Joseph, Robert --- "Legal challenges at the interface of Maori Custom and state regulatory systems: Wahi Tapu" [2011] NZYbkNZJur 14; (2010-2011) 13-14 Yearbook of New Zealand Jurisprudence

LEGAL CHALLENGES AT THE INTERFACE OF MāORI CUSTOM AND STATE REGULATORY SYSTEMS: WāHI TAPU

	Home \| Databases \| WorldLII \| Search \| Feedback New Zealand Yearbook of New Zealand Jurisprudence

Most cultures and societies consider certain areas of land to be sacred spaces whether it be cemeteries, battles sites, or places of spiritual significance such as the Wailing Wall and Dome of the Rock in the Holy Land, Stonehenge in Britain, Maraeātea in the Pacific, or Intihuatana at Macchu Picchu in the Andes. But unlike these sites, Māori wāhi tapu (sacred places) are rarely a visible structure but rather a site or area within the landscape with values so significant that restrictions are warranted.

To Māori, the tribal whenua (landscape) and specific wāhi tapu are considered sacrosanct and as the aphorism above emphasises, Māori historically were willing to die for these sacred spaces (and for women of course!). Indeed, the late Sir Hugh Kawharu opined:²

Māori land tenure was requiring a man to fight to preserve his community’s estate. ... The whole land of the tribe belonged to all of the tribe and acknowledged themselves bound to join together the other sections in defending all or part of the tribal estate from encroachment of strangers.

Many battles have been fought over wāhi tapu. One of the first recorded battles was in 1772 when French sailors committed the hara (crime) of desecrating a temporary wāhi tapu at Manawaora Bay in the Bay of Islands. Some members of the local tribe had drowned, and tapu status had been temporarily applied to the Bay. Captain Marion du Fresne and his party had been fishing in this area despite warnings by Māori about the tapu. Local Māori subsequently

1 Mitchell Takitimu (AH Reed Publishers, Wellington, 1944) at 227. Māori whakatauki (proverbs, aphorisms) can also be located in H Mead and N Grove Nga Pepeha a nga Tupuna (Victoria University Press, Wellington, 2001) at 134.

2 H Kawharu Māori Land Tenure: Studies of a Changing Institution (Oxford University Press, Oxford, 1977) at 42.

Hence, in earlier years blood was shed and men did die. Today, battles tend to occur in the Environment and High Courts but are just as passionate. Recent decades have seen conflicts where wāhi tapu were threatened by new highways, railroads, airports, prisons, residential and commercial developments, wind farms, power stations and waste dumps.

This chapter will discuss some of the numerous battles fought over the preservation or development of these sacred places in Aotearoa-New Zealand. The chapter first analyses the importance of a Māori world-view, general Māori values, and tikanga Māori (customary law) over the land to establish a foundation for understanding Māori law and wāhi tapu in context. Contemporary disputes involving wāhi tapu will then be explored in some detail. The chapter concludes with two pragmatic and relatively simple suggestions when negotiating development over wāhi tapu: involvement of competent Māori within the decision-making processes; and referring to well- audited sources such as the Te Mātāpunenga project of the Te Mātāhauariki Research Institute at the University of Waikato.

The negotiating processes that occur at the interface of two different legal systems – in the present case general tikanga Māori customary law and British common law, and specific wāhi tapu disputes within State regulatory systems within New Zealand – are extremely complex. The protracted and multifaceted disputes that erupt at this interface highlight the importance of acknowledging diversity and appropriately recognising the “other” within the legal system. Indeed, the historic and contemporary disputes around wāhi tapu illustrate the importance of “other” world-views, cultures, and “different” but effective laws and institutions. The chapter will now explore the relevance of a Māori world-view, Māori values and Māori law.

3 See J Dunmore The French and the Maori (Heritage Press, Waikanae, 1992). See also A Salmond Two Worlds: First Meetings Between Maori and Europeans, 1642–1772 (Viking, Auckland, 1993) at 386.

Articulating a world-view as the world-view of a culture is problematic given that all cultures manifest diversity. Still, a world-view generally orientates the human being and their community to the world so that it is rendered understandable and their experience of it is explainable. Māori Marsden’s economical definition of a culture’s world-view is instructive:⁴

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 “world view” of a culture. The world view is the central systematisation of conceptions of reality to which members of its culture assent and from which stems their value system. The world view lies at the very heart of the culture, touching, interacting with and strongly influencing every aspect of the culture.

Within any group in society there are likely to be a range of views, and these may naturally change over time, space or with leadership and personnel changes. Despite this difficulty, world-views are an important factor in a diagnostic, as well as predictive, sense. Looking forward, knowing the ground rules allows one to establish those things that are amenable to change, and those things that are “not negotiable”. In terms of diagnosis of the current Māori situation, a world-view helps to explain observed outcomes and behaviour.

The reconciliation of Māori world-views with the demands of a mainstream capitalist legal system is essentially a first step of polyphyletic jurisprudence. It should not be assumed, however, that there is a fundamental conflict between mainstream New Zealand law and Māori world-views and customary law. Rather, one should consider the extent to which the existing Māori customary laws and institutions are able to translate behaviour consistent with the uniquely Māori world-view into actions which also produce successful outcomes in the modern legal system. Clearly, the success of low Māori crimes rates within the legal system prior to and following the Treaty of Waitangi in

1840 and right up to post-Second World War suggests that, for the most part, this translation can work well. It is also important to ensure that where failure occurs, the quality of the customary laws and institutions and the legal system itself are examined before underlying values are blamed. In the case of Māori, current mainstream laws and institutions are often imposed from the outside.

4 CT Royal The Woven Universe: Selected Writings of Rev. Māori Marsden (Estate of Rev.

Māori Marsden, 2003) at 56. See also C Royal The Purpose of Education: Perspectives Arising from Mātauranga Māori: A Discussion Paper (Report prepared for the Ministry of Education, Version 4, January 2007) at 38.

The Marsden definition above draws the link between world-view and values. If you see the world in a certain way, this will determine what you value in the world (and what you don’t) and how you value it through one’s behaviour which gives rise to the well known triumvirate – world-view, values and behaviour. This view holds that world-view acts as a “base” upon which values are developed and acted upon within the behaviour of a culture. By understanding the world-view of a culture, we can come to an understanding of its values and thereby its behaviour.

World-views, culture and social institutions provide a template through which people perceive the opportunities and threats facing them, and which translate reactions to such opportunities and threats into action. There is little doubt that some cultural and institutional settings are more conducive to a constructive assessment of the available options and to purposeful action.

Perhaps the one aspect of a distinctive Māori world-view that is most obvious is the value of whānaungatanga (kinship) manifested in the apparent preference for collectivism. The language of Māori is unequivocally framed in collective terms such as whānau (family), hapū (sub-tribe) and iwi (tribe). These structures are seen as the foundations upon which notions of Māori customary laws and institutions are built. Individuals are rarely spoken of. Given this ideal, there are obvious questions around the effects of a collectivist view in a seemingly individualistic world. The impact of the rise in urban Māori as well as many Māori overseas and (generally speaking) their seeming lack of affiliation with traditional tribal structures further complicates things but clearly needs to be taken into account. Table 1 below illustrates potential sources of conflict and misunderstanding, arising from different world-views in relation to land.

Category	Māori	Colonial
Ownership	Collective (tribal)	Individual title
Proof of ownership	Occupation, use	Deed of sale
Significance	Economic, spiritual	Economic, status
Transfer	By conquest, abandonment or succession	By sale or lease or Crown directive
Occupants	Part-owners, trustees	Owners or tenants
Classes of land	Ancestral (take tupuna)Gifted (take tuku)Conquered (take raupatu)	Freehold, leasehold, waste land/arable land
Utilisation	Agriculture, hunting, resource management	Agriculture, horticulture, mining settlements
Value	Tribal identity and security for next generations	Market potential, employment

While the concepts in the table are obviously simplified, they do highlight some of the more obvious world-view differences. In terms of Māori attitudes, some researchers have reported that a Māori world-view, based mainly on traditional values, is seen as highly relevant in modern-day Māori and New Zealand society and is fundamental for forming principles and a guiding philosophy for an Aotearoa-New Zealand polyphyletic jurisprudence. An effective New Zealand legal system requires an understanding and alignment with the values, institutions and cultural norms prevalent within Māori society too. Māori culture informs and legitimises conceptions of self, of social and political organisation, of how the world works and of how the individual and group appropriately work in the world.

On the other hand, an emphasis given to Māori customary laws and institutions will vary in different settings because cultures value process, form and outcomes differently. There are significant tensions at play for Māori between individual rights and whānau (family), hapū (tribe) and communal obligations; between the “objective” application of the rule of law, as against greater weight being given to traditional customary laws and tikanga Māori in decisions, between an impartial judge and kaumātua making decisions. Nevertheless, it is important that Māori customary laws and values are not undermined, but recognised and accommodated in a way that contributes to law and order.

5 M Durie Te Mana Te Kawanatanga: The Politics of Māori Self-Determination (Oxford

While Māori displayed a variety of cultural patterns, Māori as a people lay claim to a set of abstract values and ways of organising social life that are distinctively Māori and refer to these ways as tikanga Māori. Tikanga Māori is about values, principles or norms which determine appropriate conduct, the Māori way of doing things, and ways of doing and thinking held by Māori to be just and correct. History points to Māori people and their culture being constantly open to evaluation and questioning in order to seek that which is tika – the right way. Maintaining tika or tikanga is the means whereby values for law and order, and social control, can be identified. Tikanga are established by precedents and validated by more than one generation, and vary in their scale, as rules of public through to private application. Tikanga Māori is the traditional body of rules and values developed by Māori to govern themselves. The phrase “tikanga Māori” is increasingly being used to mean Māori culture and the rules or guidelines for living generally accepted by Māori as tika (right, correct).

However, tikanga is not a singular monolithic thing but rather a collection of customary ways. Professor Hirini Mead’s recent work is an authoritative and accessible introduction to tikanga Māori, which provides understanding of the correct Māori ways of doing things, traditionally and today.⁶To complicate things further, tikanga is sometimes described as Māori law, kawa as ritual and procedural law particularly on marae (Māori gathering places), and ture is described as church law, Western institutional law and institutional Māori land law. Ritenga (likeness, a repeated pattern, hence custom), kaupapa (plan, scheme, proposal) and whakaaro (thought, way of thinking) are also important values and conceptual regulators of Māori society. Exactly which of these meanings is intended can be determined only by reference to the context of use, and even then, the other meanings are present as over- and undertones. Indeed, as Lord Cooke observed”⁷“In law, context is everything.”

In summary, the principles of tikanga Māori provided the traditional base for the Māori jural order and, for this chapter; tikanga embodies core values and principles that reflect doing what is right, correct or appropriate in a law and order context. It refers to the correct or proper courses of action as seen by Māori.

6 H Mead Tikanga Māori: Living by Māori Values (Huia Publishers, Wellington, and Te

One of the legal principles for acknowledging and maintaining tikanga Māori customary laws and institutions within the legal system is the common law doctrine of Aboriginal title. English common law presumes and recognises some continuity of the local Aboriginal law subsequent to British annexation.⁸

Elements of pre-existing Aboriginal rights (dominium) were not extinguished but were subject to the Crown’s plenary powers during the assumption of sovereignty.⁹The elements of Aboriginal title maintained were those that were not repugnant to common law and which did not interfere with or challenge the new sovereign (imperium).¹⁰Specific rules of Aboriginal title provide for the continuity of tribal property rights and are common law rules establishing a type of legal pluralism.¹¹The continuity of the tribal title is defined by Māori customary laws, thereby implicitly acknowledging that Māori had a functional legal system; and that rangatira (leaders) retained a certain amount of legally recognised de jure power perhaps even as late as the Second World War. Māori certainly retained territorial title rights to land and water,¹²including the marine and coastal area,¹³and non-territorial rights to, inter alia, customary fisheries¹⁴based on customary law.

The Treaty of Waitangi 1840 is the other authority which affirmed Aboriginal title. It recognised Māori customary law in Article II: “... te tino rangatiratanga

... o ratou taonga katoa” [emphasis added]. The English text defines this phrase as the “full exclusive and undisturbed possession of their ... other properties”¹⁵[emphasis added]. In 1860, Governor Gore Brown acknowledged taonga as “all other possessions”.¹⁶On the other hand, the Waitangi Tribunal

11 Ibid., at 51. R Boast “Treaty Rights or Aboriginal Rights” (1990) NZLJ at 32, 33.

recognised that taonga katoa includes “all valued customs and possessions”.¹⁷

The Tribunal subsequently noted that taonga in a metaphorical sense covers a variety of possibilities rather than itemised specifics,¹⁸or simply objects of tangible value.¹⁹

McHugh points out that Governor Hobson was instructed to not propose or assent to any Ordinance that would result in Māori being treated less favourably than Europeans, inferring that the promise of te tino rangatiratanga in Article II included the continued viability of customary law and the chiefs thought that they were to retain their customary authority among their own people.²⁰

Under these juristic definitions and applying an ejusdem generis approach, taonga katoa in the Treaty should be construed to include Māori customary laws. Māori custom was treasured by the ancestors, and was an intangible object of immense value. It still is for many Māori today. Jackson confirmed that the undertaking to preserve “other properties” in Article II included “all things highly prized as their own customs and culture”²¹[emphasis added]. William Colenso also described an incident prior to signing the Treaty where Governor Hobson agreed to protect Māori custom in the alleged fourth Article of the Treaty (albeit in that case an oral article).²²

In summary, the common law doctrine of Aboriginal title and the partnership provisions within the Treaty of Waitangi strengthen the axiom that Māori customary law was not only to be officially recognised within the legal system, but to be preserved and protected by the Imperial, Colonial and subsequent post-Colonial Governments of New Zealand. The Treaty thus sought to encourage the integration of Māori customary and English common law.

17 Waitangi Tribunal Report Findings of the Waitangi Tribunal Relating to Te Reo Māori (Wai

18 Waitangi Tribunal Report Findings and Recommendations of the Waitangi Tribunal ... in

Relation to Fishing Grounds in the Waitara District (Te Atiawa Report) (Wai 6, Wellington,

20 P McHugh The Māori Magna Carta (Oxford University Press, Auckland, 1991) at 287.

21 M Jackson He Whaipaanga Hou – A New Perspective – Māori and the Criminal Justice

22 W Colenso The Authentic and Genuine History of the Signing of the Treaty of Waitangi (Capper Press, Reprint, 1890) at 31. The alleged fourth Article orally stated: “E mea ana te Kawana ko nga whakapono katoa o Ingarani, o nga Weteriana, o Roma, me te ritenga Maori hoki e tiakina ngatahitia e ia – The Governor says that the several faiths (beliefs) of England, of the Wesleyans, of Rome, and also Māori custom shall alike be protected by him.” See C Orange The Treaty of Waitangi (Allen & Unwin and Port Nicholson Press, Wellington, 1987) at 53.

With the above legal backdrop underpinning the settlement of Aotearoa-New Zealand, in 1840 Governor Hobson pragmatically issued orders to Shortland, police magistrate of Kororareka, that “a rigid application of British law to the Māori should be avoided in favour of some sort of compromise”.²³Official instructions were forwarded from London directing the Governor to respect and uphold tikanga Māori within the legal system. In 1842, Lord Stanley suggested that certain Māori institutions such as tapu (restriction laws) be incorporated into the system.²⁴Stanley also directed that legislation be framed in some measure to meet Māori practices including punishment for desecrating wāhi tapu.²⁵

Perhaps the most important yet often overlooked constitutional provision that acknowledged Māori customary laws and institutions was s 71 of the New Zealand Constitution Act 1852, which stated:

71. And whereas it may be expedient that the laws, customs, and usages of the Aboriginal or native inhabitants of New Zealand, so far as they are not repugnant to the general principles of humanity, should for the present be maintained for the government of themselves, in all their relations to and dealings with each other, and that particular districts should be set apart within which such laws, customs, or usages should be so observed:

It shall be lawful for her Majesty, by any Letters Patent to be issued under the Great Seal of the United Kingdom, from time to time to make provision for the purposes aforesaid, any repugnancy of any such native laws, customs, or usages to the law of England, or to any law, statute, or usage in force in New Zealand, or in any part thereof, in anywise notwithstanding.

The section provided for the establishment of native districts where tikanga Māori would prevail between Māori inter se; however, s 71 was never implemented.²⁶

23 Cited in P Adams Fatal Necessity: British Intervention in New Zealand 1830–1847 (Oxford

24 Lord Stanley, Secretary of State for the Colonies, Memorandum (23 August 1842).

25 Lord Stanley, Minute (23 August 1842, Colonial Office Records 209/14) at 202.

26 See R Joseph The Government of Themselves: Case Law, Policy and Section 71 of the New Zealand Constitution Act 1852 (Te Mātāhauariki Research Institute, University of Waikato Press, Hamilton, 2002).

Following the Constitution Act 1852, the judiciary diminished its legal obligations to recognise Māori customary usage and law until customary title was extinguished. In Re The Lundon and Whitaker Claims Act 1871,²⁷the Court of Appeal reasserted that “the Crown was bound, both by the common law of England and by its solemn engagements, to a full recognition of native proprietary right”.²⁸The Court stated “whatever the extent of that right by established native custom appears to be, the Crown is bound to respect it”.²⁹However, in Wi Parata v Bishop of Wellington,³⁰the tide turned when Prendergast CJ held that Māori custom and usage did not exist. He concluded that:

Had any body or custom, capable of being understood and administered by the Courts of a civilized country, been known to exist, the British Government would surely have provided for its recognition, since nothing could exceed the anxiety displayed to infringe no just right of the aborigines. ...

Whatever may be meant by the phrase “the persons or property, whatever real or personal, of the Maori people,” the next following words, “and touching the title,” can only signify that the Court is enabled and required to entertain and determine questions of native title. The [Native Rights Act 1865] speaks further on of the “Ancient Custom and Usage of the Maori people” as if some such body of customary law did in reality exist. But a phrase in a statute cannot call what is non-existent into being.

As we have shown, the proceedings of the British Government and the legislation of the colony have at all times been practically based on the contrary supposition, that no such body of law existed; and herein have been in entire accordance with good sense and indubitable facts. ...

If therefore, the contention of the plaintiff in the present case be correct, the Native Land Acts, guided only by “The Ancient Custom and Usage of the Maori people, so far as the same can be ascertained,” is constituted the sole and unappealable judge of the validity of every title in the country.

Fortunately we are not bound to affirm so startling a conclusion. The Crown, not being named in the statute, is clearly not bound by it; as the Act, if it bound the Crown, would deprive it of a prerogative right, that namely of conclusively determining when native title has been duly extinguished.³¹

The legal ramifications of Prendergast CJ’s mantra were that no Māori custom existed because Maori were uncivilised barbarians with no system of law; and any recognition in statute of Māori custom could be disregarded because such custom does not exist! To add salt to the wounds, Prendergast CJ also deemed the Treaty of Waitangi a “simple nullity” for the same reason – Māori lacked the legal capacity to enter into an international treaty.

Prendergast CJ reinforced this finding in Rira Peti v Ngaraihi Te Paku³²when he held that native districts, pursuant to s 10 of the New Zealand Government Act 1846,³³were never appointed because Māori were British subjects governed by the laws of the land and not by their usages.³⁴

The Law Commission commented on a number of factors that combined to ensure that the settlers’ legal system was geared towards the eclipse and assumed extinguishment of tikanga Māori customary law which included:³⁵

Māori Aboriginal title rights and Treaty of Waitangi rights and many of their tikanga values, customary laws and institutions were marginalised through judicial and political conservatism and lay legally dormant following the Wi Parata decision until the Treaty of Waitangi Act 1975 and the establishment of the Waitangi Tribunal – just under 100 years! The Waitangi Tribunal was the catalyst that resurrected tikanga Māori customary laws and institutions and the “principles” of the Treaty of Waitangi significantly within the New Zealand legal system.

33 The New Zealand Government Act 1846 was the forerunner to the New Zealand Constitution Act 1852. Governor Grey managed to have the former Act suspended and subsequently overridden by the latter. Section 10 in the former statute was the equivalent to s 71 native districts in the latter statute.

35 New Zealand Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, Wellington, 2001) at 22 para 97.

Despite the major societal transformation of New Zealand society and Māori communities, the changes to tikanga Māori rarely produced changes to the “fundamental value system”.³⁶Tikanga Māori was and still is regularly adhered to by many Māori, whether consciously or unconsciously, in the everyday management of the landscape, community and family affairs.

New Zealand’s positivist legal system, however, tends to ignore tikanga Māori and the Treaty of Waitangi unless they have been included in legislation or in the common law. On the other hand, there are now a number of statutes that recognise tikanga Māori, including the Treaty of Waitangi Act 1975,³⁷the Resource Management Act 1991,³⁸the Māori Fisheries Act 2004,³⁹and the Marine and Coastal Area (Takutai Moana) Act 2011. Then there is an array of statutes that refer to the Treaty of Waitangi, which by implication includes tikanga Māori.⁴⁰

Although the courts apply Māori custom where statutes so allow, the Judges have also been prepared recently to apply Māori custom even without a statutory reference where custom is a relevant fact or the Treaty of Waitangi is a relevant consideration.⁴¹In addition, Māori customary law can provide the basis for title in land,⁴²forms the basis for fishing rights,⁴³and can assist in the definition of a statutory concept.⁴⁴It is to the inclusion of Māori values and the contemporary use of tikanga Māori with specific reference to wāhi tapu and the litigation battles that have emerged that this article will now explore.

40 For example, the Treaty of Waitangi Act 1975, ss 1 and 2; Resource Management Act 1991, ss 8, 45 and 141B; Te Ture Whenua Māori Act 1993, ss 7, 18 and 339; the Māori Fisheries Act 2004, ss 4, 5, 19, 15, 31, 32, 34, 45, and 188–211; the Waikato-Tainui Raupatu Claims Settlement Act 1995, ss 6, 8, 10, 14, 26, 30, 38 and Schedule 1; the Ngāi Tahu Claims Settlement Act 1998, ss 10, 34, 35, 48, 103, 274, 304 and 305; and Te Rūnanga o Ngāti Awa Act 2005, ss 3 and 11.

44 For example, the meaning of kaitiakitanga (stewardship) under s 7, Resource Management

The contemporary importance of Māori cultural values was examined by the Waitangi Tribunal in its 1985 Manukau Report.⁴⁵The Tribunal considered the issue of taking water from the Waikato River at a point some miles from the sea and discharging it into the Manukau Harbour, rather than allowing the water to reach the sea via the Waikato River mouth, some distance south of the Manukau Harbour. The objection was entirely a tikanga “metaphysical” one, that the mauri (life force)⁴⁶of the Waikato should not be mixed by human intervention in this way with the mauri of the Manukau Harbour and “dead” or “cooked” water should not be discharged to living water that supplies seafood.

The Tribunal first pointed out that “the values of a society, its metaphysical or spiritual beliefs and customary preferences are regularly applied in the assessment of proposals without a thought as to their origin”.⁴⁷The Tribunal continued:⁴⁸

In our multicultural society the values of minorities must sometimes give way to those of the predominant culture, but in New Zealand, the Treaty of Waitangi gives Māori values an equal place with British values and a priority when the Māori interest in their taonga is adversely affected. The recognition of Māori values should not have to depend upon a particular convenience as when the meat industry found it convenient to introduce Halal killing practices to accommodate Islamic religious values.

... are not so much to be judged as respected. We can try to change them but we cannot deny them for as Pascal said of the Christian religion, “the heart has its reasons, reason knows not of.” That view alone may validate a community’s stance.

Later in the report the Tribunal noted that Māori values were not opposed to development. Rather, there was a difference of emphasis from European values:⁵⁰

46 Mauri is the life principle or life force of animate and inanimate things such as people, places, forests, water bodies, land and the general environment. See R Benton, A Frame and P Meredith Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, University of Waikato, Hamilton, CD Version, 2007) and Mead, above, n 7.

48 Ibid. The halal reference recalls the period when New Zealand abattoirs killed meat in accordance with Muslim religious practices for export to Muslim countries.

Māori society ... has tempered what might have been a fundamental religious bar with a basic pragmatism, enabling modifications to the environment after appropriate incantations or precautionary steps. ... We consider that Māori values ought to be provided for in planning legislation. We do not think that they should predominate over other values but we do think they should be brought into account and given proper consideration when Māori interests are particularly affected. And if Māori interests are not exclusively affected then there might at least be a search for a practical alternative if there is one, or a reasonable compromise.

‘Wāhi’ refers to a place or locality.⁵¹‘Tapu’ is a condition affecting persons, places and things, and is described as a prohibition but essentially its function is that of a protective device. Waddy defined tapu as:⁵²

[A] “Code of Law” far above and transcending all human laws, forming a Table of Māori Commandments, owing its authority partly to superstition and partly to fear, but based primarily upon political motives and common sense. Early Māori was ruled by the law of tapu.

Tapu also acted as a means of social control over people and the landscape. Best noted in this regard:⁵³

The system of tapu was a series of prohibitions, and its influence was very far reaching – so much so that it entered into all activities of native life. The laws of tapu affected all crises of life – birth, marriage, sickness, death, burial, exhumation, all industries; and no person in the community was exempt from its stringent rules. To disregard those rules meant disaster to the individual; but the punishment meted out to the transgressor was not inflicted by his fellow- tribesman – it was imposed by the gods.

Such a system of prohibitions was intended to safeguard the tapu of each person in relation to the community, the atua (gods) and the landscape.⁵⁴

51 H Williams Dictionary of the Māori Language (Government Printing Office, Wellington,

52 P Waddy “Tapu: A Code of Law: Criticism of Sir James Frazer’s Views” in P Waddy “Early

Law and Customs of the Maoris” (MA Thesis, University of Victoria, Wellington, 1927).

53 E Best The Māori as He Was: A Brief Account of Māori Life in Pre-European Days

54 M Shirres Te Tangata: The Human Person (Accent Publications, Auckland, 1997). See also M Shirres Tapu: Te Mana o Nga Atua: The Mana of the Spiritual Powers. A Māori Theological Understanding of Tapu (Te Rūnanga o te Hāhi Katorika ki Aotearoa, Ponsonby,

Given the permanence of the land, links to the landscape for Māori are links to the past and future. Implicit in the relationship to the landscape is the responsibility of present generations as stewards over the land given by past generations in trust for those of the future as the aphorism states, Nōku te whenua o ōku tūpuna – Mine is the land of my ancestors. Māori tribal landscapes are very important anchors for the tribe.

The contemporary use of Māori words and tikanga concepts such as wāhi tapu in a statute or other official texts provides fertile ground for litigation. Those provisions of the Resource Management Act 1991 (RMA), in particular the Māori trilogy key sections 6(e), 7(a) and 8,⁵⁵were enacted to enable an appropriate balancing exercise to occur between development and the protection of Māori customary rights to the landscape.⁵⁶As recognised by the courts, the Māori trilogy and related provisions:⁵⁷

... place the Court directly at the interface between the concepts of British common law (which has its genesis in Roman law) and the concepts of Māori customary law which is founded on tikanga Māori. The Treaty promised the protection of Māori customs and cultural values. The guarantee of Rangatiratanga [sic] in Article 2 was a promise to protect the right of Māori to possess and control that which is theirs:

“in accordance with their customs and having regard to their own cultural preferences.”

Resource consent applicants and local authorities have generally avoided a “direct approach” to confronting Māori under the RMA until recent times. There are a number of reasons for this change including:

(1) a growing sophistication in the utilisation of the Māori provisions; (2) the various RMA “successes” achieved by Māori; and

56 See P Majurey “Environmental Issues” in New Zealand Law Society Treaty of Waitangi

57 Land Air and Water Association v Waikato Regional Council (Unreported, Judge Whiting, Environment Court, Auckland, A110/01, 23 October 2001 (Hereinafter Hampton Downs)) at 104. There, the Court considered a proposal to establish a large engineered land disposal facility at Hampton Downs north of Waikato. The proposal received considerable opposition from the local community including tangata whenua (local people).

From this direct approach, there is a growing judicial testing of the Māori spiritual and cultural paradigm including values and tikanga over the landscape. The result has been a significant increase in the resources and time local authorities have had to apply to Māori issues. This has led in many cases to resource management outcomes quite different from those which occurred prior to the enactment of the RMA when Māori cultural and spiritual values could be safely ignored or sidelined. However, while Māori values may now have entered the system, there is evidence that the system may not yet have the tools, or have developed a sufficiently informed approach, to dealing appropriately with those values.

A classic example is the contemporary New Zealand debate over wāhi tapu. Section 6(e) RMA provides that it is a matter of national importance to recognise and provide for “the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahi tapu [sic], and other taonga [important places]”. Section 6(f) protects historic heritage from inappropriate subdivision, use and development; and s 6(g) protects recognised customary activities.

Historic heritage is defined in s 2(b)(iii), RMA, as inter alia: sites of significance to Māori, including wāhi tapu. Section 42(1)(a) RMA adds that a local authority may, on its own motion or on application of any party to any proceedings or class of proceedings, make an order where it is satisfied that the order is necessary “to avoid serious offence to tikanga Māori or to avoid the disclosure of the location of wāhi tapu”.⁵⁸

In addition, the Ture Whenua Māori Act 1993 interprets wāhi tapu as a “place of special significance according to tikanga Māori”.⁵⁹The Historic Places Act 1993 noted that a wāhi tapu is “a place sacred to Māori in the traditional, spiritual, religious, ritual, or mythological sense”⁶⁰while a wāhi tapu area means “an area of land that contains one or more wāhi tapu”.⁶¹Wāhi tapu are referred to in the Biosecurity Act 1993,⁶²Hazardous Substances and New Organisms Act 1996,⁶³Local Government Act 2002,⁶⁴and the Marine and Coastal Area (Takutai Moana) Act 2011⁶⁵(see Appendix II of this chapter for

a comprehensive list of current statutes that include wāhi tapu). The frequent inclusion of wāhi tapu in legislation provides fertile ground for battling out the concept in court.

In a number of cases, Māori opponents of development have argued that they will affect wāhi tapu covering several hectares of land. The Environment Court appears to have taken two general approaches. The first is a three-stage enquiry for claims of wāhi tapu and relies heavily on a close examination of the etymology of “wāhi tapu”.⁶⁶

The first is to determine, as best as we are able in the English language, the meaning of the concept. The second is to assess the evidence to determine whether it probatively establishes its existence and relevance in the context of the facts of a particular case. If so, the third is to determine how it is to be recognised and provided for. When, as in the case here, it is alleged that a site is wāhi tapu, it is necessary: first to determine the meaning of wāhi tapu: second to determine whether the evidence probatively establishes the existence of wāhi tapu, and third, if it does, how is it to be provided for.

In addressing these steps the Environment Court had regard to the following documentary sources:

Assertions of wāhi tapu have not only been met with evidence from Māori dictionaries but also Māori studies experts who claim that the term wāhi tapu applies to sites which are quite limited in area and associated with some religious or ceremonial event. For example, in the Winstone Aggregates Ltd v Regional Council⁶⁸decision, the Court recorded evidence of wāhi tapu by Mr Buddy Mikaere, an alleged expert on Māori studies:⁶⁹

Mr Rima Herbet, the manager of the Ngāti Naho Co-operative Society Limited, gave evidence. He defined wāhi tapu:

66 Winstone Aggregates Ltd v Regional Council (Unreported, Whiting J, Environment Court, Auckland, A80/62, 28 April 2002) at 62. [Hereinafter Winstone Aggregates].

... as physical features or phenomena, either on land or water, which have spiritual, traditional, historical and cultural significance to our people. Waahi tapu as conceived by Māori may originate from pre-contact history or from post-European history through to the present day. The waahi tapu identified up until recent times by us included cultivation areas and Māori earthworks and burial areas which are all of long-standing importance to the Māori people of our area.

In the Land Air and Water Association v Waikato Regional Council⁷⁰decision, the Environment Court considered similar Māori academic evidence on the nature of wāhi tapu which was paraphrased by the Court:⁷¹

In traditional Māori society a waahi tapu was a specific place – usually very small – within the tribal rohe or boundary. They were, by definition, strictly set apart from daily life because the tapu or spiritual restriction contained within such places posed dangers to all. Nobody went there or used such places for any purposes. ... The definition I [Mr Mikaere] have stated here lies behind the concept of waahi tapu and identifies them as places of high spiritual and religious danger. Because of the nature of their original use, old pa sites, fortifications, earthworks, cultivations and such like cannot be waahi tapu because they are associated with secular rather than religious activities.

This approach therefore finds that wāhi tapu refers essentially only to urupā (burial grounds) and ceremonial or spiritual sites, and that the term cannot usually cover places associated with purely secular rather than religious activities such as old pā sites, fortifications, earthworks and particularly cultivations.⁷²This approach applies standard evidential tests.⁷³In the Hampton Downs decision, the Court tested Māori academic evidence by a non-lawyer participant asking questions between a Mr Tukiri and Mr Mikaere:⁷⁴

Q: I am talking about your qualifications from university and qualifications on past mahi (occupation) that you’ve done.

71 Ibid., at 111. This evidence sought, in part, to rebut the evidence of a Ngāti Naho kaumātua.

73 Above n 67 (Winstone Aggregates); Countdown Properties (Northland) Limited v Dunedin City Council [1994] NZHC 67; [1994] NZRMA 145 (H.C); Te Kupenga o Ngāti Hako v Hauraki District Council (Unreported, Bollard J, Environment Court, Auckland, A 10/01, 23 January 2001).

A: The qualifications I hold are no different to qualifications any other Māori people hold issued by [the] same education institution. [I] don’t see why I should be singled out because I am lucky enough to get there. My qualifications in that particular area, if we’re talking about purely in [the] Māori world I’ve outlined my experience and how I obtained that experience in answer to questions put yesterday. I see no reasons to change those responses ...

Q: [Is it] fair to assume [that the] position [you] currently occupied here on behalf of [the] applicant and in the tauiwi [foreigner] world would give evidence today and not as your Māori side?

A: [There are] several parts to that question, first is that this is a New Zealand rather than tauiwi institution, we are here before this institution because we support the processes of this country, when I am in this world I appear as part of this world so to speak. I cannot entirely put aside my Māori heritage of which I am extraordinarily proud. I believe in being present here, [I] can contribute by bringing some balance to the proceedings by appellants and s 274 interveners. I believe that in a number of instances those views are incorrect, they are incorrect in terms of factual accuracy, incorrect in interpretation of traditional tikanga, they do demonstrate evolution and continued evolution of Māori conceptual thinking; somebody needs to bridge the gap and I see that as my role.

The Court ultimately accepted Mr Mikaere’s evidence that the site was not a wāhi tapu and therefore it did not have any particular cultural significance. This narrow definition does not sit well with a number of High Court decisions in which there is general acceptance that large areas, sometimes associated with secular activities, are wāhi tapu.⁷⁵In the Takamore Trustees v Kapiti Coast District Council⁷⁶decision, the High Court found that the general wāhi tapu area was sufficiently described. The inability to specifically point to areas within the wider area as site-specific locations of wāhi tapu was not critical.

In the Hampton Downs and Winstone Aggregates decisions,⁷⁷the Environment Court moreover stated that it can rely upon Waitangi Tribunal Reports when it referred to the Te Roroa Report:⁷⁸

For Māori, wāhi tapu like taonga is an “umbrella term” that applies not only to urupā (burial grounds) but other places that are set apart both permanently and temporarily. These include places associated in some way with birth or death, with chiefly persons and with traditional canoe landing and building

75 In Minhinnick v Watercare Services Ltd [1998] 1 NZLR 6, 3 [hereafter Minhinnick], the stone fields were 29 hectares in size. Many of the activities associated with the area were of a secular nature such as cultivations and kainga (homes).

78 Waitangi Tribunal, Te Roroa Report (Wai 38, Waitangi Tribunal, Wellington, 1992) at 227.

places. Temporary tapu are usually imposed and removed on hunting and fishing grounds for cultivations to conserve and protect the resource. They also include places associated with particular tūpuna and events associated with them, set in order by whakapapa.

Interestingly, the High Court has not seen fit to define what is or is not a wāhi tapu probably because findings of fact have already been made in the Environment Court or there is agreement by all parties concerned that the subject site is a wāhi tapu. However, it is possible to glean some themes from the wāhi tapu litigation in the High Court.

As mentioned above, wāhi tapu are not limited to small discreet places. The wāhi tapu area in Takamore Trustees v Kapiti Coast District Council⁷⁹was

25 acres,⁸⁰29 hectares in Minhinnick v Watercare Services Ltd,⁸¹and 56 acres in Tawhai v Whakatane District Council and Te Rūnanga o Ngāti Awa.⁸²

Furthermore, wāhi tapu sites appear to not be limited solely to activities of a religious, sacred or highly tapu nature. The Matukuturua stone fields included areas of garden, archaeological features and cultivations.⁸³In Ngāti Maru v Thames Coromandel District Council and Kruithof,⁸⁴the wāhi tapu site contained a pā site as well as tapu areas. In some High Court decisions, there was reference to a general wāhi tapu area as the Ngāti Maru decision.⁸⁵

However, in both the Takamore Trustees and Ngāti Maru decisions, the Courts seem to contemplate that within a general wāhi tapu area, there could be specific, more localised wāhi tapu.⁸⁶In addition, in the Ngāti Maru decision, there was reference to a sacred waterway and adjacent area where sacred sites were located.⁸⁷

The failure to register wāhi tapu status on relevant district plans is not critical to finding a wāhi tapu as in TV 3 Network Services Ltd v Waikato District Council⁸⁸and Ngāti Maru decisions.⁸⁹In cases in which the challenge as to whether a wāhi tapu exists or not, the Environment Court has jurisdiction to

80 (Unreported, 27 July 2003, Chambers J, HC Rotorua, CIV-2003-463-109). [Hereinafter

84 (Unreported, 27 August 2004, Laurenson J, HC Hamilton, CIV-2004-485-330) [Hereinafter

make a finding of fact.⁹⁰The failure to precisely locate the wāhi tapu site in question and failure to point to archaeological remains is not critical when claiming wāhi tapu status,⁹¹and it is an error of law for the Environment Court to reject as mere assertion the oral evidence of kaumātua (elders), as to the presence of koiwi (bones) and taonga (treasures) without giving a rational basis for that rejection. There is a clear requirement for the Environment Court to explain why it rejects such evidence when it can only be based on oral history. To accept only documented and precise evidence on such matters would mean that there would be little evidence in support of s 6(e) matters.⁹²

In all the cases in which wāhi tapu status was accepted, Māori witnesses were able to point to ancestral occupation and oral tradition of the spiritual importance of the site in question.

The Environment Court has on a number of occasions had to consider the issue of what constitutes a wāhi tapu. In Winstone Aggregates, the Court suggested a methodology which involves determining the meaning of wāhi tapu, determining whether the evidence probatively establishes the existence of wāhi tapu; and if the evidence establishes the presence of wāhi tapu, and discusses how it is to be provided for. In the Winstone and Heta v Bay of Plenty Regional Council⁹³decisions, the Court stated that wāhi tapu must be objectively established, not asserted, by reference to material of a probative value which satisfies the Court on the balance of probabilities. General evidence of wāhi tapu over a wide and undefined area was not probative of a claim that wāhi tapu existed on a specific site.⁹⁴

In the Takamore Trustees case (before the Environment Court) and the Hampton Downs decisions, the Court was critical of the evidence led by objectors on the basis that it was hearsay, general in nature, and lacked any specificity by way of oral tradition or historical foundation. However, the High Court’s decision in Takamore Trustees means these comments will be treated with caution. Justice Young stated that unless kaumātua (elders) evidence of an oral nature was exposed as incredible or they were unreliable witnesses, or there was other credible and reliable evidence contradicting what they had to say, the Court cannot reject their evidence.⁹⁵

93 Heta v Bay of Plenty Regional Council (Unreported, A93/2000, Judges Whiting, Dart and

95 Te Kupenga o Ngāti Hako v Hauraki District Council and Waikato Regional Council (Unreported, A010/2001, Judges Ballard, Hackett and McIntyre), above, n 58 (Hampton Downs) and above, n 67 (Winstone Aggregates).

In some cases, development has occurred despite claims of wāhi tapu status; for example, Heta v Bay of Plenty Regional Council⁹⁶and Beadle and Wihongi v Minister of Corrections and Northland Regional Council.⁹⁷But another successful wāhi tapu battle occurred in the 2007 decision of Maungaharuru- Tangitu Society Inc and Ors v Hastings DC and Unison Networks Ltd.⁹⁸The Environment Court overturned a resource consent by the Hastings District Council to Unison Networks for Stage 2 of a project to construct and operate a wind farm at Te Waka on the Maungaharuru Range in Hawke’s Bay. The Court concluded that Māori values were more important than issues of climate change and the use of renewable sources of energy. The Court commented on the relationship of Māori with the whenua (land):⁹⁹

6(e) – land, water, sites, waahi tapu and other taonga. It was impossible not to absorb some of the depth of emotion expressed in the evidence about the attachment of the people to this area. It not only defines one of the boundaries of their tribal rohe or districts. It also helps to define them as individuals and as tribal and family groups. The relationship they have with it, despite no longer owning it, must be, we think, just the kind of relationship ... of Māori, their culture and traditions ... that drafters of the section had in mind, and which the legislation requires to be recognised and provided for as being of national importance.

An unusual and protracted case occurred in Hemi v Waikato District Council and Ritchie¹⁰⁰where Hemi, a wealthy Māori with ancestral links to Whaingaroa (Raglan), proposed to build a house in Whaingaroa with much local Māori support, but was vehemently opposed by a prominent local non-Māori family on the grounds that part of the land was wāhi tapu.¹⁰¹The Environment Court had to consider disputed evidence about whether or not a taniwha (ancestral monster) resided along the coastline beneath the land, making it wāhi tapu and therefore inappropriate for the development of a dwelling place. Judge Harland found that there were no urupā or archaeological findings on the site which was indicative that the site was not wāhi tapu. However, even if it was, a tapu-lifting ceremony had been conducted by kaumātua prior to 1965 so that the land was not wāhi tapu any more.¹⁰²Consequently, the consent was granted and the Hemi whānau could finally develop the coastal property.

98 Maungaharuru-Tangitu Society Inc and Ors v Hastings DC and Unison Networks Ltd

(Unreported, Environment Court, Wellington, W24/2007, 13 April 2007, Thompson CJ).

In summary, it appears there is a divergence of approach in the Environment Court and High Court as to the elements which constitute a wāhi tapu. There appears to be a difference of approach in discussing the activities associated with the site, the precise location of wāhi tapu sites, the size and scale of wāhi tapu, the use of outside experts and the emphasis to be placed upon oral traditional kaumātua (elder) evidence. Such contradictory approaches heighten the tension in these landscape conflicts. Protracted conflict over wāhi tapu is inevitable.

Predictably, wāhi tapu battles¹⁰³continue to erupt around New Zealand in places such as the wāhi tapu Puketutu Island in the middle of the Manukau Harbour where the Manukau City Council wants to discharge 4.4 million cubic metres of treated sewage over the next 35 years;¹⁰⁴protecting wāhi tapu along beautiful beaches in Whangara, Tolaga Bay and the Far North;¹⁰⁵in opposition to a Lake Taupo tourist development on Acacia Bay;¹⁰⁶the construction of the Sandhills Expressway to revamp State Highway 1 near Waikanae;¹⁰⁷the protection of wāhi tapu waterways such as the Te Waikoropupu Springs in Golden Bay¹⁰⁸and the Waikoko Spring in Hawke’s Bay;¹⁰⁹and Ngāti Kahu’s successful opposition to investment banker Paul Kelly’s development plans to build homes overlooking Karikari Beach on Doubtless Bay which is on top of a wāhi tapu cave where Ngāti Kahu say the bones of their ancestors were laid.¹¹⁰

103 There are numerous contemporary battles over wāhi tapu. See, for example, “Waitara beach toilet plan runs into tapu” The Daily News (13 June 2003); “Sacred site ruling hits developers” The New Zealand Herald (29 April 2004); “Government bestows ‘national importance’ on Māori superstition ‘ancestral landscapes’” The Independent (9 April 2003); “Landowners seek to reclaim property rights from wāhi tapu” Stuff (26 February 2003); “The non-sense of wāhi tapu” The Nelson Mail (11 December 2002); “Property rights extinguished by Māori tapu” The Independent (13 November 2002); “Hundreds sign petition against wāhi tapu” New Zealand Herald (3 December 2002); and “Clark defends wāhi tapu process”, Television New Zealand (19 November 2002). For more recent examples, see the references below.

104 “Proposed ‘poo tax’ for island dumping”, New Zealand Herald (18 May 2009). See also

105 “Idyllic area hiding its sacred treasures” New Zealand Herald (22 January 2009); “Beach fears played down” The Dominion Post (18 January 2009); and “Courts should decide beachfront land row – judge” New Zealand Herald (20 January 2009).

107 “Iwi has grave fears over Waikanae expressway” The Dominion Post (17 December 2009).

108 “DoC brings in plan to protect famous spring” New Zealand Herald (6 April 2009).

110 P de Graaf “Iwi defeats US billionaire in holiday homes row” The Northern Advocate (4

The litigation over the Ngawha prison site in the 2002 decision of Beadle & Wihongi v Minister of Corrections & Northland Regional Council¹¹¹indicates that these challenges of trying to define wāhi tapu through litigation are not going away. It suggests that, if anything, the incidence of these value arguments is likely to increase. That case involved substantial expert Māori witnesses both supporting and opposing the development and discussing the effects of the proposal on the ancient pathways of a taniwha (monster).¹¹²

It can also be noted that the Resource Management Act 1991 requires decision makers to recognise the need to protect historic heritage from inappropriate development, which includes “sites of significance to Māori, including wāhi tapu”.¹¹³This is an important issue, not just because of the requirements of the RMA 1991, but also because the principles of natural justice require that people are given a fair hearing. Can that occur if the decision-making process (including decision makers) has insufficient information about the Māori values and evidence presented?

Given such complex issues when attempting to acknowledge tikanga Māori in legislation generally and wāhi tapu specifically, what are possible appropriate options to move towards a better understanding and treatment of these issues? There is the suggestion from the Judicial Committee of the Privy Council that the pool of decision makers at the Environment Court (and High Court) level ought to include people able to deal appropriately with Māori values:¹¹⁴

It might be useful to have available for cases raising Māori issues a reserve pool of alternate Judges and Deputy Commissioners. At all events their Lordships express the hope that a substantial Māori membership will prove practicable if the case does reach the Environment Court.

Against this we may contrast the Court of Appeal approach in Watercare Services Ltd v Minhinnick,¹¹⁵where that Court was asked to support the notion that when considering whether the piping of sewage over wāhi tapu was “offensive, or objectionable to such an extent that it has or is likely to have an adverse effect on the environment”. The appropriate test was what the ordinary Māori person would find objectionable. The Court of Appeal rejected that view, finding that the relevant test was that of the “ordinary

111 Beadle & Wihongi v Minister of Corrections & Northland Regional Council (A74/02. 8

113 Resource Management Act 1991, s 2(1): “historic heritage”: (a)(iii) and (b)(iii).

person, representative of the community at large” – presumably no matter how ignorant that community might be of Māori values, or, more importantly, its own hidden assumptions and prejudices.

Resorting to dictionaries and documentary sources to prove or disprove the existence, extent and scope of tikanga Māori in a particular area tends towards the academic and away from the determinative spiritual and cultural context of Māori. As Metge notes:¹¹⁶

To come to grips with Māori custom law, it is necessary to recognise that Māori concepts hardly ever correspond exactly with those Western concepts which they appear, on the surface, to resemble. While there is a degree of overlap, there are usually divergences as well. Even if the denotation – the direct reference – is substantially the same, the connotations are significantly different.

Hence those qualified to articulate the values and practices inherent in tikanga Māori are usually Māori, especially competent kaumātua. But as illustrated above in this chapter, what happens when kaumātua slightly or even diametrically disagree with what constitutes “authentic” tikanga and wāhi tapu or the details and scope of a group’s tikanga and values?

The work of Te Mātāhauariki Institute at the University of Waikato may be of some assistance here.¹¹⁷One of the key projects of Te Mātāhauariki Institute was the assembling of a collection of references to the concepts and institutions of Māori customary law to explore ways in which the legal system of Aotearoa-New Zealand could better reflect the best of the values and principles of both major component cultures. The first Director of the Institute, Judge Michael Brown, in consultation with the Institute’s Advisory Panel, accordingly initiated Te Mātāpunenga,¹¹⁸which is an attempt to traverse the existing historical materials with a view to bringing together such references to customary concepts and institutions as appeared to come from an influential or authoritative source and/or to exhibit explanatory insight.

The Mātāhauariki researchers started with a list of terms denoting legal and normative concepts and institutions found to be in use in historical and contemporary Māori discourse. These were selected with the assistance of kaumātua. The researchers searched a wide range of records for entries which have been listed in chronological order under each title. Each entry consists

116 J Metge “Commentary on Judge Durie’s Custom Law” (Unpublished Paper for the Law

of a sourced statement or explanation relevant to a particular title together with an explanatory preface intended to supply a context for the statement or explanation. The purpose of the context is to enable the reader to understand the circumstances in which the statement or explanation arose, and to judge its credibility and authority.

The researchers did not set out to determine what is or is not “true custom”, or authentic tikanga Māori but rather to record what has at various times and in various circumstances been claimed to be custom. This extract from the Te Mātāpunenga section on wāhi tapu exemplifies the approach taken, with the preamble followed by seven entries selected from sources at 30–40 year intervals from among the 26 included in the 2007 draft.¹¹⁹

Wāhi Tapu A place subject to serious and long-term ritual restrictions on access or use, for example the site of a battle or massacre, or an area of particular historical, ceremonial or cultural importance. Wāhi tapu include but are by no means confined to urupā (cemeteries), although the phrase is often used interchangeably with the more specific term. The word wāhi has a complicated history, derived ultimately from Proto-Malayo Polynesian *bad‘i “wedge”; perhaps, fittingly, several derived meanings (“to split lengthwise”, “a part or portion”, and “place”) converged in Māori through slightly different routes; the connotation of “place” is shared with cognate terms in Tuamotuan, Hawaiian and Marquesan. The derivation of tapu is discussed in the title for that concept.

[#WAH 02] In a letter to Rev. Joshua Mann of 14 July 1817, Thomas Kendall, a scholar and keen student of Māori language and customs, and one of three agents of the Church Missionary Society established at the Bay of Islands by Rev. Samuel Marsden, offered some advice to would-be settlers:

“In selecting a portion of land for a settlement, it would be advisable to take care that it be as clear as possible of what the natives call the wahhe tabboo (wāhi tapu). Wherever a person has breathed his last, or his bones have been laid for a time, there is always a piece of timber set up, if there is no tree growing to perpetuate his memory. The wahhe tabboo is not suffered to be molested, and is held sacred both by friends and strangers. Amongst the natives, the least disrespect paid to their sacred relics or religious ceremonies and customs is considered a sufficient ground for a war by enemies and for a public debate by friends.” Elder, J. Marsden’s Lieutenants, (Dunedin, A. H. Reed. 1934) p. 140.

[#WAH 06] In a Journal entry dated 5 June 1845 the missionary Thomas Chapman recorded that a road had been placed under a tapu for five months as the result of an axe being stolen from a burial ground near that road. Korokai,

a prominent chief, was accompanied by Chapman to seek the lifting of the tapu as he required the road to drag two large canoes out to sea. Korokai’s local influence was evident:

“Korokai replied ... there were many hundreds who required the use of this road and his people in particular just now ... take away the ‘tapu’

... This ended the regular part of the debate – and it was intimated that the five months would be lowered to five weeks, and this seemed tolerably satisfactory.” Chapman, Thomas 1792–1876 Journal, (AT L Ref: MS-0498-0499).

[#WAH 11] Tongariro, like many other prominent landmarks, has always been regarded as a ‘maunga tapu’. An editorial has described Tongariro as “Tena kei tawhiti e tu mai ana Tongariro, te maunga tapu, e kore e takahia noatia e te waewae ware, te nohoanga o te tuatara, te takotaranga o te puehu o nga tupuna rangatira kua mate atu.” [In the distance is seen Tongariro, the sacred mountain too sacred for common feet to tread its Tuatara-guarded solitudes, those last resting places of the dust of chieftain]. (Te Wananga, (Vol. 1, No. 5,

“A ko te Māori e riri ana ki nga Pakeha haere ki Tongariro, he tohe hoki na te Pakeha kia kite i te toitoi o Tongariro. Te take i riri ai te Māori (ara na te Māori aua kii nei) he tapu no taua wahi, a e takahi ana te Pakeha i o te Māori mea tapu. Ki te Pakeha, he whenua tonu te whenua kahore he tapu. Otiia kahore te Pakeha e puta i te Māori ki taua wahi. The Māori are angry with Europeans going to Tongariro, the European argue that they want to see the toitoi of Tongariro. The Māori believe Europeans are desecrating the sacred things of the Māori. The Europeans believe that land is just land, and not sacred. The reason the Māori are angry (that is, according to the Māori themselves), is that that place is sacred and the Europeans are transgressing the things that are sacred to the Māori. To the European land is land, it is not sacred. But the Māori will not allow the European to go to that place.

[#WAH 19] In the annual report of the Rotorua Māori Land Council to Parliament by Captain Mair, ‘Nga Kaunihera Maori’ (Maori Councils), attention was drawn to the annoyance and offence of local Māori with Europeans desecrating their ancient burial places. A Rotorua meeting called on the Government to protect such sites:

“Tenei ano tetahi take e akiakina ana, ara, kia hanga be tikanga kaha hei tiaki i nga urupa me nga wahi tapu o te iwi Māori, kei tukinotia, kei takatakahia noatia e te Pakeha. He nui rawa te riri o te iwi mo tenei mahi nanakia a te Pakeha; a, te kaati mai i kona, tahuri rawa ratau ki te panui i nga whaka- hua o a ratau takaro (ki nga tapu o te Māori).

Kua tapiritia e au te whakaahua o etahi o aua Pakeha taurekareka i roto i tetahi ana tanumanga tupapaku i Te Rotoiti, e takahi ana i te wahi i takoto ai nga toa piripono o te Arawa, i mate mo te Kuini i te pakanga o mua ake nei. Ka hapa i konei ko te Ture hei whiu i tenei tu hara. Tera ke noa atu te hamama mehemea i tupono he Māori nana i tukino tetahi urupa Pakeha, be motini kaha i oti i te hai i Rotorua, e inoi ana ki te Kawanata- nga kia tiakina o ratau tupapaku.

([Translation by Te Mātāhauariki] “Another reason they are urging that this should happen is so that they can develop a strict protocol to protect Māori graveyards and sacred sites, in case they are abused and trampled on by Pakeha. The people are very angry with Pakeha for this reckless behaviour. The conversation ended there, and they went on to read aloud the accounts of their careless behaviour (toward things sacred to the Maori). I have attached the photograph of some of those Pakeha scoundrels inside a burial plot, in Rotoiti, desecrating the resting place of close allies of Te Arawa, who died for the Queen in the war. The law is inadequate to punish this type of crime. On the other hand there would be quite an outcry if it was thought that a Māori had violated a Pakeha grave; a strong motion was passed at the meeting in Rotorua, requesting the Government to protect their dead.)” Te Puke ki Hikurangi, (Vol 5, Issue 14, 30 September 1903) p. 2.

[The entry goes on to quote the sympathetic comment of “A European newspaper” on this aspect of Mair’s report, which concluded:]

“... A thoughtless European, accustomed to regard his own cemeteries with every mark of respect and reverence, might readily look upon a Maori burial ground with very different feelings. The place where a white man deposits his dead has all the symbols of a place of mourning

, but a Maori burial place is merely a cave full of bones—till one remembers that it is the native fashion, and is just as sacred to him as the tomb filled cemetery of the Pakeha.” A-G, (28/2/03).

[#WAH 21] As part of the 1940 Centennial Celebrations marking 100 years since the signing of the Treaty of Waitangi, several Māori ‘waka taua’ or war canoes were constructed. The building process and the site were considered tapu. Some European observers failed to realise this as was reported in a local newspaper article. Some persons permitted themselves to be photographed sitting on the canoe to the dismay of Māori who considered such an act as desecration.

“The canoe which the Maoris are building at Kerikeri is tapu. All Pakeha should remember this fact, especially females to whom it is doubly tapu... It seems a pity that the Maoris, in leaving the Kerikeri canoe lying about in such an open and accessible spot, did not think to indicate its untouchable character. A notice: ‘This canoe is tapu,

please do not touch’ would have the desired effect. In the meantime, it is suggested that those who have violated the tapu should make handsome donations to the funds which it is proposed to organise so as to assist the Maoris in their entirely commendable work.” ‘The Place is Tapu’, The Northern Advocate, (November 17, 1938).

[#WAH 23] Te Taou historian Colleen M. Sheffield related the historical relationship of this Ngāti Whatua hapu with the sandhills from Muriwai through to the northern stretches at Rangatira. She observed that by the time the first Pakeha came, Te Taou knew every aspect of living in the sandhills, and generations of their forbears were laid to rest in hidden burial places among the dunes. She continued:

“In the forest and on the sand we work in harmony with men of other races who still respect our customs and wishes. The old wahi tapu are all fenced off today and left unplanted, and the seaward face of Oneonenui has been set aside as a tapu area because of the hundred Waikato who were once slain there. The future of Te Taou is ably guarded by the men of the State Forest Service.” Te Ao Hou, (No. 40, September 1962) p. 46.

[#WAH 26] The issue of wāhi tapu has also frequently come before the Environment Court, particularly as a result of section 6(e). Where it has been alleged that a site is wāhi tapu, the Court has had to grapple with the meaning of wāhi tapu and how to provide for sites determined to be wāhi tapu. In Winstone Aggregates the Court recorded evidence of wāhi tapu from Mr Rima Herbet, the manager of the Ngāti Naho Co-operative Society Limited, who defined wāhi tapu as

“... physical features or phenomena, either on land or water, which have spiritual, traditional, historical and cultural significance to our people. Waahi tapu as conceived by Māori may originate from pre- contact history or from post-European history through to the present day. The waahi tapu identified up until recent times by us included cultivation areas and Māori earthworks and burial areas which are all of long-standing importance to the Māori people of our area.” Winstone Aggregates Ltd v Franklin District Council (AO 80/02, 17 April 2002).

In the same case, a Māori environmental consultant and former Waitangi Tribunal Director, Buddy Mikaere, giving evidence on behalf of Winston Aggregates, argued that wāhi tapu were very small specified places, rather than general areas.

Cultures view the world differently, and valuing that difference is an important step towards understanding, acknowledging and even celebrating a Māori world-view. Unfortunately, this has not always been the case in Aotearoa and cultural misunderstanding and ethnocentrism have been the causes of much conflict throughout history from the bloody execution of the French sailors in

1772 to the contemporary legal battles over wāhi tapu today. But the Courts are moving to alleviate potential and real conflict over wāhi tapu by giving weight to Māori interpretations of these sacred sites. Consequently, wāhi tapu are accepted by the judiciary as more than just burial grounds in that there may be a variety of causes why tapu status may be given. Wāhi tapu, moreover, do not necessarily stand separate from places used for everyday life, and may sometimes be associated with secular features and values.

The common law doctrine of Aboriginal title and the Treaty of Waitangi 1840 promised the protection of Māori cultural values. Through the introduction of the concept of wāhi tapu into law, and the interpretations made by the courts, there is now formal acknowledgement that non-European concepts of sacredness are important, and an acceptance of tikanga Māori relating to wāhi tapu and other Māori concepts. These changes over the past two decades have meant that tikanga concepts such as wāhi tapu have now become widely acknowledged, even if sometimes begrudgingly.

Furthermore, wāhi tapu are not always sacrosanct – tapu status can be uplifted, and in some cases the relevant Māori community may come to an agreement as to the grounds under which wāhi tapu can be disturbed. There is scope for such a course of action both in terms of tikanga Māori (tapu lifting) and also legal precedent – thus rendering the land open for appropriate development. In other circumstances, it may be appropriate to preserve the status quo. But Māori should be making these decisions, not others.

However, while tikanga Māori values, customs and institutions have now re- entered the New Zealand legal system, there is evidence that the system may not yet have the tools or have developed a sufficiently informed approach to dealing appropriately with those values and customs. This article has highlighted some of the complexities that the Environment and High Courts are facing when attempting to incorporate and define tikanga in legislation through litigation specifically around wāhi tapu. The article highlighted two possible options to move towards a better understanding and treatment of these challenges in the legal system and society generally by involving competent

Māori in the decision-making processes and referring to the more extensive use of authoritative and well-audited tikanga Māori reference works such as the Te Mātāpunenga project of the Te Mātāhauariki Research Institute at the University of Waikato.

The Te Mātāpunenga project will prove useful to the judiciary and wider public particularly, inter alia, where challenges are located at this interface between tikanga Māori custom and State regulatory systems. Given that Te Mātāpunenga includes well-audited historical and contemporary research, primary and secondary and written and oral sources, it will assist with contributing to tikanga Māori debates and, more importantly, for reflecting on the best customary concepts, institutions and values of both of New Zealand’s major founding cultures – Māori and Pākehā.

There still appears to be a potential for the values of the dominant society to be “regularly applied in the assessment of proposals without a thought as to their origin”.¹²⁰On the other hand, perhaps sufficient tools now exist that can be applied to address that situation and the inclusion again of tikanga Māori values, customs and institutions within contemporary New Zealand society.

Finally, this article suggests that we are well into experiencing the re- emergence of a hybrid legal system that recognises both the English legal tradition as it has developed in Aotearoa and elements of tikanga Māori. The New Zealand legal system should continue to evolve in order to accommodate the best values and legal concepts from both Māori and Pākehā cultures and communities. Māori should be open to the option of appropriate cultural change, as should Pākehā and other non-Māori New Zealanders, so that we can together create an effective legal system with sufficient flexibility and robustness to meet the needs of the citizens of Aotearoa-New Zealand in and beyond the 21st century.

Kāua e hokona te whenua, he mea oti tonu atu; nōku hoki te whenua; he manene hoki koutou, he noho noa ki ahau. – The land shall not be sold forever: for the land is mine; for ye are strangers and sojourners with me. – Leviticus 25:23.

In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance:

(e) The relationship of Māori and their culture and traditions with their ancestral

In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).

Climate Change Response Act 2002, s 37. Crown Forest Assets Act 1989, s 18. Crown Minerals Act 1991, ss 17, 51. Education Act 1989, s 214.

Hazardous Substances and New Organisms Act 1996, s 6. Historic Places Act 1993, ss 22, 25, 28, 32, 32A, 33, 103. Historic Places Amendment Act 2006, ss 8, 10, 13, 14, 15. Local Government Act 2002, s 77.

Local Government Official Information and Meetings Act 1987, s 7. Marine and Coastal Area (Takutai Moana) Act 2011, ss 78, 79. Overseas Investment Act 2005, s 6.

Reserves and Other Lands Disposal Act 1995, s 3. Resource Management Act 1991, ss 2, 6(1). Resource Management Amendment Act 2003, s 3.

Resource Management Amendment Act (No 2) 2011, Schedule 2: Chapter 6: “Amendments to Waikato Regional Coastal Plan”

Summit Road (Canterbury) Protection Act 2001, s 5. Te Ture Whenua Maori Act 1993, Preamble.

Ngaa Rauru Kiitahi Claims Settlement Act 2005, Schedule 10. Ngāi Tahu Claims Settlement Act 1998, s 196.

Ngāti Apa (North Island) Claims Settlement Act 2010, s 5. Ngāti Awa Claims Settlement Act 2005, Preamble.

Ngāti Tūwharetoa (Bay of Plenty) Claims Settlement Act 2005, Preamble. Ngāti Tūwharetoa, Raukawa, and Te Arawa River Iwi Waikato River Act

Pouakani Claims Settlement Act 2000, Schedule 8. Te Roroa Claims Settlement Act 2008, Preamble.

Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010, Schedule 2: Vision and Strategy for the Waikato River.

New Zealand Yearbook of New Zealand Jurisprudence

Joseph, Robert --- "Legal challenges at the interface of Maori Custom and state regulatory systems: Wahi Tapu" [2011] NZYbkNZJur 14; (2010-2011) 13-14 Yearbook of New Zealand Jurisprudence