.

While whakapapa was a key criterion, it is not unknown for people who do not have senior whakapapa, becoming Tohunga. They were the chosen of the goods to these positions. However, these examples are very few.

All iwi have histories of Tohunga. I recall at this Hingaangaroa of the famous Te Rāwheoro in Hauiti, Tologa Bay. Te Rangiuia was a later Tohunga of the same whare wānanga. Moihi Te Matorohanga was also an associate Tohunga at Te Rāwheoro. He had his own whare wānanga at Pāpāwai in Te Wairarapa. Te Whakatohea is no exception to these practices.

• 6.108 Temara (Tūhoe) goes on to list some of the important roles and responsibilities tohunga have:165

¹⁶² Mana Wāhine Kaupapa Inquiry, Wai 2700, #A62 Moe Milne at [90].

¹⁶³ Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [72].

¹⁶⁴ Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [9], [69]–[71] and [73]–[75].

¹⁶⁵ Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [76]–[79] and [81].

Tohunga were the protectors of the community and its individuals from the shafts of makutu, or, they were involved in imposing them. They had the gift of seeing into the future. This was called matakite. From this ability they were able to formulate ways of avoiding disaster. They could read the stars and make predictions as to whether the stars foretold an abundant year or a year of scarcity.

They could cure the sick. In short they were the go to people when misfortune befell the individual or the collective. They could either administer spiritual assistance or prescribe the appropriate rongoā to collect from the forest or the waters.

They had amazing memories. Elsdon Best records that Te Makarini, a Tohunga of Tūhoe, recited whakapapa in the 19^th century for nearly three days, pausing only to eat and sleep

...

Tohunga knew karakia and its different forms. This was their communication to the appropriate atua. Like whakapapa, karakia is tapu. Tohunga understand what tapu is and how it could be negotiated.

...

In order to maintain their access to the atua, there were certain protocols or tikanga that they observed and lived by. Their personage was tapu with the head being the most tapu. Even modern Tohunga are aware of this and take care not to place themselves in a position where food may pass over their heads especially in a restaurant. The question is why? Tohunga refrained from anything that could contaminate that tapu state and render them un-tapu. A simple fact of today like washing in hot water was not an option, as hot water was considered ‘cooked’ and therefore could not be applied to the tapu body of a Tohunga

... Some Tohunga were so tapu that they did not wash. These kinds of Tohunga tended to live apart from the community

...

Tohunga were the keepers of history, hindsight and foresight. They were founts of wisdom gathered over the many experiences of their calling ... Tohunga were integral to the everyday life of the community but came to the fore in times of crisis.

• 6.109 Waiohau Te Haara (Ngāti Rangi) talks about tohunga having a kaitiaki role, including to interpret unnatural phenomena such as a log floating against the current, which would be deemed a taniwha – a taniwha being a manifestation of an unnatural occurrence.166
• 6.110 Another important function of tohunga is in relation to tapu. Wallace Wihongi (Ngāti Mahia, Te Uri o Hua, Ngāti Hine) also points out that an important function of tohunga is the ability to remove or lift tapu from the land.167 Louis Rapihana (Te Whakatōhea, Te Whānau-ā-Apanui, Ngāi Tama, Ngāti Rua, Ngāti Patu, Ngāti Ngāhere) also mentions that tohunga have many responsibilities, including “putting wāhi tapu boundaries in place, lifting tapu from wāhi that may need to be used for noa activities, maintaining and protecting wāhi tapu from inappropriate uses and acting as knowledge keepers for wāhi tapu locations”.168

166. Beadle and Wihongi v Minister of Corrections, EnvC Wellington A074/2002, Statement of Evidence of Waiohau (Ben) Te Haara in support of the Minister of Corrections (undated) at [16].
167. Beadle and Wihongi v Minister of Corrections, EnvC Wellington A074/2002, Statement of Evidence of Wallace Wihongi in support of the Minister of Corrections (undated) at [14].

¹⁶⁸ Re Edwards [2021] NZHC 1025, Affidavit of Louis Agassiz Schenker Rapihana (31 March 2022) at [4.5].

• 6.111 Te Riaki Amoamo (Te Whakatōhea, Ngāti Patumoana, Ngāti Ruatakenga) says a tohunga is someone that is “highly skilled and expert” and are “lifelong roles in Te Ao Māori. They are expert in traditional customs, arts, rituals and karakia all underpinned by Tikanga. Examples are Tohunga Whakairo (master carver), Tohunga Wete Reo (linguist), Tohunga Tā Moko (moko, tattoo expert).”169 “Women can also be Tohunga or Pūkenga depending on the skills they possess ...”170
• 6.112 Amoamo goes on to discuss the role of a “pou tikanga”:171

Pou Tikanga roles who are kaitiaki of knowledge and whakapapa, kaitiaki of their marae tikanga and kawa to maintain the future wellbeing of their hapū. They are fluent in te reo Māori and practitioners of Tikanga. Pou means “to appoint or anoint” or a “support pole, ridgepole”...

Pou Tikanga are lifelong roles and taken up by destiny, fate or they are trained roles, and māngai reo are short-term roles of a specific purpose. That is why Pou Tikanga have the final say in the hapū or iwi, because of their mana, authority and knowledge to protect the interests of the tribe.

• 6.113 Tā Pou Temara (Tūhoe) also discusses the concept of pou tikanga. He says that “[those] that are fortunate to be raised steeped in the knowledge of whakapapa, history and Tikanga are known as Tohunga Whakapapa, Tohunga Whaikōrero or Pou Tikanga.”172 He says that the “local Tohunga and Pou Tikanga from the hapū and iwi will know the traditional knowledge of the area and which areas are tapu and out of bounds, and which areas have varying degrees of tapu”.173 In the modern day where, for example, a developer wishes to build houses in an area where there were once pā tahito, the precise locations of these pā are able to be determined by tohunga and pou tikanga.174

¹⁶⁹ Re Edwards [2021] NZHC 1025, Second Affidavit of Te Riaki Amoamo (21 February 2022) at [28].

¹⁷⁰ Re Edwards [2021] NZHC 1025, Second Affidavit of Te Riaki Amoamo (21 February 2022) at [29].

¹⁷¹ Re Edwards [2021] NZHC 1025, Second Affidavit of Te Riaki Amoamo (21 February 2022) at [21] and [22].

¹⁷² Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [9].

¹⁷³ Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [65].

¹⁷⁴ Re Edwards [2021] NZHC 1025, Affidavit of Tā Pou Temara (24 January 2022) at [90].

Appendix: Number of briefs reviewed and sources

	WAITANGI TRIBUNAL REPORTS
	Wai 22
1.		Muriwhenua Fishing Report, Wai 22 #A13 Miraka Szászy’s evidence (undated)
2.		Muriwhenua Fishing Report, Wai 22 #A14 Reverend Maori Marsden’s submissions (undated)
3.		Muriwhenua Fishing Report, Wai 22 #B30 Chairman of Ngai Takoto Trust – Reverend Harold Petera’s submissions (March 1987)
4.		Muriwhenua Fishing Report, Wai 22 #B33 Wiremu Herewini Paraone submissions (undated)
5.		Muriwhenua Fishing Report, Wai 22 #B57 Submissions by Niki Kanara (Conrad) and Piri Paraone and Ratima Petera (undated)
6.		Muriwhenua Fishing report, Wai 22, #C12 Affidavit of Matiu Rata in support of application for judicial review (undated)
7.		Muriwhenua Fishing Report, Wai 22 #D6 P Hohepa’s position paper “Fisheries and the Maori People” (delivered at the Seminar on Fisheries for Maori Leaders, University of Auckland, 13-15 August 1976). Disclaimer: may not be primary source evidence.

	Wai 45
8.		Muriwhenua Land Report, Wai 45, #A6 Brief of evidence of Miraka Szászy
9.		Muriwhenua Land Report, Wai 45, #A7 / A14 Submission by Reverend Māori Marsden on behalf of Te Aupouri, Ngāti Kuri and Ngāti Takoto
10.		Muriwhenua Land Report, Wai 45, #B2 Rima Eruera (Edwards) submission (B2)
11.		Muriwhenua Land Report, Wai 45, #C10 Ross Gregory plan of introduction
12.		Muriwhenua Land Report, Wai 45, #C17 Reverend Māori Marsden’s submissions on 6 March 1991 (a member of Aupouri, Ngatikahu and Te Rarawa by direct descent and one of the original claimants on behalf of Ngaitakoto in particular)
13.		Muriwhenua Land report, Wai 45, #C22 Statement of evidence by Hirini Paerangi Matunga (7 March 1991)
14.		Muriwhenua Land Report, Wai 45, #F12 Evidence from Dr Margaret Mutu, Dame Joan Metge and Maurice Alemann for Wai 45
15.		Muriwhenua Land Report, Wai 45, #F19 Submission for the Waitangi Tribunal – Muriwhenua Land Claim (Anne Salmond) (undated)
16.		Muriwhenua Land Report, Wai 45, #F23 Rima Eruera’s evidence for the Muriwhenua Land Claim
17.		Muriwhenua Land Report, Wai 45, #F25 Maori Marsden evidence for the Muriwhenua Land Claim
18.		Muriwhenua Land Report, Wai 45, #F28 Evidence of Ross Gregory for Muriwhenua Land Claim
19.		Muriwhenua Land Report, Wai 45, #F29 Evidence of Winiata and Marian Paraone for the Muriwhenua Land Claim
20.		Muriwhenua Land Report, Wai 45, #F31

		Evidence of Rapata Rapine Romana in the Muriwhenua Land Claim
21.		Muriwhenua Land Claim, Wai 45, #F33 Submissions by Tuini Sylva in the Muriwhenua Land Claim
22.		Muriwhenua Land Report, Wai 45, #H10 Submissions of Crown counsel in opposition to application by claimants for interim find and recommendations in respect of the Paki Farm Park
23.		Muriwhenua Land Report, Wai 45, #H19 Evidence of Pita M Pangari
24.		Muriwhenua Land Report, Wai 45 #M3 Evidence about “Maori law”
	Wai 262
25.		Brief of evidence of Laly Paraone Haddon
26.		Brief of evidence of Hori Te Moanaroa Parata
27.		Brief of evidence of Wiremu McMath
28.		Brief of evidence of Himiona Peter Munroe
29.		Brief of evidence of Bruce Gregory
30.		Brief of evidence of Houpeke Piripi
31.		Brief of evidence of Rapata Romana
32.		Brief of evidence of Niki May Lawrence
33.		Brief of evidence of Rapine Simon William Nicholas Robert Murray
34.		Brief of evidence of Mata Ra-Murray
35.		Brief of evidence of Haana Waitai Murray
36.		Brief of evidence of Mereraina Uruamo
37.		He kupu korero na Te Kapunga Matemoana Dewes. Evidence statement of Te Kapunga Matemoana Dewes (31 July 1998)
38.		He kupu korero na Wayne James Ngata. Evidence statement for Wayne James Ngata (31 July 1998)

39.	He kupu korero na Piripi Rairi Aspinall. Evidence statement for Piripi Rairi Aspinall (31 July 1998)
40.	He kupu korero na Maggie Ryland. Summary of evidence statement for Maggie Ryland (31 July 1998)
41.	He kupu korero na Apirana Tuahae Mahuika. Evidence statement for Apirana Tuahae Mahuika (12 April 1999)
42.	He kupu a Laura Thompson. Statement of evidence for Laura Thompson (9 April 1999)
43.	Evidence statement for Reverend Eru Potaka-Dewes (11 April 1999)
44.	Evidence statement for Hirini Te Aroha Pani Clarke (11 April 1999)
45.	Evidence statement of Hunaara Tangaere II (6 August 1999)
46.	Statement of evidence of Alfred Madsen Elkington for Hearing 6-10 December 1999
47.	Statement of evidence of Terewai Grace Grace for Hearing 6-10 December 1999
48.	Statement of evidence of Puhanga Patricia Tupaea for Hearing 6-10 December 1999
49.	Statement of evidence of Bejamin Turi Hippolite for Hearing 6-10 December 1999
50.	Statement of evidence of Priscilla Paul for Hearing 6-10 December 1999
51.	Statement of evidence of Huia Elkington for Hearing 6-10 December 1999
52.	Supplementary brief of evidence of Huia Elkington for Hearing 6-10 December 1999
53.	Statement of evidence of Kathleen Hemi for Hearing 6-10 December 1999
54.	Statement of evidence of James Elkington for Hearing 6-10 December 1999
55.	Brief of evidence of Hori Turi Elkington for hearing 6-10 December 1999
56.	Brief of evidence of Kate Parahi on behalf of Ngati Kahungunu
57.	Brief of evidence of Ross Young Scott on behalf of Ngati Kahungunu
58.	Brief of evidence of Rerekohi Ahiahi Robertson on behalf of Ngati Kahungunu
59.	Brief of evidence of Alice Hopa on behalf of Ngati Kahungunu
60.	Brief of evidence of Wero Karena on behalf of Ngati Kahungunu

61.	Brief of evidence of Piri Sciascia on behalf of Ngati Kahungunu
62.	Brief of evidence of Abel George Clark on behalf of Ngati Kahungunu
63.	Brief of evidence of Waka Gilbert on behalf of Ngati Kahungunu
64.	Brief of evidence of Charles Kohi II King on behalf of Ngati Kahungunu
65.	Brief of evidence of Murray Hemi on behalf of Ngati Kahungunu
66.	Brief of evidence of Mere Joslyn Whaanga on behalf of Ngati Kahungunu
67.	David Williams Matauranga Maori and Taonga: The Nature and Extent of Treaty Rights Held by Iwi and Hapu in Indigenous Flora and Fauna Cultural Heritage Objects Valued Traditional Knowledge (Waitangi Tribunal Publications, 2001)
68.	Brief of evidence of Sir Ian Hugh Kawharu
69.	Statement of evidence of Mason Durie on behalf of Ngati Wai, Ngati Kuri, Te Rarawa
70.	Statement of evidence of Dr Hirini Moko Mead for the Ngati Porou claimants in the Wai 262 inquiry (17 May 2002)
71.	Statement of evidence of Haami Piripi on behalf of Te Rarawa (2006)
72.	Updating evidence of Ross Young Scott on behalf of Ngati Kahungunu (11 August 2006)
73.	Updating evidence of Philip Lewis Rasmussen on behalf of Ngati Kahungunu (11 August 2006)
74.	Statement of evidence of Rei Mokena Kohere in support of the Ngati Porou Wai 262 claims (14 August 2006)
75.	Evidence statement of Tate Pewhairangi in support of the Ngati Porou claims (10 August 2006)
76.	Statement of evidence of Mark Kopua on behalf of Ngāti Porou (2006)
77.	Statement of evidence of Hirini Te Aroha Pani (Syd) Clarke in support of the Ngati Porou Wai 262 claims (14 August 2006)
78.	Statement of evidence of Connie Pewhairangi in support of the Ngati Porou Wai 262 claims (14 August 2006)
79.	Corrected statement of evidence No.2 of Dr Apirana Tuahae Mahuika (17 August 2006)
80.	Brief of evidence of Piripi Walker dated 14 August 2006

81.		Hearing #1: Flora and Fauna Claim (Wai 262) 15-19 September 1997, Tamatea Marae, Motuiti and Ngati Wai Trust Board, Whangarei
82.		Hearing #5: Flora and Fauna Claim (Wai 262) 10-14 August 1998, Pakirikiri Marae, Tokomaru Bay
83.		Hearing #8: Flora and Fauna Claim (Wai 262) 26-26 July 1999, Rahui Marae, Tikitiki
84.		Wai 262 – Indigenous Flora & Fauna Inquiry Te Reo Transcripts for Ngāti Porou Claimants for the hearing held 23-26 August 1999 at Rahui Marae, Tikitiki
	Wai 307
85.		The Fisheries Settlement Report, Wai 307, #A009 Affidavit of Maui Ashley Solomon for and on behalf of himself, his whānau, hapū and members of Te Iwi Moriori in Rekohu, Pitt Island and mainland NZ in support of claim for urgent hearing on Sealords Fisheries Deal (29 September 1992)
86.		The Fisheries Settlement Report, Wai 307, #A10 Submission by Maui Weepu for Tuhuru (A10)
87.		The Fisheries Settlement Report, Wai 307, #A13 Affidavit of M K Bradley, Rūnanga a Rangitane o Wairau
88.		The Fisheries Settlement Report, Wai 307, #A21 Submission by E Manukau for Ngāti Whātua
89.		The Fisheries Settlement Report, Wai 307, #A22 Submission by P Ricky, Huitana Te Hau and Hirini Christy for Rongomaiwahine
90.		The Fisheries Settlement Report, Wai 307, #A27 Submisison by H M Mead for Rūnanga o Ngāti Awa
91.		The Fisheries Settlement Report, Wai 307, #A30 Submissions for Te Whānau ā-Nuku and Te Whānau ā-Kahurautao (ētahi hapū o Te Whānau-ā-Apanui)
92.		The Fisheries Settlement Report, Wai 307, #B7(b) Affidavit of T C Mohi (Te Rūnanganui o Ngāti Kahungunu)
93.		The Fisheries Settlement Report, Wai 307, #B8(b) Statement of Kakapaiwaho Kururangi Tibble
94.		The Fisheries Settlement Report, Wai 307, #B8(c) Affidavit of A Mahuika (Te Rūnanga o Ngāti Porou)

95.		The Fisheries Settlement Report, Wai 307, #B9 Submission of T O’Regan re the meaning of iwi and hapū
96.		The Fisheries Settlement Report, Wai 307, #B10(a) Submission of A D Chadwick on behalf of Te Whānau ā-Kaiaio (tētahi hapū o Te Whānau-ā-Apanui) dated 6 Oct 1992
97.		The Fisheries Settlement Report, Wai 307, #B16. Submission H Mead on the Nature of Modern Māori Social Units, produced by T Woods
98.		The Fisheries Settlement Report, Wai 307, #B23. Submission of M Solomon for Te Iwi Moriori
99.		The Fisheries Settlement Report, Wai 307, #B28(e). Affidavit of Tā Robert Te Kotahi Mahuta in Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1992] NZCA 503; [1993] 2 NZLR 301 dated 17 Oct 1992 and shared with the Tribunal
100.		The Fisheries Settlement Report, Wai 307, #B28(f). Affidavit of Henare Kohere Ngata in Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1992] NZCA 503; [1993] 2 NZLR 301 dated 16 Oct 1992 and shared with the Tribunal
	Wai 2700
101.		Mana Wāhine Kaupapa Inquiry, Wai 2700, #A17 Brief of evidence of Ani Mikaere dated 20 January 2021
102.		Mana Wāhine Kaupapa Inquiry, Wai 2700, #A19 Brief of evidence of Leonie Pihama dated 20 January 2021
103.		Mana Wāhine Kaupapa Inquiry, Wai 2700, #A55 Speaking notes of Paula Ormsby dated 23 February 2021
104.		Mana Wāhine Kaupapa Inquiry, Wai 2700, #A62 Kōrero Taunaki ā (brief of evidence by) Moe Milne dated 30 June 2021
105.		Mana Wāhine Kaupapa Inquiry, Wai 2700, #A63 Brief of evidence by Ella Y Henry dated 21 June 2021
106.		Mana Wāhine Kaupapa Inquiry, Wai 2700, #A67 Brief of evidence by Dr Ngahuia Murphy 30 June 2021
107.		Mana Wāhine Kaupapa Inquiry, Wai 2700, #A71 Brief of evidence of Rereata Makiha dated 2 July 2021

ENVIRONMENT COURT & PLANNING TRIBUNAL CASES
Huakina Development Trust v Waikato Valley Authority [1986] NZPT 87 (9 May 1986)
108.	Supporting evidence of Nganeko Minhinnick (18 March 1986)
109.	Submissions in support of objections by Nganeko Minhinnick presented on behalf of the Tainui Trust Board, The Huakina Development Trust and the Trustees of Waahi Marae. Witness: James Ernest Ritchie (16 November 1984)
Beadle and Wihongi v Minister of Corrections EnvC Wellington A074/2002
110.	Statement of evidence of Te Kerei Anihana for Ronald and Riana Wihongi (August 2001)
111.	Statement of evidence of Dr Cleve Barlow for Ronald and Riana Wihongi (August 2001)
112.	Statement of evidence of Shayron Lee Beadle (August 2001)
113.	Statement of evidence of Richmond Douglas Beetham for the Friends & Community of Ngawha Inc (August 2001)
114.	Statement of evidence of Roger Brand for the Friends & Community of Ngawha Inc (August 2001)
115.	Statement of evidence of Agnes Te Haara Clarke for Ronald and Riana Wihongi (August 2001)
116.	Statement of evidence Chanel Victoire Clarke for the Friends & Community of Ngawha Inc (August 2001)
117.	Statement of evidence of Eileen McNicol Clarke (August 2001)
118.	Statement of evidence of Naki Cooper for Ronald and Riana Wihongi (August 2001)
119.	Statement of evidence of Douglas Baden Cuneen for Friends & Community of Ngawha Inc (August 2001)
120.	Statement of evidence Michael Isaac for the Friends & Community of Ngawha Inc (August 2001)
121.	Statement of evidence of Maata Lee for Ronald and Riana Wihongi (August 2001)
122.	Statement of evidence of Toi Mahi for Ronald and Riana Wihongi (August 2001)
123.	Statement of evidence of Robin Martin for Ronald and Riana Wihongi (August 2001)
124.	Statement of evidence of Torrence Ogle for Ronald and Riana Wihongi (August 2001)

125.	Statement of evidence of Matt Rakena for Ronald and Riana Wihongi (August 2001)
126.	Statement of evidence of Rangi Thompson for Ronald and Riana Wihongi (August 2001)
127.	Statement of evidence of Hori Rakete for Ronald and Riana Wihongi (August 2001)
128.	Statement of evidence of David Rankin for Ronald and Riana Wihongi (August 2001)
129.	Statement of evidence of Alice Mary Gwendolen Sheppard for the Friends & Community of Ngawha Inc (August 2001)
130.	Statement of evidence of Riana Wihongi (August 2001)
131.	Statement of evidence of Ronald Te Ripi Wihongi (August 2001)
132.	Statement of evidence of Waiora Wihongi for Ronald and Riana Wihongi (August 2001)
133.	Statement of evidence of Paul Wihongi for Ronald and Riana Wihongi (August 2001)
134.	Statement of evidence of Raewyn Tipene for Ronald and Riana Wihongi (August 2001)
135.	Statement of evidence Millie Vujcich for the Friends & Community of Ngawha Inc (August 2001)
136.	Statement of evidence of Steve Williams for Ronald and Riana Wihongi (August 2001)
137.	Statement of evidence of Vernon Richard Cross Warren for the Friends & Community of Ngawha Inc (September 2001)
138.	Statement of evidence of Michael John McGlynn on behalf of the Minister of Corrections (10 September 2001)
139.	Affidavit of Keith Murray Gibson (10 September 2001)
140.	Statement of evidence of Derek Stephen McCoy on behalf of the Minister of Corrections (11 September 2001)
141.	Affidavit of Rodney Edward Clough (11 September 2001)
142.	Affidavit of evidence of Patricia Mary Scott (12 September 2001)
143.	Affidavit of evidence of William Bruce Shaw (12 September 2001)
144.	Affidavit of Keith Murray Gibson (13 September 2001)

145.	Statement of evidence of Bella Edmonds in support of the Minister of Corrections
146.	Statement of evidence of Garry Lee Hooker for the Friends & Community of Ngawha Inc
147.	Statement of evidence of Mac Anania in support if the Minister of Corrections
148.	Statement of evidence of Mac Anania in support of the Minister of Corrections (undated)
149.	Supplementary statement of evidence of Harold Francis Bhana on behalf of the Minister of Corrections
150.	Statement of evidence of Harold Francis Bhana on behalf of the Minister of Corrections
151.	Affidavit of Albert Victor Clarke for the Ngati Rangi Ahu Wheuna Trust
152.	Statement of evidence of Reuben Clarke in support of the Minister of Corrections (undated)
153.	Statement of evidence of Rueben Clarke in support of the Minister in reply
154.	Affidavit of Xavier Gee Nang Oh (undated)
155.	Statement of evidence of Gary Hooker for the Friends & Community of Ngawha Inc (undated)
156.	Statement of evidence of Michael John McGlynn on behalf of the Minister of Corrections in reply (undated)
157.	Statement of evidence of Andrew Sarich in support of the Minister of Corrections (undated)
158.	Statement of evidence of Bella Tari in support of the Minister of Corrections (undated)
159.	Statement of evidence of Waiohau (Ben) Te Haara in support of the Minister of Corrections (undated)
160.	Evidence of Waiohau (Ben) Te Haara in reply (undated)
161.	Statement of evidence of McLaen Neil Gordan Te Haara in support of the Minister of Corrections (undated)
162.	Evidence of McLaen Gordon Te Haara in reply (undated)
163.	Statement of evidence of Wallace Wihongi in support of the Minister of Corrections
164.	Statement of evidence of Wallace Wihongi in support of the Minister in reply

	Minhinnick v Minister of Corrections [2004] NZEnvC A43/04, 6 April 2004
165.		Statement of evidence by William Gregory Whewell on behalf of the Minister of Corrections in rebuttal (21 January 2003)
166.		Statement of evidence of Tuherea Kaihau in support of Nganeko Minhinnick (2 October 2003)
167.		Statement of evidence of Rodney Clough on behalf of the Minister of Corrections (November 2003)
168.		Statement of evidence of Noreen Barton on behalf of the Minister of Corrections (November 2003)
169.		Statement of evidence of Allen Beagley on behalf of the Minister of Corrections (November 2003)
170.		Statement of evidence of Justine Bray on behalf of the Minister of Corrections (November 2003)
171.		Statement of evidence by Leanne Field on behalf of the Minister of Corrections (November 2003)
172.		Statement of evidence of Rau Hoskins on behalf of the Minister of Corrections (November 2003)
173.		Statement of evidence of Philip Millichamp on behalf of the Minister of Corrections (November 2003)
174.		Statement of evidence by Wayne Otway on behalf of the Minister of Corrections in rebuttal (November 2003)
175.		Statement of evidence of William Shaw on behalf of the Minister of Corrections (November 2003)
176.		Statement of evidence of Bryan Spencer on behalf of the Minister of Corrections (November 2003)
177.		Statement of evidence of Charlie Tawhiao on behalf of Minister of Corrections (November 2003)
178.		Statement of evidence of Tahuna Minhinnick (December 2003)
179.		Statement of evidence of Michael Campbell Copeland on behalf of the Minister of Corrections (undated)
180.		Statement of evidence by Buddy Mikaere on behalf of the Minister of Corrections (undated)
181.		Statement of evidence by Buddy Mikaere on behalf of the Minister of Corrections in rebuttal (undated)

182.		Statement of evidence of Nganeko Minhinnick of Ngati Te Ata Waiohua
183.		Statement of evidence of Roimata Minhinnick (undated)
184.		Statement of evidence of Robert Pryor on behalf of the Minister of Corrections (undated)
185.		Statement of evidence of Brownie Rauwhero on behalf of the Minister of Corrections (undated)
186.		Statement of evidence by Grant Hawke on behalf of the Minister of Corrections in rebuttal (undated)
187.		Statement of evidence of Pare Rauwhero on behalf of the Minister of Corrections (undated)
188.		Statement of evidence by Charlie Tawhiao on behalf of the Minister of Corrections in rebuttal (undated)
189.		Statement of evidence of Roger Ward on behalf of the Minister of Corrections (undated)
	Tainui Hapu v Waikato Regional Council ENC Auckland A063/2004
190.		Notes of evidence taken before Judge D F G Sheppard and Commissioners R Dunlop and P A Catchpole (23 February 2004)
191.		Statement of evidence of Gary James Allis
192.		Statement of evidence of Mark Bulpitt Chrisp
193.		Statement of evidence of John Milton Crawford
194.		Statement of evidence of Robert Allen Docherty
195.		Statement of evidence of Sean Ellison on behalf of Tainui Hapū (undated)
196.		Statement of evidence of Angeline Greensill on behalf of Tainui Hapū (undated)
197.		Affidavit of Rewi Maniapoto Gregory
198.		Statement of evidence of Malibu Hamilton
199.		Statement of evidence of Josephine Kereopa
200.		Statement of evidence of Rangimorehu Kereopa on behalf of Tainui Hapū (undated)
201.		Statement of evidence of James (Tex) Rickard on behalf of Tainui Hapū (undated)

202.		Statement of evidence of Sheryl Aroha Roa
203.		Statement of evidence of Michael James Safey
204.		Statement of evidence of Lesley Syme
205.		Statement of evidence of William Nisbet Vant
	Te Maru o Ngāti Rangiwewehi v Bay of Plenty Regional Council [2008] NZEnvC 24; [2008] NZRMA 395
206.		Evidence of Anne Lloyd Nicholas (28 September 2007)
207.		Evidence of Richard Peter Hunt (5 October 2007)
208.		Statement of evidence of Sandra Rose Te Hakamatua Lee (November 2007)
209.		Statement of evidence of Gina Mohi (November 2007)
210.		Brief of evidence of Te Rangikaheke Bidois (November 2007)
211.		Statement of evidence of Brian Henry Easton (November 2007)
212.		Statement of evidence of Andrea Rickard (November 2007)
213.		Statement of evidence of Dr Marian Mare (9 November 2007)
214.		Statement of evidence of Lanning Patrick Tutakiahani Simpkins (16 November 2007)
215.		Statement of evidence of Ngahihi o Te Ra (19 November 2007)
216.		Statement of evidence of Anthony Gerard Bryce (28 November 2007)
217.		Statement of rebuttal evidence of Paul Francis Cooper (28 February 2008)
218.		Statement of rebuttal evidence of Richard Peter Hunt (29 February 2008)
219.		Statement of rebuttal evidence of Anthony Gerard Bryce (April 2008)
220.		Statement of further rebuttal evidence of Richard Peter Hunt (12 April 2008)
221.		Evidence of Eric George Cawte (undated)
222.		Rebuttal evidence of Eric George Cawte (undated)
223.		Further rebuttal evidence of Eric George Cawte (undated)
224.		Evidence of Paul Francis Cooper (undated)

225.		Statement of evidence of Anthony Peter Cussins (undated)
226.		Statement of rebuttal evidence of Anthony Peter Cussins (undated)
227.		Statement of rebuttal evidence of Stephen Paul Finnemore (undated)
228.		Brief of evidence of Mr Te Ururoa Flavell (undated)
229.		Evidence of David Kingston Rowe (undated)
230.		Rebuttal evidence of David Kingston Rowe (undated)
	Marr v Bay of Plenty Regional Council [2010] NZEnvC 347
231.		Statement of evidence of Huia Ann Pacey (2009)
232.		Statement of evidence of Richard Mark Allibone (5 March 2010)
233.		Statement of evidence of Ian Kenneth Grant Boothroyd (5 March 2010)
234.		Statement of evidence of Robert James Greenaway (5 March 2010)
235.		Statement of evidence of Ernie Hacker (5 March 2010)
236.		Statement of evidence of Christopher Wayne Hickey (5 March 2010)
237.		Statement of evidence of Neale Alan Hudson (5 March 2010)
238.		Statement of evidence of Tracy Joanne Freeman (5 March 2010)
239.		Statement of evidence of Anthony Peter Johnson (5 March 2010)
240.		Statement of evidence of Henare Kapa (5 March 2010)
241.		Statement of evidence of Brice Landman (5 March 2010)
242.		Statement of evidence of John Mahanga (5 March 2010)
243.		Statement of evidence of Lindsay John Ngahau Marr (25 May 2010)
244.		Statement of evidence of Philip Hunter Mitchell (5 March 2010)
245.		Statement of evidence of James Charles Newfield (5 March 2010)
246.		Statement of evidence of Henry Pryor (5 March 2010)

247.		Evidence of Robert Christopher Donald (1 April 2010)
248.		Statement of evidence of Dr Bruce William Lang Graham (1 April 2010)
249.		Statement of evidence of Dr Gavin Douglas Kemble (1 April 2010)
250.		Statement of evidence of Lindsay John Marr and Tiipene Perenara Marr as spokespersons for Nga Uri O Ngati Rangitihi (8 April 2010)
251.		Statement of evidence of Andre Paterson (16 April 2010)
252.		Rebuttal evidence of Christopher Wayne Hickey (27 April 2010)
253.		Rebuttal evidence of Anthony Richard Mark Allibone (30 April 2010)
254.		Rebuttal evidence of Ian Tracy Freeman (30 April 2010)
255.		Rebuttal evidence of Ian Kenneth Grant Boothroyd (30 April 2010)
256.		Rebuttal evidence of Ian Robert James Greenaway (30 April 2010)
257.		Rebuttal evidence of Anthony Neale Alan Hudson (30 April 2010)
258.		Rebuttal evidence of Anthony Peter Johnson (30 April 2010)
259.		Rebuttal evidence of Henry Pryor (30 April 2010)
260.		Statement of David Potter
	Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073
261.		Statement of evidence on behalf of the applicant by Colin John Barker (27 October 2016)
262.		Statement of evidence on behalf of the applicant by Dr Brett James Beamsley (28 October 2016)
263.		Statement of evidence on behalf of the applicant by Richard Owen Boyd (28 October 2016)
264.		Statement of evidence of Antoine Coffin on behalf of the applicant (28 October 2016)
265.		Statement of evidence on behalf of the applicant by Sharon De Luca (28 October 2016)
266.		Statement of evidence on behalf of the applicant by Andrew James Dodd (28 October 2016)

267.	Statement of evidence on behalf of the applicant by Keith Frentz (28 October 2016)
268.	Statement of evidence of Harawira Tiri Gardiner on behalf of the applicant (28 October 2016)
269.	Statement of evidence of Desmond Tatana Kahotea on behalf of the applicant (28 October 2016)
270.	Statement of evidence on behalf of the applicant by Francesca Kelly (28 October 2016)
271.	Statement of evidence on behalf of the applicant by Roger Charles King (28 October 2016)
272.	Statement of evidence on behalf of the applicant by Simon John Mitchell (28 October 2016)
273.	Statement of evidence on behalf of the applicant by Captain John Dealey Owen (28 October 2016)
274.	Statement of evidence of Shadrach Rolleston on behalf of the applicant (28 October 2016)
275.	Statement of evidence on behalf of the applicant by Wade Nathan Robertson (28 October 2016)
276.	Statement of evidence on behalf of the applicant by Philip Maxwell Ross (28 October 2016)
277.	Statement of evidence on behalf of the applicant by Konstantinos Zacharatos (28 October 2016)
278.	Statement of evidence of Nicholas Ashley Conland – Bond Quantification (25 November 2016)
279.	Statement of evidence of Peter John Cressey – Human Health (25 November 2016)
280.	Statement of evidence of John Hudson – Natural Character and Natural Landscape and Features (28 November 2016)
281.	Statement of evidence of John Edward Brodie – Ecology, Ecotoxicity, Water Quality and Sediment Quality (30 November 2016)
282.	Statement of evidence of Camiel De Jongh – Wreck Removal (30 November 2016)
283.	Statement of evidence of Reuben Francis Fraser – Planning (30 November 2016)
284.	Statement of evidence of Lance Thomas Marshall – Wreck Deterioration (30 November 2016)

285.	Primary statement of evidence of Frances Ngawiki Clarke for Te Rūnanga o Ngāti Whakaue ki Maketū and Te Arawa Takitai Moana Kaumatua Forum (22 December 2016)
286.	Primary statement of evidence of Shaw Trevor Mead on behalf of the iwi appellants (22 December 2016)
287.	Primary statement of evidence of Tane Junior Ngawhika for Te Arawa Takitai Moana Kaumatua Forum and Te Rūnanga o Ngāti Whakaue ki Maketū Inc. (22 December 2016)
288.	Statement of evidence by Kura Paul-Burke on behalf of the Korowai Kāhui o ngā Pakeke o te Patuwai (22 December 2016)
289.	Primary statement of evidence of Tohu Ripeka Te Whata for Te Arawa Takitai Moana Kaumātua Forum and Te Rūnanga o Ngāti Whakaue (22 December 2016)
290.	Primary statement of evidence of Rereamanu Patana Wihapi (22 December 2016)
291.	Primary statement of evidence of Aroha Gwenvillan Wilkinson for Te Rūnanga o Ngāti Whakaue ki Maketū Inc. and Te Arawa Takitai Moana Kaumatua Forum (22 December 2016)
292.	Primary statement of evidence of Barrie William Wilkinson for Te Runanga o Ngati Whakaue ki Maketu Inc And Te Arawa Takitai Moana Kaumatua Forum (22 December 2016)
293.	Statement of evidence of Nepia Ranapia on behalf of the Korawai Kāhui o nga Pakeke o te Patuwai (The Korawai) (22 December 2016)
294.	Primary statement of evidence of Manu Hughes Pene for Te Rūnanga o Ngāti Whakaue ki Maketū Inc. and Te Arawa Takitai Moana Kaumatua Forum (22 December 2016)
295.	Primary statement of evidence of Paku Akuhata on behalf of the iwi appellants (23 December 2016)
296.	Primary statement of evidence of Elaine Rangi Butler on behalf of the iwi appellants (23 December 2016)
297.	Primary statement of evidence of Margaret Meteria Clarke for Te Rūnanga o Ngāti Whakaue ki Maketū Inc. and Te Arawa Takitai Moana Kaumatua Forum (23 December 2016)
298.	Statement of evidence of Mason Harold Durie (23 December 2016)
299.	Statement of evidence of Robert James Greenaway on behalf of the Mount Maunganui Underwater Club Inc (23 December 2016)

300.	Primary statement of evidence of Peretini Hawea-a-Rangi Te Whata for Te Arawa Takitai Moana Kaumātua Forum and Te Rūnanga o Ngāti Whakaue (23 December 2016)
301.	Statement of evidence of Russell James Hawkins on behalf of the Mount Maunganui Underwater Club Inc (23 December 2016)
302.	Primary statement of evidence of Nadia Haua on behalf of the iwi appellants (23 December 2016)
303.	Statement of evidence of Wayne Allan Kennedy on behalf of the Mount Maunganui Underwater Club Inc (23 December 2016)
304.	Primary statement of evidence of Alice Kiwa on behalf of the iwi appellants (23 December 2016)
305.	Primary statement of evidence of Peri Kohu on behalf of the iwi appellants (23 December 2016)
306.	Primary statement of evidence of Thomas Abraham McCausland for Te Arawa Takitai Moana Kaumatua Forum and Te Rūnanga o Ngāti Whakaue ki Maketū Inc (23 December 2016)
307.	Primary statement of evidence of Vervies Punohu McCausland for Te Arawa Takitai Moana Kaumatua Forum and Te Rūnanga o Ngāti Whakaue ki Maketū Inc (23 December 2016)
308.	Primary statement of evidence of Te Wano Ngahana Ngatipeehi Walters for Te Rūnanga o Ngāti Whakaue ki Maketū Inc and Te Arawa Takitai Moana Kaumatua Forum (23 December 2016)
309.	Statement of evidence of Tahu Potiki on behalf of the applicant (23 December 2016)
310.	Statement of evidence of Ian Murray Sherwood on behalf of the Mount Maunganui Underwater Club Inc (23 December 2016)
311.	Primary statement of evidence of Rehua Smallman on behalf of the iwi appellants (23 December 2016)
312.	Primary statement of evidence of Liam Te Wherowhero Tapsell for Te Rūnanga o Ngāti Whakaue ki Maketū Inc. and Te Arawa Takitai Moana Kaumatua Forum (22 December 2016)
313.	Primary statement of evidence of Peretini Hawea-a-Rangi Te Whata for Te Arawa Takitai Moana Kaumatua Forum and Te Rūnanga o Ngāti Whakaue ki Maketū Inc (23 December 2016)
314.	Statement of evidence of Michael John Torr on behalf of the Mount Maunganui Underwater Club Inc (23 December 2016)

315.	Primary statement of evidence of Mabel Wharekawa-Burt on behalf of the iwi appellants (23 December 2016)
316.	Primary statement of evidence of Maria Brenda Horne for Te Rūnanga o Ngāti Whakaue ki Maketū and Te Arawa Takitai Moana Kaumatua Forum (3 January 2017)
317.	Statement of evidence of Buddy Mikaere on behalf of the iwi appellants (3 January 2017)
318.	Primary statement of evidence of Graeme Aitken on behalf of the iwi appellants (3 January 2017)
319.	Primary statement of evidence of Donna Mareé Meteria Clarke for iwi appellants (3 January 2017)
320.	Primary statement of evidence of James Douglas Marshall Fairgray for iwi appellants (3 January 2017)
321.	Primary statement of evidence of Hohepa Joseph (Joe) Harawira QSMON on behalf of the iwi appellants (3 January 2017)
322.	Primary statement of evidence of Des Heke Kaiawha on behalf of the iwi appellants (3 January 2017)
323.	Statement of evidence of Tamati Waaka (4 January 2017)
324.	Primary statement of evidence of Vernon Richard Cross Warren for iwi appellants (7 January 2017)
325.	Primary statement of evidence of Hamish Gordon Rennie for iwi appellants (8 January 2017)
326.	Brief of evidence for Awhi Awhimate (13 January 2017)
327.	Brief of evidence for Raewyn Marcell Bennett (13 January 2017)
328.	Brief of evidence for Chris Clarke (13 January 2017)
329.	Brief of evidence of Dr Sir Noble Toby Curtis (13 January 2017)
330.	Brief of evidence for William Emery (13 January 2017)
331.	Brief of evidence for Timi Te Po Hohepa (13 January 2017)
332.	Brief of evidence for Te Ariki Morehu (13 January 2017)
333.	Brief of evidence for Arama Karama Piriaka (13 January 2017)
334.	Brief of evidence for Niven Rae (13 January 2017)

335.	Brief of evidence for Elaine Tapsell (13 January 2017)
336.	Brief of evidence for Maru Haerepo Poihipi Tapsell (13 January 2017)
337.	Brief of evidence for Justin (Joe) Te Kowhai (13 January 2017)
338.	Brief of evidence for Wharekonehu Wally Te Moni (13 January 2017)
339.	Brief of evidence for Reverend Graham Kahu Te Rire (13 January 2017)
340.	Brief of evidence for Piki Thomas (13 January 2017)
341.	Brief of evidence of Piatahi Carey Bennett (16 January 2017)
342.	Reply evidence on behalf of the applicant by Michael Campbell Copeland (17 February 2017)
343.	Expert Joint Witness Statement Public Health (31 January 2017) (Donna Clarke, Peter Cressey, Mason Durie, William Kapea, Francesca Kelly)
344.	Expert Joint Witness Statement Ecology (1 February 2017) (Rick Boyd, John Bordie, Sharon De Luca, Shaw Mead, Kura Paul-Burke, Phil Ross)
345.	Expert Joint Witness Statement Wreck Removal/Salvage and Wreck Degradation (2 February 2017) (Graeme Aitken, Colin Barker, Brett Beamsley, Camiel De Jongh, Roger King, Lance Marshall)
346.	Expert conferencing – Draft Agenda: Joint Witness Statement: Natural Character and Landscape (2 February 2017) (Wade Robertson, John Hudson)
347.	Expert conferencing – Joint Witness Statement: Recreational Diving (3 February 2017) (Simon Mitchell, Robert Greenaway, Michael Torr)
348.	Expert Joint Witness Statement Planning (3 February 2017) (Reuben Fraser, Keith Frentz, Hamish Rennie, Vern Warren)
349.	Expert conferencing – Joint Witness Statement: Economic Effects (8 February 2017) (Michael Copeland, Douglas Fairgray)
350.	Reply evidence on behalf of the applicant by Colin John Barker (17 February 2017)
351.	Reply evidence of Dr Brett Beamsley (17 February 2017)
352.	Reply evidence of Richard Owen Boyd (17 February 2017)
353.	Statement of rebuttal evidence of John Edward Brodie – Ecology, Ecotoxicity, Water Quality and Sediment Quality (17 February 2017)
354.	Reply evidence of Antoine Coffin (17 February 2017)

355.		Reply evidence of Sharon De Luca (17 February 2017)
356.		Reply evidence of Andrew Dodd (17 February 2017)
357.		Reply evidence of Reuben Francis Fraser – Planning (17 February 2017)
358.		Reply evidence of Keith Frentz (17 February 2017)
359.		Reply evidence of Dr Desmond Kahotea (17 February 2017)
360.		Reply evidence of William Albert Haku Kapea (17 February 2017)
361.		Reply evidence of Francesca Kelly (17 February 2017)
362.		Reply evidence of Roger King (17 February 2017)
363.		Reply evidence by Harawira Tiri Gardiner (17 February 2017)
364.		Reply evidence of John Dealey Owen (17 February 2017)
365.		Affidavit in reply of Tahu Potiki (16 February 2017)
366.		Reply evidence of Wade Robertson (17 February 2017)
367.		Reply evidence of Shadrach Rolleston (17 February 2017)
368.		Reply evidence of Philip Maxwell Ross (17 February 2017)
	Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93
369.		Statement of evidence of Aroha Campbell (1 May 2017)
370.		Statement of evidence of Nicholas Clarke (1 May 2017)
371.		Statement of evidence of Andrew Michael Collins (1 May 2017)
372.		Statement of evidence of Malcolm Alister Grant (1 May 2017)
373.		Statement of evidence of Wikitōria Hepi-Te Huia on behalf of Tauhara North No. 2 Trust (1 May 2017)
374.		Statement of evidence of Mason Daryl Jackson (1 May 2017)
375.		Statement of evidence of Buddy Mikaere (1 May 2017)
376.		Statement of evidence of Dr Edward Kazimierz Mroczek (1 May 2017)

377.		Statement of evidence of Roger Pikia on behalf of Ngāti Tahu-Ngāti Whaoa Rūnanga Trust (1 May 2017)
378.		Statement of evidence of Steven Michael Sewell (1 May 2017)
379.		Brief of evidence of Sheryl Aroha Roa for the Waikato Regional Council (12 May 2017)
380.		Evidence of Philip Hunter Mitchell on behalf of the Tūwharetoa Māori Trust Board (4 June 2017)
381.		Statement of evidence of Matiu Northcroft on behalf of Tūwharetoa Māori Trust Board (4 June 2017)
382.		Statement of evidence of David Topia Rameka on behalf of Tūwharetoa Māori Trust Board (4 June 2017)
383.		Evidence of Gina Alice Rangi on behalf of the Tūwharetoa Māori Trust Board (4 June 2017
384.		Evidence of Bruce Stirling on behalf of the Tūwharetoa Māori Trust Board (4 June 2017)
385.		Statement of evidence of Chris Winitana on behalf of Tūwharetoa Māori Trust Board (4 June 2017)
386.		Rebuttal evidence of David Anderson Armstrong (23 June 2017)
387.		Rebuttal evidence of Aroha Campbell (23 June 2017)
388.		Rebuttal evidence of Andrew Michael Collins (23 June 2017)
389.		Rebuttal evidence of Wikitōria Hepi-Te Huia on behalf of Tauhara North No.2 Trust (23 June 2017)
390.		Rebuttal evidence of Mason Daryl Jackson (23 June 2017)
391.		Statement of evidence of William Thomas Meek (23 June 2017)
392.		Statement of evidence of Roger Pikia on behalf of Ngāti Tahu-Ngāti Whaoa Rūnanga Trust (23 June 2017)
393.		Rebuttal evidence of Buddy Mikaere (28 June 2017)
	Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196
394.		Affidavit of Raewyn Marcelle Bennett on behalf of Ngāti Pikiao Environmental Society Inc (NPES) as to standing under s 274 RMA (15 August 2018)
395.		Affidavit of Reon Roger Tuanau (15 August 2018)

396.	Joint statement of groundwater experts (Sian France, Michael Goff, Anthony Kirk, Philip Kelsey, Blair Thornburrow) (1 November 2018)
397.	Joint statement of regional planning experts (Malory Osmond, Dylan Makgill, Bridget Robson, Keith Frentz, Greg Carlyon, Craig Batchelar) (14 March 2019)
398.	Joint statement of district planning experts (18 March 2019)
399.	Statement of evidence of Dr Stephen Gordon Chiles (Noise Peer Review) on behalf of the applicant (29 March 2019)
400.	Statement of evidence of Mark Leslie Cox (Employment Effects) on behalf of the applicant (29 March 2019)
401.	Statement of evidence of Keith Frentz (Planning – District Matters) on behalf of the applicant (29 March 2019)
402.	Statement of evidence of Michael Hilkja Joachim Gleissner (Company overview and project description) on behalf of the applicant (29 March 2019)
403.	Statement of evidence of Michael David Goff (Groundwater) on behalf of the applicant (29 March 2019)
404.	Statement of evidence of Nevil Ian Hegley (Noise) on behalf of the applicant (29 March 2019)
405.	Statement of evidence of Hamish Joyce (Operational and Construction Overview) on behalf of the applicant (29 March 2019)
406.	Statement of evidence of Hemana Eruera Manuera (29 March 2019)
407.	Statement of evidence of Malory Michaela Osmond (Regional Planning Matters) on behalf of the applicant (29 March 2019)
408.	Statement of evidence of Wade Nathan Robertson (Landscape Architect) on behalf of the applicant (29 March 2019)
409.	Statement of evidence of Craig Barry Batchelar on behalf of Whakatāne District Council Planner (12 April 2019)
410.	Statement of evidence of Dylan Cloan Makgill – Planning (12 April 2019)
411.	Statement of evidence of Ann Lloyd Nicholas – Section 42a Reporting Officer: District Consents (12 April 2019)
412.	Statement of evidence of Rebecca Keren Ryder on behalf of Whakatāne District Council – Landscape Architect (12 April 2019)
413.	Statement of evidence of Maureen Fraser on behalf of Sustainable Otakiri Incorporated (29 April 2019)

414.	Statement of evidence of Lee Heappey on behalf of Sustainable Otakiri Incorporated (29 April 2019)
415.	Statement of evidence of Malcolm And Sally Hayler on behalf of Sustainable Otākiri Incorporated (29 April 2019)
416.	Statement of evidence of Lesley Joy Mckeown on behalf of Sustainable Otakiri Incorporated (29 April 2019)
417.	Joint brief of evidence of Hohepa Joseph Mason and Te Kei (O Te Waka) Wirihana Merito (29 April 2019)
418.	Statement of evidence of Kelvin Brian McCartie and Gillian Patricia McCartie on behalf of Sustainable Otakiri Incorporated (29 April 2019)
419.	Statement of evidence of Lesley Joy Mckeown on behalf of Sustainable Otakiri Incorporated (29 April 2019)
420.	Brief of evidence of Tuwhakairiora O’Brien (29 April 2019)
421.	Statement of evidence of Anita Gray on behalf of Sustainable Otakiri Incorporated (29 April 2019)
422.	Statement of evidence of Christine Bridget Robson on Planning Matters on behalf of Te Rūnanga O Ngāti Awa (29 April 2019)
423.	Brief of evidence of Leonie Te Aorangi Simpson (29 April 2019)
424.	Statement of evidence of Sarah Jane Van Der Boom on behalf of Sustainable Otakiri Incorporated (29 April 2019)
425.	Statement of evidence of Gregory John Carlyon on behalf of Sustainable Otākiri Incorporated Planner (30 April 2019)
426.	Statement of reply evidence of Dylan Cloan Makgill – Planning (9 May 2019)
427.	Statement of rebuttal evidence of Craig Barry Batchelar on behalf of Whakatāne District Council Planner (10 May 2019)
428.	Statement of rebuttal evidence of Mark Leslie Cox (Employment Effects) on behalf of the applicant (10 May 2019)
429.	Statement of rebuttal evidence of Keith Frentz (Planning – District Matters) on behalf of the applicant (10 May 2019)
430.	Statement of rebuttal evidence of Michael Hilkja Joachim Gleissner (Company Overview And Project Description) on behalf of the applicant (10 May 2019)
431.	Statement of rebuttal evidence of Michael David Goff (Groundwater) on behalf of the applicant (10 May 2019)

432.		Rebuttal statement of evidence of Nevil Ian Hegley (Noise) on behalf of the applicant (10 May 2019)
433.		Statement of rebuttal evidence of Hamish Joyce (Operational and Construction Overview) on behalf of the applicant (10 May 2019)
434.		Statement of rebuttal evidence of Hemana Eruera Manuera (10 May 2019)
435.		Statement of rebuttal evidence of Malory Michaela Osmond (Regional Planning) on behalf of the applicant (10 May 2019)
436.		Statement of rebuttal evidence of Wade Nathan Robertson (Landscape Architect) on behalf of the applicant (10 May 2019)
437.		Statement of evidence of Rihi Vercoe (undated)
	Director-General of Conservation v Taranaki Regional Council [2019] NZEnvC 203
438.		Statement of evidence of Haumoana White on behalf of Ngā Hapū o Poutama (9 August 2018)
439.		Revised brief of evidence of Bruce Stirling (31 August 2018)
440.		Statement of evidence of Michael Peter John Dreaver (engagement with tangata whenua) on behalf of the New Zealand Transport Agency (17 May 2019)
441.		Statement of evidence of Russell Gibbs on behalf of Poutama Kaitiaki Charitable Trust and D & T Pascoe (14 June 2019)
442.		Statement of evidence of Desmond Gibbs on behalf of Poutama Kaitiaki Charitable Trust and D & T Pascoe (14 June 2019)
443.		Statement of evidence of Debbie Pascoe on behalf of Poutama Kaitiaki Charitable Trust and D & T Pascoe (14 June 2019)
444.		Statement of evidence of Tony Pascoe on behalf of Poutama Kaitiaki Charitable Trust and D & T Pascoe (14 June 2019)
445.		Statement of evidence of Paul Silich on behalf of Te Rūnanga o Ngāti Tama (14 June 2019)
446.		Statement of evidence of Paul Robert Thomas on behalf of Te Rūnanga o Ngāti Tama (History) (14 June 2019)
447.		Statement of evidence (Cultural) of Gregory Lloyd White on behalf of Te Rūnanga o Ngāti Tama (14 June 2019)
448.		Supplementary statement of evidence of Russell Gibbs on behalf of Poutama Kaitiaki Charitable Trust and D & T Pascoe (17 June 2019)

449.	Statement of rebuttal evidence of Michael Dreaver (Tangata Whenua Engagement) on behalf of the NZ Transport Agency (5 July 2019)
Tauranga Environmental Protection Society Inc v Tauranga City Council [2020] NZEnvC 43
450.	Statement of evidence in chief of Braddyn Thomas Coombs on behalf of Transpower New Zealand Limited (1 February 2019)
451.	Statement of evidence in chief of Selina Corboy on behalf of Transpower New Zealand Limited (1 February 2019)
452.	Statement of evidence in chief of Malcolm James Hunt on behalf of Transpower New Zealand Limited (1 February 2019)
453.	Statement of evidence in chief of Chris Horne on behalf of Transpower New Zealand Limited (1 February 2019)
454.	Statement of evidence in chief of Richard Joyce behalf of Transpower New Zealand Limited (1 February 2019)
455.	Statement of evidence in chief of Douglas McNeill on behalf of Transpower New Zealand Limited (1 February 2019)
456.	Statement of evidence in chief of Raewyn Lesley Moss on behalf of Transpower New Zealand Limited (1 February 2019)
457.	Statement of evidence in chief of Dr Hannah Mueller on behalf of Transpower New Zealand Limited (1 February 2019)
458.	Statement of evidence in chief of Caleb Sjardin on behalf of Transpower New Zealand Limited (1 February 2019)
459.	Statement of evidence in chief of Colin Michael Thomson on behalf of Transpower New Zealand Limited (1 February 2019)
460.	Statement of evidence in chief of Matthew Walker on behalf of Transpower New Zealand Limited (1 February 2019)
461.	Statement of evidence of Paula Michelle Golsby (8 February 2019)
462.	Statement of evidence of Rebecca Keren Ryder (11 February 2019)
463.	Statement of evidence of Stephen Kenneth Brown (15 March 2019)
464.	Brief of evidence of Peter Te Ratahi Cross on behalf of Ngāi Tūkairangi Trust (25 March 2019)
465.	Brief of evidence of Paul Joseph Stanley (25 March 2019)

466.		Statement of evidence of Taikato Taikato on behalf of The Maungatapu Marae Trust (25 March 2019)
467.		Statement of evidence of Parengamihi Gardiner on behalf of Maungatapu Marae Trust (3 April 2019)
468.		Statement of evidence of Matemoana McDonald on behalf of Maungatapu Marae Trust (3 April 2019)
469.		Statement of evidence of Hinerongo Walker on behalf of Maungatapu Marae Trust (3 April 2019)
470.		Reply evidence of Braddyn Thomas Coombs on behalf of Transpower New Zealand Limited (3 April 2019)
471.		Reply evidence of Chris Horne on behalf of Transpower New Zealand Limited (3 April 2019)
472.		Reply evidence of Douglas McNeill on behalf of Transpower New Zealand Limited (3 April 2019)
473.		Reply evidence of Paula Michelle Golsby (4 April 2019)
474.		Statement of evidence of Matemoana McDonald on behalf of Maungatapu Marae Trust (8 April 2019)
475.		Rebuttal evidence of Rebecca Keren Ryder on behalf of Tauranga City Council and Bay of Plenty Regional Council (undated)
476.		Notes of evidence taken before the Environment Court (hearing commenced 29 April 2019)
	Wilson v Waikato Regional Council [2021] NZEnvC 131
477.		Statement of evidence of Joseph Davis for the applicant (28 August 2020)
478.		Evidence of John Robert Hudson for the applicant (28 August 2020)
479.		Statement of evidence of David Graham Mansergh (11 September 2020)
480.		Graphic evidence in chief of David Graham Mansergh (11 September 2020)
481.		Evidence of Bridget Mary Gilbert on behalf of the appellant (Landscape and Visual Effects) (25 September 2020)
482.		Evidence of Rebecca Keren Ryder Landscape Architect as a summoned witness for the Court (25 September 2020)
483.		Rebuttal evidence of Joseph Davis for the applicant (16 October 2020)
484.		Rebuttal evidence of John Robert Hudson for the applicant (16 October 2020)

485.	Rebuttal evidence of John Robert Hudson for the applicant to accompany video (28 October 2020)
486.	Evidence of Bridget Mary Gilbert on behalf of the appellant (Landscape and Visual Effects) (3 November 2020)
487.	Affidavit of Joseph John Davis (8 December 2020)
488.	Notes of Evidence

HIGH COURT CASES
Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission HC Auckland, CP 395/93, CP 122/95 & CP 27/95, 4 August 1998, Paterson J
489.	Affidavit of Elaine Rawinia Tapsell in support of the applicant’s case regarding the High Court Rule 418 preliminary questions as referred back to this Court by Her Majesty's Privy Council; Exhibit Te Arawa Mangai Nui Upoko Tutakitaki, Te Ihu o te Waka ki Maketu (20 June 1990).
490.	Principles for the Allocation of Quota: Report for the Māori Fisheries Commission; Exhibit A Apirana Mahuika Nga Tikanga Māori e pa ana ki a Tangaroa (22 November 1991).
491.	Affidavit of Robin Hapi in support of application to join second and third respondents (27 September 1994); Exhibit A The Report (9 November 1993).
492.	Sixth affidavit of Reuben Brian Perenara in support of the applicant’s case regarding the High Court Rule 418 preliminary questions as referred back to this Court by Her Majesty’s Privy Council; Exhibit C Custom Law: Address to the New Zealand Society for Legal and Social
493.	Affidavit of Phillip Levuka Corbett in support of Te Waka Hi Ika o Te Arawa Inc (18 December 1997).
494.	Affidavit of Piatarihi Maria Kerr in support of the applicant’s case regarding the High Court Rule 418 preliminary questions as referred back to this Court by Her Majesty’s Privy Council (18 December 1997).
495.	Affidavit of Te Wano Ngahana Ngatipeehi Waata in support of opposition to amend notice to strike out and in support of application for case stated (18 December 1997)
496.	First affidavit of Professor Ngapare Kaihina Hopa in support of the second to fourth plaintiffs in relation to the hearing of the preliminary questions (30 January 1998)
497.	Affidavit of Professor Sir Hugh Kawharu for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998)

498.	Affidavit of Hirini Moko Mead for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998)
499.	Affidavit of Tamati Muturangi Reedy for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (25 February 1998)
500.	Affidavit of Professor Sir Hugh Kawharu for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (15 February 1998)
501.	First affidavit of Professor Pita Sharples in support of the second to fourth plaintiffs in relation to the hearing of the preliminary question (28 January 1998)
502.	First affidavit of John Te Ahikaiata Joseph Turei (28 January 1998)
503.	First affidavit of Professor Ranginui Walker in support of the second to fourth plaintiffs in relation to the hearing of the preliminary question (28 January 1998)
504.	First affidavit of Manuka Henare in support of the second to fourth plaintiffs in relation to the hearing of the preliminary question (29 January 1998)
505.	First affidavit of Professor Ngapare Kaihina Hopa in Support of the second to fourth plaintiffs in relation to the hearing on the preliminary questions (30 January 1998)
506.	Te Kupu a te Toi Huarewa (Professor) James Te Wharehuia Milroy rāua ko te Ahorangi (Professor) Tīmoti Samuel Kāretu (25 February 1998)
507.	Affidavit of Professor James Te Wharehuia Milroy and Professor Timoti Samuel Karetu for the Treaty of Waitangi Fisheries Commission in relation to hearing of preliminary question (unsigned)
508.	Second affidavit of Manuka Henare in reply to affidavits in opposition filed by the Fisheries Commission and Treaty tribes (11 March 1998)
509.	First affidavit of Professor Patrick Wahanga Hohepa on behalf of second – fourth plaintiffs in relation to the hearing of the preliminary question (11 March 1998)
510.	Second affidavit of Professor Ngapare Kaihina Hopa in support of the second to fourth plaintiffs in relation to the hearing of the preliminary question (11 March 1998)
511.	Second affidavit of Professor Pita Sharples in support of the second to fourth plaintiffs in relation to the hearing of the preliminary question (11 March 1998)
512.	Second affidavit of John Te Ahikaiata Joseph Turei in Reply (11 March 1998)
513.	Second affidavit of Dr Cleve Dufty Barlow in reply to affidavits in opposition filed by the various parties in relation to the preliminary question (11 March 1998)
514.	Affidavit of Angeline Elizabeth Ngahina Greensill in support of the plaintiff, and in reply (13 March 1998)
515.	First affidavit of Dr Cleve Dufty Barlow

516.	Eighth affidavit of Reuben Brian Perenara in support of the CP 395/93 plaintiffs position in regards the HCR 418, and in reply to various affidavits filed in opposition to that position
517.	Principles for the Allocation of Quota: Report for the Māori Fisheries Commission
518.	"Rekohu (Chatham Islands) Submission to Te Ohu Kai Moana on Proposed Models of Allocation for Pre-settlement Assets"
519.	Notes of Evidence
Clarke v Takamore [2009] NZHC 901; [2010] 2 NZLR 525
520.	Affidavit of Henare Heremia in support of the statement of defence (31 July 2008)
521.	Affidavit of Tamati Kruger in support of the statement of defence (31 July 2008)
522.	Affidavit of Don Takamore in support of the statement of defence (draft) (31 July 2008)
523.	Affidavit of Josephine Takamore in support of the statement of defence (31 July 2008)
524.	Affidavit of Nehu Takamore in support of the statement of defence (31 July 2008)
525.	Affidavit of Pou Temara in support of the statement of defence (31 July 2008)
526.	Affidavit of Don Takamore in support of the statement of defence (Sworn) (8 August 2008)
527.	Affidavit of Rangi Karaitiana McGarvey being a translation of the affidavit of Henare Heremia (27 August 2008)
R v Tamati Mason [2012] NZHC 1361
528.	Affidavit of Moana Jackson (24 April 2012)
529.	Affidavit of Tamati Mason (24 May 2011)
530.	Brief of evidence of Moana Jackson (10 January 2005)
531.	Cultural Advisor Report – hui held 5 July 2012 at Waikeria Prison (Maanu Paul)
532.	Notes of evidence, 3 May 2012
Ngāti Hurungaterangi v Ngāti Wahiao [2016] NZHC 1486; [2016] 3 NZLR 378
533.	Affidavit of Hamuera Walker Mitchell (6 September 2013)
534.	Deed poll agreement for the Trust (29 August 2008) Exhibit to affidavit of Hamuera Walker Mitchell
535.	Arbitration decision (7 June 2013) Exhibit to Affidavit of Hamuera Walker Mitchell.

Re Tipene [2016] NZHC 3199
536.	Affidavit of Denis Wiremu Tipene (sworn 14 November 2011)
537.	Affidavit of Michael Richard Skerrett for Te Rūnanga o Ngāi Tahu (31 July 2015)
538.	Letter of Stewart Bull on behalf of certain Rakiura Tītī Committee Members (30 August 2015)
539.	Affidavit of Sandra Helen Cook attaching evidence from Te Rūnanga o Ngāi Tahu (affirmed 30 October 2014)
540.	Pūkenga’s report of Jane Ruby Karina Davis (undated version – sent to counsel 6 November 2015)
541.	Exhibit DA-20 to the affidavit of David Anderson Armstrong (affirmed 31 August 2015) Ngai Tahu Maori Trust Board v Attorney-General CP 559/87 Affidavit of Henare Rakiihia Tau in support of application for declaration
542.	Exhibit DA-26 to the affidavit of David Anderson Armstrong (affirmed 31 August 2015) Evidence of Paddy Gillroy
543.	Exhibit DA-27 to the affidavit of David Anderson Armstrong (affirmed 31 August 2015) Submission to the Waitangi Tribunal from Rakiura Māori Land Incorporated
544.	Exhibit DA-28 to the affidavit of David Anderson Armstrong (affirmed 31 August 2015) Mahinga Kai, the submission of Atholl Anderson
545.	Exhibit DA-29 to the affidavit of David Anderson Armstrong (affirmed 31 August 2015) Evidence of Paddy Gillroy
546.	Exhibit DA-38 to the affidavit of David Anderson Armstrong (affirmed 31 August 2015) Draft affidavit of Sandra Helen Cook affirmed October 2014
547.	Exhibit DA-55 to the affidavit of David Anderson Armstrong (affirmed 31 August 2015) Mahinga Kai, Evidence of H R Tau, David Higgins, Trevor Howsee, Peter Ruka and Barry Brailsford
548.	Affidavit of Denis Wiremu Tipene (31 March 2016)
549.	Brief of evidence of Denis Wiremu Tipene (undated)
Taranaki-Whanganui Conservation Board v The Environmental Protection Authority [2018] NZHC 2217
550.	Cultural values assessment by Tahu Potiki (Ngāi Tahu, Ngāti Mamoe)
Solicitor-General v Heta [2018] NZHC 2453
551.	Section 27 report, Khylee Quince (18 September 2018)

Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, The Wairarapa ki Tararua district Inquiry
552.	The Wairarapa ki Tararua District Inquiry, Wai 863, #J4 Vanessa Eparaima (22 May 2017)
553.	The Wairarapa ki Tararua District Inquiry, Wai 863, #J5 Nigel Te Hiko (22 May 2017)
554.	The Wairarapa ki Tararua District Inquiry, Wai 863, #J20 Poihaere Elizabeth Anne Rangitutia Heke-Barrett (7 August 2018)
555.	The Wairarapa ki Tararua District Inquiry, Wai 863, #J21 Paraone Gloyne (5 October 2018)
556.	The Wairarapa ki Tararua District Inquiry, Wai 863, #J22 Affidavit of Te Hapuku Munro Rikiriki (5 October 2018)
557.	The Wairarapa ki Tararua District Inquiry, Wai 863, #J23 Affidavit of Nigel Huirama Te Hiko (3 October 2018)
558.	The Wairarapa ki Tararua District Inquiry, Wai 863, #J24 Affidavit of Vanessa Eparaima (5 October 2018)
559.	The Wairarapa ki Tararua District Inquiry, Wai 863, #J43 Haami Te Whaiti (19 November 2018)
560.	The Wairarapa ki Tararua District Inquiry, Wai 863, #J43(b) Summary of evidence of Haami Te Whaiti (19 December 2018)
561.	The Wairarapa ki Tararua District Inquiry, Wai 863, #J79 Brief of evidence in reply of Haami Te Whaiti (23 May 2019)
562.	The Wairarapa ki Tararua District Inquiry, Wai 863, #J95 Brief of evidence of Nigel Huirama Te Hiko (5 July 2019)
563.	The Wairarapa ki Tararua District Inquiry, Wai 863, #4.11
564.	Joint affirmation of Jacinta Arianna Ruru and Mihiata Rose Pirini (14 September 2020)
565.	Affirmation of Sir Tipene Gerard O’Regan (17 September 2020)
Re Edwards [2021] NZHC 1025
566.	Affidavit of Muriwai Maggie Jones (3 April 2017)
567.	Affidavit of Te Ringahuia Hata (29 January 2020)
568.	Affidavit of Hemaima Mariana Hughes (30 January 2020)
569.	Affidavit Karen Stefanie Mokomoko (30 January 2020)
570.	Affidavit Leelyn Raiha Ruwhiu (30 January 2020)

571.	Affidavit Genevieve Ruwhiu-Pupuke (30 January 2020)
572.	Affidavit of Moka Kainga Maata Puru (3 February 2020)
573.	Affidavit of Carol Hemoana Gage (13 February 2020)
574.	Affidavit of Tama Te Waiwhakaruku Hata (14 February 2020)
575.	Affidavit of Tuariki John Edward Delamere (18 February 2020)
576.	Affidavit of Anna-Marei Kurei (19 February 2020)
577.	Affidavit of Donald Ati Kurei (19 February 2020)
578.	Affidavit of Te Rua Rakuraku (19 February 2020)
579.	Affidavit of Hetaraka Biddle (20 February 2020)
580.	Affidavit of Marjorie Huingapani Kurei (20 February 2020)
581.	Affidavit of Tracy Francis Hillier (20 February 2020)
582.	Affidavit of Pepper Hudson (20 February 2020)
583.	Affidavit of Majorie Huingapani Kurei (20 February 2020)
584.	Affidavit of Leeann Martin (20 February 2020)
585.	Affidavit of Toni Cherie Ngoungou-Martin (20 February 2020)
586.	Affidavit of Kayreen Tapuke (20 February 2020)
587.	Affidavit of Hohepa Te Kahika (20 February 2020)
588.	Affidavit of Christina Davis (21 February 2020)
589.	Affidavit of Larry Takamoana Delamere (21 February 2020)
590.	Affidavit of Adriana Edwards (21 February 2020)
591.	Affidavit of Robert Edwards (21 February 2020)
592.	Affidavit of Te Kou Rikirangi Gage (21 February 2020)
593.	Affidavit of Te Ringahuia Hata (21 February 2020)
594.	Affidavit of Eru Koopu (21 February 2020)
595.	Affidavit of Danny Craven Pohipi (21 February 2020)
596.	Affidavit of Robert Selwyn (21 February 2020)
597.	Affidavit of Tuwhakairiora (Tu) Williams (21 February 2020)
598.	Affidavit of Heremaia Warren (21 February 2020)

599.	Affidavit of Dayle Lianne Takitimu (24 February 2020)
600.	Affidavit of Te Aururangi Davis (14 April 2020)
601.	Affidavit of Muriwai Jones (14 April 2020)
602.	Affidavit of Arapeta Mio (14 April 2020)
603.	Affidavit of Leonie Te Aorangi Simpson (1 May 2020)
604.	Affidavit of David Peters (24 July 2020)
605.	Affidavit of Tā Hirini Moko Haerewa Mead, Dr Hohepa (Joseph) Mason and Te Kei (O Te Waka) Wirihana Merito (19 May 2020)
606.	Affidavit of David Vernon Williams (30 July 2020)
607.	Affidavit of Te Riaki Amoamo (3 August 2020)
608.	Affidavit of Mandy Mereaira Hata (5 August 2020)
609.	Joint affidavit of Te Rua Rakuraku and Donald Kurei (21 January 2022)
610.	Affidavit of Te Ringahuia Hata (24 January 2022)
611.	Affidavit of Tā Pou Temara (24 January 2022)
612.	Joint brief of evidence of Dr Te Kei (O Te Waka) Wirihana Merito and William Bruce Stewart (24 January 2022)
613.	Affidavit of Te Riaki Amoamo (25 January 2022)
614.	Affidavit of Muriwai Jones (26 January 2022)
615.	Third affidavit of Te Kou Rikirangi Gage (1 February 2022)
616.	Third affidavit of Tracy Hillier (1 February 2022)
617.	Joint affidavit of Tracy Hillier, Concheta Pepper Hudson and Toni Cherie Ngoungou- Martin (8 February 2022)
618.	Joint brief of evidence of Dr Te Kei (o te Waka) Wirihana Merito and William Bruce Stewart in reply (8 February 2022)
619.	Affidavit of Nepia James Tipene (16 February 2022)
620.	Second affidavit of Te Riaki Amoamo (21 February 2022)
621.	Fourth affidavit of Donald Ati Kurei (23 February 2022)
622.	Affidavit of Louis Agassiz Schenker Rapihana (31 March 2022)
623.	Affidavit of Nepia James Tipene (21 February 2020)
624.	Affidavit of Hetaraka Biddle (undated)

	Re Reeder on behalf of Ngā Pōtiki [2021] NZHC 2726
625.		Affidavit of Colin Francis Reeder (3 April 2017)
626.		Affidavit of Charlie Wahia Tawhiao (14 December 2017)
627.		Affidavit of Hauata Palmer (15 December 2017)
628.		Evidence of Quinton Ivan George Bidois (6 July 2020)
629.		Affidavit of Erana Te Hei Koko Brewerton (6 July 2020)
630.		Affidavit of Victoria Carroll (6 July 2020)
631.		Evidence of Peter Ratahi Cross (6 July 2020)
632.		Affidavit of Matire Duncan (6 July 2020)
633.		Brief of evidence of Marama Hikatangata Furlong (6 July 2020)
634.		Affidavit of Desmond Kahotea (6 July 2020)
635.		Evidence of Desmond Parekura Heke Kaiawha (6 July 2020)
636.		Brief of evidence of Ronald Te Pio Kawe (6 July 2020)
637.		Evidence of Hauata Palmer (6 July 2020)
638.		Affidavit of Colin Francis Reeder (6 July 2020)
639.		Further affidavit of Colin Francis Reeder (6 July 2020)
640.		Evidence of Mita Michael Ririnui (6 July 2020)
641.		Brief of evidence of Titihuia Ririnui (6 July 2020)
642.		Affidavit of Bruce Stirling (6 July 2020)
643.		Affidavit of Poihaere Walker (6 July 2020)
644.		Evidence of Carlo Jason Ellis (7 July 2020)
645.		Brief of evidence of Huikakahu Brian Kawe (7 July 2020)
646.		Evidence of Waraki Te Pewa Paki (7 July 2020)
647.		Evidence of Albert Puhirake Ihaka (7 July 2020)
648.		Evidence of Kihi Ngatai (7 July 2020)
649.		Further affidavit of Desmond Kahotea (17 July 2020)
650.		Affidavit of Rahera Aroha Ohia (7 July 2020)
651.		Affidavit of Rehua Tom Smallman (7 July 2020)

652.		Affidavit of Niclas Czerney Rasmus Johansson (7 October 2020)
653.		Affidavit of Te Kahautu Maxwell (7 August 2020)
654.		Further affidavit of Te Kahautu Maxwell (7 August 2020)
655.		Affidavit of Martin Fisher (16 December 2020)
656.		Affidavit of Dr Terrence Green (29 January 2021)
657.		Affidavit of Jonathan Lewis West (12 April 2021)
	Re Ngāti Pāhauwera [2021] NZHC 3599
658.		Brief of evidence of Fred Hancy (31 August 2007)
659.		Brief of evidence of Angela Jenny Culshaw-Kaisa (31 August 2007)
660.		Brief of evidence of Cordy Tawa Huata (31 August 2007)
661.		Brief of evidence of Piripi Nuku (31 August 2007)
662.		Brief of evidence of Beverley Janet Rameka (31 August 2007)
663.		Brief of evidence of Olga Ringakopi Rameka (31 August 2007)
664.		Brief of evidence of Wayne Taylor (31 August 2007)
665.		Brief of evidence of Marama Teresa Te Aho (31 August 2007)
666.		Brief of evidence of Harry Ihaia Tuapawa (31 August 2007)
667.		Brief of evidence of Wiremu Junior Winiata (31 August 2007)
668.		Brief of evidence of Wiki Williams (31 August 2007)
669.		Brief of evidence of Peggy Lillian Cottle (10 September 2007)
670.		Transcript of Mohaka Māori Land Court hearing (18-22 February 2008)
671.		Statement of Nell Adsett (21 November 2013)
672.		Affidavit of Bella Carol Gadsby (21 November 2013)
673.		Statement of Angela Hawkins (21 November 2013)
674.		Affidavit of Janet Huata (21 November 2013)
675.		Affidavit of Ani Keefe (21 November 2013)
676.		Affidavit of Frances Emily Whale (21 November 2013)
677.		Affidavit of Raymond Russell Edwards (25 November 2013)
678.		Affidavit of Gerald Brenton Aranui (26 November 2013)

679.	Affidavit of William Henry Culshaw (26 November 2013)
680.	Affidavit of Arthur Thorpe Gemmell (26 November 2013)
681.	Affidavit of Maadi Te Aho (27 November 2013)
682.	Affidavit of Awhina Evelyn Waaka (27 November 2013)
683.	Affidavit of Tama Turanga Huata (28 November 2013)
684.	Affidavit of Hiro Hamilton (5 December 2013)
685.	Affidavit of Wi Derek Huata/King (5 December 2013)
686.	Statement of Jean McIver (9 December 2013)
687.	Affidavit of Maraea Aranui (10 December 2013)
688.	Statement of George Albert Hawkins (11 December 2013)
689.	Affidavit of Wiremu Itereama Sylvester Hodges (11 December 2013)
690.	Affidavit of Fred McRoberts (11 December 2013)
691.	Statement of Hazel Elizabeth Kinita (12 December 2013)
692.	Affidavit of Marie Ketia Moses (19 December 2013)
693.	Affidavit of Darren Botica (23 December 2013)
694.	Affidavit of Tiwana Aranui (10 January 2014)
695.	Statement of Shane Warren Tuapawa (2 February 2014)
696.	Affidavit of Vilma Marie Hape (7 February 2014)
697.	Affidavit of Stuart Lorris Halliday (10 February 2014)
698.	Affidavit of Henare Wainohu (6 March 2014)
699.	Affidavit of James William Adsett (25 March 2014)
700.	Affidavit of El Maadi Te Aho (11 April 2014)
701.	Affidavit of Bruce Howard Te Kahika (11 April 2014)
702.	Affidavit of Anjelco Petkovich (11 April 2014)
703.	Affidavit of Colin Culshaw (21 May 2014)
704.	Affidavit of David Gordon Tihau Bishop (5 November 2014)
705.	Affidavit of Tania Marama Petrus Hopmans (3 April 2017)
706.	Affidavit of Malcolm J Kingi (3 April 2017)

707.	Affidavit of Taape Tareha O’Reilly (3 April 2017)
708.	Affidavit of Theresa Pauline Thornton (27 November 2019)
709.	Affidavit of Ketia Katy Waaka (28 November 2019)
710.	Affidavit of Arthur Thorpe Gemmell (10 December 2019)
711.	Brief of evidence of Kuki Green (10 December 2019)
712.	Brief of evidence of Isobel Beronica Thompson (10 December 2019)
713.	Brief of evidence of Gaye Hawkins (11 December 2019)
714.	Affidavit of Bonny Vi Hatami (12 December 2019)
715.	Brief of evidence of Bonny Vi Hatami (13 December 2019)
716.	Brief of evidence of Charles Seymour Arundel Lambert (13 December 2019)
717.	Statement of Luis James McDonnell (13 December 2019)
718.	Brief of evidence of David Alexander (17 December 2019)
719.	Brief of evidence of Owen Jerry Hapuku (17 December 2019)
720.	Brief of evidence of Mana Mauricina Keefe (19 December 2019)
721.	Brief of evidence of Gladys Myra Nelson (19 December 2019)
722.	Brief of evidence of Toro Edward Reginald Waaka (19 December 2019)
723.	Affidavit of Toro Edward Reginald Waaka (17 February 2020)
724.	Affidavit of Rapihana Te Kaha Hawaikirangi (18 February 2020)
725.	Affidavit of Marei Boston Apatu (10 August 2020)
726.	Affidavit of Tamati Tuaroa Cairns (10 August 2020)
727.	Affidavit of Diane Jean Lucas (10 August 2020)
728.	Affidavit of Laurence Bunny O’Reilly (10 August 2020)
729.	Affidavit of Matthew Harry Pinkerton (10 August 2020)
730.	Affidavit of Elizabeth Dale Pishief (10 August 2020)
731.	Affidavit of Hera Taukamo (10 August 2020)
732.	Affidavit of Shane Richard Hatara Taurima (10 August 2020)
733.	Affidavit of Kay Taape Tareha-O’Reilly (10 August 2020)
734.	Affidavit of Tony Walzl (10 August 2020)

735.	Affidavit of Martin Fisher (11 August 2020)
736.	Affidavit of Roderick Nigel Kerry Hadfield (11 August 2020)
737.	Affidavit of Rapihana Te Kaha Hawaikirangi (11 August 2020)
738.	Affidavit by Tania Marama Petrus Hopmans (11 August 2020)
739.	Affidavit of Richard Mark Nicholas (11 August 2020)
740.	Affidavit of Patrick Parsons (11 August 2020)
741.	Affidavit by Justin Owen Ian Puna (11 August 2020)
742.	Affidavit of Bevan Maihi Taylor (11 August 2020)
743.	Affidavit of Peter Arthur Allan (24 September 2020)
744.	Affidavit of Reece Thomas O’Leary (24 September 2020)
745.	Affidavit of Anthony Cyril Clifford (25 September 2020)
746.	Affirmation of Nichola Ann Nicholson (25 September 2020)
747.	Reply evidence of Ranginui Keefe (18 December 2020)
748.	Affidavit of Monique Lisa Andrew (27 November 2020)
749.	Affidavit of Philip Cleaver (27 November 2020)
750.	Affidavit of Ashley Nevil Gould (27 November 2020)
751.	Affidavit of Richard James Jennings (27 November 2020)
752.	Affidavit of Craig Alan Lawson (4 December 2020)
753.	Affidavit of Daryl Richard Sykes (4 December 2020)
754.	Reply affidavit of Renata Bush (17 December 2020)
755.	Affidavit by Justin Owen Ian Puna (17 December 2020)
756.	Reply affidavit of Marama Kaneihana Tareha-Te Hata (17 December 2020)
757.	Reply affidavit of Hoani Allen Taurima (17 December 2020)
758.	Affidavit of Tony Walzl (17 December 2020)
759.	Reply affidavit of Tania Marama Petrus Hopmans (18 December 2020)
760.	Reply evidence of David James Alexander (21 December 2020)
761.	Reply evidence of Toro Edward Reginald Waaka (21 December 2020)
762.	Reply evidence of EL Maadi Te Aho (22 December 2020)

763.		Brief of evidence of Mary Lynne Brown (undated and unsigned)
764.		Brief of evidence of Craig Braden Innes (undated and unsigned)
765.		Brief of evidence of Dylan Kane Harvey (undated and unsigned)
766.		Brief of evidence of Hawi Pere Huata (undated and unsigned)
767.		Brief of evidence of Tuki Fraser Huata (undated and unsigned)
768.		Brief of evidence of Dr Paul David Husbands (undated and unsigned)
769.		Brief of evidence in reply of Malcolm James Kingi (undated and unsigned)
770.		Brief of evidence of Te Kaha (undated and unsigned)
771.		Brief of evidence of Mere Katene (undated and unsigned)
772.		Brief of evidence of Malcolm James Kingi (undated and unsigned)
773.		Brief of evidence of Dr Leland Ruwhiu (undated and unsigned)
774.		Brief of evidence of Sona Piripi Selwyn (undated and unsigned)
	Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843
775.		Statement of evidence of Ngarimu Alan Huiroa Blair for the plaintiff (2 June 2020)
776.		Statement of evidence of Taiaha (Lance) Joseph Hawke for the plaintiff (2 June 2020)
777.		Statement of evidence of Te Kurataiaho Lonoholoikahiki Kapea on behalf of the plaintiff (te reo Māori version) (2 June 2020)
778.		Statement of evidence of Te Kurataiaho Lonoholoikahiki Kapea on behalf of the plaintiff (English) (2 June 2020)
779.		Statement of evidence of Margaret Anne Kawharu for the plaintiff (2 June 2020)
780.		Statement of evidence of Vivian Tāmati Kruger on behalf of the plaintiff (2 June 2020)
781.		Statement of evidence of Paul Edward Meredith on behalf of the plaintiff (2 June 2020)
782.		Statement of evidence of Charles Wahia Tawhiao on behalf of the plaintiff (2 June 2020)
783.		Statement of evidence of David Vernon Williams on behalf of the plaintiff (2 June 2020)
784.		Dr Korohere Crossley Bishop Lloyd Ngāpō evidence on behalf of second defendant (13 October 2020) – Te Reo Māori

785.	Dr Korohere Crossley Bishop Lloyd Ngāpō evidence on behalf of second defendant (13 October 2020) – English
786.	Reply evidence of Ngarimu Alan Huiroa Blair on behalf of the plaintiff (4 December 2020)
787.	Reply statement of evidence of Margaret Anne Kawharu (4 December 2020)
788.	Statement of evidence of Vivian Tāmati Kruger on behalf of the plaintiff in reply (4 December 2020)
789.	Statement of evidence of Paul Edward Meredith on behalf of the plaintiff in reply (4 December 2020)
790.	Statement of evidence of Charles Wahia Tawhiao on behalf of the plaintiff in reply (4 December 2020)
791.	Reply statement of evidence of David Vernon Williams (4 December 2020)
792.	Brief of evidence of Ted Andrews and Glen (Joe) Tupuhi (13 October 2020)
793.	Tipa Shane Compain evidence on behalf of the Second Defendant (13 October 2020)
794.	Brief of evidence of Nigel Hikurangi Denny (13 October 2020)
795.	Harry Haerengarangi Mikaere evidence on behalf of the second defendant (13 October 2020)
796.	Terrence John McEnteer evidence on behalf of second defendant (13 October 2020)
797.	Debra Liane Ngamane evidence on behalf of second defendant (13 October 2020)
798.	Walter (Wati) Ngakoma Ngamane evidence on behalf of the second defendant (13 October 2020)
799.	William Kapanga Peters evidence on behalf of second defendant (13 October 2020)
800.	Statement of evidence of Hauauru Eugene Raymond Rawiri on behalf of the second defendant (13 October 2020) – Te Reo Māori
801.	Statement of evidence of Hauauru Eugene Raymond Rawiri on behalf of the second defendant (13 October 2020) – English
802.	Brief of evidence of Hayden Te Hira Solomon (13 October 2020)
803.	Statement of evidence of David Errol Taipari for the second defendant (13 October 2020)
804.	Statement of evidence of Morehu Anthony Dean Wilson on behalf of the second defendant (13 October 2020)

805.	Brief of evidence of David Wilson (13 October 2020)
806.	Brief of evidence of Karen Akamiria Wilson (13 October 2020)
807.	Notes of Evidence, 6 February 2021

MĀORI APPELLATE COURT CASES
In re Bed of Whanganui River [1958] NZMAC 2/59
808.	Transcript of hearing before the Māori Appellate Court (4-6 March 1958)

COURT OF APPEAL CASES
R v Iti [2007] NZCA 267/06
809.	Notes of evidence taken before Judge C J McGuire (12 June 2006)

SUPREME COURT CASES
Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZSC 135
810.	Affidavit of Charlie Wahia Tawhiao in support of application for leave to intervene and be heard on appeal (29 March 2018)
811.	Affidavit of Henri (Harry) Jacques Burkhardt in support of application for leave to intervene in and be heard on appeal (4 April 2018)
Ellis v R [2022] NZSC 114
812.	Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006 (Hirini Moko Mead, Pou Temara) (31 January 2020)

TE AKA MATUA O TE TURE | LAW COMMISSION APPENDIX 3 – CONTENTS 1

Mahuru | September 2023 Te Whanganui-a-Tara, Aotearoa Wellington, New Zealand

Pūrongo Rangahau | Study Paper 24

Appendix 3: Interlegality, interdependence and

independence:

Framing relations of tikanga and state law in Aotearoa New Zealand

Nicole Roughan

Contents

SUMMARY 2
BACKGROUND AND SCOPE 5
SECTION ONE: LAW’S AUTHORITY, LEGALITY AND RECOGNITION 8

1. Asking the question ‘what is law?’ 8
2. What is law? 16

SECTION TWO: RELATIONS BETWEEN LEGAL ORDERS: TERMINOLOGY AND FOUNDATIONS 21

1. Interaction 21
2. Intersection 22
3. Institutions 23
4. Claims and claiming 23
5. Legality and legalities 24

SECTION THREE: CONTESTING STATUSES OF LEGALITY 26

1. Disrupting the recognition of law and authority 26
2. Independence and interdependence of authorities 28
3. Responding to objections 32

SECTION FOUR: RESOLVING RECOGNITION 37

1. Unilateral recognition 38
2. Mutual recognition 40
3. Recognition of relations 41

SECTION FIVE: INTERLEGALITY 43

1. Forms and tools of interlegality 45
2. A genuinely common law? 51
3. Shared decision making, deference and referral 53
4. Objections to interlegality 55

CONCLUSION 60
AUTHOR ACKNOWLEDGMENT 61

Summary

1. Relations between tikanga and state legalities present a general challenge to the operation of law in Aotearoa New Zealand. The practical challenges that arise wherever the two streams of law meet also presents a jurisprudential emergency: how do interacting and intersecting claims to legal status affect the recognition and evaluation of that status? Can there be overlapping and interacting statuses of legality? Can law itself provide for contests and distributions among competing statuses of legality?
2. This paper argues that the forms and claims of legality present in tikanga, operating independently as well as interacting with the state legal order, interrupt the recognition of state law as law. The operation and recognition of tikanga precludes collective recognition of a single status of legality operating one law for all. Instead, we have two legal orders, and the question is whether there are or should be one law for some and one for others, one law for some and force for others or two laws for all.
3. The arguments that follow present a ‘two laws for all’ approach. To have the rule of law, people need to be able to recognise law’s claim to justly administer public standards for a community. Law is not the mere imposition of force – instead, it claims authority as a kind of rightful power. In Aotearoa New Zealand, state law fails on this front when it makes independent and supreme claims to authority in the face of the prior and continuing recognition of tikanga as law. By itself, state law fails to operate the rule of law – its legality is defective. The defects are (at least) three-fold: (1) State law’s imposition upon Māori, and upon the recognition of tikanga, have been and remain forceful, in ways that undermine the recognition of state law as law. This is a failure of the rule of law understood in contrast to mere force. (2) This defect is compounded because the failure is uneven, with law claiming (and being recognised as claiming) authority for some but force for others. This is a failure to meet the rule of law’s ideal of formal equality and a failure of ‘one law for all’.

(3) Both defects are compounded by the persistence of state law’s claims in the face of its own failures. Either ignorance (or wilful blindness) about problems of recognition undermines not only the claim to the rule of law but also the legitimacy of its claimant.

4. Why settle for less than legality, less than the rule of law, when there could be institutions to relate the legal orders and contest their claims to legality? The plurality and overlap of claims to legality – in our case, those of state law and tikanga – may be addressed through methods and institutions of ‘interlegality’ in which the very status of legality can be tested and contested, while concrete issues invoking both legal orders can be addressed. The operation of interlegality is supposed to make the meeting point of interaction and intersection between legal orders a matter of legality rather than force or politics. It seeks a way to rescue legality in the face of overlapping claims to that status, preserving what is valuable about the rule of law, without the resort to force. It also makes the relationship between the legal orders – rather than each legal order on its own – the key object of recognition and the key target of the rule of law.

5. Interlegality requires both institutionalising humility – to limit the state’s own claims to legality and its reach into tikanga – and institutionalising the ways in which tikanga can be represented and applied in its meeting points with state law. Unlike legal forms that allow one order to unilaterally determine its relationship with the other (for example, conflict of laws tools) or legal forms that subject both legal orders separately to a higher legal order (in the manner of public international law), interlegality requires that the interaction and intersection between legal orders operates institutions and rules of engagement – rules and institutions for managing the relationship between the legal orders – that are determined and recognised by both. In simplified form, interlegality requires genuinely common law and genuinely shared institutions to contest its development and deployment.
6. Justifications for interlegality may include but do not start or end with te Tiriti o Waitangi, which may be interpreted to constitute an interlegal domain between Crown and Māori authorities but leaves open the legal and political mechanisms for giving effect to those constitutional relations. It also leaves open the relation between legal and political forms of constitutionalism.
7. Instead of political contest between constitutional claims and authorities, an interlegal framework requires institutions of law as fora both for responding to the matters of common concern that entangle tikanga and state legalities together and for contending and doing justice between overlapping claims to legality. An interlegality model frames the key matter of common concern as the operation and non-forceful contestation of legal statuses. Interlegality requires legal forms for the justified interaction of tikanga and state legal claims to authority, coercion and administration of justice. Among those institutions of law, common law harbours potential to be genuinely common law, operating both a domain of interdependence between state law and tikanga and fora for contesting its boundaries around a core of independent operation of tikanga. That potential is not captured in statist common law but in a genuinely common law – one that is recognised as common – between the overlapping legal orders.
8. The interlegality account engages a broader political theory that seeks to explain both the interdependence and independence of political communities. Interdependence and independence bear some relation with one another; the wider challenge is to examine what that relationship is and what it means for the relation between state and tikanga legal orders in Aotearoa New Zealand. The arguments below draw out theories of recognition, legality and authority that are central to that wider challenge and are central to what I defend elsewhere as the structure of interdependence around independence.
9. Arguments for interlegality, however, also support a narrower claim about the relations of state law and tikanga – one tied to theories of legality rather than to the particular political theory of interdependence around independence. In this view, the activities of persons, in places, generates interaction and intersection between legal orders that disrupt the recognition of authority and legality in both legal orders. The entanglements of interacting peoples and intersecting places cannot be simply segregated and separated, yet forms of legal ordering can still be arranged, and statuses of legality recognised and distributed, in ways that people and places cannot. Colonial legal forms can be removed and Indigenous legal forms renewed. Supreme claims can be replaced with relative or relational ones, in which both legal orders recognise their relations to the other. Interlegality then manages their interactions and intersections, including (though not only) by providing for shared decision making, deference and referral between the legal orders.

10. Finally, the paper responds to key objections to interlegality, including objections that worry directly about whether tikanga is law or whether tikanga and state law can both be recognised as law, that defend a supreme liberal democratic state (and its exclusive legality) in a multicultural society, that reject any ‘race-based’ distinctions among persons, that argue for the supersession of the historical injustices arising from the imposition of settler law upon tikanga or that advocate stronger claims to mana motuhake or tino rangatiratanga, rejecting the interdependence that interlegality builds around independence.
11. For now, far too briefly, the response defended here argues that our history and its institutional present has a continuing impact upon the way persons recognise (and are recognised by) law and legal authorities. The deliberate displacement, denial and destruction of Indigenous communities and world views, the impacts of settler claims to legality and authority upon prior and continuing Indigenous legalities and authorities and, perhaps most importantly, the resurgence of recognition of Indigenous law and Indigenous authorities shadows both the plausibility and the value of liberal legality (and its institutions) for communities where there are continuing Indigenous legal orders overlapping with state claims to legality. The full response to key objections grounds the justification for interlegality on the value and status of legality itself in ways that avoid insidious forms of distinctions between persons on the basis of race and enable legality to serve persons equally as subjects as law – rather than unevenly as objects of force. It argues that interlegality can operate to realise both the independent operation of tikanga and a domain of interdependence between state law and tikanga that are necessary for the rule of law and law’s legitimate authority in Aotearoa New Zealand.
12. The paper is structured in five parts. Part 1 sets out the terminology and foundational concepts deployed in the paper. Part 2 offers a theory of law to address the question ‘what is law?’ without presuming a theory of state/monistic law. Part 3 examines how overlapping and contesting statuses of legality disrupt the recognition of law and law’s claim to authority. Part 4 presents three contending understandings of recognition between legal orders, arguing against both incorporation and conflict of laws techniques, through which one legal order recognises another, in favour of tools for recognising relations between legal orders. Part 5 defends an account of interlegality and its forms for implementing such recognition through provision for both interdependent and independent domains of legality.

Background and scope

1. There is an expansive body of work on the relationship between tikanga and state law, including academic contributions, judicial decisions and extra-judicial writing, Waitangi Tribunal reports, independent reports (such as Matike Mai and He Puapua) and the previous work done by and for Te Aka Matua o te Ture | Law Commission (including the general work on Māori custom and values in New Zealand law and the specific studies on the law of succession).1 The present contribution provides both points of departure and development from that earlier work to offer a theoretical framework for understanding and evaluating systemic issues surrounding the interaction of state law and tikanga through their relation to broader questions of legitimate authority and the rule of law.
2. The theoretical framework draws on the ideas and arguments of pluralist jurisprudence, which both disrupts state-centred answers to familiar jurisprudence questions and introduces new ones.2 Pluralist jurisprudence explores how the claims, statuses and evaluations of interacting legal orders affect one another rather than taking each in isolation. It does not prioritise theories of state law nor theories of one monistic legal order. Instead, pluralist jurisprudence examines (i) how the interactions of legal orders contribute to understanding what law is and (therefore) how legal orders can interact and (ii) evaluating law’s authority, coercion and justice in light of plural claims to organise communities through law, justifying how legal orders should interact.
3. Within that field, specific work on interactions of state and Indigenous legalities can be dissociated from broader work on ‘legal pluralism’, which fails to capture the full range and

1. The Law Commission’s earlier work on succession expressly did not engage the challenge of multiculturalism, while the newer work raised that aspect of the Law Commission’s complex mandate but set it aside for separate study. See Pat Hohepa and David V Williams, The Taking into Account of Te Ao Maori in Relation to Reform of the Law of Succession (Law Commission 1996) and the newer Te Aka Matua o te Ture | Law Commission, He arotake i te āheinga ki ngā rawa a te tangata ka mate ana | Review of succession law: rights to a person’s property on death (Te Aka Matua o te Ture

| Law Commission 2021).

2. Exemplifying the recent expansion of interest in pluralist jurisprudence, see the collections of essays, including Nico Krisch (ed), Entangled Legalities Beyond the State (CUP 2021); Jorge Luis Fabra-Zamora (ed), Jurisprudence in a Globalized World (Edward Elgar Publishing 2020); Nicole Roughan and Andrew Halpin (eds), In Pursuit of Pluralist Jurisprudence (CUP 2017); Paul Schiff Berman (ed), The Oxford Handbook of Global Legal Pluralism (OUP 2020); Seán Patrick Donlan and Heckendorn Urscheler, Concepts of Law: Comparative, Jurisprudential, and Social Science

Perspectives (Routledge 2014); Michael A Helfand (ed), Negotiating State and Non-state Law: the Challenge of Global

and Local Legal Pluralism (CUP 2015). These were preceded by influential monographs, including Keith Culver and Michael Giudice, Legality’s Borders: An Essay in General Jurisprudence (OUP 2010); William Twining, General Jurisprudence: Understanding Law from a Global Perspective (CUP 2009); Brian Tamanaha, A General Jurisprudence of Law and Society (OUP 2001).

impact of claims to Indigenous (and not merely pluralist) authority.3 The specific and continuing impact of colonisation differentiates the justification of state/tikanga interlegality relations from the controversies that attach to general legal pluralist claims against theories of monistic state legality.4

4. The scope of the paper is also narrower than a full jurisprudence of interaction. It deploys and develops jurisprudence that abstracts away from the familiar object of state law, and the challenges it poses to statist and monistic jurisprudence are designed to meet expert accounts of Māori philosophies of law and understandings of tikanga drawn from mātauranga Māori.5 I make no claim to expertise in those fields and so say more here about state legality in its relations to tikanga and less about how tikanga may be represented, evaluated, operated and recognised within a jurisprudence of interaction.6
5. The paper also avoids duplicating the substantial body of work on case law or other institutional forms through which interactions of state law and tikanga are being played out.7 Aside from a brief account of the interlegal institutional possibilities raised by Ellis,8 it does not track or project forwards current/recent developments in legal practice, nor is it a paper about constitutional obligations or transformation. This selective focus reflects a division of labour around different aspects of the challenges of interaction between state law and tikanga as well as the specialist nature of both constitutional scholarship and doctrinal expertise at the intersection of the legal orders.9
6. The arguments below therefore offer a justification for interlegality that does not rest upon (though may resonate with) particular readings of te Tiriti o Waitangi. Te Tiriti may be read to constitute relations between Crown and Māori authorities and to constitutionalise interlegality. In that sense, te Tiriti offers a constitutional form to constrain those relations so that they are not relations of force. However, te Tiriti does not set out the institutions

3. Jacinta Ruru, Metiria Turei, Carwyn Jones and Khylee Quince, Inspiring National Indigenous Legal Education for Aotearoa New Zealand’s Bachelor of Laws Degree: Phase One (Borrin Foundation 2020) 37. On relations of indigenous and pluralist legal theories, see Kirsten Anker, ‘Postcolonial Jurisprudence and the Pluralist Turn: From Making Space to Being in Place’ in Roughan and Halpin (n 2); Kirsty Gover, ‘Legal Pluralism and Indigenous Legal Traditions’ in Berman (n 2).
4. Among the most important works on the local distinctive and continuing impact of colonisation and the challenges it raises for thinking about law, authority and justice, Ani Mikaere, Colonising Myths: Māori Realities. He Rukuruku Whakaaro (Huia Publishers 2011) and Moana Jackson, The Maori and the Criminal Justice System: A New Perspective, He Whaipaanga Hou (Department of Justice 1988) remain essential and perhaps timeless resources.
5. As Māmari Stephens has argued, we should avoid “an easy and false dualism when analysing Māori jurisprudence” in light of its “porous” interactions with Western legal thought. Stephens, ‘Fires still Burning? Māori Jurisprudence and Human Rights Protections in Aotearoa New Zealand’ in Margaret Bedggood, Kris Gledhill and Ian McIntosh (eds), International Human Rights Law in Aotearoa New Zealand (Thomson Reuters 2017) 102.
6. I have examined elsewhere how statist jurisprudential tools may be reworked to serve a jurisprudence of interaction in Nicole Roughan, ‘Honing ‘Our Jurisprudence’ to Respond to Interacting Legalities in Aotearoa New Zealand’ (2022) NZ Law Review.
7. Linda Te Aho, ‘Tikanga Māori, Historical Context and the Interface with Pākehā Law in Aotearoa/New Zealand’ (2007) 10 Yearbook of New Zealand Jurisprudence 10; Carwyn Jones, ‘Lost from Sight: Developing Recognition of Māori Law in Aotearoa New Zealand’ (2021) 1 Legalities 162; Claire Charters, ‘Recognition of Tikanga Māori and the Constitutional Myth of Monolegalism: Reinterpreting Case Law’ in Robert Joseph and Richard Benton (eds), Waking the Taniwha: Māori Governance in the 21st Century (Thomson Reuters 2021).

⁸ Peter Hugh McGregor Ellis v The King [2022] NZSC 114.

9. To the extent that the tools jurisprudence offers for thinking about law and relations between legal orders involve constitutional ideas (such as the ideal of the rule of law), they may resonate with thinking about constitutional ordering and its potential transformation.

of interlegality to give effect to its constitutional constraints. It leaves open how any tino rangatiratanga/kawanatanga interactions and intersections are to operate. Te Tiriti may call for interlegality rather than providing structures or mechanisms for its operation.

7. The justification for interlegality presented here starts from a more abstract account about legitimate authority, force and law’s role in social life. It is grounded in the potential and value of legality itself in contrast to mere power. It concentrates on the role of law understood in its diversified and plural forms rather than political forms and institutions within and across dispersed Crown-Māori relationships. Setting out a jurisprudence (rather than a constitutional or political) framework here is not intended to suggest that lawyers should always look to these more abstract foundations rather than to more concrete constitutional requirements. However, the more abstract positions may be helpful, and indeed may be essential, when concrete constitutional requirements remain so contested that they generate continuous controversy and are so poorly realised that they seem unfit to constrain interlegal relations.
8. Such controversies do not disappear in a jurisprudence of interaction. Key objections to the interlegality argument are examined below at 2a, 3c and 5d.

SECTION ONE

Law’s authority, legality and recognition

1. ASKING THE QUESTION ‘WHAT IS LAW?’

• 1.1 In contexts of overlapping and interacting claims to the status of legality – from state law and tikanga – the question ‘what is law?’ is far from academic. We need at least a working and defensible understanding of what law is before we can examine whether and how legal orders can or should interact. The question has profound implications for the lives of those who are to be governed by law (not non-law) and matters daily to those who make, apply or enforce law in the face of overlapping claims to the status of legality.
• 1.2 It may be thought unfashionable to insist upon a robust concept of law, offering a distinct (even though revisable and not definitive) answer to the question of ‘what is law?’ While debates in jurisprudence seek to explain law as an aspect of human social ordering, attention to actual social orders reveals diverse forms and practices and diverse understandings of law’s roles in social life.10 Critical legal theorists often invoke such diversity to reject philosophical efforts to determine ‘what is law?’, associating both the question and the answer with imperialist or universalist tendencies.11 Important debates about jurisprudential methodology also support doubts about either the possibility or

10. While work in comparative law also reveals differences and similarities in law’s forms and institutions in how law is made and applied, communicated and received, work sharing interests in legal plurality is chiefly concerned with situations “in which two or more legal systems coexist in the same social field”. See Sally Engle Merry, ‘Legal Pluralism’ (1998) 22 Law and Society Review 870. Key surveys of the range of legal pluralist approaches include Baudouin Dupret, ‘Legal Pluralism, Plurality of Laws, and Legal Practices: Theories, Critiques, and Praxiological Re-specification’ (2007) European

Journal of Legal Studies 1, 296. For the present purpose, the most useful are those studies of Māori law or tikanga itself, including those referenced in the present work as well as work that draws upon specific Indigenous legal orders to offer more abstract theories. See, for example, Val Napoleon, ‘What Is Indigenous Law? A Small Discussion’ (Indigenous Law Research Unit, University of Victoria 2016). On methodologies of Indigenous legal theory, see Hadley Friedland and Val Napoleon, ‘Gathering the Threads: Developing a Methodology for Researching and Rebuilding Indigenous Legal Traditions’ (2015) 1 Lakehead LJ 17; Linda Tuhiwai Smith, Decolonizing Methodologies. Research and Indigenous Peoples (2nd edn, Otago University Press 2012); John Borrows, ‘Heroes, Tricksters, Monsters, and Caretakers: Indigenous Law and Legal Education’ (2016) 61:4 McGill LJ 795.

11. Nicola Lacey, ‘Analytical Jurisprudence Versus Descriptive Sociology Revisited’ (2006) 84 Texas Law Review 945; Margaret Davies, Law Unlimited: Materialism, Pluralism, and Legal Theory (Routledge 2017); Brian Tamanaha, ‘What Is ‘General’ Jurisprudence? A Critique of Universalistic Claims by Philosophical Concepts of Law’ (2011) 2 Transnational Legal Theory 287.

utility of a universal and singular concept of law in favour of plural concepts of law.12 The most extreme scepticism rejects philosophical explanations altogether in favour of folk theories of law, where law is whatever people, in diverse social orders, regard it to be.13

• 1.3 Although some such accounts of legal plurality stretch conceptions of law in all directions, a more robust strand separates the idea of legal order from the idea of a state legal order without giving up the central connection between law and political community. This link preserves a conception of law as a normative social practice operating to administer a community’s standards of behaviour, constraining power over (and between) persons. Such attention to diversity of legal ordering may explain how posited state law claims authority over persons through a formally institutionalised system of valid rules, official institutions and authorised coercion, generating debates about how tightly or successfully these forms and institutions demarcate law from other types of social ordering and/or from morality. Other types of legal orders, in contrast, may claim authority through institutions that are less formal, featuring less sharp differentiations between the roles of officials and subjects and less effort to demarcate legal institutions from other social practices or from morality, beliefs and forms of knowledge.14
• 1.4 A focus upon law’s diversity, including diverse concepts of law, may unhelpfully find law everywhere and thus risk finding it nowhere.15 Moreover, resort to treating folk practices to determine legality leaves theory unable to explain legal ordering in the face of either collective doubts or contestations over legal statuses. Rather than giving up on the role of abstract theory or overstating and thereby reinforcing divides between more philosophical and more sociological approaches to legal theory, a number of contemporary contributions seek to situate together both philosophical and sociological elements and methods in legal theory. These include concerted efforts to ‘elucidate’ both essential and contextual features of law (and their relation),16 to isolate where key building blocks of legal theory (including law’s authority and its recognition) harbour both

12. Joseph Raz explains the relation between possession of ‘our’ concept of law and how that parochial concept is used when building a theory of law. Raz, ‘Can There be a Theory of Law?’ in Martin Golding and William Edmundson (eds), The Blackwell Guide to the Philosophy of Law and Legal Theory (Blackwell 2005). Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason (OUP 2009). Compare Ronald Dworkin, ‘Hart and the Concepts of Law’ (2006) 119 Harvard Law Review Forum 95; Roger Cotterell, Sociological Jurisprudence: Juristic Thought and Social Inquiry (Routledge 2018); Julie Dickson, Elucidating Law (OUP 2022). For a recent targeted critique of expanding juristic concepts in the name of pluralism, see Fernanda Pirie, ‘Beyond Pluralism: A Descriptive Approach to Non-state Law’ (2022) 14 Jurisprudence 1.
13. In his newer work, Brian Tamanaha defends a “socio-historical folk legal pluralism”. Tamanaha, Legal Pluralism Explained: History, Theory, Consequences (OUP 2021) 12. Tamanaha’s ‘folk concept’ rests upon what persons collectively recognise as law. Unlike the recognition defended in my own work and summarised here, Tamanaha appears to rest law upon a descriptive, not normative, concept of recognition.
14. William Twining, ‘Normative and Legal Pluralism: A Global Perspective’ (2010) 20 Duke Journal of Comparative & International Law 473; and see, for example, Culver and Giudice (n 2).
15. As Sally Engle Merry put it, “when do we stop speaking of law and simply speak of social life?”. Merry (n 10). See also Twining (n 2) 373 on the loss of analytical purchase resulting from a more inclusive concept of law.
16. Dickson (n 12). As Dickson argues, “The thrust of my views on this issue is that legal philosophy about the nature of law can only be successful when it characterizes law accurately and adequately as a social phenomenon and as a social practice, and when it helps us to understand law as it already exists in our societies, and in our societal self- understanding.”

normative/evaluative and social/descriptive elements17 and to examine how conceptual explanations are matters of both social construction and revision.18 Together, such approaches to general jurisprudence revive the question ‘what is law?’, defending it against charges of methodological or universalist myopia and tracking the development of concepts of law that both explain and respond to pluralist challenges to statist monopolies on statuses of legality.19

• 1.5 Quite aside from complaints and countermoves in jurisprudence, contexts of overlapping claims to the status of legality force the issue of ‘what is law?’, showing that it matters what counts as law, so we need (and must take great care with) a working concept of law. It is significant that work in pluralist jurisprudence does not simply analyse the fact of plurality – the co-existence of multiple diverse forms of legal ordering. Law’s diversity on its own is not particularly problematic. Difficulties arise when there is both multiplicity and interaction of diverse legal orders. Advocates of legal pluralism endorse such co- existence; proponents of legal monism (whether defences of state law or otherwise) reject it. The present work does not summarise nor synthesise their debates. Instead, it examines directly how, in context, multiplicity and interaction of claims to legal ordering pressure law’s collective dimension, disrupt practices of recognition of the status of legality and challenge the justification of both law’s authority and its coercive enforcement.

1. Monism, pluralism and ‘tikanga as law’

• 1.6 There are reasons to pause on this point insofar as the ‘status of tikanga as law’ continues to divide jurists. Those whose training and expertise is only (or primarily) in the forms of state law (and its canonical jurisprudential toolkit) might rely on that training to either doubt the legal status of tikanga itself or its operation as law alongside and/or independent of state law. It should not be surprising that legal training that defends (or exclusively conceives of) the rule of law as ‘the rule of state law’ generates scepticism about the legal status of other forms of legal ordering. It should be equally unsurprising if jurists who recognise tikanga as law without recourse to Western jurisprudential devices to explain that recognition reject the need to do so (and/or reject the devices themselves). A pluralist jurisprudence toolkit might be deployed to bridge that gap in contexts where overlapping claims to legality mean it needs to be bridged.20

17. See, for example, Nicole Roughan, ‘From Authority to Authorities’ in Roger Cotterrell and Maksymilian Del Mar (eds), Authority in Transnational Legal Theory (Edward Elgar Publishing 2016); Roughan, ‘The Recognition in Authority: Roles, Relations, and Reasons’ (2022) Jurisprudence.
18. Michael Giudice, Understanding the Nature of Law: A Case for Constructive Conceptual Explanation (Edward Elgar Publishing 2015).
19. Roughan and Halpin, ‘The Promises and Pursuits of Pluralist Jurisprudence’ in Roughan and Halpin (n 2). Roger Cotterrell, ‘Why Jurisprudence is not Legal Philosophy’ (2014) 5 Jurisprudence 41. Martin Krygier suggests that the myopia goes both ways. See Krygier, ‘The Concept of Law and Social Theory’ (1982) 2 Oxford Journal of Legal Studies 155; Julie Dickson, ‘Ours is a Broad Church: Indirectly Evaluative Legal Philosophy as a Facet of Jurisprudential Inquiry’ (2015) 6 Jurisprudence 207.
20. This toolkit operates alongside work that directly explains tikanga by examining its institutions, its systematic and organising rules and principles, its values and content. See, for example, Hirini Moko Mead, Tikanga Māori: Living by Māori Values (Huia Publishers 2003); Richard Benton, Alex Frame and Paul Meredith (eds), Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Victoria University Press 2013); Edward Durie, ‘Will the Settlers Settle? Cultural Conciliation and Law’ (1996) 8 Otago Law Review 44. This large body of

• 1.7 From the starting point of statist jurisprudential orthodoxies, there are two distinguishable forms of scepticism about whether tikanga is (or should be) regarded as law. A ‘statist objection’ challenges specific features of tikanga itself, while a ‘monist objection’ doubts the possibility or value of pluralistic rather than monistic legal ordering.
• 1.8 Simple versions of a statist objection look for a legal order to have institutions that resemble (or functionally duplicate) Western-style parliaments, courts and executive/law- enforcement offices as well as their separations from each other. Such objections can be quite straightforwardly countered by the sophisticated literature that shows the contingency of the state legal forms that have been the dominant objects of analytical jurisprudence.21 Theories of law in non-state polities as well as theories of law existing in interaction with the state often elevate conceptions of customary law, law-making institutions that don’t look like state legislatures, law-applying institutions that may not resemble courts and practices of redress, reconciliation and redistribution operating as practices of law enforcement alongside (or instead of) centralised coercion.22 These can be invoked to address simple forms of the statist objection.
• 1.9 Some forms of a statist objection, however, insist upon some integrating/structuring or organising feature that turns rules of behaviour into a legal system (for example, by looking for Hartian secondary rules such as a ‘rule of recognition’ (as an official practice of treating certain norms as having characteristics that make them legally valid/‘legally binding’)23 or some other way of institutionally separating out a system of law from other modes of social ordering and from morality. Alternatively, or additionally, an objection might look to replicate a more substantive ideal of ‘legality’ in which law is understood to require some version of the rule of law (including constraints on discretion, avoidance of arbitrary power and protection for persons against each other and against the power of the state).
• 1.10 It is important to treat those objections in their strongest forms and in their best light. Beyond the comfort of the familiar, why would jurists insist upon these particular kinds of institutions, systemic features or structures and/or why look for legal forms that protect these particular procedural or substantive constraints on power? What is their value, and how is that value challenged by plural overlapping claims to the status of legality? Those questions trigger orthodox jurisprudential divides around the question of ‘what is law?’, which are set out briefly here to demonstrate that they cannot be straightforwardly relied upon to defend statist or monistic legality.

work does not require translation into statist jurisprudence terms, but jurisprudential tools can be honed to better engage that work with statist and monistic theories. Responding to Durie’s provocation, see also Roughan (n 6).

²¹ Twining (n 2, n 14); Joseph Raz, ‘Why the State’ in Roughan and Halpin (n 2).

22. Some of these emphasise the customary foundations of all law upon which posited state legalities can be examined and explained. See, for example, Jeremy Webber, ‘The Grammar of Customary Law’ 54 McGill L Rev 580; Gerald J Postema, ‘Custom, Normative Practice, and the Law’ (2012) 62 Duke LJ 707; Lon Fuller, ‘Human Interaction and the Law’ (1969) 14 The American Journal of Jurisprudence 1.
23. HLA Hart, The Concept of Law (3rd edn, OUP 1961). Although it is common to refer to a rule of recognition as picking out ‘sources’ of valid law, Hart’s Postscript acknowledgement that moral considerations can be among the criteria for legal validity means that not all laws need have social sources. Rejecting that view, see Joseph Raz, ‘Authority, Law and Morality’ in Ethics in the Public Domain (Clarendon Press 1994).

ii. Revisiting monistic and statist jurisprudence

• 1.11 Legal positivist work isolates law as a distinctive kind of normative social practice, either separate or separable from matters of morality, ethics and politics. In some instances, positivist theories can be fairly (and fairly easily) characterised as begging questions about law’s diversity and plurality in favour of the familiar forms of the monistic law- state.24 In other accounts, the claim to separation between state law and other normative orders is defended on either analytical, sociological or normative grounds.
• 1.12 Many proponents of positivism, and not only those who expressly defend so-called ‘normative positivism’, celebrate the notion that law is separated or separable from custom, etiquette, politics, morality, games and so on, making it easier to both identify law and criticise law when it goes wrong.25 However, it is a separate question whether state law (or state law alone) offers the best forms and institutions for making or maintaining those separations.
• 1.13 Among the leading legal positivist theorists of law, generations of lawyers in New Zealand are often less familiar with Kelsen than with Hart and his tradition. That is unfortunate, insofar as Kelsen’s positivism more directly addressed the connection between law and state and monist/pluralist counterpoints. Kelsen’s account is subtle and methodologically complex, but in summary form, Kelsen’s core position explains state law – through its institutionalised forms, rules and sanctions – to offer a monopolisation of coercive force in a community. This monopolisation has a point: state law marshals force in the name of the community to stop force being used by persons among themselves.26 Kelsen then argued, on logical grounds, that, to understand law as such a system of rules, jurists must presuppose an ultimate/basic norm from which the validity of all legal norms derives.27
• 1.14 It is important, however, that Kelsen’s account of systemic validity and law’s particular normativity rests on the contingency of seeking to understand what lawyers, judges and other jurists do when they treat certain enactments or judgments as creating valid law within a legal system. Contexts of overlapping claims to legal ordering seem among the most obvious contexts in which we cannot simply make Kelsenian presumptions about a (single) basic norm or myopically choose to think of law as a system of rules, logically ordered into a monistic structure. Nor can we cabin off a particular strand of juristic practice and seek to understand what (only) those jurists are doing. In our present

24. Joseph Raz examined the ways in which general jurisprudence has been focused primarily or even exclusively upon state law (and argues such a focus can be defended but not assumed). Joseph Raz, ‘Why the State?’ in Roughan and Halpin (n 2).
25. For example, see Jeremy Bentham, A Fragment on Government (CUP 1988); Gerald J Postema, Bentham and the Common Law Tradition (OUP 1986); HLA Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard Law Review 593. On normative positivism, see Jeremy Waldron, ‘Normative (or Ethical) Positivism’ in Jules Coleman (ed), Hart’s Postscript (OUP 2001); Tom Campbell, Prescriptive Legal Positivism: Law, Rights and Democracy (UCL 2004). A full examination of ‘normative positivism’ (and whether the label has utility at all) raises debates of jurisprudential methodology including those examined in Julie Dickson, Evaluation and Legal Theory (Bloomsbury Publishing 2001).

²⁶ Hans Kelsen, General Theory of Law and State (Lawbook Exchange 1999) 20–21.

27. Kelsen (n 26) and see English trans. Pure Theory of Law (Clarendon Press 1992) at 344–347. While Kelsen is also often invoked as a theorist of monist legal ordering, his defence of monism is an account of the connectedness of international and domestic legal ordering. The logical relation of international and state legal orders presents a structurally and

politically distinct challenge to the one posed by overlapping state and Indigenous claims to legality. It is built upon his

account of the unity of all legal ordering, which is defended on epistemological grounds. He then defends (on normative grounds) a monistic structure that subsumes state law under international law.

context, there are diverse juristic practices, including practices of tikanga jurists as well as jurists who recognise plural interacting legal orders. That diversity disrupts Kelsen’s methodology by upsetting the possibility of presuming a single system resting upon a basic norm.

• 1.15 Turning to juristic practice and matters of social fact invokes the (likely) more familiar Hartian device of a ‘rule of recognition’.28 A rule of recognition might be thought to readily accommodate interactions of tikanga and state law within a single system. Contemporary practices of officials of state law recognising tikanga as law – as exemplified in case law and legislation – might simply reveal yet another shift in the undulating customary development of state legal officials’ regard for tikanga and its relation to other legal forms.29 However, these practices of recognition also reveal contestation, including contests about whether recognition of tikanga is a form of incorporation or recognition of independence, about hierarchies between tikanga and state law as sources or streams of law and about who are the relevant ‘officials’ whose practices count in generating rules of recognition at all.30
• 1.16 The overlap and interaction of claimed legal orders serves to highlight that Hart’s account of legal ordering depends upon the existence of a settled and recognised role of the legal official, which Hart presumed as a matter of social fact. Contexts of overlapping claims to legality, however, are also contexts of overlapping agents of legalities – upsetting the presumed class of officials upon which the notion of a rule of recognition depends. Just as diverse juristic practice precludes presuming a basic norm for Kelsen, it renders unstable the Hartian assumption that there is a settled and recognised class of officials whose practices generate a rule or rules of recognition.
• 1.17 Beyond diversity in the practices of agents of interacting legal orders, disputes over who counts as an official and debates over the official role itself, interactions between state law and tikanga may also generate disagreements over what the content of a rule of recognition is and should be. This suggests that the key jurisprudential interlocutor is not Hart (whose theory offers little space for either divergence or critical normative reflection over the rule of recognition itself) but Dworkin, for whom interpretive and constructive reflection reaches all the way down into the grounds or foundations of legal practice.31 Dworkin’s own account argued that interpretive disagreements at the grounds of law preclude the convergent official behaviour that Hart thought generated a rule of recognition.32 A more robust challenge would deploy an interpretive account to argue that such a rule could not be generated without moral reflection about the values the rule

²⁸ See Hart (n 23) 91–110.

29. On the customary character of a Hartian rule of recognition, see John Gardner, ‘Some Types of Law’ in Douglas Edlin (ed), Common Law Theory (CUP 2009); on local practices of recognition, compare Natalie Coates, ‘The Recognition of Tikanga in the Common Law of New Zealand’ [2015] New Zealand Law Review 1; John Dawson, ‘The Resistance of the New Zealand Legal System to Recognition of Māori Customary Law’ (2008) 12 Journal of Pacific Law 56; Charters (n 7); Jones (n 7); Nicole Roughan, ‘Escaping Precedent: Inter-Legality and Change in Rules of Recognition’ in Timothy Endicott, Hafsteinn Dan Kristjánsson and Sebastian Lewis (eds), Philosophical Foundations of Precedent (OUP 2023).

³⁰ Roughan (n 29).

31. For example, Ronald Dworkin, Law’s Empire (Belknap 1986) at 4–12 discussing theoretical disagreements about the grounds of law.

³² Ronald Dworkin, ‘The Model of Rules I’ in Taking Rights Seriously (Harvard University Press 1977).

itself is to serve.33 Then, recourse to a rule of recognition invites rather than precludes evaluative debates in response to overlapping claims to statuses of legality.

• 1.18 There is no statist or monist refuge to be found in Joseph Raz’s influential variation on Hart’s positivism. In Raz’s account, law necessarily claims (but does not necessarily have) supreme legitimate authority. For Raz, law claims to morally obligate subjects; there is no separate domain of law’s normativity (as there was for Hart). By this, Raz means that law claims be able to serve subjects by enabling them to better conform with reasons for action that apply to them.34 In other work, I have argued that, within Raz’s own account, value pluralism can generate multiple legitimate authorities for the same subjects.35 In contexts of overlapping claims to law’s legitimate authority, rather than collapsing authority altogether by rendering law’s authority too uncertain or unclear, such claims can be understood as claims to relative and not supreme or exclusive authority. Understanding law as making a claim to authority does not rule out overlapping claims to law’s authority. Instead, their priorities and relations to one another will need to be evaluated to see which (or which combinations), if any, can be justified. (See part 3 below.)
• 1.19 Shifting towards the evaluation of claims to legal authority and interpretations of law’s foundations also shifts the jurisprudential toolkit away from accounts that demarcate law from other social phenomena or from morality. Instead, it suggests the various strands of thinking that emphasise the capacity of legal institutions (and legal practice) to give effect to a range of procedural or substantive moral or political goals. Debates in jurisprudence make considerable fuss over whether such capacities are built into the very idea of law, as a condition of ‘legality’ itself (in some form of non-positivism), or whether (consistently with positivism) law is simply an instrument that can (but need not) be put towards particular political/moral ends.36 Setting aside any disciplinary concern over internal debates in jurisprudence, the present significance of these arguments is that, from either position, statist objections may argue that tikanga falls short in one or more markers of what statist jurisprudence either values or conceives as law, while monist objections may doubt whether the prospect of plural legal orders is consistent with values that (they argue) law either carries or ought to pursue.
• 1.20 The strongest monist and statist challenges are therefore not tied to an interpretation of a legal system’s operative rules of recognition nor an austere invocation of ‘legal positivism’. They are tied to ideas about value.

iii. Law and value

• 1.21 Debates over ‘what is law?’ then turn into debates about value, legitimacy and justification, including debates about the value of law for communities, the value of communities themselves, the value of communities for persons both inside and outside

33. That need not be Dworkin’s own version of an interpretive or reflective account. See Gerald Postema on the reflective character of custom in Postema (n 22). This might be applied to understand a rule of recognition as a customary (and thus reflective) rule. See Roughan (n 29).
34. See Joseph Raz, The Morality of Freedom (Clarendon Press 1986) 23–69; Raz, The Authority of Law (2nd ed, OUP 2009) 3–27; Raz, Between Authority and Interpretation (n 12) 126–165. Important revisions and restatements appear in Raz, ‘The Problem of Authority: Revisiting the Service Conception’ (2006) 90 Minn L Rev 1003.

³⁵ Nicole Roughan, Authorities: Conflicts, Cooperation, and Transnational Legal Theory (OUP 2013).

36. This is the core of the well-known Fuller/Hart debate. See Lon L Fuller, ‘Positivism and Fidelity to Law – A Reply to Professor Hart’ (1958) 71 Harv. L. Rev. 63; Hart (n 25).

their boundaries, the value of communities within communities and other key concerns. Yet in the context of overlapping claims to the status of legality, debates over ‘what is law?’ also lead directly to questions of the values to be pursued through interaction between communities and between legal orders, asking whether law’s plurality and interaction (of diverse forms of law’s recognition in overlapping communities) are themselves valuable and justifiable.

• 1.22 The most recurrent controversies surround the ideals of ‘liberal legality’.37 This ideal (or some version of it) underwrites substantive concerns about the recognition of tikanga either within the common law or as a separate legal order. Defenders of liberal legality treat legality as a particular kind of social and political achievement in which law supports autonomous individual personhood and the pursuit of one’s chosen ends (within a framework that protects others’ abilities to do the same), free from unjustified coercion. Key liberal positions then defend different variants of liberal ideals and different understandings of legality’s contributions. Among the most relevant here are those liberal egalitarian accounts that not only celebrate persons’ freedom from one another and from overreaching public power but celebrate equal freedom. The ideal is for persons to be equally free of unjustified public or private interferences and not to be put to another’s (individual or collective) ends. Legality, with its constraints on power coupled with commitments to a form of equality, is then supposed to serve (and be necessary to serving) that ideal, while legal institutions, including constitutionally constrained executives, democratic legislatures and independent judiciaries (often with different weightings), are reified in different accounts of how to achieve those ideals.38
• 1.23 So understood, the strongest monist and statist objections do not arise from a lack of knowledge about what tikanga is or does nor come from blind allegiance to training in state law or statist jurisprudence. They come instead from a place of genuine commitment to a view in which the state’s legal institutions are thought to defend the values of equal freedom, to offer the most secure and fair (albeit imperfect) framework for social ordering in diverse communities. That view then argues that the state provides an overarching and supreme framework within which there can be recognition of difference (and the value of different community priorities, identities, and practices), only under the umbrella of state law’s supremacy or exclusivity. On this view, the argument is that genuinely plural legal ordering is inconsistent with liberal ideals of protection for equal freedom from unjustified coercion.
• 1.24 However, such recourse to justifications for liberal legality are parasitic upon defences of liberalism itself, which are not only beyond the present project’s concern but (more importantly) fail to explain or to address how the status of legality itself could be up for contestation. As overlapping claims to the status of legality, interactions of state law and tikanga are not simply subject to the familiar rounds of contest in political theory over ‘group rights’, forms of biculturalism, ‘multicultural liberalism’ or broader debates between

37. Some of the leading literature on interaction between state law and tikanga highlights points of tension between the values liberal legal orders are thought to serve and values pursued in tikanga. See, for example, Joseph Williams, ‘Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law’ [2013] WkoLawRw 2; (2013) 21 Waikato Law Review 1.
38. Those most familiar to local audiences may include the contrasting institutional emphases defended in Ronald Dworkin Sovereign Virtue (Harvard University Press 2002); Dworkin, A Matter of Principle (Harvard University Press 1985); Dworkin, Law’s Empire (n 31); compared with Jeremy Waldron, Law and Disagreement (OUP 1999).

liberalism and communitarianism.39 Addressing such interactions cannot simply turn directly to questions of value then reverse-engineer conceptions of law to fit either statist/monist or pluralist preferences. Instead, the question ‘what is law?’ needs to be answered with tools to examine contesting statuses of legality without begging the question in favour of either statist/monist, or pluralist positions.

• 1.25 That is the task to which a robust pluralist jurisprudence responds (and is addressed in Parts 3–5 below). The remainder of this section offers a working conception of law that takes seriously the prospect and impact of overlapping claims to the status of legality in order to examine and evaluate whether the claims (together or separately) can be realised.

B. WHAT IS LAW?

• 1.26 This section explains three key building blocks of a working conception of law: authority, constrained coercion and recognition. These elements leave open the possibility of a great deal of diversity across different types of legal ordering (including different kinds of law-making, law-applying and law-enforcing institutions and different degrees of integration between posited law and matters of morality, spirituality and the physical/natural world) without treating law as an open-ended concept. This approach still draws a line around what law is (and what it is not) by conceiving that law claims legitimate authority over subjects, constrains the use of coercive power through a principle of legality and rests on recognition of both the roles and relations of officials (or agents) of law and law’s subjects.
• 1.27 Law can be understood as a particular mode of ordering societies through rules and principles that are applied and imposed collectively and institutionally in a community rather than through mere force and violence between persons in their private capacities.40 Law is a particular mode for relating power and persons to one another.
• 1.28 Law’s collective dimension is important. Law operates on the back of collective practices of recognition as a normative social practice that orders a community in light of common concerns that people(s) must address in order to live together.41 Those may include

39. These include the body of work through the 1990s that placed debates over Indigenous rights at the centre of these debates in political theory. Most prominently, in our local context, see Andrew Sharp, Justice and the Māori (OUP 1990). See also the essays collected in Duncan Ivison, Paul Patton and Will Sanders, Political Theory and the Rights of Indigenous Peoples (CUP 2000). The debates include division over the treatment of Indigenous peoples within a broader defence of multiculturalism or presenting a distinctive set of challenges for political theory. Compare Will Kymlicka,

Multicultural Citizenship (OUP 1995) with James Tully, Strange Multiplicity (CUP 1995). For Kymlicka’s later acknowledgement that the “deep structure of settler colonialism” requires more than a broader theory of cultural accommodation, see Kymlicka, ‘Liberalism, Community and Culture Twenty-Five Years On: Philosophical Inquiries and Political Claims’ (2016) 44 Dve domovini / Two Homelands 67, 71.

40. On ‘modal’ rather than functional understanding of law, in which law is distinguished by how it does its work and not what that work is, see Les Green, ‘The Concept of Law Revisited’ (1996) 94 Michigan Law Review 1687. Also see John Gardner, Law as a Leap of Faith: Essays on Law in General (OUP 2012); Gardner, ‘Fifteen themes from Law as a Leap of Faith’ (2015) 6 Jurisprudence 1, 29: “Even without legality, law is still to be distinguished modally: for example, by its use of rules (however obscure), its use of moral claims (however preposterous), its use of authority (however illegitimate), its use of custom (however concocted), its use of officials (however jumped-up), and its use of interpretation (however far-fetched).”
41. As Jeremy Webber puts it, “the need to establish, at least provisionally, a single normative position to govern relations within a given social milieu, despite the continuing existence of normative disagreement”. Webber, ‘Legal Pluralism and Human Agency’ (2006) 44 Osgoode Hall LJ 167.

dealing with conflict, supporting wellbeing/flourishing/survival, administering just distributions and corrections, dealing with disagreement/diversity, constraining the use of public and private power, protecting the physical environment and managing relations between members and non-members of that community. However, law has diverse functions, and what amounts to a common concern will be deeply context-dependent, invoking both matters of value and disagreements about value.

i. Law’s authority

• 1.29 For all its diverse forms and functions, law orders communities in a distinctive way by replacing blunt force and domination with (a claim to) legitimate authority.42 Law’s claim to authority purports to tell people what they ought (or ought not) to do, purporting to generate, trigger, solidify or express obligations.43 Law may fall short of having legitimate authority, but it at least claims to bind subjects rather than merely forcing them to act.
• 1.30 That claim succeeds only if the authority is legitimate, and there are pivotal debates in moral, political and legal philosophy about what legitimate authority requires.44 A basic divide – between accounts that tie legitimacy to some kind of consent and those that tie legitimacy to authority’s service of persons in light of reasons that apply to them – distracts from a key structural similarity in which the domain of legitimate authority operates around a domain of independence. Not all questions are appropriate matters to be determined by an authority.45
• 1.31 I have argued that, for authority to be legitimate, it must satisfy requirements of both standing and standards.46 Public authority – the sort claimed by a legal order – must be claimed from a position of justified standing in collectively recognised roles of authority. The recognition of the role, and its value, carries the authority’s standing and its responsibility to serve the subject.47 We can then evaluate both the claim – is it offered from a position of standing in a role of authority as recognised by the collective? – and the standards – does the authority serve subjects?

ii. Coercion and legality

• 1.32 While claiming authority, law is still coercive – it backs up its claims to authority with forceful sanctions. Theories of legality thus seek to explain why and how law’s ways of governing persons are valuable, despite their forcefulness, and perhaps most importantly

42. Authority is understood as rightful power in contrast to the mere capacity to get one to act as one commands. This is a point in common between a number of otherwise divergent accounts, including Weber on legitimate domination and Raz on law’s claims to legitimate authority.
43. This formulation skims over debates over normativity itself – and authority’s impact upon reasons – and a major debate in jurisprudence about the character of law’s normativity, whether it is separate or integrated with social and/or moral normativity. I return to the latter below.
44. Raz (n 34) and see discussion of key debates in Scott Shapiro, ‘Authority’ in Jules Coleman, Kenneth Einar Himma and Scott Shapiro (eds), Oxford Handbook of Jurisprudence and Philosophy of Law (OUP 2012); Roughan (n 35).
45. For example, in The Morality of Freedom, Raz defends his account in liberal terms, seeking to avoid the more paternalistic variants of this thesis. On Raz’s ‘independence thesis’, see Scott Hershovitz, ‘The Role of Authority’ (2011) 11 Philosopher’s Imprint 1.

⁴⁶ Roughan (n 35).

⁴⁷ Roughan, ‘The Recognition in Authority’ (n 17).

how justified coercion in accordance with law differs from the mere use of force.48 This differentiation is supposed to include the protection of persons amidst the power that others (including both legal officials and other persons) wield over them.

• 1.33 Law’s protections of persons and its restraints on power are the key contributions of legality, whether these are administered through an order based on tikanga, on state posited law or on some combination. The question is how to ensure that a combination of legal orders does not result in either legal order instantiating mere violence or partial violence against the persons who recognise the other. Law’s answer to those questions depends on institutions and on how force itself is institutionalised in (and justified by) the law/laws.
• 1.34 The liberal tradition of legality typically celebrates the state’s monopolisation of the use of force in social and political life. Hobbes famously justified the unitary sovereign as a political form to provide security and assurance for people who are vulnerable to each other’s power.49 In contemporary accounts, a state’s positive legal order both centralises and institutionalises force in the name of the community to protect persons against private uses of force. In doing so, law transforms force into sanction by rendering it within a central rule-governed and rule-governing system.50
• 1.35 However, to truly turn force into sanction (according to the liberal rule of law tradition), it is not enough that force is simply applied through a centralised system of rules. Legality, or the rule of law, is supposed to constrain the power of those who wield the rules and make decisions for the community by ensuring those powers are exercised in accordance with law and constrained by legal forms.51 The rule of law treats persons with dignity and, when it is applied evenly, treats them with equal dignity. Krygier tells us that, in the ideal of legality, law ‘tempers’ power.52 Fuller, famously, argues that law’s way of governing has moral and not merely instrumental value.53 Different accounts then bear different requirements for what law must be like if it is to operate legality’s valuable temperance of power. Fuller’s own account demands that law’s rules be applied consistently, coherently, prospectively, generally, publicly and clearly and that power be used only in

48. Theorists present different models of this differentiation. See, for example, Dworkin, whose debate with Fuller is apparent but not always acknowledged. For Dworkin, coercion is justified when it is in accordance with law as ‘integrity’, carrying forward and constructively interpreting past political acts, in support of equal concern and respect for persons in associative communities, for example, Law’s Empire (n 31); Dworkin, Justice for Hedgehogs (Harvard University Press 2013). For Dworkin, this is the best interpretation of what ‘law’ is: this is not a separate ideal of ‘legality’.

⁴⁹ For an account of legality’s constraints even on the Hobbesian sovereign, see David Dyzenhaus, Long Arc of Legality

(CUP 2022).

⁵⁰ Kelsen (n 26).

⁵¹ For an examination and evaluation of contending rule of law accounts, see Kirsten Rundle, Revisiting the Rule of Law

(CUP 2022).

52. Michael Krygier, ‘Tempering power’ in Maurice Adams, Anne Meuwese and Ernst Hirsch Ballin (eds), Constitutionalism and the Rule of Law (CUP 2017).

⁵³ Fuller (n 36).

accordance (‘congruently’) with knowable standards.54 This is taken to generate a reciprocal relation between official and subject.55

• 1.36 While Fuller’s and related versions of the rule of law support a relation of reciprocity between subjects and officials, I have argued that these are grounded upon practices of recognition at the heart of legality.56 That position becomes central to responding to interactions between legal orders in which both official and subject statuses, and the relations between officials and subjects, are affected by overlapping claims to the status of legality.

iii. Recognition57

• 1.37 Both building blocks – authority and legality – invoke ideas of recognition. Recognition is a social practice that both generates the normative status of institutions and agents of the law and a normative connection between those who wield the law and those to whom it is applied. A ‘recognition condition’ for authority – including the authority claimed by law– requires that persons subject to authority and persons claiming authority recognise their standing in that relationship to each other.58 This does not require full individualised recognition on the part of all persons within society, but for public institutions such as law, recognition must be practised widely within a collective. Recognition does not always translate to respect for law, and it is not sufficient for legitimate authority or full legality. It is, however, a necessary aspect of both law and authority, without which the substantive standards of legitimate authority and legality cannot get off the ground. Failures of recognition are in that sense fundamental.
• 1.38 As intimated above, for lawyers trained in Anglophone jurisprudence, talk of recognition quickly prompts Hart’s idea of a ‘rule of recognition’ operating among officials to determine what is to be applied as valid law. Such a rule of recognition, however, is not the foundational element of recognition in a legal system and instead is built upon recognition of the role of the official and its relation to the role of the subject as well as a normative relation of recognition between officials and subjects.
• 1.39 Recognition then matters on both sides of that relation and is a key aspect of the roles of both official and subject. Claiming law’s authority over persons entails recognising them as subjects of law, not recipients of force. In this way, recognition is built into the central relation between persons applying the law and those to whom it is applied. When the

54. Lon L Fuller, The Morality of Law (Yale University Press 1969) 33–44; and on congruence, see Nigel Simmonds, Law as a Moral Idea (OUP 2007). In thicker accounts, those markers of the rule of law are supplemented with further protections provided by the demands of natural justice, supervision by independent judicial institutions and substantive human rights protections. Some accounts also add democracy as an element of the rule of law itself. For the reasons elaborated by Joseph Raz, ‘The Rule of Law and its Virtue’ in The Authority of Law (n 34), the rule of law and democracy are separable, and the rule of law is neither the only political value nor the whole of political virtue.

⁵⁵ See Kirsten Rundle, Forms Liberate: Reclaiming the Jurisprudence (Bloomsbury Publishing 2013); Gerald J Postema,

Law’s Rule: The Nature, Value, and Viability of the Rule of Law (OUP 2022); Dyzenhaus (n 49).

56. Roughan, ‘The Official Point of View and the Official Claim to Authority’ (2018) 2 OJLS 1; Roughan, ‘Office-Holding and Officiality’ (2020) 7 University of Toronto LJ 231.
57. The positions summarised here are defended in Roughan, ‘The Role of Recognition: Persons, Institutions, and Plurality’ (2022) 47 Journal of Legal Philosophy 53; Roughan, ‘The Recognition in Authority’ (n 17); and Roughan, ‘Recognition in the Concept of a Legal System’ in Jurisprudence in the Mirror (forthcoming).
58. On recognition of this relationship, see Hannah Arendt, ‘What is Authority’ in Hannah Arendt (ed), Between Past And Future (Penguin 1961).

agents of law claim authority and not mere force over persons, they recognise the dignity of those persons. Such recognition treats subjects not only as individual persons able to be guided by reasons rather than force but also as members of the community within which law is recognised.59

• 1.40 The key feature of a recognition model is that, together, law’s claim to authority and the ideal of legality distinguish law from violence. For that distinction to hold, however, those subject to law must be able to recognise it as least plausibly claiming (if not always having) legitimate authority. If law looks like force, if the institutions of law-making, law-application and law-enforcement appear more like the gunman than bearers of legitimate authority and the rule of law, then law cannot genuinely claim to (let alone successfully) obligate persons.
• 1.41 Those operating the law, and thereby claiming the status of legality, must therefore do so in ways that are recognisably consistent with the rule of law in its respect for the dignity of law’s subjects. Legality is interrupted most directly when law’s authority is claimed by official institutions with obvious and general defects in their own compliance with the law or when law is imposed unevenly upon subjects. Moreover, law’s legitimate authority is precluded when it is claimed by institutions – even official institutions – that are not collectively recognised as having the standing to claim such authority.
• 1.42 Many legal orders struggle on this front. This point provokes a reminder that the term ‘law’ used throughout this work extends to both state law and tikanga. There are always important arguments to be had about the extent to which any particular legal order – including both state law and tikanga – falls short of ideals, but that is not the focus of argument here. The argument instead is twofold: (i) that contexts of overlapping and interacting claims to legality disrupt the recognition of legality and law’s authority; and (ii) that interaction makes the relationship itself the key target of the rule of law. Examining the operation of law’s legitimate authority and evaluating the rule of law in our local context requires attending to the contesting statuses of legality presented by the interaction of tikanga and state law.

⁵⁹ For a discussion of the significance of membership within a rule of law community, see Postema (n 55).

SECTION TWO

Relations between legal orders: terminology and foundations

• 2.1 Every exploration of relations between state law and tikanga works with an imperfect set of terminologies. This paper refers to (and regards) both state law and tikanga as law – but both are imperfect legal orders. Both fall short of ideals of legality. In this work, while ‘law’ as a concept extends to both tikanga and state law, as elaborated at 1.a above, the discrete terms of ‘state law’ and ‘tikanga’ are used to describe the interacting legal orders. The paper does not seek to explain either legal order on its own terms nor go into distinctions between different types of state law nor different sites or limits of tikanga Māori, tikanga ā-iwi or tikanga ā-hapū. Instead, it places weight on the idea, terminology and operation of ‘interaction’.

A. INTERACTION

• 2.2 The fundamental interaction generating overlapping claims to legality is the interaction between persons, places and persons in places. The activities and physical presence of persons in communities together bring them into contact with one another. The key framing questions then ask: When interactions of persons in places operate with recognition of different and perhaps contesting legal orders, how does law itself (or the status of legality) provide for interaction? (How) can law govern and serve people in communities located together?
• 2.3 Interaction of legal orders derives from peoples’ activities together. An interaction implies deliberate action on both sides of a relation between legal orders. Interaction is not passive, not a situation of mere contact or a circumstantial overlap nor an accidental diffusion. Nor is it a unilateral action by one legal order. Instead, it is a practical relation in which there is agency on both sides and potential for reforming the relation itself. Focusing upon interaction highlights that the activities of agents, as concrete persons and as occupants of law’s institutions and roles of both officials and subjects of law, drives interaction between legal orders.
• 2.4 The terminology of ‘interaction’ used here is not intended to gloss over both the immense damage or destruction that can be (and has been) wrought by settler then state legal

ordering upon the institutions and practice of tikanga and the persons for whom (and places for which) tikanga operates. To the contrary, the idea of interaction highlights the deliberateness of such impacts.60 Metaphorical representations of interaction include familiar images of ‘partnership’ and ‘marriage’61 that can harbour practices of subordination and abuse of trust. Such deeply inter-personal metaphors of agency highlight the potential as well as the vulnerabilities involved in interaction.

B. INTERSECTION

• 2.5 As well as interaction, the idea of ‘intersection’ is also crucial. It captures that there are places (both physical and metaphysical) where state law and tikanga meet. These meeting points feature legal content and institutions operating or claimed over the same places and persons. Attention to intersection reminds us to tend to the physical spaces that may be created and operated as meeting points. Metaphysically, there are also legal concepts, as well as understandings of value, that can be understood to be shared or practised in common between legal orders. Both the physical and metaphysical meeting points are often represented through metaphors, for example, as a physical and natural meeting of ‘streams’,62 which is common ground reached from different starting points. Other metaphors feature artifacts that persons construct together, for example, a whare as a meeting house for peoples, a whāriki or woven mat,63 a “two-stranded rope”64 or a ‘bridge’.65
• 2.6 While the intersection of law’s places and interaction of law’s persons can operate together, difficulties arise when interaction occurs in physical places that are not places of intersection. The most prominent examples involve judges, lawyers and claimants operating interactions between tikanga and state law within the traditionally statist common law courts, for example, in civil claims between private persons, in criminal law and sentencing, in determinations of land use and title, in claims against the Crown or in judicial review proceedings. There, the absence of a physical institutional meeting point, a point of intersection, leads agents of interaction to seek metaphysical meeting points between rules, principles and values from the interacting legal orders. Present efforts to reform the court system, its structure, institutions, operations and physical locations, also point to the awareness of the need for places of genuine intersection,66 while efforts to do away with unilaterally constructed tools and artifacts (for example, old common law

60. The contrast between deliberate interaction and diffusion is examined in Nicole Roughan, ‘The Association of State and Indigenous Law: A Case Study in ‘Legal Associations’’ (2009) 52 University of Toronto LJ 135. See also the conscious and unconscious impacts of interaction examined in Carwyn Jones, New Treaty, New Tradition: Reconciling New Zealand and Māori Law (Victoria University Press 2016).

⁶¹ Jacinta Ruru, ‘First Laws: Tikanga Māori in/and the Law’ (2018) 49 Māori Law Review 279.

⁶² Durie (n 20) 462.

63. As in Coates’ submissions as Counsel in Ellis v R (n 8) drawing upon a whakataukī from the crowning of Kīngi Pōtatau Te Wherowhero in 1858.
64. Elisabeth McDonald and others (eds), Feminist Judgments of Aotearoa New Zealand: Te Rino: A Two-Stranded Rope (Bloomsbury Publishing 2017).
65. Joe Williams, ‘Build a Bridge and Get Over It: The Role of Colonial Dispossession in Contemporary Indigenous Offending and What We Should Do About It’ (2020) 18 New Zealand Journal of Public and International Law 3.
66. See, for example, Heemi Taumaunu, Chief District Court Judge of New Zealand, Norris Ward McKinnon Annual Lecture 2020 (Waikato University 2020).

doctrines of recognition of custom) point to the need for genuine metaphysical meeting points.

C. INSTITUTIONS

• 2.7 The present paper refers often to ‘institutions’. Lawyers may be accustomed to thinking of law’s institutions as formal organisations, such as parliaments, courts or executive agencies. Yet the notion of institution is broader. An institution carries a normative status that is recognised by those who use it.67 Law’s institutions therefore include law-making, law-applying and law-enforcing institutions (both under state law and tikanga) but also include institutions within the law that organise relations of persons, places and objects, including institutions of contract, Treaty and rāhui. Familiar institutions of state law include the forms through which law manages those relations – property, trusts, corporations, personhood, agency even ‘the reasonable person’ and ‘reasonable doubt’ are familiar institutions of state law. The institutions of tikanga similarly include institutions of both process and substance, including organising ideas of personhood, obligations and empowerments.68
• 2.8 Persons can also fill institutional roles through which they are empowered and burdened in ways beyond the powers and duties they bear as ordinary persons.69 Yet persons typically fill a number of roles, and one of the complex challenges of interacting and intersecting legal orders is to account for the often diverse and potentially conflicting roles of both agents and subjects of multiple legal orders. In accounts of state legality, law’s agents are often more narrowly conceived as ‘officials’ of law. That idea of the legal ‘official’ as a type of institutional role typically features highly formalised distinctions between officials and ordinary persons subject to the law. Yet legal orders need not feature such sharply differentiated or hierarchically organised roles for law’s agents. Law making, application and enforcement may operate through processes involving a wider section of the community, not limited to persons in select roles, or law’s agents might be understood to have distinctive roles but without the layers of formality that are found in the state system of appointment to offices. The wider terminology of law’s agents is used here to diversify the forms and structures of law’s agents as those who make, apply and/or enforce the law.

D. CLAIMS AND CLAIMING

• 2.9 The analysis here relies heavily on the language of claims – to legitimate authority, to the status of legality, to the justification for uses of coercion or the administration of justice. A claim is an assertion that something is the case and/or that something is owed to the claimant. For a legal order to claim authority is to assert that it has rightful/legitimate

67. There are different accounts of the idea of an institution, many derived from the influential work of John Searle. A summary appears in Searle, ‘What is an Institution?’ (2005) 1 Journal of Institutional Economics 1.
68. See Benton et al (n 20); Māmari Stephens and Mary Boyce (eds), He Papakupu Reo Ture: A Dictionary of Māori Legal Terms (LexisNexis NZ 2013); Māmari Stephens, “Kei A Koe, Chair!” – The Norms of Tikanga and the Role of Hui as a Māori Constitutional Tradition’ (2022) 52 Victoria University of Wellington LR 463.
69. Quite how this operates is a matter of debate among theorists of role obligations. For example, compare Michael Hardimon, ‘Role Obligations’ (1994) 91 Journal of Philosophy 333 with the broader constructivist account of Christine Korsgaard, Sources of Normativity (Cambridge 1994) 101–107, 120–121.

authority to bind persons.70 A claim to legitimate authority is not the same thing as having legitimate authority. Instead, the claim needs to be evaluated to see if it is (or can be) realised.

• 2.10 In jurisprudential debates, it often matters whether we focus upon law’s claims or their realisation. It matters to the present paper because it highlights that a claim is made by an agent (or agents) and is heard or received by others. Making a claim to legal status is itself a part of the relationship between interacting legal orders. Rather than just an abstract question (for example, does state law have legitimate authority or does state law approximate the ideal rule of law?), we can look at the claims state law makes, what they communicate, what they require of the claimant and how they interact with the claims of tikanga. Attention to claiming means that a jurisprudence of interaction is not a blunt assessment of outcomes but instead looks directly at the interaction itself.
• 2.11 The language of claiming is sometimes thought to offer an odd ‘personification’ of law. That worry can be met with responses that treat ‘law’s claims’ as those claims that are made by agents of law, those who make, apply and/or enforce law, wielding its coercive power, operating its institutions for administering justice and claiming its authority.71

E. LEGALITY AND LEGALITIES

• 2.12 Finally, the term ‘legality’ refers to the status of law, which includes an understanding of law’s constraints upon power. A familiar jurisprudential turf war disputes whether the concept of law includes an ideal of the ‘rule of law’ or ‘legality’ (understood to require satisfying a list of requirements such as certainty, coherence, generality, and non- retrospectivity. or whether a concept of law can be devised without that ideal (by offering a concept of law as a ‘set’ or ‘system’ of rules that may but need not pursue moral value).72
• 2.13 On both sides of that dispute, however, lies a concept of law in which law claims to obligate subjects, not merely to force them to act. Law’s claim to authority is central to its distinction from mere power. For the reasons explained below, this paper adopts the version of that argument defended by Raz, in which law claims legitimate authority, and the ideal of legality defended by Krygier, in which legality captures a claimed normative status of tempering power rather than a specific list of procedural requirements about generality, consistency and the like. I have argued elsewhere that this claim to authority connects law’s agents and persons subject to law in a relation of recognition that both constrains and supports the justification of the power of the former over the latter.73 (I

70. See Raz (n 34) 16–20, treating authority as a kind of power (a normative power) that is contrasted (rather than continuous) with other capacities to get another to act as one intends. On this distinction and its defenders, see Shapiro (n 44).
71. Those claims are made by officials of law in the course of claiming law’s authority. See John Gardner, ‘How Law Claims, What Law Claims’ in Matthias Klatt (ed), Institutionalized Reason: The Jurisprudence of Robert Alexy (OUP 2012); cf Roughan (n 56).
72. This is a simplification of the debate between Hart and Fuller, captured in Jeremy Waldron, ‘The Concept and the Rule of Law’ (2008) 43 Georgia Law Review 3.
73. That is the central claim of my work on officials, which differs from accounts of reciprocity found in the work of Fuller, Dyzenhaus, Rundle and Postema. The claim and its receipt entails recognition, which is less demanding (of subjects) than reciprocity.

say more about this relation and its importance for interactions of state law and tikanga in part 3 below.)

• 2.14 For now, the point is that this basic notion of legality leaves open the possibility of plural overlapping legalities and/or claims to legality. The first substantive task is then to examine the conceptual work required to understand and evaluate plural claims to the status of legality.

SECTION THREE

Contesting statuses of legality

• 3.1 Both the justification for law’s coercive force and the legitimacy of law’s authority are made more difficult when there are multiple interacting claims to the status of law. Indigenous claims to statuses of legality can be understood as claims to compete, to co- exist and/or to partner with the state in the same project of ordering communities through legality, both empowering and protecting persons. When statuses of legality are contested in this way, the question ‘what is law?’ invokes a matter of justice. It must address which claims to legality should be recognised, whether there can be plural interacting legalities and, if so, how do/should they relate to each other. Are denials of the status of legality a kind of injustice? Can denials of that status ever be justified? Can unjustified denials of legality statuses be corrected through new forms and practices of recognition? Can one legal order justifiably use force to override or exclude another, or can they interact as plural authorities?
• 3.2 It is important here that plurality of law and plurality of authority are neither valuable nor problematic in themselves. Whether or not plurality has value depends upon how/whether it serves persons as members of social and political communities. That evaluation takes place amidst the realities of political communities, including the ways in which past and present interactions of legal orders shape the recognition by persons of the law as well as law’s recognition of persons. An evaluation of authority examines the continuing value of authorities for persons living together in communities, taking those circumstances as they are now but mindful of looking backwards to understand how history shapes and may constrain interactions and options for those relations.

A. DISRUPTING THE RECOGNITION OF LAW AND AUTHORITY

• 3.3 A critical objection to the supposed rule of law in Aotearoa New Zealand challenges whether state law, imposed upon pre-existing and continuing models of Indigenous legality, successfully turns force into sanction in the name of a community or instead operates force against some persons who are subjected to standards they do not (and have good reasons not to) recognise as their own. Is state law consistent with the rule of law given (i) the unevenness and discrepancies in its achievement of legality’s ideals for all persons over whom law is enforced and (ii) its forceful impositions upon tikanga and past denials of its status as law?
• 3.4 The first part of this objection demonstrates the ways in which law’s use of force impacts Māori individuals more (and more systematically) than other persons in the state’s jurisdiction.74 Insofar as defects in law’s constraints on the use of force affect Māori more than others,75 such unevenness is a black mark against the state’s claims to be justified in monopolising the use of law’s coercive force. Moreover, this is a defect across the board (i.e. not just for Māori) because it leaves us with a purported legal order whose uneven (and unevenly constrained) recourse to force threatens to undermine its very status of law at all.
• 3.5 The second part of the objection examines the impact of overlapping legal orders upon the recognition of law and its authority. When the dominant state legal order claims independent and exclusive legality, treating persons in Indigenous communities as subjects only of state law, it also claims supremacy over the Indigenous legal ordering those persons recognise and operate. Such force is felt directly and indirectly by the persons who recognise the legal order that is being excluded or overpowered. When tikanga is the recognised law, the state appears as the gunman. In this way, the state’s claim to administer its law over Māori communities, overruling or displacing tikanga, is markedly different from its claim to administer legality for all individuals within its jurisdiction. When state law’s claim to authority over persons is accompanied by a forceful exclusion of tikanga Māori, persons who recognise tikanga (as law) have good reasons not to recognise state law’s claim.
• 3.6 Part of the point here is structural: even if state law did (or does) not deliberately exclude tikanga as law, the plural overlapping claims to legality and law’s authority upset what officials claim and subjects collectively receive as law. The forms of legality present in tikanga –operating independently as well as publicly interacting with the state legal order

– interrupt the recognition of state law’s independent claim to legality. The claims and operation of tikanga – replete with its distinctive forms and processes as well as its own practices of recognition of persons and statuses of legality – disrupt collective recognition of one law for all. Instead, we have two purported legal orders, and the question is whether there are/should be one law for some and force for others, one law for some and one for others or two laws for all.

• 3.7 This structural overlap of legal orders also casts doubt upon the extent to which claims to independent state legality are made in good faith and made in recognition of persons as subjects of law rather than mere force. At the very least, independent claims to state legality must assume that those who recognise tikanga will overlook its forceful exclusion by the very state legal order that claims to be something other than force. At worst, those

74. Evident most obviously in the administration of criminal justice. See Jackson (n 4); Khylee Quince, ‘The Bottom of the Heap? Why Māori Women are Over-Criminalised in New Zealand’ (2010) 3 Te Tai Haruru Journal 99. On the uneven use of force in the institutions of state ‘care’ of children, see Fleur Te Aho, ‘Violent ‘Care’ and the Law: The Overrepresentation and Harm of Tamariki Māori in State Care in Aotearoa’ (2022) 2 Legalities 32.
75. Insofar as the inevitable discretion left to law’s agents has also led to unevenly forceful impositions on Māori, who “continue to bear the brunt of police violence and policies of over-surveillance and discrimination in decisions to stop, search, charge and convict”. Fleur Te Aho et al, ‘Introduction: Do the Lives of Tangata Whenua/First Peoples, Migrants and Refugees Matter in the Systems of the Settler-Colonial Nation State?’ (2022) 2 Legalities 1, 4. The authors cite a 2019 NZ Police annual report to show that “Māori are seven times more likely than non-Māori to be subject to police use of force”.

claims to independent state legality may be made knowing of (or being wilfully blind to) its defects.

• 3.8 In summary so far, the account of the role of recognition in both legality and law’s authority reveals the failings of claims to independent state legality. The defect lies not in the state legal form in itself but in the state legal form by itself. In other words, the failure lies in the independence of the claims of state law. If state law is claimed and recognised as governing some persons through authority and rules (as subjects of the law) but others through force, it fails to uphold even a minimal concept of law as a system of rules and obligations and is merely coercive. By itself, state law fails to operate the rule of law – its legality is defective. Rescuing both legality and law’s authority requires ways of relating the legal orders without resort to mere power. Can the rule of law apply to a relationship between legal orders? Can law’s justified coercion and legitimate authority be shared?

B. INDEPENDENCE AND INTERDEPENDENCE OF AUTHORITIES

• 3.9 Persons can be subject to more than one legitimate authority and more than one legal order. This can create practical conflicts for subjects wondering which order to obey and generate uncertainty in their recognition of authority. When both orders are also enforced, there are additional risks of multiple or inconsistent consequences arising from compliance with one obligation while breaching another. In earlier work, I have argued that plurality of authority also alters the operation and evaluation of the authorities so that, when there are plural claims to law’s authority over the same persons, authority can be ‘relative’ or shared between overlapping and interacting legal orders. Legitimate relative authority depends on the interrelationship between the overlapping claimants.76 Adding a recognition requirement into that account then reveals how plural overlaps and interactions affect the claims and receptions of authority.77
• 3.10 The theory of relative authority responds to the significance of overlap and interaction among and between communities and persons in communities. The presence of interactive and overlapping persons, activities and places produces interaction and overlapping claims: to authority, to justifiably use law’s coercive force and to settle what justice requires. In our context, such overlap and interaction of subjects means that independent and comprehensive state or Indigenous authority claims cannot be justified as if the other’s claims are irrelevant. Instead, the interaction of authorities – whether that involves one trying to exclude or compete with another, whether it involves spheres of deference or whether it involves some mode of cooperation or coordination – alters the ways in which either/both authorities can serve (or fail to serve) persons in their communities.

76. Roughan (n 35), see especially ch 7 on relative authority and ch 13 for a (somewhat dated) account of Crown-Māori relative authority relations. See also Nicole Roughan, ‘Relative Political Authority: Overlapping Claims and Shared Subjects Beyond the State’ (2020) 27 Constellations 702; Roughan, ‘Polities and Relative Authorities’ (2018) 16 International Journal of Constitutional Law 1215; Roughan, ‘Relativity Under Review: A Response to Commentators on Authorities’ (2015) 40 Australian Journal of Legal Philosophy 212.
77. Roughan, ‘The Recognition in Authority’ (n 17). On the role of recognition in authority, see also Hans Lindahl, Authority and the Globalisation of Inclusion and Exclusion (CUP 2018); and my commentary on his account of asymmetrical recognition in Roughan, ‘Meet Me in the Middle?’ (2019) 29 Duke Journal of Comparative & International Law 423.

• 3.11 Relative authority, however, does not always require relationships of cooperation or coordination. It can also justify relationships of independence as well as non-forceful contestation. The point is to examine the purported authorities in light of their interactions, not simply comparing one to the other and coming out with one on top. A justification for authority can therefore be sensitive to facts of plurality whilst still subjecting the activities of authorities to scrutiny. By focusing on relative authority, we continuously ask whether authorities are relating to each other in ways that help them serve their overlapping/interactive subjects. Ideally, this should operate as a kind of meta-check on the legitimacy of all authority in contexts of claims to plurality.
• 3.12 The possibility of an inter-authority relationship supporting the realisation of legitimate (relative) authority may reduce the need to impose coercive measures in the absence of authority – or the resort to justifications built on necessity.78 Extraordinary as well as ordinary contexts demonstrate that the service of persons that cannot be provided by independent authorities may be provided by interdependent authorities and vice versa.
• 3.13 Our local context is made more complex by the presence of plurality among different types of Māori authorities, augmented by the operation of different political structures and legal forms across different hapū and iwi, and made even more diverse by the operation of non-whakapapa-based organisations and pan-iwi representative fora. Each of these interact with various tentacles of the state. Increased complexities, however, should not be alarming. Claimants and wielders of authority in our communities shift through time, as do their forms and processes, just as there are shifting and contesting understandings of the Crown/state and its branches or delegates and agents.79
• 3.14 The point, however, is still to evaluate these authorities together, evaluating what they can achieve either independently or interdependently. This works out, in practice, to a requirement that the authorities themselves must interact so as to realise shared authority arrangements that can address matters of common concern. As we see in both legal orders (most recently in the disputes in court and at Ōrākei Marae over whether matters invoking tikanga should be resolved by appealing to state law at all),80 the practical working out of relative authority will itself be the subject of much contestation. Part 5 below argues that these contests should be constrained by legality, not left to politics or mere force, including the force of numbers and demographics.
• 3.15 In context, the relativity of interacting authorities generates a pivotal question for the interaction of state law and tikanga: what is the relation between interdependence and independence? While debates about the relationship between tikanga and state law sometimes polarise the options of independence and interdependence, they are not mutually exclusive and they have their own relation. As Moana Jackson put it, “there can

78. Justifications for coercion and authority can come apart, see Raz (n 34). See also Jean Hampton, Political Philosophy (Westview Press 1997); and Arthur Ripstein, ‘Authority and Coercion’ (2004) 32 Philosophy and Public Affairs 2. Positions in debates over whether coercion can be justifiably imposed in the absence of justified authority do not determine whether one monistic coercer (rather than plural coercers) would be justified in such imposition.
79. For example, see Kristen Rundle, ‘Office and Contracting-out: An Analysis’ (2020) University of Toronto LJ; Janet McLean, ‘“Crown Him with Many Crowns”: The Crown and the Treaty of Waitangi’ (2008) 6 Victoria University of Wellington LR 35; McLean, ‘The Crown in Contract and Administrative Law’ (2004) 24 Oxford Journal of Legal Studies 129.
80. Taurapa, Katie Doyle and Maxine Jacobs, ‘The battle of Tāmaki Makaurau plays out in the court of Tū’ Stuff (Online, 23 Feb 2023).

be no interdependence without independence”81 and “interdependence, [is] a fundamental corollary of our understanding of independence”.82

• 3.16 Precise examples of matters for independence and interdependence cannot be pre- determined but rather will be matters of contest and context. However, existing practices of interaction suggest guiding principles for such contest. In particular, for matters on which tikanga alone is recognised as having standing and establishing standards of behaviour for persons in places and between persons across different places, state legality has no standing to insert claims to operate its own independent standards nor insert itself in ways that disrupt the independent operation of tikanga authorities.
• 3.17 In contrast, for matters on which both state and tikanga authorities overlap in their service of persons, institutions of interdependence will need to be developed and engaged. Perhaps the most obviously controversial are principles surrounding rights protection. Where there are rights that state authorities protect, these could not justifiably be denied to Māori persons in the name of independence. Yet a unilateral rights-protective intervention by state authorities would fall short of legitimate relative authority. Instead, recognising that human rights protections also support rights to self-determination, a domain of interdependence will need institutions in which persons can seek the services of both tikanga and state authorities to claim, contest and protect their rights. Part 5 below examines how legality itself, reconceived to operate ‘interlegality’, may offer forms for realising justified interdependence and independence.
• 3.18 The logic of authority, and the justifications for relative authority, indicate the nature of the relationship between the interdependent and independent models of authority and legality. Analogously to the ways in which authority itself is justified around a core domain of independence, interdependent state and tikanga authorities can be justified around a core domain of independent tikanga authorities.83 A robust domain of independence is necessary in order to both contest and maintain the boundaries of the domain of interdependent authority. Without a strong independent domain, which can both operate its own internal legality as well as represent outwards into the interdependent domain, the whole structure may not be recognisable as relative authority and instead may appear as a continuing domination by the more powerful party. Part of ensuring that the domain of interdependence involves a genuine interaction of authorities, not force and not ‘window-dressing’ or a ‘myth’, lies in ensuring that its institutions and its boundaries are regularly and fairly contestable.

81. Moana Jackson, ‘Where to Next? Decolonisation and the Stories in the Land’ in Bianca Elkington et al, Imagining Decolonisation (Bridget Williams Books 2020).
82. This is the framing presented and recorded in Jackson’s contribution to He Tohu, the permanent public exhibition at the National Library, which is published in full on the National Library website (accessed 17 Dec 2023).
83. This is an inexact analogy. It remains important that, in this model, persons are not simply subsumed into communities nor communities treated as singular persons. Instead, the boundaries of individual and communal interests remain contestable within both the independent and the interdependent domains of authority. That structure provides protection for persons amidst the power of all forms of communal legal ordering as well as in relations between legal orders.

• 3.19 This model of the relationship of interdependence around independence differs from the models emerging from Matike Mai and He Puapua. It is not an image of two governance spheres: one of tino rangatiratanga and one of kawanatanga, with overlap in the middle. Nor is it a whare with two sides and a structural connection. As models for a relationship between authorities, one difficulty with those models lies in doubt about what could justifiably be an independent domain of state authority that excluded the operation of Māori authorities. Wherever non-state authorities are better able to serve persons in overlapping and interacting communities – whether through independent or interdependent relations with state authority –relative authority rules out an exclusive state authority ‘zone’. Furthermore, as models for interacting legal orders claiming authority, the importance of both the claim and recognition of legality rather than mere force amplifies the doubts over independent claims to state legal authority.84
• 3.20 Contexts of relative authority, therefore, require that we not presume that common concerns can be addressed (only or at all) by monistic ordering. The question is not only what are the matters of common concern on which communities need common solutions, common mechanisms for resolving disputes and genuinely common institutions? It is what are the matters of common concern requiring independence, and what are those requiring interdependence, with authorities working in some combination (coordination, cooperation or contestation) to be recognised as addressing them together?
• 3.21 The visual representation of the model of interdependence around independence therefore looks quite distinct from the Venn diagram models of overlapping spheres of authority. Instead, the model may be represented diagrammatically by two concentric circles – a central core of tikanga independence surrounded by a ring of interdependent state law and tikanga. In a three-dimensional representation, the relative significance of the domains of independence and interdependence likely depend upon the perspective of the agent, much like looking through either end of a cylinder. From the perspective of persons whose activities primarily operate in the independent domain of tikanga, that domain will appear larger while the interdependent domain will look smaller. For persons primarily engaging in activities in the interdependent sphere, the domain of independent tikanga will appear smaller than the domain of interdependence.
• 3.22 Both legal orders in such a relative authority relation give up something, and this they give up mutually rather than in parallel. They both give up, crucially, the claim to independent legitimate authority in respect of matters of common concern. In addition, state law has to give up its current dominant powerful position, and tikanga has to give up its claim to restore its former dominant powerful position. On both sides, this means prioritising the realisation of legitimate authority over the operation of mere power.
• 3.23 The core concept of law set out earlier gives clues about what are the common concerns that tikanga and state law need to address together, interdependently, as well as clues

84. My earliest work on relative authority suggested that extreme contexts such as those requiring coordinated action in a national security emergency might justifiably be managed by one overarching exclusive authority. I now think that was a mistake. The absence of recognition of full exclusive authority undermines its claimant’s capacity to serve subjects, on its own, even in emergency contexts. This was arguably demonstrated in the responses to the early days of the COVID-19 emergency and the eventual vaccine roll-out, where the implementation of authority depended in very evident ways upon both the independent and interdependent role of Māori authorities (including hapū, iwi and non- kinship-based organisations) as well as state authorities. See Luke Fitzmaurice and Maria Bargh, Stepping Up: COVID-19 Checkpoints and Rangatiratanga (Huia Publishers 2021).

about what a domain of independence requires. These will ultimately be matters of continuing contestation, revision and development, just as all boundaries of law’s authority shift and are perpetually open to challenge. Yet there is a foundational common concern that derives from the understanding of legality itself: how to ensure that law operates in such a way as to be law, not violence, equally and for all. A common aim is to avoid the mere power that operates when persons are subjected to domination rather than authority, in either direction. That search for the joint realisation of legality (or legalities) prioritises the common work that needs to be done where persons, places and communities are entangled together.

• 3.24 Before turning from relative authority to legality, it may be helpful to consider how this model (of interdependence around independence) can respond to key objections.

C. RESPONDING TO OBJECTIONS

• 3.25 The first objection is something of a jurisprudence claim – that all the above attention to legitimate authority could be avoided by simply following Hart or Kelsen, arguing that law has a distinctive kind of ‘legal authority’, which is only a matter of legal validity determined by rules of recognition (Hart) or a grundnorm (Kelsen), separate from matters of moral justification for such authority. However, as suggested at 1.a.ii. above, a bare invocation of ‘legal positivism’ does not resolve questions of law’s authority. Not only are there leading positivists (most obviously Joseph Raz) who deny that there is a separate domain of legal authority – instead law claims moral authority – but more importantly, an appeal to distinctive ‘legal’ authority cannot resolve questions of how to relate or evaluate multiple claims to such authority.
• 3.26 The more robust value-based objections require more care. Theories favouring independence of authorities, and singular legal ordering, may argue that having a monistic legal order is itself a matter of common concern because, without it, you cannot have a monopoly on public coercion, protection of persons against one another, a commitment to equality and human dignity and their protection through rights and general institutions of justice. More specifically, theories of independent state authority present the state as the best institutionalised form of such monistic legal ordering. The statist objection also argues that some use of force is necessary, and justified, in order for persons to live together in social and political communities. That justification is deeply embedded with principles of generality and evenness – so that force represents all against all, not some against some – and the objection is that enforcement could not be carved up or indeed pluralised without undermining the limited justification on which it rests.
• 3.27 Responding to this statist objection turns a principle of equality upon the very mantra of formal ‘one law for all’, which disguises that the imposition of ‘this one law’ is a choice against a different law (for all). That choice unequally respects those for whom the chosen law is legitimately authoritative. If there are persons who can be better served by authorities other than the state, especially a state that has consistently proven itself a poor servant (or worse) of those persons, then to deny or even exclude the operation of other authorities for those persons is to deny that service of those ‘subjects’ matters as much as the service of others. For this reason, persons in Indigenous communities with continuing practices of authority are not straightforwardly understood as subjects of the state’s authority, absent some way of relating the authority claimed by the state legal order to that of the relevant Indigenous legal orders.
• 3.28 This argument justifying the relativity of authorities (in which state and Indigenous authorities share an interdependent domain around a domain of independence) does not need to rely on the most controversial claims about identity nor resort to denials of difference. It needs instead to show that there is value in realising the legitimate authority of tikanga, not only for persons who live as members of communities in which that authority is directly practised but for all persons in settler state political communities that are irreducibly contoured by plural and (at times) contesting claims to authority over overlapping subjects. There is no value for anyone in an independent and exclusive state authority that serves only some of those within its territory, while an interactive or shared authority relationship in which the state operates with other authorities enhances its legitimacy by helping persons achieve what is of value for them. For the state, this will sometimes mean getting out of the way or (when it is required to serve subjects who are also served by overlapping Māori authorities) to ensure that its own involvement supports rather than interrupts the valuable services those others provide.
• 3.29 One way to present this argument is through the idea that it is valuable to persons to stand in justified relations with others that they cannot realise on their own. As a participant in a political community, embedded in a particular place, a person cannot, by themselves, bring about just relations with others. Nor can one person resolve or simply suspend reasonable disagreements about values. An individual cannot coordinate others’ behaviour nor resource the provision of public goods and the protection of a shared environment. To realise those goals, or even just to pursue them, a person needs public institutions, authorities and enforcement. However, if the others to whom a person owes duties in a political community include persons for whom various legal and political authorities are (also or alternatively) valuable and claim to provide those services to them (or to all), then all those persons need all their potentially legitimate authorities to have ways of relating to one another. This is especially important if there have been relations of force and exclusion operating in the space of interaction, because this inevitably means that some persons have been subjected to force while others have had the luxury of recognising law’s authority. Persons need the authorities that they recognise, and that are valuable for them, to engage with other authorities serving (and recognised by) persons other than themselves, all while realising that there are matters on which persons (and ‘their’ institutions) cannot be so tidily distinguished from one another and recognising that common concerns mean authorities are needed to serve all persons.
• 3.30 The reference to common concerns might generate the objection that, if the justification of authority is grounded upon the ways that persons must be served by authorities they collectively recognise, why is the solution not a single authority to serve (and be recognised by) all in common? This objection may encompass arguments from democracy, namely the claim that democratic institutions could be used to determine which, of competing claims to law’s authority, should prevail. The objection treats a democratic institution as being sufficiently contestable to cut across deficits in the recognition of law’s authority and to support recognition of a monistic status of legality.
• 3.31 A full response to arguments from democracy, and their significance for contexts of overlapping claims to authority, engages in matters of political theory beyond the present

paper’s scope.85 Yet there is a specific response that turns on the significance of recognition and its role in both legitimate authority and legality. In summary form, the key response is that, unlike majoritarian justifications for deciding what the content of law should be,86 the status of legality itself is not and cannot justifiably be a matter for majoritarian determination. There is a normative difference between claiming a democratic mandate to make a law, change a law or repeal a law and claiming a democratic mandate to determine what law itself is. A majoritarian resolution to conflicting claims to legality is no remedy for the recognition problem; it is a denial that it matters. In contexts of competing claims to the status of legality, subjecting the question ‘what is law?’ to a democratic institution would be to subject recognition itself to the force of numbers and demographics. This is a different type of forceful override of legality but an override nonetheless.

• 3.32 The response also argues that there are collective practices and institutions shaping valuable recognition of the standing of authority and of the statuses of legality, which may include but are not limited to democratic practices and institutions. Recognition is not the same thing as consent or acceptance and is not reducible to democratic or other participatory measures. The presence of plural claims to authority increases the likelihood that there will be diverse and incommensurably valuable processes in which the standing of authorities may be both recognised and held to account, while their overlap and interaction means the substantive work of the authorities is more likely to require their collaboration or coordination. While recognitive practices in communities can and do shift over time, partly (though not only) in response to interactions between recognised authorities, they cannot be imposed upon nor required of persons. Both conceptually and as a matter of normative argument, ‘enforced recognition’ of authority or legality is no recognition at all.
• 3.33 As suggested above, to subject the question ‘what is law?’ to a democratic resolution denies the equal dignity of those who recognise other valuable authorities that overlap and/or interact with democratic authorities and whose service of their subjects is a key part of realising legitimate authority itself. The core response to democracy-based objections to relative authority then need not invoke distrust of the democratic process nor doubt persons’ basic commitments to fair-mindedness nor worry about manipulation of public opinion by extremist views and misinformation nor cite any of the other contemporary threats to democratic integrity. It is (quite appropriately) founded on an argument for equality.
• 3.34 A related objection to the model of interdependence around independence might suggest that only interdependence is justified in the form of some sort of hybrid legal order. Part of the response to that concern is a denial that interdependence could be realised through hybridity. In practice, hybridisation may keep most of one beast and only a little of the other. A hybrid approach defines away any relationship between plural claims to authority, meaning that, by itself, it is unlikely to solve a deep-seated recognition problem in contexts of overlapping claims to authority. In our context, a hybrid

85. Democracy itself does not preclude nor answer the demands of relative authority. I have defended the potential for relativity of political authorities, including those that carry valuable democratic standing. See Roughan, ‘Relative Political Authority’ (n 76).

⁸⁶ In constitutional democracies, this is in any case a limited mandate subject to constitutional constraints.

state/tikanga authority or hybrid state/tikanga legality may still look and act very much like the dominant state/law. A hybrid may also be internally incoherent and therefore still more defective against measures of legality. For instance, it may struggle to square values and practices within both state and Indigenous authority forms.

• 3.35 Aside from practical difficulties, the point of principle at stake is that interdependence alone, even in its ideal form, could not resolve the recognition problem undermining law’s legitimate authority. A strong independence domain is also needed in order to resolve the recognition deficit, because it is this domain of independent tikanga ordering from which the recognition of tikanga’s relation to state law can be negotiated, represented and operated.87 The core domain of independent tikanga, as a representation of authority for a collective (or many different collectives and their relations), is as important to the justification of interdependent authority as a core domain of personal independence is to the justification of public authority itself. Without a strong independent core, there may not be sufficient constraints upon the interdependent domain to avoid it turning into a form of continuing colonisation of tikanga in that domain nor sufficient bases from which to challenge whether the institutions operating the interdependent relations of state law and tikanga might overreach into the core.88 That core domain is therefore central to protecting both independence and interdependence.
• 3.36 A final response might argue that, even if there is a justified independent domain of tikanga, it should be left to the dominant state order alone (through its legal and political institutions) to manage its boundaries. This view would trust state forms and processes to prevent their own overreach into the independent domain of tikanga. That would effectively surround a domain of independent tikanga with a domain of independent state authority rather than an interdependent domain of state and tikanga authorities.
• 3.37 Even an optimistic view, which has faith in the state form and its capacity for self- constraint, must concede the difficulty of establishing legitimate relative authority relations within a constitutional regime that has proven itself too flexible to impose its own constraints. A more realistic view is that, for a range of reasons, the state will likely continue to fail to pursue (let alone realise) legitimate relative authority. Again, however, the point of principle turns on the recognition problem. State claims to authority will continue to fail – which will continue the illegitimacy of its own authority in this regard – unless it can realise its relativity with Māori authorities. As so many others argue, therefore, new institutional forms and practices are needed to give effect to a relative authority relationship. That meeting point needs to be negotiated with sufficient practices of Māori determination of how Māori authorities are to be represented, manifested and applied within that relationship, not by state legal orders deciding those matters from its dominant vantage point.

87. Jackson (n 81). See also Annette Sykes, ‘The Myth of Tikanga in the Pākehā Law’ Nin Thomas Memorial Lecture, 5 December 2020 [2021] 8 Te Tai Haruru Journal of Māori and Indigenous Issues 7.
88. See Moana Jackson, ‘Justice and Political Power: Reasserting Māori Legal Processes’ in Kayleen M Hazelhurst (ed), Legal Pluralism and the Colonial Legacy (Ashbury Publishing 1995); Ani Mikaere, ‘The Treaty of Waitangi and Recognition of Tikanga Māori’ in Michael Belgrave, Merata Kawharu and David Williams (eds), Waitangi Revisited: Perspectives on the Treaty of Waitangi (OUP 2005); Ani Mikaere, ‘Cultural Invasion Continued: The Ongoing Colonisation of Tikanga Māori’ (2005) 8 Yearbook of New Zealand Jurisprudence Special Issue – Te Purenga 134.

• 3.38 The pursuit of legitimate relative authority between state law and tikanga therefore requires processes to manage relations between overlapping authorities and to configure interdependence while protecting and projecting independence. In the case of overlapping claims to the authority of law, these processes need also to be processes of legality, processes that subject the relations between authorities to the constraints of the rule of law. Otherwise, legality itself will be lost to politics or mere force.

SECTION FOUR

Resolving recognition

• 4.1 As the responses to objections reveal, the first step towards realising relative authority and rescuing legality is to deal with the problem of recognition. In the discussion in part 2, both the recognition of authority and recognition of statuses of legality were disrupted by overlaps and interactions of state law and tikanga. There, recognition was a practice operating between persons wielding and receiving the law. Yet recognition is also often invoked as a practice between legal orders.
• 4.2 In contexts of interactions between state and Indigenous legal orders, the term ‘recognition’ is often used to characterise the recognition offered by a state order to and Indigenous order, for example, through common law or statute, it features in doctrines such as those associated with the recognition of custom or customary law, the recognition of aboriginal title, recognition of customary rights, ‘recognition orders’ or ‘recognition agreements’.89 It is also deployed in the language of conflict of laws around the recognition of foreign law and foreign judgments. For Indigenous legal orders, such recognition has double-edged implications. It can be pragmatically crucial for making use of available protections or entitlements provided by state law, but it simultaneously seems to subjugate the Indigenous order to the state order doing the recognising.90 The concern is that claimants of Indigenous legalities do not want nor seek recognition of their legality (which is already recognised by persons living with and using Indigenous law) from a state legal order.
• 4.3 Different approaches to recognition raise different versions of these concerns. Some approaches treat recognition as a unilateral practice – where one system uses its own valid rules, institutions and agents to recognise another. Others offer accounts of bilateral or mutual recognition – in which systems recognise each other. The following sections address the limitations of both unilateral and mutual recognition between legal orders before arguing that a key response to overlapping claims to legal statuses is to shift the object of recognition on to the relation between the legal orders rather than seeking ways for one legal order to recognise another.

⁸⁹ Several models of recognition are helpfully analysed and evaluated in Coates (n 29).

90. For an extended critique of recognition approaches, see Glen Coulthard, Red Skin, White Masks: Rejecting Colonial Politics of Recognition (University of Minnesota Press 2014).

• 4.4 Before turning to that concern, it is important to reiterate that the present account does not examine forms of ‘constitutional recognition’ of Indigenous legalities. Such forms are central to work on constitutional practice, reform and transformation. Constitutional layers of interaction seek to order plural claims to authority and legal ordering by using constitutional norms to put them in different places. Norms then constitutionalise the pluralism of legal ordering. They may establish federal separations of jurisdictions or looser arrangements of ‘quasi-federalism’ that depart from formal rule-based divisions and jurisdictional allocations and that may be closer to the interactions of legal ordering without the overlay of constitutional forms elaborated in the present work. Those constitutional arrangements are best examined by constitutional scholars. The present account, in contrast, does not subject interaction of legalities to a singular constitutional framework. It takes the position that, in our context, constitutions, like legal orders, can be understood in the plural and not the singular.91 Such constitutional pluralism takes us back to the direct questions of the relationship between orders and the problems of recognition in that relationship.

A. UNILATERAL RECOGNITION

• 4.5 Under a unilateral model of recognition, one system determines for itself how it recognises the other. This is the standard form of recognition operated through statist legal tools of both incorporation and conflict of laws.
• 4.6 Until recently, the standard model of interaction has seen state legality apply norms from tikanga through either common law doctrines of recognition (treating tikanga as akin to general custom) or statutory references. Despite their differences, these are both forms of unilateral recognition in which one system determines for itself how it engages with the other (i.e. state legality uses state legal forms to recognise tikanga). In earlier work, I have argued that practices of legislative reference to tikanga should be regarded as associations not between words, concepts and rules of different systems but between the systems themselves so that the words, concepts and rules invoked by statutory reference carry with them the authority structures of the system from which they come.92 That kind of association between legal orders cannot be achieved by a unilateral model that treats such references as forms of incorporation of tikanga.
• 4.7 As practices of state legality alone, such practices of incorporation of tikanga by state law amount to a ‘co-option’, an unjust taking or a recolonisation of tikanga.93
• 4.8 Technical accounts in jurisprudence helpfully distinguish the incorporation of custom (or morality) from recognition of a foreign legal order. Norms drawn from custom and

⁹¹ See Carwyn Jones, ‘A Māori Constitutional Tradition’ (2014) 12 New Zealand Journal of Public and International Law

187. On plural constitutions in historical terms, see Robert Joseph, The Government of Themselves: Case Law, Policy and Section 71 of the New Zealand Constitution Act 1852 (Te Mātāhauariki Institute 2002); David V Williams, ‘Constitutional Traditions in Māori Interactions with the Crown’ (2012) 12 New Zealand Journal of Public and International Law 231. Andrew Sharp has examined the continuity and interaction of plural constitutional traditions without truncating interactions by formally resolving, recognising and reifying their content. See Andrew Sharp, “‘This is My Body”: Constitutional Traditions in New Zealand’ (2014) 12 New Zealand Journal of Public and International Law 41; and Robert Joseph, Comparatively Speaking: A Summary Paper of Preliminary Principles and Aims (Te Mātāhauaraki Institute 2001).

⁹² Roughan (n 60).

⁹³ Sykes (n 87).

morality are thought ripe for incorporation by a posited and systemic legal order, while the rules of foreign legal systems are typically treated as being applied, but not incorporated, by norms of the host system.94 A range of reasons are given for this different treatment. Raz argues that the non-incorporation of another legal order’s norms is part of understanding law as the political institution that it is, i.e. an institution that orders a polity, and in which the ability to recognise ‘my’ law (and treat it as authoritative), and not the law of some other polity, is important.95 Even without taking a deeper dive into the jurisprudence of persons, affiliations, membership or obligations within communities, the point is that, given the important roles of law in societies, legal ordering needs to be identifiable and recognisable as making claims of authority over persons in those societies. In context, if tikanga is to be recognised as carrying its own claims to authority rather than just a claim to provide guidance about customary practices of value that could be subsumed within a monistic legal order, it requires a model of recognition that does not monistically incorporate or subject one legal order to another.

• 4.9 The field of conflict of laws offers a different model of recognition, which still features unilateral determinations of relations between legal orders but applies the norms of another system without incorporation. Orthodox conflict of laws techniques entail a state legal order using its own norms (unilaterally) to determine when it has jurisdiction and when to apply foreign law rather than its own.96 These techniques offer a way of dealing with private claims between persons on either side of borders, both inside and outside the state.97 They operate to support an inter-public or inter-sovereign relation based on practices of comity, deference and reciprocity between state legal orders.
• 4.10 On its face, treating a state/tikanga legal association as a genuinely ‘inter-public’ (or even inter-sovereign) model of interaction may be attractive to advocates of Indigenous legalities as well as presenting lawyers with a broadly familiar and workable toolkit.98 Yet there are problems with a conflict of laws-type approach, which can be summarised in three related concerns: (i) the unilateral recognition model found in orthodox conflict of laws gives too much power to one legal order to determine the terms of its interaction with the other(s); (ii) a conflicts model inadequately captures overlaps of plural authorities and subjects or responds to matters of common concern that they share; and (iii) in state-

94. Joseph Raz, ‘Incorporation by Law’ (2004) 10 Legal Theory 1; Cormac Mac Amhlaigh, ‘Taking Identity Seriously: On the Politics of the Individuation of Legal Systems’ (2022) 42 OJLS 521.

⁹⁵ Raz (n 94).

96. That unilaterality is softened in the inter-state context by efforts to coordinate states’ conflict of laws doctrines by subjecting them to international conventions.
97. Karen Knop, ‘The Private Side of Citizenship’ (2007) 101 Proceedings of the Annual Meeting (American Society of International Law) 94. Newer forms of ‘relational’ conflict of laws approaches argue that the field’s grounding upon a relational foundation of comity between nations may be reconceived as a kind of ethic of ‘hospitality’ towards persons. Horatia Muir Watt, ‘Conflicts of Laws Unbounded: The Case for a Legal-Pluralist Revival’ in Berman (n 2). I have argued against appeals to such models in contexts of state and Indigenous interactions because of the models’ emphases upon

insider and outsider distinctions and the notions of ‘host’ and ‘foreign’, each of which are normatively and descriptively problematic in this context. See Nicole Roughan, ‘Plurality of Laws and Conflict of Laws: Reconciling Through Recognition?’ in Ralf Michaels, Roxana Banu and Michael Green (eds), Philosophical Foundations of Private international Law (OUP, forthcoming 2023). A draft version is available here.

98. The conflict of laws toolkit extends into approaches to recognition and enforcement of foreign arbitral awards. On the potential of arbitration and models of recognition of foreign arbitral awards, see Amokura Kawharu, ‘Arbitration of Treaty of Waitangi Settlement Cross-Claim Disputes’ (2018) 29 Public Law Review 295; and Kawharu, 2022 Nin Tomas Memorial Lecture.

Indigenous contexts, the supposedly private claims between persons that are the object of conflict of laws (as ‘private’ international law) implicate but cannot resolve the very claims – to public authority, coercive enforcement and the administration of justice – that the interacting legal orders make against each other.99

• 4.11 The use of conflict of laws tools – which are designed to determine one forum’s applications of separate (host or foreign) laws to separate (host or foreign) persons and their activities – pre-empts more interactive responses to overlapping claims to legal ordering. The ‘singular forum’ approach of conflict of laws presents a mismatch with efforts to recognise and respond to the interactions of legal orders’ norms, authorities, subjects, officials and institutions.

B. MUTUAL RECOGNITION

• 4.12 Within both conflict of laws and pluralist theory, there are prominent efforts to shift away from unilateral models of recognition towards mutual models. In a model of mutual recognition, the legality status of the interacting legal orders depends upon both internal and ‘external’ rules of recognition.100 Roughly put, each legal order needs to recognise the other. Although a mutual recognition model may appear more attractive than a unilateral model, it still enshrines the structural dependence of each legal ordering upon recognition by another.101 Making that dependence reciprocal (so that the legality status of state law would depend upon recognition by Indigenous law and vice versa) inadequately responds to the power imbalances that typically disrupt and may prevent practices of genuine mutuality. Mutual recognition risks subjugating the less-powerful legal order to the recognitional power of the dominant order, pressuring any perception of reciprocity.
• 4.13 Mutual recognition also fails to resolve both the sociological and normative problems of recognition itself. Why should (and how could) a legal order that is internally recognised by those who are its subjects and agents also be subjected to the artificial or doctrinal recognition of another legal order? Furthermore, if a rule of recognition is primarily a device of recognition among officials, why should (and how could) the recognitive practices of one legal order’s officials have any impact upon the legal status of another? Recourse to mutual recognition models seems to further inflame rather than address the concern that ‘external’ recognition itself is neither wanted nor needed for a legal order to operate as law.
• 4.14 Moreover, the mutual recognition models of conflict of laws appear as a kind of mutual unilateral or mutual yet parallel approach. Each legal order recognises the other, in its own terms, and so the model lacks a meeting point between the recognition that each side offers the other.102 One legal order’s recognition of the other may be coherent according to its own rules but fail to offer any fora for responding to overlaps or interactions with the other legal order (and its own practices of recognition). Each legal order is thought to have its own ways of recognising the other legal order and determining whether to apply

⁹⁹ Roughan (n 97).

100. Ralf Michaels, ‘Law and Recognition – Towards a Relational Concept of Law’ in Roughan and Halpin (n 2); and Michaels, ‘Tertiary Rules’ in Krisch (n 2).

¹⁰¹ Roughan (n 97).

¹⁰² Elaborated in Roughan, ‘Meet Me in the Middle?’ (n 77).

its own or the other order’s norms without engaging in the further layer of contestation and engagement between those practices of recognition. If the relation between overlapping legal orders is not simply to be subjected to de facto power discrepancies, it will require some forms or fora for testing out those practices of recognition and the impacts each order has on the other’s claims to legal status.

• 4.15 Even in its mutual recognition variant, a conflict of laws model therefore falls short on both the independence and the interdependence models of state law-tikanga interactions. An alternative approach shifts the object of recognition away from the legal orders themselves and on to their relationship.

C. RECOGNITION OF RELATIONS

• 4.16 Contexts of overlapping legal orders do not require each order to recognise the other in order for them to operate as law. Instead, a model of ‘recognition of relations’ requires both legal orders to recognise their relativity to one another. There must be recognition

– by both subjects and officials – of the claim to legality presented by ‘their’ law, but there must also be recognition that their law is related to other legal orders.

• 4.17 Recognition of relations turns upon practices of recognition among both agents and subjects of different legal orders. Arguably, whenever arguments invoking tikanga are brought before the courts, there is recognition of some kind of relationship between the legal orders. Such recognition is put to the test whenever persons make claims invoking both legal orders, for example, contesting their interaction on opposite sides of disputes. These claims invoke broader practices of recognition among and between persons in interacting normative communities as participants in interacting legal orders.103
• 4.18 While there are important practices of recognition of relations on the part of subjects of interacting legalities, the model places a great burden on the ‘officials’ or agents of the law(s), who need to operate as both agents of legal orders and agents of their interaction.104 The most obvious need for recognition of relations arises in the processes and practices of reasoning, interpretation, judgment and discretion among the institutions and agents claiming law’s authority and wielding law’s coercive force (on both sides of the interaction).
• 4.19 This recognition model does not make one system dependent on the other’s recognition. Nor does it enshrine the content of that relationship. Recognition of relations between legal orders leaves open possibilities of cooperative, coordinative and contesting relations, and in some cases, it may support independence rather than jointness.105 The point is that recognition of the relationship requires institutions, processes and tools for managing the relationship, whatever its content.

103. See Jeremy Webber on normative communities, in Webber (n 41) 192; James Tully, ‘A Fair and Just Relationship: The Vision of the Canadian Royal Commission on Aboriginal Peoples (1998) 57 Meanjin 146; John Borrows, Freedom and Indigenous Constitutionalism (University of Toronto Press 2016).
104. Scholars and judges alike have returned to examples of the increasing recognition for tikanga among non-Māori persons and within non-Māori. On the burden on officials, see Nicole Roughan and Andrew Halpin, ‘Promises and Pursuits’ in Roughan and Halpin (n 2).
105. See James Tully, ‘Recognition and Dialogue: The Emergence of a New Field’ (2004) 7 Critical Review of International Social and Political Philosophy 84; Roughan (n 35). James Tully, ‘The Negotiation of Reconciliation’ in Public Philosophy in a New Key, Volume 1: Democracy and Civic Freedom (CUP 2008).

• 4.20 Recognition of the relation enables each legal order to practise its own forms of recognition and represent these outwards into a meeting point with the other. That outreach can only operate on the back of self-recognition within each legal order. For state law, this includes recognition of a more restrained claim and more inclusive forms than the orthodox claims to supremacy and exclusivity. For tikanga, Nin Tomas has argued, it includes self-recognising more systematically and universally, for example, by recognising central and common principles and processes for resolving differences between different hapū. Those can then be represented into the inevitable and justified meeting points with state law.106
• 4.21 This point raises a critical constraint upon recognition of relations between legal orders. For those relations to be relations of legality, the forms of recognition cannot leave recognition itself up to individual arbitrary discretion, nor chance, nor politics, nor force (including the force of numbers or demographics). Recognition of relations requires institutions, procedures, principles and rules operating normative constraints upon the relation. This might appear as an overly legalistic (or perhaps an overly statist) way of thinking about relations and perhaps out of synch with forms of recognition of relations that operate within tikanga. However, the point is not to overrule or subvert more relational ways of managing interactions between communities with different ways of doing legal ordering. Reiterating the broad notion of institutions set out earlier in this work, such relational and relationship-building practices are among the kinds of institutions that may be applied outwards to the relation between legal orders.
• 4.22 Unlike both the unilateral models of recognition and the ‘mutual but parallel’ models of recognition (which are both governed by one system’s norms and institutions), the recognition of relations therefore opens up (and likely requires) the possibility of new combinations of the interacting orders’ institutions, forms and authorities to manage the relation between tikanga and state law. Shifting the object of recognition on to the inter- relationship between legal orders creates a demand for the operation of legality between them in which the relationship itself is subjected to the rule of law. This entails both systems recognising the relationship in which they operate together as a relationship to be administered through legality rather than a relation of mere power determined by imposing one legal order upon the other.

106. Nin Tomas, ‘Key Concepts of Tikanga Maori (Maori Custom Law) and Their Use as Regulators of Human Relationships to Natural Resources in Tai Tokerau, Past and Present’ (PhD Thesis, University of Auckland 2006) 3. See also Tomas, ‘Coming Ready or Not! The Emergence of Maori Hapu and Iwi as a Unique Order of Governance in Aotearoa New Zealand’ (2010) 3 Te Tai Haruru: Journal of Māori and Indigenous Studies 14.

SECTION FIVE

Interlegality

• 5.1 How could legality itself apply to a relation between legal orders? What are the options for institutionalising interactions between state law and tikanga in order to realise both their claims to authority and legality?
• 5.2 To rescue legality from defective claims to independent or supreme legality, there need to be constraints upon state law’s reach into Indigenous legalities, institutionalising humility in those claims. Political limits upon wielders of state power do not provide the necessary legality forms to constrain state legal orders from forcefully intervening upon Indigenous ones or for protecting against the power imbalance that frequently renders Indigenous legalities vulnerable to state legalities. Rather than hybridisation between legal orders (which lends itself to practices of state override) or conflict of laws approaches (that empower state legality while distorting ‘foreignness’), a model of ‘interlegality’ offers forms and institutions for contest, correction and a kind of distribution of statuses of legality.
• 5.3 Interlegality operates in the domain of interdependence that surrounds the core independent domain of tikanga, but it must also offer fora for testing and managing that boundary. The boundary, from either direction, cannot be sharp or fixed, as people and their activities move between the domains of interdependence and independence and as identities, needs, preferences and capacities change. Interlegality forms include tools for the continuous process of testing whether and how conduct is to be governed by interdependent or independent authorities. These include forms and institutions through which tikanga is engaged in patrolling the internal boundaries between those aspects of tikanga engaged in interdependence and its independent operation.
• 5.4 Returning to the suggested diagram of concentric circles, interlegality operates the outer domain of interdependence as a domain of law and provides that the boundaries protecting the space for a core of tikanga independence are themselves contestable, subject to continuous interlegal reflection and review. In its strongest form, interlegality requires institutions through which statuses of legality can be both contested and administered.107 These make the meeting point of interaction between legal orders itself

107. This reflects the models that defend practices of recognition as ongoing dialogues between legal orders, not end points to be achieved. See Tully, ‘Recognition and Dialogue’ (n 105); and James Tully, ‘The Struggles of Indigenous Peoples for and of Freedom’ in Ivison, Patton and Sanders (n 39). It is important, however, that interlegality requires institutional forms for deliberate interaction and does not leave dialogue only to more political relational models.

a space for legality rather than force or politics.108 In metaphorical terms, subjecting the interdependent domain of tikanga and state authorities to interlegality offers a life-ring for legality itself.

• 5.5 Unlike legal forms that allow one order to unilaterally determine its relationship with the other, the forms of interlegality need to be recognised by both legal orders. Their content will be deeply context-dependent, arising from the practices of interaction and critical reflection on those practices. (Some possibilities are discussed below.) In simplified form, however, interlegality will require both genuinely common law and genuinely shared institutions for contesting the statuses of legality. Interlegality must draw upon legal forms from both orders to govern the relationship itself, such as arrangements for either separating or sharing jurisdictions between the interdependent and independent domains, special institutions or institutional combinations for hearing disputes that invoke both legal orders and for making rules to be applied in common across both orders.
• 5.6 Aside from the brief comments below, I leave it to expert jurists in each/both legal orders to explore what in practice is possible together. The theoretical point is that adaptations of existing institutions and creation of new institutions must be mutual and negotiated, designed to get to meeting points (even if these are points of contestation), if they are not to fall back into merely parallel practices of unilateral recognition. Yet for that to happen, we would need sufficiently robust institutional practices for representation of legal orders in some kind of dialogical process with one another.
• 5.7 Under a dialogical recognition model, tikanga and state law processes (making, applying and interpreting rules, principles and values) need to be engaged together to work out (i) what are the matters of common concern and (ii) on those matters of common concern, what are appropriate cases for shared decisions, deference or referral. That will not be easy nor a once and for all process. Working out and then continually revising what are the matters of common concern and what matters can be dealt with exclusively through tikanga will itself have to be a dialogical, continuously renegotiated process and will at least initially require a fair amount of creativity.
• 5.8 The orders may need to adapt in order for each to recognise their meeting point with one another. These might include, on the part of state law, adopting forms through which to recognise local expertise about tikanga that is not ‘neutral’ and deferring to tikanga processes and content to determine how the expertise of contending parties is tested and resolved. Wherever tikanga content is invoked before state legal institutions, an interlegal response would treat that content to invoke not simply concepts, rules, principles and values but also the institutions, authorities and decision-making processes of tikanga.109 Interlegality requires that state courts do not simply decide, alone, on matters that invoke both tikanga and state law but instead need institutional arrangements for deciding together with tikanga authorities, for deference to tikanga authorities and/or referral to tikanga institutions. Meanwhile, tikanga content and processes may need to be more transparent or systematically represented if they are to be applied more generally or indeed deferred to more regularly when they meet with state legality claims. This of course triggers the concern that Indigenous legal orders have

108. Jan Klabbers and Gianluigi Palombella present ‘inter-legality’ as a distinctively legal rather than political response in The Challenge of Inter-Legality (CUP 2019).

¹⁰⁹ Roughan (n 60); Jones (n 7).

already done or been required to do most of the ‘adapting’ in forced meetings with state law, and more should not be expected.110 The claim here would limit such reform only to that required for representation into the meeting points with state legality in the domain of interdependence, leaving open what happens in the independent core. In both cases, adaptations may require the creation of new institutions, new procedural innovations, new rules or principles of substantive law and revised practices of legal method, reasoning and interpretation.

• 5.9 Both state law and tikanga may be primed to operate such dialogical and adaptive processes that both feature respect for existing rules, values and traditions alongside the flexibility to develop both substance and processes to meet changing needs. The most optimistic reading sees both legal orders able to harness together their creative and their customary characteristics, as well as their own elements of openness and decisiveness, into forms of interlegality.
• 5.10 For legal practice, the key question is then to ask what interlegality entails. Here, it is important to reiterate that the scope of the present paper does not examine constitutional tools nor inter-constitutional tools for relations. While a treaty might guide interlegality111 – and in our own context, te Tiriti o Waitangi and its protections for the continuity of tikanga are an important constitutional constraint upon interlegality forms – the treaty form itself is attuned to more general rather than particular legal arrangements. Legal institutions on both sides of interactions still have to grapple directly with the practice of interlegality between tikanga and state law.
• 5.11 The context-dependence of legal forms means that forecasting what interlegality might require, in our own context, starts with asking whether existing tools of interaction might be recognised as forms of interlegality and where new tools are required.

A. FORMS AND TOOLS OF INTERLEGALITY

• 5.12 Although the present paper is not an effort to interpret past or current trajectories of legal practice, there are lessons for an interlegality model in several key recent developments. Recent case law and legislative enactments, as well as recent work of the Law Commission, suggest ways in which agents and subjects of both state law and tikanga have been grappling to find ways to operate and generate forms of interlegality. Several emergent forms for institutionalising humility suggest pathways to interlegality through forms of recognition of relations between state law and tikanga.
• 5.13 Legislative forms searching for interlegality are most prominent in the work to develop frameworks for legal personhood within the settlements effected through Te Urewera Act 2014 and Te Awa Tupua (Whanganui River Claims Settlement) Act 2017. These have

110. In addition to the concerns raised in Mikaere (n 4) and Coates (n 29), see, for example, Hendry and Tatum on the US context, acknowledging the artificiality and controversies involved in encouraging US tribal legal orders to adopt some liberal legal forms. Jen Hendry and Melissa L Tatum, ‘Justice for Native Nations: Insights from Legal Pluralism’ (2018) 60 Arizona Law Review 91.
111. Tully’s extended accounts of intercultural and intersystemic constitutionalism is built upon an account of historical treaty practices as evidence of principles (mutual recognition, consent and continuity) that distinct political traditions not only can accept but have accepted. See Tully (n 105). Treaties themselves may be understood to offer ‘interface norms’. See Nico Krisch, ‘Introduction’ in Krisch (n 2); and see the chapters from Mills and Anker in the same collection. On the Treaty form, see also Aaron Mills, ‘What Is a Treaty? On Contract and Mutual Aid’ in John Borrows and Michael Coyle (eds), The Right Relationship: Reimagining the Implementation of Historical Treaties (University of Toronto Press 2017).

been extensively examined and evaluated by leading scholars in work not repeated here.112 The present gloss on those accounts is the suggestion that the frameworks may be regarded as efforts (albeit imperfectly realised) at interlegality insofar as they generate interlegal constraints on interdependent authorities and decision-making processes. Tikanga forms recognising personhood were met with state legal forms for doing the same, coupled with the development of new institutional mechanisms designed to give effect to the shared and interdependent object of both state law and tikanga in that context: protection for those recognised persons.

• 5.14 The Law Commission’s independent examination of the reform of the law of succession also grappled directly with the interlegality challenge represented by the possibility of ‘succession’ to taonga. The scoping paper, submissions and final report are replete with accounts of how tikanga and state lawyers conceive of that challenge and its resolution.113 Again, this can be presented as a question of interlegality, but unlike the specific legislative interventions around personhood, it expresses direct evidence of broader recognitive practices of the community of law’s agents and subjects. It also expresses the challenge of recognising the relation between legal orders and the need for systematic attention to that relation.
• 5.15 Through the common law and the cases through which it is generated, the courts are pressed to respond to the most immediate and frequent challenges of interlegality. It follows that the common law carries some of interlegality’s most powerful potential and pitfalls. The following analysis is focused upon the general courts and the structure of the court system as a whole. It is important to observe, however, that the specialist courts (including those dealing with particular types of criminal offending) feature practices and processes that are not always well captured in theoretical engagements with the common law. The alcohol and drug treatment courts, the Rangatahi courts, the Environment Court and of the course the Māori Land Court and Māori Appellate Court all present processes and substances that are designed better to recognise the relations of state law and tikanga.
• 5.16 There will be lessons in those specific institutions as well as inter-institutional pathways of delegation, referral and joint decisions that are likely to be crucial to the practical realisation of interlegality. When direct claims to tikanga legalities are brought before the general courts, however, there are opportunities for the courts to claim to make authoritative distributions or corrections of statuses of legality with wider systemic implications. To the extent these influence wider recognition practices, such institutions act as distributors of a sort as well as institutions for the correction of mistakes or injustices generated over denials of the statuses of legality.
• 5.17 The general courts have long grappled with interactions of state law and tikanga, intensifying over the last decade in response to a wave of cases that have tipped from

112. See, for example, Jacinta Ruru, ‘The Flow of Laws: The Trans-jurisdictional Laws of the Longest River in Aotearoa New Zealand’ in Janice Gray, Cameron Holley and Rosemary Rayfuse (eds), Trans-jurisdictional Water Law and Governance (Routledge 2016); Jacinta Ruru, ‘Listening to Papatūānuku: A Call to Reform Water Law’ (2018) 48 Journal of the Royal

Society of New Zealand 215; Katherine Sanders, ‘Beyond Human Ownership’? Property, Power and Legal Personality for Nature in Aotearoa New Zealand’ (2018) 30 Journal of Environmental Law 207.

113. Te Aka Matua o te Ture | Law Commission, He arotake i te āheinga ki ngā rawa a te tangata ka mate ana | Review of succession law: rights to a person’s property on death (n 1); and submissions on that project.

specialist into generalist legal and judicial practice at all levels. A large body of literature examines the difficulties of reconciling different approaches – difficulties that are strung together by the impossible (and I have suggested illegitimate) task of calibrating an interaction between the legal orders within supreme and independent claims of state legality. The current wave of this interaction (in striking contrast from the dominant twentieth century approaches in which recognition was either denied or controlled by common law doctrine) features efforts, apparent in a growing number of judgments, to seek tools for deference or referral to authorities and institutions of tikanga.

• 5.18 Where courts in the past have readily pronounced on what particular tikanga concepts required (for example, where they have been incorporated into statute or recognised as ‘custom’ by common law doctrine), we now see instances of courts claiming or seeking to limit the impact of their own decisions upon the independence and integrity of tikanga as a system.114 Some of the judicial approaches in Ellis suggest that the courts may be increasingly reluctant to make independent determinations of how to operate the relation of tikanga and state legality, instead invoking tikanga-consistent or tikanga-determined procedures in preference to solo court determinations.
• 5.19 In rejecting the Loasby approach to incorporation (under which norms of tikanga were customs to be incorporated (or not) by the application of common law rules), the court clarified the trajectory from Takamore and affirmed earlier arguments that the Loasby ‘test’ was inappropriate for the recognition of tikanga.115 The separate judgments then appear to keep alive both a looser sense of the recognition of tikanga – offering up its principles, rules, values or other content into the common law in the mix with everything else – as well as the recognition of tikanga having independent authority as a system of law that is not affected by what the courts do through the common law, replete with its own institutions and authorities. The tensions between these models represent the systemic challenge that drives the present project.
• 5.20 Against the older models of common law recognition, aspects of Ellis point to a potential interlegality model that our dispute resolution systems are not yet institutionally equipped to realise in full. The interaction between authorities on display in Ellis ultimately fell short of realising interlegality because of the formal unilateral structure of the court’s decision and the split substantive findings about how to deal with the applicable tikanga content. The Statement of Tikanga was presented (only) as evidence, and the substantive outcome was formally and exclusively a matter for the court.
• 5.21 Looking through an interlegality lens, however, the most significant aspect of the case may be the practices of recognition on display in Ellis – among judges, the appointed tikanga experts, the Crown and appellant’s lawyers, the intervenors – that in different ways expressed the significance of tikanga operating as general law without giving up its independence or integrity as the first law of Aotearoa. The substance of both the majority’s position and the position of the tikanga experts was highly deferential in recognition of their relations. The minority judgments also placed considerable weight on

114. Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843 at [365]; Ellis (n 8), for example, see [111], [120] per Glazebrook J.

¹¹⁵ Glazebrook J [112]–[116]; Winkelmann CJ [177]; Williams J [260].

the joint statement and its determinations of how a decision should be made.116 Such recognition was also evident in the parties’ presentation of the expert consensus as a joint (and not contested) statement and in the invocations of broader social practices of recognition of relations between tikanga and state legalities. Both the process and dialogical character of aspects of the Ellis reasoning arguably represents a practice of broader recognition of the relation between the legal orders.

• 5.22 In Ellis, a Statement of Tikanga, prepared by Sir Hirini Moko Mead and Professor Pou Temara, was presented jointly by the parties as evidence (and, significantly, appended to the judgment). The joint statement documented the consensus positions reached by a highly esteemed yet ad hoc group of tikanga experts convened in a wānanga process to address the question not only of the content of tikanga but also (and crucially) whether and how tikanga was relevant to the questions before the court.117 Seeking expert evidence on that question rather than having the court assert its own independent expertise and authority to determine the very applicability of tikanga may be interpreted as an aspect of recognition of the relationship of state law and tikanga and the relativity of state law’s claim to law’s authority.
• 5.23 The majority judgments effectively relied upon that statement to answer the court’s question about the relevance and applicability of tikanga rather than simply asserting common law doctrine and common law method to control the application of tikanga. According to the mātanga, tikanga was applicable and should be applied by the court notwithstanding the concerns over doing so – concerns that several of the judgments directly repeated. Had the tikanga experts come to the opposite conclusions or even disagreed on that point, it is difficult to imagine the judges relying on tikanga to the extent that they did.
• 5.24 Such recognition is significant, and the deference shown by the majority to the content of the Statement of Tikanga is striking because it corrects the more piecemeal ways in which tikanga had been recognised by older doctrinal approaches in the common law. It replaces the incorporation of particular and isolated tikanga concepts with a robust recognition of the relationship of state law and tikanga as legal orders. The court was not simply seeking evidence of either an ‘external’ legal order or a ‘custom’ to be recognised by the common law but about the applicability of tikanga as law. This invokes not only substantive tikanga content but also the forms and institutions of authority and decision making that accompany such content. Seeking evidence on the applicability of tikanga appears as a type of outreach (albeit one limited by the evidentiary form itself) to the operation of tikanga and an invitation to its interaction with state law. Although the outreach and the affirmative response about the applicability of tikanga still operated with the court acting as the determiner of the legal outcome, the case displays some recognition of a relationship through interlegality. Furthermore, although this was a case of substantial areas of consensus and coherence between legal content in both orders, the processes themselves did not remove the potential (and indeed the likelihood) of

116. O’Reagan and Arnold JJ at [279] thought this was not an appropriate case to make more general statements about tikanga, while thanking the experts and intervenors for their evidence. Yet at [316] they rely upon the joint statement, quoting it directly: “[it] is for the rangatira, in this situation the Court, to decide in accordance with its own principles and rules”.

¹¹⁷ Ellis (n 8) (Appendix).

disagreements within and among the different forms of authority being represented in that interaction.

• 5.25 In this way, the recognition operating in Ellis differs from the models in which a singular hybrid legal order engulfs tikanga and differs from the monistic effort to treat tikanga as part of the values of the common law but still subject to determination by the courts. One way of reading this recognitive practice is that it positions tikanga, like equity and customary international law, as types of law that can be applied by the courts but that are not (or not originally) sourced in the court’s own rulings.118 Their authority does not derive from court judgments. This reaffirms that the courts are not only agents of the English/settler common law as developed through a long trajectory of cases. They wield and apply other law too, in recognition of relations between legal orders. However, the authority of tikanga, unlike the other types of law applied by the courts, is not latent (as for equity) nor dispersed across a community (in the manner of different types of custom). The authority of tikanga lies elsewhere and is operated through agents and institutions of its own.119
• 5.26 Turning to those agents and institutions of tikanga, the second key element of recognitive practice in Ellis is that recognition of the relation, and the need for interlegality, was arguably also evident in the position of the tikanga experts. Their consensus position recognised tikanga as a legal order extending beyond the regulation of Māori communities and thus recognised its relation with state legality. Yet there is also recognition of the authority of the court and its role in applying general law, including applications of tikanga, notwithstanding the experts’ concerns about the impact of the courts applying or misappropriating tikanga.120
• 5.27 This “ultimate group consensus” was of course reached by a select group of experts, and despite the undoubted mana of the participants, there can be differing positions regarding the desirability of (and the forms for) recognising relationships of tikanga with state legalities as well as divisions over representing tikanga content.121 There is no exclusively authoritative tikanga institution upon which a relationship of interlegality could be constructed.122 The authority of tikanga is most often represented locally, transmitted through institutions and persons that will not always cohere or reach consensus on its content nor its relations with state legality. This reinforces that a key challenge for an interlegality model will be to devise forms and institutions to contest the ways in which tikanga is represented and asserted in its relations with state legality.

118. The example of equity is probably now a stretch – the joining of common law and equity jurisdictions means that the courts develop equity through their rulings, yet it sometimes still matters that, strictly conceived, common law and equity have different sources, content and rationales. There is, however, no relative claim to authority made by a community recognising equity. The analogy here is designed only to show that the courts can work with different types of legal ordering, together.

¹¹⁹ See, for example, Stephens (n 68).

¹²⁰ ‘Statement of Tikanga’ in Ellis (n 8) at [52].

121. These may also differ across different combinations of what Glazebrook J described as the “matrix of iwi, hapū and whānau relationships”. Ellis (n 8) at [170]. See also Sykes (n 87).
122. Relativity of authority and relations between authorities may be as much a feature internal to tikanga as it is a feature of the relationship between tikanga and state law.

• 5.28 In addition to institutional constraints on state legality claims, a key challenge therefore is to engage forms for representing tikanga in its outreach to state legalities. More might also be done to imagine and to resource new institutions. Praise for the wānanga process engaged by the parties in Ellis is shadowed by the observation that this process may not be widely accessible due to the resources it required.123 If it were simply a matter of resources, the question arises why not rework resourcing, including time allocations and funding, in order to resource some form of standing body of tikanga jurists to represent tikanga in its interactions with state legality, both to contribute to the development of common law and to operate as a decision maker in its own right on questions that require deference to tikanga authorities? There are other initiatives surrounding the structure and operation of the court system from which to draw lessons and also to suggest that there may be resourcing for new forms and initiatives.124
• 5.29 It is not, of course, a mere question of resources. There are also matters of contestation, representation and division that any standing body would need to address and continually provide avenues for. However, for an interdependence domain to operate as a domain of interlegality, there may be few alternatives to a standing body (or bodies), which need not look anything like a state court, to hear and deliberate upon the questions that interlegality raises. There are, in existing practice as well as in past efforts, powerful models of institutional formation and operation – for example, models found in practices of the Māori Law Commission and Te Hunga Rōia Māori o Aotearoa as well as the current developments to moderate the content of tikanga education within the law schools – that may assist in developing forms for the representation of tikanga in recognition of relations and practices of interlegality.
• 5.30 At the same time, however, there may be a very real sense in which, according to tikanga, local rules and principles could only apply to particular places or persons and/or could only be administered in local tikanga-based institutions. In the domain of matters of common concern, however, which does not of course cover all matters of personal, inter- personal or community life, that argument may be met with the operation of those elements of tikanga that deal with relations to others outside of whakapapa relations and with the operation of disputes between groups with different tikanga. Perhaps more importantly, the ways in which tikanga itself appears to connect persons and places beyond kinship relations means that a genuinely common law embedded in (and applying to) Aotearoa New Zealand may continue to adapt and develop its own new tools as needed to address common concerns between tikanga orders as well as between tikanga and state legal orders.
• 5.31 Finally, on the recognition of relations, it is significant that both the tikanga experts and the majority judges in Ellis point to wider social practices in recognition of the authority of tikanga. This broader social recognition, along with both the court’s and the experts’ recognition of their relationship, points to shifting practices of recognition of law, authority and subjection to law. The approaches to recognition – not only that of the majority judges but also those of lawyers for both parties as well as the tikanga experts and those

123. Williams J in Ellis (n 8) at [273] notes that parties will not always be able to resource more elaborate processes among existing processes.

¹²⁴ For example, the funding in the 2022 Budget in support of the Te Ao Mārama reforms. Government of New Zealand,

Wellbeing Budget 2022: A Secure Future (The Treasury 2022).

expert interveners assisting the wānanga – reflect broader recognitive practices in which tikanga is not incorporated by common law rules but has legal status in interaction with state legality.

B. A GENUINELY COMMON LAW?

• 5.32 Lawyers typically (though perhaps too simplistically) describe the law that is applied (and thus gradually developed) by the courts as ‘common law’. This may be the most accurate way to capture the particular mix of case law, convention, customary law and other types of non-legislated law operated by the courts.125
• 5.33 For all the theoretical wrangling over what the common law is and does, it is most simply conceived as the law that is developed by judges.126 It includes the rules, principles, processes and conventions that emerge from the courts’ determinations of issues that are brought before them. The court system has a fixed structure – hierarchical but also with branches and connections between layers of speciality and generality, seniority and distinctive roles in relation to questions of law and fact. Not all the courts look the same, but it is important that the work of all the judges in all the courts together contribute to making the common law.
• 5.34 The original notion of ‘commonality’ of the common law is no romanticised notion of common law being ‘the people’s law’ nor somehow emerging from ‘bottom-up’ practices. It captured, instead, that the law was to be common across the royal courts of justice, replacing localised and diverse laws. The settler common law has been proclaimed as just such a common law, formally applied to all without plurality or differentiation of subjects, sources, content, expertise, processes, institutions and agents.
• 5.35 Yet in Aotearoa New Zealand, the continuity of tikanga shows that the (English then settler) common law never did replace or render obsolete other forms of legal ordering nor other law-applying institutions. The law has never been genuinely common. As the discussion of part 2 argued, there have always been discrepancies and defects in the claimed commonality and legality of the settler common law. These belie its claim to legitimately administer law over matters of common concern in a community and render it ‘common’ in name only. Most importantly, it does not serve as law common for communities with interdependent authorities nor satisfy the need to relate legalities rather than rendering them into a hybrid form.
• 5.36 In the interdependence domain, the imperative of engaging persons and places together in institutions for addressing common concerns requires that there be some genuinely common law for a community. The persistent interactions of tikanga and state legalities both within and surrounding the courts that have in the past been exclusively recognised as developing the common law raises the question whether there is a different potential
  • in the notion of commonality – to serve practices of interlegality.
• 5.37 As explored above, practices of incorporation (and cognate terms such as hybridity, integration, and amalgamation ) are unjustified when they endorse and give effect to a

¹²⁵ Gardner (n 29).

126. Gardner (n 29). This is also how it is officially represented to the public. The Ministry of Justice guide to New Zealand’s constitutional system gives a simple description: “Common law has been developed by judges over the centuries, and may be altered by the courts to meet changing circumstances.”

unilateral approach to recognition. In contrast, through an interlegality frame involving recognition of the relation between state law and tikanga, there can be an effort to build a new and genuinely common law – one operating in common between interacting the legal orders. The interlegality model requires not the old settler and evidently statist and monist common law incorporating another legal order into itself but a model of institutions operating together to apply law in common between them.

• 5.38 Interlegality requires a genuinely common law that embraces plurality in its sources, agents, subjects, institutions, processes and content so that it might be justifiably applied to deal with concerns that are common to interacting communities. Within the interlegality framework for interaction, tikanga needs to operate not only in a core domain of independence but also in the interdependent domain as one of two strands of authority and institutions contributing to what is genuinely common law, together with the authorities and institutions that were imported on settlement and have since developed into the state legal order. This is part of what it means for tikanga to be in place as a legal order, governing and applying to persons and places beyond its independent core. Tikanga needs to be in place in the common law of Aotearoa New Zealand – or that law cannot be genuinely common.
• 5.39 The question posed in Ellis – what does tikanga have to say about this matter as part of the general law and not siloed into specialist areas of law or applied only to Māori interests, places or persons? – is precisely the question of the interlegality model searching for a genuinely common law. Somewhat ironically, it tangles up in knots the argument against tikanga applying as ‘special law’ for Māori because it recognises that the application of tikanga to all serves formal equality by securing law for all.127 From the other side of interaction, however, the objection (founded on tino rangatiratanga) about having tikanga anywhere near the jurisdiction of the court – an objection that is about preserving the independence of tikanga as an aspect of mana motuhake – worries about making tikanga ‘common’ in the pejorative sense.
• 5.40 Writing in the Canadian context, Val Napoleon argues that, when it comes to the practice of Indigenous laws, communities should not get stalled by institutional imperfections or gaps in capacities. Provided there is caution and careful awareness of past failures and their lessons, that position may be as apt for an emerging genuine and general common law as it is for the regenerating Indigenous legal orders that Napoleon’s work supports. The institutions, tools and practices that already exist (and those yet to be developed) will be imperfect forms for realising the interlegal interactions of state law and tikanga. They will prove unwieldy and controversial, they will be contested and criticised and, at times, they may lead to outcomes that fall short on any number of measures of legitimacy or justness.
• 5.41 Reasonable worries about interlegality and about the institutional arrangements for a genuinely common law might then be drawn upon to steer ongoing reform and reworkings of law’s institutions (not only those of law making and law application but also

127. Acknowledging that this objection may be recast in other forms, namely liberal objections about the substantive content of tikanga, for example, whether it preserves enough space for individual decision making and preferences and, procedurally, whether it is developed or applied through processes that are consistent with participation, fair contestation and non-domination. Put together, the liberal objection worries whether the collectivism at the heart of tikanga is compatible with liberal values that are concerned with equal freedom (compatible with the freedom of others) rather than (formal) equality under law. Those objections are discussed below.

professional and educational institutions on both sides of the interaction). What changes would be required for the system of adjudication and dispute settlement – not only the courts and tribunals but also the institutions of tikanga – to administer genuinely common law?

C. SHARED DECISION MAKING, DEFERENCE AND REFERRAL

• 5.42 Genuinely common law rejects the ways in which the judicial system is seen as an instrument or aspect of exclusive and supreme state legality. A genuinely common law not only draws upon (and provides contestation for) plural streams of law but also finds ways for state law to share with, defer to and refer to tikanga authorities (and vice versa) when relative authority so requires. As Carwyn Jones suggests, in context, part of the response to interaction falls on the courts themselves to “engage with Māori legal processes, Māori forms of decision-making, and work with Māori sources of law, such as stories and traditional sayings”.128 When there are concepts and norms of tikanga brought before the courts, they carry those processes, institutions and authorities with them.
• 5.43 Interlegality therefore demands forms for administering shared decisions as well as deference and referral to tikanga experts and authorities. With the aim of institutionalising humility in that relationship, some existing forms could be made mandatory rather than discretionary. For instance, wherever there are claims invoking tikanga, the assistance of pūkenga could be required, not a matter of judicial discretion. This would respond to the worry that a judge operating without pūkenga assistance on a matter of tikanga falls afoul of the recognition required for legality, as explained in part 3. Even where a judge has personal expertise that might allow them to assess tikanga evidence better than a judge without personal expertise in tikanga, the point is to represent and manifest decision making that carries forms of Māori authority and legality into the interlegality relation.
• 5.44 Mandatory pūkenga roles, however, seem insufficient to fix the recognition and legality deficits. Instead of (or in addition to) the assistance of pūkenga, interlegality may require shared decision making, perhaps through specialist appointments or co-judging within the current court structure, by developing a new composite court combining the expertise of the High Court and Māori Appellate Court or, more ambitiously, working towards or a new line of both hearings and appeal in a standing tikanga-based institution that could both provide a forum for hearing disputes between claims to particular tikanga in the independence sphere and to represent and manifest tikanga in the interdependence sphere through shared decisions at all levels.
• 5.45 In contrast to shared decision making, processes of deference to tikanga would accord decisive weight to experts’ evidence of what tikanga requires or what decisions have been made under tikanga processes. Referral, in further contrast, means to refer a decision itself to tikanga processes. As a structure, referral goes beyond deference to the authority of expert evidence of tikanga and instead refers matters to both processes and substance of tikanga as law for decision by relevant authorities under tikanga (which themselves, of course, might be plural and conflicting).
• 5.46 One way to understand the difference between deference and referral is that to defer implies that, while one institution decides the matter (i.e. there is jurisdiction), it does so

¹²⁸ Jones (n 7).

by giving effect to another’s judgment. A referral, on the other hand, sends a matter to a different institution in recognition that it is the appropriate forum for decision with the legitimate authority to decide that matter. Jurisdiction, which is so often an exclusionary instrument of the law, then becomes a useful device for managing interdependence, not by declining jurisdiction outright but by referring matters on for decision. The interlegal potential of referral mechanisms also avoids treating tikanga as a matter to be proven/agreed to the satisfaction of a statist court and rather allows for contestation of tikanga content in its appropriate fora.

• 5.47 Working out which cases (or parts of cases) raise matters for shared decision making, referral to tikanga institutions or deference to the evidence and/or decisions of tikanga experts is among the key tasks in the working out and mapping of common concerns. That cannot be done without negotiation and requires sensitivity to context beyond the more general/theoretical approach of this outline. As a matter of theory, however, a key consideration is the potential of any mechanisms to operate plural legal orders and manage overlapping statuses of legality so as to make them fairly contestable while maintaining appropriate procedures for protecting persons from mere power. This includes keeping open the pathways of access to justice by acknowledging that statist courts on their own, without any engagement with tikanga authorities through either shared decisions, deference or referral, can provide access to only a partial justice and not justice according to law.
• 5.48 The capacity to generate processes and rules for shared decisions, deference and referral, suggest that (among the institutions of interlegality), there is potential for the old ‘common law’ to be developed into a genuinely common law operating in the domain of interdependence around the core of both tikanga and personal independence. It would need to be both genuinely common between the legal orders and recognised as supporting their relation. This potential makes the common law a powerful institution with promise of actually being a just institution of justice. In this form, genuinely common law can support the justified interaction of tikanga and state law’s authority, coercion and administration of justice in relations of interlegality. It then supports the interlegality model’s ultimate matter of common concern: the operation and peaceful contestation of overlapping legal statuses without resort to one’s domination of the other.
• 5.49 From the current state of practice, however, any moves towards shared decision making, deference and referral likely entail elements of trial and error, which is alarming for those whose concrete situations, duties and interests are at stake before a centralised justice system. It may also appear alarming on ‘rule of law’ grounds that favour certainty and predictability as well as raising the argument that concrete persons with stakes in particular claims and interactions ought not be treated as instruments towards working out a new kind of interlegal administration of justice. The negotiated development of principles of interlegality, and mechanisms for its realisation, is an important counter to those concerns.
• 5.50 On the other hand, as intimated above, there are already ‘rule of law’ defects in the existing common law, which also in some sense already instrumentalises persons and their claims in the course of creating new common law rules. Any efforts to develop genuinely common law methods to operate shared decisions, deference and referral will have to aim at meeting those and other objections about interlegality, which are considered in the final section below.

D. OBJECTIONS TO INTERLEGALITY

• 5.51 This paper concludes by engaging with some of the most important objections that might be raised against an interlegality framework.129 The first objects to any identity-based, ethnicity-based or race-based forms of distinctions between persons and their entitlements in communities. The second argues that, while historical injustices have occurred, they have been ‘superseded’ by changes in circumstances. Both objections defend the view that, for all the injustice wrought upon Māori, the role of the contemporary state is to provide justice among present persons (and perhaps those generations to come), whatever their provenance, identities, ethnicities, cultures or beliefs.
• 5.52 A third objection, which often runs alongside the first two, is a worry about the rule of law
  • that interlegality bears too much uncertainty or inconsistency to bear the name of legality at all or that it offends against some formal equality principle of ‘one law for all’. The fourth argument addressed here is a pluralist objection – namely, that tikanga does not seek nor want forms of interaction with state law and that a strong form of legal pluralism rather than interlegality better recognises tikanga. Despite appearing on opposite ends of ideological debates that surround relations of tikanga and state legalities, objections three and four are addressed in similar ways by the interlegality argument – namely, that interlegality shifts attention onto the relationship between orders as a location for the rule of law and recognition between legal orders rather than upon each of the interacting legal orders independently.

i. ‘Identity politics’ and ‘ethno-nationalism’

• 5.53 Worries about identity politics and ethno-nationalism have long appeared at the heart of debates surrounding liberal political theory’s responses to claims to Indigenous rights and self-determination.130 Those positions and their full responses cannot be examined here, but it is important to represent the core worry that it is not only unjust but also harmful for a political community to delineate and divide people into ethnic or race-based categories. As well as risking serious division and morally problematic categories of ‘insiders and outsiders’, the objection argues that race-based divides also reify one among many aspects of persons’ practical identities and risk subjugating one to another in ways that can endanger vulnerable persons or ‘minorities within minorities’. In a context of multicultural communities, a more specific objection is then raised against Indigenous political claims to the extent they are based upon a distinctive practical identity. The argument shifts to a claim that, even if liberal multiculturalism can be supportive of cultural differences and can defend distinctive identities, Indigenous cultures and Indigenous identities should be treated by the liberal state no differently to any others. Separately and/or together, such concerns about the politics of recognition ground arguments that deny forms of Indigenous rights or practices of self-determination.

129. These are elaborated in more detail in Nicole Roughan, ‘States of Injustice and Statuses of Legality’ to appear in Walton et al (eds), Responding to Injustice (forthcoming). A draft version is available here.
130. For a relatively recent summary of concerns and responses drawing contemporary developments from the canonical debates of the 1990s–2000s see Paul Patton, ‘Philosophical Foundations for Indigenous Economic and Political Rights’ 46 (2019) International Journal of Social Economics 1264.

• 5.54 Those concerns are met with an equally expansive literature from both defenders and critics of liberalism, which either deny that the self-determination claims of Indigenous peoples clash with multicultural and/or liberal political values or deny that those values trump our outweigh others.131 Responses often point out that statist framings of political value are defences of what the state itself should accommodate, support or protect; a framework that is ill-suited to meet Indigenous philosophies with their own understanding and justifications for the relations between persons, power and values.
• 5.55 For the present project, it is important that the key objections and responses in political theory tend to offer their justifications without attention to the status of legality. Law is typically treated as an instrument for doing justice (whatever that is) and for protecting rights (whatever they are). The contestation is over those substantive objects and law’s aims, not the status of legality. An interlegality theory, however, offers a different sort of response. Interlegality offers the same response to both full-fledged nationalist demands and to denials of difference. It offers the tools of legality, which self-proclaims to be able to abstract away from concrete identities to recognise the forms and institutions of Indigenous legalities rather than the identities of persons. Legality’s abstraction houses its capacity to address the claims that are made from competing legalities. It can construct institutions for recognising statuses of legality rather than the identities or statuses of persons.
• 5.56 Importantly, interlegality can also avoid essentialising or over-determining the complex choices, preferences and indeed preferred identities of persons who may (but need not) recognise Indigenous laws and reject state legality. It also avoids over-determining the significance of identity itself or indeed membership of a single rather than multiple overlapping communities. For instance, it does not recognise a Māori individual as having some special entitlements, let alone identities, vis-à-vis other persons in the community. It recognises instead the distinctive as well as the interactive forms of Māori legal ordering and their implications for those persons who recognise and are recognised within that order. The abstraction of interlegality helps, just as the abstraction of legality serves to abstract away from race/ethnicity/cultural/identity-based claims. It may thus ward off insidious forms of ethno-nationalism better than defective liberal claims to legality.

ii. Superseding historical injustices

• 5.57 The supersession thesis, advanced powerfully and consistently by Jeremy Waldron, argues that injustices wrought upon Indigenous persons, including forceful and deceitful appropriations of property, sovereignty and political authority as well as breaches of Treaty-based rights and obligations, can be superseded by changes in circumstances.132 The supersession thesis argues against reversion and restoration of Indigenous property,

131. See, for example, Coulthard (n 90); Gordon Christie, ‘Law, Legal Theory and Aboriginal Peoples?’ (2003) 2 Indigenous Law Journal 70; Moana Jackson, ‘The Colonisation of Māori Philosophy’ in Graham Oddie and Roger Perrett (eds), Justice, Ethics and New Zealand Society (Massey University Press 1992).
132. See, for example, Jeremy Waldron, ‘Settlement, Return, and the Supersession Thesis’ (2004) 5 Theoretical Enquiries in Law 237: “certain things that were unjust when they occurred may be overtaken by events in a way that means their injustice has been superseded” (240). For Waldron’s most recent account, see Waldron, ‘Supersession: A Reply’ (2022) 25 Critical Review of International Social and Political Philosophy 443. That piece offers a helpful explanation of the development of the thesis since its earliest iteration in Jeremy Waldron, ‘Historic Injustice: Its Remembrance and Supersession’ in Oddie and Perrett (n 131).

sovereignty, authority and, in a sense, independence (though does not deny that compensatory responses may be appropriate).

• 5.58 A number of responses to Waldron have challenged the supersession thesis in general as well as Waldron’s application of that thesis to the Treaty of Waitangi.133 In earlier work, Mark Bennett and I argued, in response to Waldron, that te Tiriti is not superseded by circumstances. Instead, its existence is supposed to contour the content of the very rules designed to protect and enable persons to live together amidst the challenges and changes of interaction. In addition, Waldron has more recently argued that Indigenous sovereignty and its forms of political authority could not be operable systems for governing a contemporary, modern, multicultural society.134 The relative authority account defended above suggests that Waldron’s argument cuts both ways. If an independent and supreme Indigenous authority could not be expected to justifiably govern and to have legitimate authority and solo legality, so too does the contemporary state order fail to justifiably govern, to have legitimate authority and to operate solo legality, in light of the contemporary continuity of Indigenous legal ordering. The interdependence of these orders calls out for a form of interlegality.
• 5.59 The interlegality approach directly responds to Waldron’s recurring claim that people and their projects are now so deeply interwoven that no return to Indigenous sovereignty, no return of generations of settlers to their ancestors’ homes and no return of Indigenous property can be justified on the grounds of redressing historical injustices. The response from interlegality is that the concrete interaction of persons and the entanglement of their activities and entitlements do not set the limits of the abstract responses that legality makes possible. An interlegality framework envisages institutions to contest which legal orders can justly be applied within an interaction. If law and legal forms are to have a role in responding to injustices in this context, the question is which legal ordering(s), in what combinations or relations and through which forms?
• 5.60 The deep interactions of concrete persons do not resolve the question of what legal forms can serve those interactions or how statuses of legality may interact in order to serve persons better. Even if we concede to Waldron (and others) the argument that interacting peoples cannot and should not be segregated, the abstract forms of legal ordering can still be rearranged and abstract statuses of legality recognised, attributed and distributed in ways that people and places cannot. The generations of persons who have arrived since settlement cannot be removed, but supremacist legal forms can be removed and Indigenous legal forms renewed. Interlegality then provides forms for their interactions and intersections.

iii. The rule of law

• 5.61 The response to both the ethno-nationalism concern and the supersession thesis is the same: that forms of interlegality and law’s abstractions offer ways of responding to injustice that do not turn upon the identities or ethnicities of the persons engaged in claims of injustice. The response then falls within a fairly orthodox lawyerly commitment to the rule of law, with several important modifications to the way that ideal is typically

133. Mark Bennett and Nicole Roughan, ‘Rebus Sic Stantibus and the Treaty of Waitangi?’ [2006] 37 Victoria University of Wellington Law Review 24.

¹³⁴ Waldron, ‘Supersession’ (n 132); and Waldron, Supersession and Sovereignty (NYU School of Law 2013).

presented in common law settler states. First, the ideal of the rule of law, in the realm of interlegality, applies to the rules for the relationship between legal orders. While it does not give up its concern that either legal order should be sufficiently clear, consistent, public, general and coherent – in order to be claimed and received as law – it is equally concerned with evaluating the forms for interaction and interdependence that affect law’s claims and their reception. Those forms may not look like forms familiar from state legal ordering. They may be more or less formal, more or less rule-governed or principle- based,and more or less dependent on persons or institutions. . Those are the matters for a rule of law account to examine, armed with the key concern that interlegality, like legality itself, offers the relationship something other than politics and power.

• 5.62 The second modification is that the rule of law in an interlegality context provides not one law for all, in the familiar manner of the formal equality principle, but two laws for all, along with law for the interaction and intersection that can temper power and render the relation sufficiently clear, coherent, consistent, public and general. For the reasons explained in part 3, seeking to force one law for all upon communities with interacting legalities undermines legality’s claim to be something other than force. Where the continuing operation of Indigenous legalities precludes the operation of state legality as one law for all, the options are one law for some and one law for others, one law for some and force for others or two laws for all plus interlegality for the interaction and intersection. The ideal of legality, I argue, is best met by the third.
• 5.63 A third modification examines Raz’s suggestion that the operation of an independent judiciary is a key aspect of the rule of law.135 To operate interlegality in the common law settler states, the independence of law-applying institutions, their role as interpreters and their role in incrementally developing the law is no less important. Some form of independent judiciary system has a justifiably distinctive role amidst other tools of interlegality, including deliberative and Treaty institutions. Yet for interlegality to be realised, the institutions of adjudication and dispute settlement require diversification and modification to be sufficiently independent from state legality, with procedures, expertise, membership and mandates to develop a genuinely common law.

iv. Plurality and recognition

• 5.64 I have suggested that, in the example of Aotearoa New Zealand, there is deep interdependence in the claims to legality and authority captured in the ideas of (i) relative rather than plural independent authority and (ii) interlegality rather than plurality of laws. Both positions raise the normative concern that, from the perspective of an advocate who wishes to restore or otherwise support the operation of tikanga as a response to the injustice of its prior exclusion, interlegality may seem less attractive than the robust operation of an independent tikanga that does not need nor seek recognition beyond Māori communities. It is important that interlegality and plurality share some common concerns but are not the same thing. Interlegality emphasises interdependence, whereas plurality emphasises independence. Interlegality, however, still presumes some form of independence of laws that feeds into the relationship and is in that sense deeply pluralist
  • it is about the interaction of plural claimants of legality and authority; interlegality then provides means for realising those claims.

¹³⁵ Raz, ‘The Rule of Law and its Virtue’ (n 54).

• 5.65 A broadly pluralist objection against interlegality may argue that it does not go far enough to give effect to the independent claims of Indigenous legal ordering and that any effort to relate legal orders through legality will end up either incorporating by assimilating tikanga into the dominant state legal order or will be subject to political dynamics that have that effect.
• 5.66 The response offered by interlegality is to shift the object of recognition in order to provide for both interdependence and independence. Those who recognise tikanga as law recognise that it does not need nor seek the state’s recognition in order to have an independent status of legality. Many of the persons, places and activities organised through tikanga need never be tested nor confronted by state claims to legality. Moreover, when there are entanglements between tikanga and state law – whether generated through persons making tikanga-based claims before state courts or through state interventions into practices governed by tikanga – any effort to use state law, institutions and authorities alone to ‘recognise’ tikanga, folding tikanga within the constraints of state legality, will amount to a form of recolonisation.
• 5.67 Abstraction away from both state legality and Indigenous legality, instead, shifts the object of recognition to avoid both the subordination implicit in asking for recognition and the failures implicit in giving it. Just as the rule of law focus shifted onto the interlegality relation, the object of recognition in interlegality is neither tikanga nor state law but their relationship. That does not preclude – indeed it supports – the operation of an independent core of tikanga by ensuring that tikanga also operates its status as legality in the domain of interdependence.

Conclusion

The arguments presented here have framed the interactions of state law and tikanga within an account that seeks to rescue both legality and law’s legitimate authority from the recognition deficit that arises from the imposition of state law upon tikanga. It argues that, to have the rule of law, people need to be able to recognise law’s claim to justly administer public standards for a community. Instead of settling for less than legality and denying law’s legitimate authority, the methods and institutions of ‘interlegality’ would provide for the status of legality to be tested and contested while addressing concrete issues invoking both legal orders. Rather than submitting one legal order to another’s recognition, interlegality makes the relationship between the legal orders – rather than each legal order on its own – the key object of recognition and the key target of the rule of law.

Author acknowledgment

Nicole Roughan is Associate Professor/Ahonuku, Waipapa Taumata Rau | University of Auckland and a Rutherford Discovery Fellow, Royal Society Te Apārangi.

This paper draws upon positions I have defended in more detail in published as well as forthcoming work, which are summarised here without the full engagement with the surrounding scholarly literature. Its lines of argument owe much to teachers and key interlocutors. I wish to acknowledge debts owed to former teachers as well as key readers, colleagues and interlocutors, especially Claire Charters, Kirsty Gover, Andrew Halpin, Arie Rosen, Andrew Sharp and Māmari Stephens. Their thinking has greatly influenced my own, whether in support or opposition to the positions summarised in this paper, for which I am solely responsible.

Mahuru | September 2023 Te Whanganui-a-Tara, Aotearoa Wellington, New Zealand

Pūrongo Rangahau | Study Paper 24

Appendix 4:

Timeline of statutory and common law engagement with tikanga

The following timeline is provided as a supplement to Part Two of this Study Paper. It illustrates how statutes and common law addressing tikanga have developed since 1840 and, as they do so, the inter-relationship between statutes and the common law. The timeline should be viewed with this illustrative purpose in mind. The descriptions of cases and statutes have been shortened. They do not provide a comprehensive analysis of the statutes and cases, which can be found in Part Two.

THE ENGAGEMENT OF TIKANGA AND STATUTE LAW

1841

Land Claims Ordinance 1841

The Crown has exclusive right of preemption. This right is on y explicable upon recognising
customary land rights.'

1844

Native Exemption Ordinance 1B44

Muru like pen alties may apply in interracial theft cases.° Maori who are convicted of theft may pay up to four times the value of the goods instead o* facing other pun shment.'

1846

Residents Magistrates Courts Ordinance 1846

Maori assessors may sit in with any Magistrate in civil
cases as a “Native Assessor" with significant
decision-making powers.°

1852

New Zealand Constitution Act 1852

Districts may be set apart where Native "laws, customs, or usages. so far as they are not repugnant to the general pr net pies of humanity" would apDIy.⁷

1858

English Laws Act 1858

The laws of England apply in Aotearoa New Zealand ”so far as applicable to the circumstances of the said
Colony of New Zealand"."

Native Districts Regulation Act J858

The Governor in Council may make regulations within for the suppression o* injurious Native

Customs; and for the subst tut›on of remedies and punishments for injuries in cases in which compensation is now sought by means of such Customs." "

Native Circuit Courts Act t858

The Governor in Council may establish districts where Native Title has not been ext› ngu › shed.'° Within those districts Maori assessors may sit with Magistrates ›n the

Also, two or more Maori assessors may sit as "The Assessors' Court ’ with all the powers and functions of the Native Circuit Court within those districts.'"

1862

Native Lands Act 1862

Several changes to Maori customary rights regarding land are made and the right of pre-emption to trie

Crown is waived.'* The Governor may constitute a new court to ascertain Maori lano ¹⁴

1865

Native Lands Act 1865

The Native Lana Court may make determinations on Maori custom as it relates to Maori land. The purpose is to ascertain the owners of land “still subject to maori proprietary customs” and to encourage the “extinction of such proprietary customs". ^

Native Rights Act 1865

Every interest in Maori land over which Native title has not been extinguished will be determined according to the "Ancient Custom and Usage of Maori people so
far as the same can be ascertained”.'°

1867

Native Schools Act 1867

Native schools may be established ana funoed, provided that the ordinary subjects of English education are taugnt in the English language. ⁷

1877

Fish Protection Act 1877

The "rights of Aboriginal natives to any fishery secured to them” under the Treaty

of Waitangi are recognised.

1881

The Native Succession Act 1881

Maori may apply to the Court to ”inquire and ascertain ^{who ought to succeed" to Maori land or} hereditaments .²⁴ Courts are to be “guided by Native custom or usage”

regarding Maori land and 'guided by the law of New Zealand” regarding hereditaments.°

SI AW

1883

Native Committees Act 1883

El ected “Native Committee[s J " may sit as a court of arbitration and determine disputes between natives "where the cause of the dispute has arisen within the district and the matter does
not exceed twenty pounds in value”.

1894

Native Land Court Act 1894

The Nat ve Land Court has tne exc usive jurisdiction to determine, on the death of any native, the interest in such Nat ve land or personal
property according to Nat ve custom.

1895

Native Land Laws Amendment Act 1895

OhakT are unable to be recognised as a legally valid distribution of property.°'

Maori Councils Act 19Oo

Councils may formulate general plans for the management of Maori within partic ular districts. The councils’ duties include “the suppression of injurious Maori customs, and for the substitut on of remedies and punish ments for ink uries in cases in which compensation is now sought by means of such customs”."*

19O7

Tohunga Suppression Act 19O7

Provides that it was an offence to practice as a “tonunga " in the manner described in the Act.

19O9

Native Land Act 19O9

Whangai is not recognises as a legal adoption according to New Zealand law. Instead, an order must be made subject to certain requirements by

^{the Native Land} Court.³ *

Assumes the existence of customary title ^{independent of Crown recog} nition.*^{9 Customary} title is not enforceable in any Court against tne Crown.⁴° ^{Crown action is unable to be challenged} in any court on the basis the customary title had
not been duly extinguished. ⁴

1915 & 1943

War Pensions Acts 1915 & 1943

Recognise marriage in accordance with

"native custom" when claims of partners to a war pension are being aetermined ⁴⁵

1945

Maori Social and Economic Advancement Act 1945

Tribal committees and Maori wardens are established and are empowered to promote Maori interests
within the districts.⁴

SI AW

1951

Maori Purposes Act 1951 Maori a re su bject to the same marr age law
requ‹ resents as Europeans,"°

1953

Maori Affairs Act 1953

Marriage or adoption in accordance with Maor› custom is not valid." No Maori will is valid unless executed in the same manner as a Eurooean will.*

1955

Adoption Act 1955

No person is ca pable of being adoDted in accordance with Maori custom.""

1967

Maori Affairs Amendment Act 1967

The registrar of a relevant court must change the status of Maori freehold land owned by up to four owners to General land.” Determinations of succession to real and personal property of Maori must De made as if the
deceased had Deen a European.^°

1968

Guardianship Act 1968 The only guardians of a child as o* right are the natural
birth mother and father of the child."'

1975

Treaty of Waitangi Act 1975

The Waitangi Tribunal is established and has jurisdiction to consider claims for breaches of the Treaty.

Protected Objects Act 1975

The ownershi p and custody of taonga t0turu is determined ay the tikanga of the people associated

with tne taong a ⁶²

1976

Property (Relationships) Act 1976

Amenaea in 2OOJ to exclude “taonga” from tne definition of "family chattels”,⁶* Taonga is not
defined in the Act.

1977

Town and Country Planning Act 1977

Recognises in principle "the relationshi p of the Maori people and tneir culture and
^{traditions with tneir ancestral Ia}nd^{^}’ ⁶⁴

1985

Criminal Justice Act 1985

Offenders may call witnesses to speak to the ethnic or cultural background of the offender.^^

Law Commission Act 1985

In making its recommendations, trie Law ^{Commission must consider te ao} Maori.^{6 6}

STATUTE LAW

1988

Coroners Act J988

Coroners must have regard to certain matters when deciding whether or not to authorise the exam nation of a body. These include a person's ethnic origins, social
attitudes, customs, or spiritual be

1989

Children, Young Persons and Their Families Act 1989
(now Oranga Tamariki Act 1989)

In prince pie, a younp person's whana u, hapu and iwi are key considerations when makinp decisions under the Act. Several provisions allow the child’s
whakapapa and cultura ties to be considered.

1991

Resource Management Act 1991

Recognises, in principle, “the relat onship of Maori and their culture and traditions with their ancestral lands, water. sites, waahi taDu. and other taonga”.

“ K]aitiak tanga" must be cons dered when exercising
powers under the Act.'^

Amendments in 2017 provide for shared decision-making agreements between local government and tangata whenua, through their iwi author ties, to partici oate in resource management decisions.'°

Treaty of Waitangi (Fisheries Claims) Settlement Act 1992

Transfers a portion of commercial fishing quotas to Maor " Customary food gathering is recognised
through regulations.

mental Health (Compulsory Assessment and
Treatment) Act J992

In exercising powers under this Act, recognition must be given to the person's cultural dentity
and ties with their whanau, hapc and

1993

Te Ture Whenua Maori Act J993 Creates a significant shift in Maori land policy, with a
focus on retaining Maori and within Maori ownership

1995

Waikato Raupatu Claims Settlement Act J995

Legislates for the deed of settlement reached between Wa›kato and the Crown for historical confiscation of Waikato land. Tnis is the first major historical settlement Act of many that
involve recopnit on o* tikanga.

2002

Climate Change Response Act 2002

Members of the Climate Cnange Commission must have an understanding of tne Treaty of Waitangi ano te ao ^{Maori (including tikanga} Maori).⁸* ^{When exercising} powers under tne Act, tne Commission must have regard to “the Crown Maöri relationship, te ao

Müori...anü specific effects on iwi and

Sentencing Act 2OO2 Courts ”must take into account the oftenoer’s personal,

family, whanau, community and c ultural background in
^{imposing a sentence. 8}*

Offenders may request the coun to hear any person

to speak on the cultural Dackground of an offender.

STATUTE LAW

Coroners Act 2OO6

*he Coroner must consider the customary requirement that mmediate family members be a ble to view, touch, or remain with or near the body accord ng to tikanga Maori."'

2011

Marine and Coastal Area (Takutai Moana) Act 2011 Repeals the Foreshore and Seabed Act 2004

Provides the r ght for iwi, hapu and whanau to seek legal recognition of protected customary rights
and customary marine title.""

2014

Te Urewera Act 2014 Te Urewera has a lepa personality in recognition of

Ngai Tchoe tikanga.

Heritage New Zealand Pouhere Taonga Act 2014

All persons performing funct ons under the Act must recognise “the relationship of Maori and their culture and traditions with their ancestral lands, waters, sites, wahi tupuna, wahi tapu, and other taonga".'°°

STATUTS LAVV

2016

Te Ture mö Te Reo Mâori Act 2016

Te reo Maori an official and indigenous language of Aotearoa New Zealand. °¹

2017

Te Awa Tupua (Whanganui River Claims Settlement)
Act 2017

“Te Awa Tupua is a legal person and nas all the rights, ^{powers, outies, and liabilities of a legal pers}on”.'°⁶

Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017

Ivtodifies and renames the Children, Young Persons and Their Families Act 1989. Tne principal sections within the Act are expanded by recognising mana ^{tamaiti, whakapapa and vvnanaungatanga.} °⁷

2O19

Küinga Ora — Homes and Communities Act 2019

The boaro of Kainga Ora must ensure systems and processes, for the purposes of carrying out its urban development functions, protect Maori interests in land, ² The board must recognise and provide for “the relationship of Maori and tneir culture and traditions with their ancestral lands,
waters, sites, wahi tapu, and other taonga” ^\13

STATUTE LAW

ENDNOTES

¹ Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA) at [36].

² Native Exemption Ordinance 1844, s 7.

³ Native Exemption Ordinance 1844, s 7.

⁴ Residents Magistrates Courts Ordinance 1846, s 19.

⁵ R v Symonds (1847) NZPCC 387 (SC).

6. R v Rangatapiripiri [1847] NZSC; and R v Native (Ratea) [1849] NZSC. Both cases can be found as part of the New Zealand Lost Cases project run by Victoria University of Wellington. See <www.wgtn.ac.nz/law/nzlostcases>.

⁷ New Zealand Constitution Act 1852, s 71.

⁸ English Laws Act 1858, s 1.

⁹ Native Districts Regulation Act 1858, s 2(16).

¹⁰ Native Circuit Courts Act 1858, s 1.

¹¹ Native Circuit Courts Act 1958, s 2.

¹² Native Circuit Courts Act 1958, s 32.

¹³ Native Lands Act 1862, Preamble.

¹⁴ Native Lands Act 1862, s 4.

¹⁵ Native Lands Act 1865, Preamble.

¹⁶ Native Rights Act 1865, s 4.

¹⁷ Native Schools Act 1867, s 21.

¹⁸ “Papakura — claim of succession” (12 April 1867) New Zealand Gazette 19.

19. Alex Frame “Kauwaeranga judgement law in the Pacific” (1984) 18 Victoria University of Wellington Law Review 227 at 244.

²⁰ Re the Lundon and Whitaker Claims Act 1871 (1872) 2 NZCA 41 at 49.

²¹ Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA) at [18].

²² Fish Protection Act 1877, s 8.

²³ Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72.

²⁴ The Native Succession Act 1881, s 3.

²⁵ The Native Succession Act 1881, s 3.

²⁶ Mangakahia v New Zealand Timber Co Ltd (1881) 2 NZLR 345 (SC) at 350.

²⁷ Native Committees Act 1883, s 4.

²⁸ Native Committees Act 1883, s 11.

²⁹ Rira Reti v Ngaraihi Te Paku (1888) 7 NZLR 235 (CA) at 238–240.

³⁰ Native Land Court 1894, s 14.

³¹ Native Land Laws Amendment Act 1895, s 33.

³² Maori Councils Act 1900, s 15.

³³ Mueller v Taupiri Coal-Mines Ltd (1900) 20 NZLR 89 (CA).

³⁴ Nireaha Tamaki v Baker [1901] UKLawRpAC 18; [1901] AC 561 (PC) at 382–383.

³⁵ Wallis v Solicitor-General [1903] AC 173 (PC) at 179.

³⁶ Tohunga Suppression Act 1907, Preamble.

³⁷ Public Trustee v Loasby [1908] NZGazLawRp 71; (1908) 27 NZLR 801 (SC) at 806.

³⁸ Native Land Act 1909, ss 161 and 165.

³⁹ Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA) at [47].

⁴⁰ Native Land Act 1909, s 84.

⁴¹ Native Land Act 1909, s 85.

⁴² Baldick v Jackson (1910) 30 NZLR 343 (HC).

⁴³ Tamihana Korokai v Solicitor-General [1912] NZGazLawRp 230; (1912) 32 NZLR 321 (CA) at 345.

⁴⁴ Waipapakura v Hempton [1914] NZGazLawRp 141; (1914) 33 NZLR 1065 (HC) at 1067 and 1068.

⁴⁵ War Pensions Act 1915, s 8 and War Pensions Act 1943, s 44.

⁴⁶ Tua Hotene v Morrinsville Town Board [1917] NZGazLawRp 155; [1917] NZLR 936 (HC) at 945.

⁴⁷ Hineiti Rirerire Arani v Public Trustee of New Zealand [1919] UKPC 71; [1920] AC 198 (PC).

⁴⁸ Maori Social and Economic Advancement Act 1945, ss 11 and 14–21.

⁴⁹ R v Morison [1949] NZGazLawRp 112; [1950] NZLR 247 (SC) at 256–257.

⁵⁰ Maori Purposes Act 1951, s 8.

⁵¹ Maori Affairs Act 1953, ss 79 and 80.

⁵² Maori Affairs Act 1953, pt 11.

⁵³ Adoption Act 1955, s 19.

⁵⁴ Re the Bed of the Wanganui River [1955] NZLR 419 (CA).

⁵⁵ Inspector of Fisheries v Ihaia Weepu [1956] NZLR 920 at 928.

⁵⁶ Re the Bed of the Wanganui River [1962] NZLR 600 (CA) at 618–620.

⁵⁷ Re the Ninety Mile Beach [1963] NZLR 461 (CA).

⁵⁸ Keepa v Inspector of Fisheries [1965] NZLR 322 (HC) at 326–327.

⁵⁹ Maori Affairs Amendment Act 1967, s 6.

⁶⁰ Maori Affairs Amendment Act 1967, s 76.

⁶¹ Guardianship Act 1968, s 6.

⁶² Re Chief Executive of the Ministry for Culture and Heritage (2017) 71 Tairāwhiti MB 267 (71 TRW 267) at [35].

⁶³ Property (Relationships) Amendment Act 2001, s 8.

⁶⁴ Town and Country Planning Act 1977, s 3(1)(g).

⁶⁵ Criminal Justice Act 1985, s 16.

⁶⁶ Law Commission Act 1985, s 5(2)(a).

⁶⁷ Te Weehi v Regional Fisheries Officer [1986] NZHC 149; [1986] 1 NZLR 680 (HC) at 686–693.

⁶⁸ Huakina Development Trust v Waikato Valley Authority [1987] NZHC 130; [1987] 2 NZLR 188 (HC) at 206 and 210.

⁶⁹ Huakina Development Trust v Waikato Valley Authority [1987] NZHC 130; [1987] 2 NZLR 188 (HC) at 215.

⁷⁰ The Royal Forest and Bird Protection Society v W A Habgood Ltd [1987] NZHC 1379; (1987) 12 NZTPA 76 (HC) at 7.

⁷¹ Coroners Act 1988, s 8.

⁷² Children, Young Persons and Their Families Act 1989 (now Oranga Tamariki Act 1989), s 5.

⁷³ Children, Young Persons and Their Families Act 1989 (now Oranga Tamariki Act 1989), ss 20–38 and 187.

⁷⁴ Resource Management Act 1991, s 6(e).

⁷⁵ Resource Management Act 1991, s 7.

⁷⁶ Resource Legislation Amendment Act 2017.

⁷⁷ Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.

⁷⁸ Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.

⁷⁹ Mental Health (Compulsory Assessment and Treatment) Act 1992, s 5.

80. See for example Ngai Tahu Claims Settlement Act 1998; Ngāti Awa Claims Settlement Act; Affiliate Te Arawa Iwi and Hapu Claims Settlement Act 2008; and Tūhoe Claims Settlement Act 2014.

⁸¹ Barton-Prescott v Director-General of Social Welfare [1997] NZHC 1262; [1997] 3 NZLR 179 (HC) at 185, 189 and 191.

⁸² Watercare Services Ltd v Minhinnick [1998] 1 NZLR 294 (CA).

⁸³ McRitchie v Taranaki Fish and Game Council [1998] NZCA 203; [1999] 2 NZLR 139 (CA) at 153.

⁸⁴ Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission [1999] NZCA 232; [2000] 1 NZLR 285 (HC).

⁸⁵ Climate Change Response Act 2002, s 5H.

⁸⁶ Climate Change Response Act 2002, s 5M.

⁸⁷ Sentencing Act 2002, s 8(i).

⁸⁸ Sentencing Act 2002, s 27.

⁸⁹ Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA) at [32]–[34].

⁹⁰ Proprietors of Parininihi ki Waitotara Block v Ngaruahine Iwi Authority [2004] 2 NZLR 201 (HC) at [18].

⁹¹ Coroners Act 2006, ss 25 and 26.

⁹² R v Iti [2007] NZCA 119, [2008] 1 NZLR 587 at [46]–[47].

⁹³ Marine and Coastal Area (Takutai Moana) Act 2011.

⁹⁴ Paki v Attorney-General [2012] NZSC 50, [2012] NZLR 277 at [18].

⁹⁵ R v Mason [2012] NZHC 1361 at [37].

⁹⁶ R v Mason [2012] NZHC 1361, [2012] 2 NZLR 695 at [38].

⁹⁷ Mason v R [2013] NZCA 310, (2013) 26 CRNZ 464 at [41].

⁹⁸ Takamore v Clarke [2012] NZSC 116, [2013] NZLR 733 at [91]–[100].

⁹⁹ Te Urewera Act 2014, s 3.

¹⁰⁰ Heritage New Zealand Pouhere Taonga Act 2014, s 4.

¹⁰¹ Te Ture mō Te Reo Māori 2016, s 5.

¹⁰² Fenwick v Naera [2015] NZSC 68, [2016] 1 NZLR 354 at [97]–[101].

¹⁰³ Fenwick v Naera [2015] NZSC 68, [2016] 1 NZLR 354 at [125].

¹⁰⁴ Re Tipene [2016] NZHC 3199, [2017] NZAR 559 at [153]–[154].

¹⁰⁵ Re Tipene [2016] NZHC 3199, [2017] NZAR 559 at [10].

¹⁰⁶ Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, s 14.

¹⁰⁷ Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017, ss 5 and 13.

¹⁰⁸ Tukaki v Commonwealth of Australia [2018] NZCA 324, [2018] NZAR 1597 at [38].

¹⁰⁹ Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116 at 119.

¹¹⁰ Ngāi Tai ki Tāmaki Tribal Trust v Minister of Conservation [2018] NZSC 122, [2019] 1 NZLR 368 at [89]–[100].

¹¹¹ Kusabs v Staite [2019] NZCA 420, [2023] 2 NZLR 144 at [124].

¹¹² Kāinga Ora — Homes and Communities Act 2019, s 4.

¹¹³ Kāinga Ora — Homes and Communities Act 2019, s 4.

¹¹⁴ Education and Training Act 2020, ss 32 and 268.

¹¹⁵ COVID-19 Recovery (Fast-track Consenting) Act 2020, s 14.

¹¹⁶ COVID-19 Recovery (Fast-track Consenting) Act 2020, sch 5 cl 17.

¹¹⁷ COVID-19 Recovery (Fast-track Consenting) Act 2020, sch 6, pt 1, cl 21(7)(b).

¹¹⁸ Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2) [2021] NZHC 291, [2021] 2 NZLR 1 at [58].

¹¹⁹ Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2) [2021] NZHC 291, [2021] 2 NZLR 1 at [58].

¹²⁰ Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2) [2021] NZHC 291, [2021] 2 NZLR 1 at [58].

¹²¹ Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd [2020] NZHC 2768, [2021] 3 NZLR 352 at [67].

¹²² Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd [2020] NZHC 2768, [2021] 3 NZLR 352 at [67].

¹²³ Re Edwards (Te Whakatōhea No 2) [2021] NZHC 1025, [2022] 2 NZLR 772 at [301].

¹²⁴ Re Edwards (Te Whakatōhea No 2) [2021] NZHC 1025, [2022] 2 NZLR 772 at [272].

¹²⁵ Re Edwards (Te Whakatōhea No 2) [2021] NZHC 1025, [2022] 2 NZLR 772 at [272].

126. Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [139]– [174].

¹²⁷ Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [9].

¹²⁸ Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [297].

¹²⁹ Sweeney v The Prison Manager, Spring Hill Corrections Facility [2021] NZHC 181, [2021] 2 NZLR 27 at [75].

¹³⁰ Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [355] and [570].

¹³¹ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [172].

¹³² Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [113]–[116] per Glazebrook J, [177] per Winkelmann CJ and

[260] per Williams J.

¹³³ Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [180].

¹³⁴ Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142, [2022] 1 NZLR 767 at [76].

¹³⁵ Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142, [2022] 1 NZLR 767 at [74].