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University of Otago Law Theses and Dissertations |
Last Updated: 21 September 2023
KO WAI TE MANA WHENUA?
Identifying Mana Whenua Under Aotearoa New Zealand’s Three Laws
Jacobi Te Hingatu Kohu-Morris
A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at the University of Otago – Te Whare Wānanga o Otāgo
October 2020
Acknowledgements
To Ahorangi Professor Jacinta Ruru, for your time and wisdom, and taking me under your wing.
To Professor John Dawson, for helping me understand our system of law and the place of our Treaty within it.
To Professor Mark Henaghan, for making me believe I could go to law school.
To the Otago Law School, the Māori Centre, the Property Law team, Te Roopu Whai Pūtake, Russell McVeagh, Tim Shiels, and the Faculty’s admin team, for all their support.
To my friends, especially from Brewski shack, for the laughs and getting me away from my desk.
To Evy, who’s had to put up with me.
And to all my whānau on my Kohu and Morris sides, for making this possible.
Introduction
All societies have laws that govern the exercise of sovereign authority within a territory. For Māori, that authority – mana whenua – was sourced in their lands, to which they ancestrally belonged.1 Mana whenua gave hapū, the central kinship community under Aotearoa’s first laws,2 rangatiratanga.3 There were several hundred mostly independent hapū across the land with overlapping interests. The rangatira primarily exercised mana whenua as a sort-of trustee for the people’s and environment’s benefit. Individuals and whānau derived rights to the land’s resources from the hapū, making kinship relations important, which were guided by tikanga principles.
Rangatira asserted their collective sovereign authority against the world – te mana o te whenua – in the 1835 Declaration of Independence.4 But in 1840, the English version of the Treaty of Waitangi / Te Tiriti o Waitangi purported to transfer that sovereignty to the Crown.5 But in gaining sovereignty, new regimes hold power subject to pre-existing indigenous rights, because the common law protects aboriginal title until lawfully extinguished.6 The English Laws Act 1858 confirmed that English laws were enforceable in New Zealand from 1840 to the extent applicable to the “circumstances of the Colony”.7
1 “Mana whenua” refers to authority in a location, as compared with “tangata whenua” which is a
broader concept referring to the “local people”, usually by some ancestral link. But because mana whenua relies on continued occupation (ahikā), mana whenua can be seen as a subgroup of tangata whenua if some people do not exercise occupation with them.
5 Treaty of Waitangi 1840, art 1.
7 English Laws Act 1858, s 1.
The term ‘mana whenua’ likely originated in this era to assert and defend hapū and iwi land rights.8 But the Crown mostly extinguished the indigenous system of land tenure through its right of pre-emption, war and confiscation, and the individualisation of title through the Native Land Court. In this way, New Zealand’s ‘second laws’ dispossessed hapū of the same source of their customary authority. With only 8% of the nation’s land held by Māori, mana whenua have not been able to maintain ahikāroa as needed before 1840. Today, they rely on Parliament for procedural and substantive rights under environmental, local government and Treaty of Waitangi settlement legislation.
But identifying mana whenua presents difficulties for New Zealand’s positivistic legal culture. There are not always clear or exclusive boundaries of authority. Statutory incorporations of tikanga concepts have tended not to reflect their nuances which leaves them oversimplified. Nevertheless, where mana whenua rights are at stake, particularly those with economic or political benefits, multiple hapū and iwi may stake their claim. But if parties cannot resolve their disputed authority by negotiation or arbitration, how could New Zealand’s courts adjudicate mana whenua claims based on indigenous law?
The question entitling this dissertation, therefore, ‘ko wai te mana whenua’, gives rise to issues that go to the heart of the intersection between ‘Kupe’s laws’ and ‘Cook’s laws’. To understand the mana whenua concept, I adopt Justice Williams’ ‘first, second, and third laws’ of Aotearoa New Zealand framework.9
Chapter I returns to Aotearoa’s first laws to explore its core principles, and how mana whenua originated. Although it may be a contemporary concept to conceptualise Māori authority in British terms, I argue we can also conceptualise it in traditional, take whenua terms. It discusses how mana whenua rights could customarily arise, be maintained or extinguished, and what they secured. In Chapter II, I discuss the effect of British sovereignty and land tenure in mostly extinguishing the customary rights of mana whenua. I compare present statutory rights against traditional rights and some of the problems in incorporating tikanga in statute. I consider the potential consequences of proposed reforms
8 ‘Iwi’ is a concept that generally means ‘tribe’, made up of component ‘hapū’ as ‘sub-tribes’.
Throughout this paper, I refer to ‘hapū’ instead of both for convenience, and because hapū, rather than iwi, who were the core societal unit in traditional Māori society which principally exercised mana whenua.
of the Resource Management Act 1991.10 Here, I offer a tikanga-consistent statutory definition. In Chapter III, I discuss how best to balance both Māori and English legal systems in resolving current mana whenua disputes. I consider the challenges of the lack of certain boundaries and primary evidence, and the need to do justice to the layers of interests in tikanga concepts. I recommend a three-stage approach that starts from a tikanga basis in negotiations and blends across to judicial intervention. While there are difficulties in having the courts intervene in indigenous legal matters, I argue that these are not fatal given the expertise of the Māori Land and Appellate Courts.
But as a point of principle, both legal systems ought to influence each other to arrive at a unique and distinctive “third law of Aotearoa New Zealand”.11 The aim should be a system that embraces the best of both worlds; declares rights in each; and, as Sir Eddie Durie puts it, cultural conciliation as “mutual comprehension and respect”.12
10 Ministry for the Environment New Directions for Resource Management in New Zealand: Report of
the Resource Management Review Panel (June 2020).
11 Williams “Lex Aotearoa”, above n 9, at 12.
I Mana Whenua Under Aotearoa’s First Laws
Tukuna mai he kapunga oneone ki au hai tangi Send me a handful of earth so I may weep over it
For Māori, land was not something that could be bought and sold as a unit in a market economy as it is today. The land was something to which the people belonged.13 The term ‘whenua’ means land and placenta, which is customarily returned to the Earth mother, Papatūānuku, linking the people’s ancestor to her descendants.14
Before European contact, Aotearoa New Zealand was not a single, unified state, but a collection of several hundred, mostly independent, hapū.15 Some, depending on their size and independence, were closely affiliated to their parent body, iwi.16 These societies had a communal structure,17 connected by their kinship, and collectively held property in land, analogous to radical title or ownership.18 It was “jealously guarded and exclusively maintained”.19 An individual’s primary responsibility was to their tribe, from which their rights derived, making the balance between kinship relations crucial.20
A Tikanga Māori
Tikanga guided those relationships based on what was correct or proper.21 Williams defined it as “the Māori way of doing things – from the very mundane to the most sacred or important fields of human endeavour”.22 There are localised differences between hapū
13 Eddie Durie “The Law and the Land” in Jock Phillips (ed) Te Whenua, Te Iwi: The Land and the
People (Allen & Unwin/Port Nicholson Press, Wellington, 1987) at 78.
14 Durie “Will the Settlers Settle?”, above n 12, at 452.
15 At 450.
16 Raymond Firth Primitive Economics of the New Zealand Māori (Routledge, Oxon, 2011) at 371.
18 Durie “Will the Settlers Settle?”, above n 12, at 452.
19 Firth Primitive Economics, above n 16, at 371.
20 Moana Jackson “The Treaty and the Word: The Colonisation of Māori Philosophy” in G. Oddie and
R. Perrett (eds) Justice, Ethics and New Zealand Society (Oxford University Press, Auckland, 1992) at 5.
21 Mikaere “The Treaty of Waitangi”, above n 2, at 331.
22 Joseph Williams He Aha Te Tikanga Māori (unpublished paper for the Law Commission, 1998) at 2.
because each was independent, but there are principles universal to all Māori,23 which commonly24 include whanaungatanga,25 mana,26 tapu,27 utu,28 and kaitiakitanga.29
How these concepts operated is subject to debate, although many early visitors to New Zealand “had no difficulty at all in seeing Māori customs and practices as ‘law’”.30 To conceptualise them through Western legal philosophies, Brookfield argues they can be understood in the Hartian sense,31 as rules of primary obligation enforced by social pressure and community sanctions.32 Indeed, that may sufficiently characterise more specific tikanga rules, like take whenua and muru.33 Such ‘rules’ could be modified in a self- regulating way, or “without institutional intervention”.34
But Durie conceived of the core concepts as values or principles,35 and Elias CJ referred to tikanga’s “values” as being part of New Zealand’s common law.36 This conception lends more towards a Dworkinian approach, which sees law not just as rules, but also standards that “do not function as rules, but operate differently as principles”.37 These principles are grounded in the law and explicit in past decisions by way of justification.38 Further, dimensions of consistency with past decisions and political, moral theories of the society are also engaged when determining the prevailing principles.39 But when a particular
23 There is some debate as to other core principles: see Law Commission Māori Custom and Values in
New Zealand Law (NZLC SP9, 2001) at [124]-[166].
24 Williams "Lex Aotearoa”, above n 9, at 3.
25 Ibid, the “the source of the rights and obligations of kinship”.
26 Ibid, the “source of rights and obligations of leadership”.
27 Ibid, as “both a social control on behaviour and evidence of the indivisibility of divine and profane”.
28 Ibid, the “obligation to give and the right (and sometimes obligation) to receive constant reciprocity”.
29 Ibid, the “obligation to care for one’s own”.
31 See HLA Hart The Concept of Law (2nd ed, Oxford University Press, Oxford, 1994) at 91-94.
33 The tikanga system of land rights, discussed further later in this chapter.
34 ET Durie Custom Law (unpublished paper for the Treaty of Waitangi Research Unit, 1994) at 4.
35 At 3.
36 Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [94] [Takamore (SC)].
38 R Dworkin Law’s Empire (Harvard University Press, Cambridge, 1986) at 96.
39 R Dworkin Taking Rights Seriously (Harvard University Press, Cambridge, 1977) at 143.
principle prevails in one case, the others survive intact for application to future situations.40 Tikanga may be understood in this way because, as Moana Jackson explained, the Māori legal philosophy derived “[f]rom the kete of Tāne... through the precedent and practice of ancestors”.41 They may also take account of moral theories through tikanga’s context- dependent mode of application, with principles surviving to guide future decisions and behaviour.
B Reconceptualising the Origins of Mana Whenua
The land gave mana to those who used and belonged to it. In 1835,42 the United Tribes of New Zealand asserted their “Ko te Kingitanga ko te mana i te w[h]enua” of New Zealand against other foreign powers in the Declaration of Independence.43 By the 1860s, the Kingitanga movement used “mana o te whenua in the novel historical context of pan-tribal unification”, 44 and land alienation.45
However, the term “mana whenua” has been criticised for being inconsistent with the conception of mana as personal,46 and that it negatively implies exclusivity47 when Māori
40 Dworkin “Is Law a System of Rules?”, above n 37, at 56.
41 Moana Jackson “The Treaty and the Word”, above n 20, at 5.
43 Declaration of Independence of the United Tribes of New Zealand 1835, art 2.
45 Linda Te Aho “Contemporary Issues in Māori Law And Society: Mana Motuhake, Mana Whenua”
[2006] WkoLawRw 6; (2006) 14 Waikato L Rev 102 at 103.
46 Waitangi Tribunal Rekohu: A Report on Moriori and Ngāti Mutunga Claims in the Chatham Islands
(Wai 64, 2001) at 12, 27.
shared pockets of interests with no Western boundaries.48 The Waitangi Tribunal has expressed its disagreement with using the term:49
The term ‘mana whenua’ appears to have come from a nineteenth-century Maori endeavour to conceptualise Maori authority in terms of the English legal concepts of imperium and dominium. It links mana or authority with ownership of the whenua (soil). But the linking of mana with land does not fit comfortably with Maori concepts... [T]he term ‘mana’ was personal and was used in regard to the influence or authority of chiefs.
[...]
We are inclined to think that the term ‘mana whenua’ is an unhelpful nineteenth- century innovation that does violence to cultural integrity.
Assuming mana whenua is not a ‘traditional’ tikanga concept, how problematic is it to use it? Does it lack cultural authenticity? The starting point is that tikanga is flexible and adapts “without institutional intervention”.50 Given its Kingitanga connections, “mana whenua” may be seen as part of an adaption to engage in the reality of Crown sovereignty to protect Māori land and authority from alienation. As Jones argues, there are three core tensions in Māori legal history: “adaption (self-determined versus reactive change); relationship to the Crown (engagement versus disengagement with the state legal system; and, renewal (reinvigorating tikanga versus losing relevance)”.51 These tensions are apparent in the mana whenua context – the need to protect the whenua and assert land rights against the Crown.
In this scenario, an analysis of the term’s consistency with the core tikanga values is engaged since they inform all its more specific rules and precepts. As Barlow explains,
48 Waitangi Tribunal Rekohu, above n 46, at 27.
50 Durie Custom Law, above n 34, at 4.
there are different types of mana:52 mana atua,53 mana tupuna,54 mana tangata;55 and mana whenua.56 It is “the central concept that underlies Māori leadership and accountability”.57 As the Tribunal noted, mana has more of a personal focus. However, humans possess mana only as ‘agents’ or ‘channels’ from those sources; they are never the source themselves.58
Furthermore, the land is all three of those sources. In Māori creation theory, it is an atua – Papatūānuku – a tupuna, and the people.59 It sustains the natural world, giving it mauri and mana. In that sense, “mana whenua” might be an implied traditional source. Perhaps given the centrality of the land in Māori society, “mana whenua” was only a term an ‘officious bystander’ would have raised in traditional culture. Then, it would have been obvious since, despite hapū independence, Māori had a common understanding of the land’s significance to them. When it stopped becoming evident in the face of the new sovereign, the term encapsulated their worldview, rights and authority and asserted it against others.
That mana was sourced from the land but could be vested in people – not just in the chiefs, but in the hapū collective – to act as kaitiaki, use its resources carefully, and provide for the people to maintain whanaungatanga and mauri. Indeed, these boundaries were not always exclusive, implying that the concept may also contemplate shared possession, perhaps even cooperation. Meredith described it this way:60
52 Clive Barlow Tikanga Whakaaro: Key Concepts in Māori Culture (Oxford University Press,
Melbourne, 1991) at 61. There are others too, including mana moana (the equivalent of mana whenua but over the oceans and its resources), and mana motuhake (the power of Māori sovereignty or self- determination).
53 Ibid, power derived from 'God' to those "who conform to sacred ritual and principles”
54 Ibid, power passed down from generation to generation through chiefly lineage;
55 Ibid, power acquired by a person by their abilities, skills or knowledge
56 Ibid, power associated with the possession of the land.
57 Carwyn Jones “A Māori Constitutional Tradition” (2014) 11 NZJPIL 187 at 194.
Historically claims to mana over land and sea were indeed about the exercise of some sort of jurisdictional dimension. That territorial jurisdiction was on many instances to the exclusion of others, and that aspect of exclusivity has rendered it problematic in modern times wherein there are competing and overlapping claims. But there are plenty of cases where groups shared land and resources and hence shared the mana whenua, mana moana in common.
Ultimately, when confronting novel situations, all societies may adapt their laws. As new rules develop, past practices may be reconceptualised and understood in a new way. We can look back at traditional exercises, assertions and defences of authority over land and say, “that is mana whenua, too”. It expresses the same power they possessed according to take whenua that they could collectively assert it against the Crown. The critical point here is that its legitimacy as an indigenous legal concept is not any lesser just because it is newer. It just means it had not been ‘discovered’ yet.61
For most tribes, if not all, mana whenua forms a vital part of their identity. Outside of the legal sphere, hapū and iwi have been asserting mana whenua at Ihumatao despite having no cognisable legal rights there.62 Northern iwi have also imposed ‘checkpoints’ to protect its members from the risk of COVID-19.63 So the Waitangi Tribunal’s characterisation of the mana whenua term as an “unhelpful nineteenth century innovation that does violence to cultural integrity” may have been misguided. It may have arisen then, but it described the same authority and sovereignty they had traditionally exercised over their sacred lands.
61 This process of reconceputalisation is inherent in the common law method too. For example, in Stilk
v Myrick [1809] EWHC KB J58, a ship captain agreed, following two seaman deserting before heading to the Baltics, to pay the remaining seamen the pay which would have been due to the two deserters. When the captain refused to pay on return to London, the plaintiff’s action to recover the further amount was dismissed. This was because the remaining sailors did not provide further consideration for the extra promise. But some commentators argue that had the case been decided today, the doctrine of economic duress would likely have vitiated the further promise: see Jill Poole Textbook on Contract Law (7th ed, Oxford University Press, Oxford, 2004) at 125. Economic duress was not developed until 1976, in Occidental Worldwide Investment Corp v Skibs [1976] 1 Lloyd’s Rep 293. See also North Ocean Shipping Co Ltd v Hyundai Corporation Co [1979] QB 705.
62 Kendall Hutt and Melanie Earley “Ihumātao: Māori King says mana whenua want land back” Stuff
(online ed, Auckland, 18 September 2019).
C Take Whenua: Māori Land Tenure
Figure 1: Model of the Validity of Mana Whenua Claims Based on Take Whenua
Under tikanga, hapū could gain land in the ways shown in Figure 1, that I have created;64 by take kitenga (right of prior discovery), take raupatu (right of conquest),65 or take tuku (right of gift).66 But those rights alone were not sufficient for mana whenua. To do that, the people had to sustain occupation of the land through take ahikāroa for at least three generations,67 which refers to “long-burning fires”.68 Over time, a hapū’s claim to land
64 There are approximately 28 more specific take whenua, or claims to land, according to Ngāti Porou
chief Rapata Wahawaha (as recorded by ethnographer Elsdon Best in 1893): see Wiri “Mana Whenua and the Settlement”, above n 42, at 6. These will be recorded below because they are usually of more individual concern: Firth Primitive Economics, above n 16, at 380.
would be reinforced and elevated to the highest source of claim, take tupuna (right of ancestry). Without ahikāroa, however, a group’s claim to land would expire over time, becoming ahi mātaotao, which refers to “fires that become cold”.69 As shown, the strength of a group’s claim to mana whenua increased as time passed and their relationship with the land graduated from mere acquisition to occupation, to ancestral connection.
The take kitenga principle gave hapū rights in undiscovered or unoccupied lands, which would have formed the basis for many of the early waka arrivals and further exploration of Aotearoa. It is analogous to the English doctrine of discovery.70 Straightforward acts, such as naming landscape features, or tatahi (‘treading’ those lands) were sufficient.71 For example, Kupe arrived on the Matahourua waka, taking “possession of New Zealand” by naming the mountains and rivers from Whanganui to Patea.72 Further, Māori personify landmarks. When the Arawa waka arrived in the 14th century, Tama-Te-Kapua declared “That point there [Maketu Point] is the bridge of my nose”.73 This personification links hapū to their ancestral landmarks, as expressed in one’s pepehā, making landmarks a key factor in understanding a group’s claim to mana whenua.
Following the initial settlement of areas by discovery and amalgamation among existing groups, Walker records that wars “spanned a period of almost 500 years” which defined inter-tribal political relations and territorial boundaries.74 These wars were frequent and resulted in extensive areas of land changing hands.75
69 Mead, Tikanga Māori, above n 3, at 226.
71 Firth Primitive Economics, above n 16, at 380.
72 John White Māori Customs and Superstitions (Kiwi Publishers, Christchurch, 1999) at 185.
73 Firth Primitive Economics, above n 16, at 377.
75 Firth Primitive Economics, above n 16, at 377.
Brookfield describes raupatu as a “revolution” where its conqueror supersedes the “legal order of the conquered hapū”.76 Over time, this would have been the case. Still, it is essential to note that a defeated group did not automatically transfer mana whenua because raupatu was “usually not sufficient to extinguish all rights to the land”.77 Ancestral rights are more “valid” than raupatu claims, surviving in latent form, capable of revival or extinguishment.78 A conquering group might go to “extraordinary lengths to try and extinguish tangata whenua rights”.79 They could then develop their ancestral rights by constructive possession for three or more generations.80 Ngāti Mutanga o Wharekauri, for example, could not establish take tipuna rights in the Chatham Islands since they only maintained ahikā for around 20 years.81 But as Durie explained, a conquering group’s rights were more regularly gained by marriage with women of the conquered group (take moe whenua).82 Women possess hau,83 meaning their offspring would carry ancestral rights in both groups’ land.84 Also, the victorious tribe would benefit from new people with valued skills or whanaungatanga links.85 The land had to “meet the basic needs of the new group of occupiers as well as those former citizens who were allowed to remain”.86
Therefore, it is too simplistic to view raupatu as a straightforward transfer of rights in land.87 Many tribes would have been ‘literally absorbed’ into each other. Raupatu may identify the overall hapū in de facto control, but it did not mean that all those on the land belonged to that hapū, nor that they had mana whenua. In those circumstances, the tangata whenua and mana whenua were not necessarily the same people, at least until ancestral links intertwined.
76 Brookfield Waitangi & Indigenous Rights, above n 32, at 89.
77 Mead Tikanga Māori, above n 3, at 223.
78 At 224.
79 At 223.
80 Wiri “Mana Whenua and the Settlement”, above n 42, at 9.
81 Kamo v Minister of Conservation [2018] NZHC 1983, [2018] NZAR 1334 at [14].
82 Durie “Will the Settlers Settle?”, above n 12, at 452.
83 ‘The land’s spiritual essence’: Mead Tikanga Māori, above n 3, at 223.
85 Mead Tikanga Māori, above n 3, at 223.
86 Ibid.
87 As the Native Land Court would mistakenly put too much emphasis on, see Chapter III.
Land could be gifted under tikanga, although this was relatively uncommon because hapū were reluctant to part with land, especially those with urupā88 or ancestral links.89 When they occurred, it was usually on some utu basis; to restore balance if somebody had committed a wrong or breached tapu. For example, gifting occurred to atone for adultery, or after raupatu to compensate for deaths.90 Wahawaha also mentioned more specific take for transfers on more of a contractual rather than gratuitous basis, such as land in return for waka, cloaks, ear pendants or weapons, again reflecting the cycle of reciprocity.91 Certain conditions would have attached to the gift of land, such as compliance with hapū norms and residence in their territory.92 It was more common to see gifting of use rights rather than the land, but this depended on the “demands of the moment”.93
Those three significant take categories gave a group an entry point to the land, but mana whenua required a permanent and sustained occupation of the land. ‘Ahikāroa’ refers to ‘long-burning fires’, and as Buck explained, “[s]o long as a people occupied their land, they kept their fires going to cook their food”.94
The responsibility for maintaining ahikā rested with the hapū, although the broader iwi alliance was carried by all the component hapū together.95 In primary areas of residence, hapū constructed kāinga, marae and pā, and formed leadership structures to organise collective tasks, like fishing, military, crop-growing and flax-weaving operations.96 In these areas, there can hardly be a dispute about the hapū’s sustained occupation of the land (or perhaps even their exclusivity). But in more unsettled or uncultivated areas, the group would show their occupation by hunting, fishing, and gathering resources like eels, timber,
88 ‘Cemeteries’.
89 Firth Primitive Economics, above n 16, at 381.
90 Ibid.
91 Wiri “Mana Whenua and the Settlement”, above n 42, at 380.
92 Erueti “Māori Customary Law”, above n 83, at 53.
93 At 44.
94 Buck The Coming of the Māori, above n 68, at 380.
95 Mead Tikanga Māori, above n 3, at 224.
96 At 223-224.
berries, flax and stone.97 It also depended on the land’s productivity. For some groups, like Ngāti Manawa and Ngāti Whare, their lands were not suitable for crops, so they got resources from the streams and forests, placed a rāhui on a used site,98 and migrated to a new area to maintain balance with the environment.99
On the outskirts of a tribe’s rohe,100 members would visit boundaries periodically to demonstrate ahikā by cultivating small areas of ground, snaring birds or trapping rats.101 These acts were important at whenua tautohe102 to challenge others to stake their claim to that land.103 But even if a hapū held mana whenua in a particular rohe, they still had to “respect and indeed manaaki the interests and rights of others”.104 External validation by neighbouring hapū secured a group’s position in their area, and military and trade alliances strengthened the interconnectedness between them.105
The ahikāroa principle has parallels with the Lockean theory of appropriation. Locke considered that the world is held by people in common and that private rights to resources accrue through a person or group’s mixing resources with their labour and effort.106 The caveat, however, was that those rights were conditional on there being “enough, and as good, left in common for others”.107 It reflects the Māori relationship to the environment. A hapū held the land in common, and the group’s and individual rights depended on their ongoing occupation, labour and effort. For without that, their rights would wane over time, becoming ahi mātaotao (‘fires that become cold’).108
Land could become ahi mātaotao when mana whenua abandoned an area or failed to maintain occupation. However, this could be avoided by regular nominal works of the land,
97 Firth Primitive Economics, above n 16, at 376.
98 ‘A temporary prohibition’.
99 Wiri “Mana Whenua and the Settlement”, above n 42, at 8.
100 ‘Boundaries’.
101 Firth Primitive Economics, above n 16, at 378.
102 ‘Contested lands’.
103 At 378.
104 Jackson, Potiki and Ngata Findings of the Adjudication Panel, above n 49, at 8.
105 Mead Tikanga Māori, above n 3, at 223.
107 Ibid.
108 Mead Tikanga Māori, above n 3, at 226.
so long as the wider tribe agreed.109 The ahi tere110 principle dictated that if no ancestral descendants returned for three or four generations, they would forfeit their rights.111
In many instances, long-term sustained occupation by a hapū would have elevated their claim to the land from take ahikāroa to take tipuna, an ancestral right; the most substantial claim to land under tikanga. Ahikāroa by itself was enough to acquire some level of mana whenua because that demonstrates some base level of authority in an area. But Wahawaha was of the view that an ancestral right must support their claim.112 This reflects the priority of ancestral rights under tikanga. Even a defeated group could continue to claim ancestral rights over land if they had buried their dead there, or spilt blood in battle. They might continue their cultural links to the land, through specifically named landmarks, narratives, or by leaving tohu,113 small groups of kin, or women of high rank on the land.114
The priority for ahikāroa as supported by an ancestral right is more suited to the contemporary context because the Māori population today is much more dispersed. Māori became much more urbanised from the 1950s onwards to the extent where 80% live in cities, particularly Auckland and Hamilton.115 If customary rules were applied today, some tribes might have ahikāroa type evidence far outside of their lands, for example, because the Native Land Court wrongly awarded them title. But any such rights would be inferior to those tribes with ancestral rights who maintained ahikāroa, as Figure 1 shows. There is also a temporal problem, as discussed in Chapter 2.
109 Norman Smith Native Custom and Law Affecting Native Land (Māori Purposes Fund Board,
Wellington, 1942) at 57 as cited in Wiri “Mana Whenua and the Settlement”, at 9-10.
110 ‘Flickering fire’.
111 Wiri “Mana Whenua and the Settlement”, above n 42, at 10.
112 Mead Tikanga Māori, above n 3, at 230.
113 ‘Marks or emblems’.
114 Erueti “Māori Customary Law”, above n 84, at 55.
D The Substance of Mana Whenua Rights
Once a group had mana whenua over particular land, rangatiratanga, which Jackson described as “total political authority”,116 followed.117 Hapū held it collectively, but it was vested primarily in rangatira,118 who usually derived from the tuakana lines of descent, possessing mana tipuna.119 However, occasionally those who demonstrated individual skills and qualities of leadership or battle would gain mana tangata, and could “jump the queue” ahead of tipuna-based rangatira.120
A rangatira’s level of control over tribal lands differed in scope, from “an immediate property interest in certain areas [derived from ancestry or occupation] to a somewhat vague social or political jurisdiction over others”.121 They had a governance role with a political dimension,122 acting as a sort-of trustee.123 Their part was more as a “guardian of the tribal interests” than a ruler. They would act largely democratically, except in emergencies.124 They would consult with subordinate chiefs and high-ranking men who had interests in lands that could be affected by some act.125 Further, in iwi matters, hapū could dissent from the overall ruling: “ko te puta matou ki waho o tenei kōrero”.126
The corollary to rangatiratanga meant, in day-to-day terms, that mana whenua could “go about their work and enjoy their new environment”,127 holding rights over the rohe “akin to ownership”.128 They had an intricate system which allocated various use rights and privileges over the land and resources, analogous to licences.129 These rights could be
116 Jackson “The Treaty and the Word”, above n 20, at 5.
117 Mead Tikanga Māori, above n 3, at 228.
119 At 50.
121 Firth Primitive Economics, above n 16, at 370.
122 Mead Tikanga Māori, above n 3, at 229.
123 Firth Primitive Economics, above n 16, at 369.
124 Brookfield Waitangi & Indigenous Rights, above n 32, at 88.
125 Firth Primitive Economics, above n 16, at 369-370.
126 “We will keep out of this decision”: At 369-370.
127 Mead Tikanga Māori, above n 3, at 228.
128 Erueti “Māori Customary Law”, above n 84, at 43.
129 Durie “Will the Settlers Settle?”, above n 12, at 453.
enjoyed personally, by the whānau, or the hapū as tenants in common.130 They were carefully defined, even to a minute level, and were jealously guarded and exclusively maintained.131 For example, trees suitable for waka building were marked on the trunk to denote ownership if disputes arose by unlawful interference.132 These rights were transferrable by inheritance or gift,133 but not to those outside the hapū, at least without hapū consent.134 All rights derived from the communal hapū unit, which were “inseparable from duties to the associated community, from being part of it, contributing to it, and abiding by its authority and law”.135 Those who held extensive individual use rights had a higher duty to ‘give back’ to the community, under the utu principle. Tikanga enforced this by muru to ensure that the community’s, rather than an individual’s, accumulation of wealth and benefits were maintained.136 Therefore, this intricate system was not so much about allocating strict ‘property’ rights, but rather the arrangement of kin relationships, without an English legal parallel.137
E Conclusion
Although the term “mana whenua” has more contemporary origins, we can see it as a legitimate evolution of tikanga to encapsulate the Māori relationship with land against a new sovereign power. It can reconceptualise Māori land tenure, which gave rangatiratanga, exercised primarily at the rangatira level, and defended by the paramount hapū collective. That rangatiratanga gave individuals and whānau use rights which carried associated duties to the community and their environment. The core values of tikanga guided these kinship and inter-tribal relations – and they continue in the contemporary context, being the kinds of values that might inform the resolution of overlapping disputes today.
130 Erueti “Māori Customary Law”, above n 84, at 53.
131 At 53.
132 Firth Primitive Economics, above n 16, at 374.
133 Erueti “Māori Customary Law”, above n 84, at 53.
134 Durie “Will the Settlers Settle?”, above n 12, at 452.
135 At 453.
136 At 454.
137 Ibid.
II Mana Whenua Under Cook’s Laws
Whatungarongaro te tangata toitū te whenua People are lost from sight but the land remains
In 1840, the Crown and over 500 rangatira signed the Treaty of Waitangi / Te Tiriti o Waitangi.138 This marked the constitutional moment when the Crown started gaining exclusive sovereignty in New Zealand.139 At common law, new regimes take power subject to pre-existing indigenous rights protected by the doctrine of aboriginal title.140 The Treaty and the common law protected Māori land and resource rights as exercised by mana whenua until lawfully extinguished. But the Crown’s sovereignty and land system have largely displaced mana whenua’s customary rights, and ability to carry out ahikāroa. Most contemporary rights are statutory. This chapter looks at the position for mana whenua under Cook’s laws and argues for a new statutory definition recognising mana whenua rights at 1840.
A Erosion of Mana Whenua Customary Rights
The English system of land law originated in Norman law, which featured a centralised, feudal nation-state with a hierarchical social structure.141 Under its system, the Crown is both sovereign and paramount landowner with all governmental authority within its jurisdiction.142 Individuals hold titles, derived from the Crown, in the form of estates like fee simple, from which they can parcel out various lesser rights.
138 This document, signed between the Crown and some 500 rangatira, comprises three articles. The first
article of the English version transfers ‘sovereignty’ from the iwi to the Crown, whereas the Māori version only transferred mere ‘kawanatanga’ (governance) rights. The second article in English confers Māori full, exclusive and undisturbed possession of their lands, fisheries, forests, and other properties, and the Crown the right of pre-emption to lands which Māori wished to sell. Under the Māori version, however, the chiefs retained ‘tino rangatiratanga’ over those interests. The third article in both versions accords Māori the same rights and privileges of British subjects.
139 The Waitangi Tribunal found that the chiefs did not cede their sovereignty, only governance rights:
He Whakaputanga me te Tiriti, above n 4, at xxii.
140 Symonds, above n 6, at 390; Attorney-General v Ngāti Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA) at [30]- [34].
141 Symonds at 388.
142 At 388.
This system lies in contrast to the Māori system, where all individual rights depended on the community. Yet Māori land tenure could not be extinguished “otherwise than by the free consent of the native occupiers”.143 The Crown sought to introduce its national, formally recorded system to facilitate the exchange and capitalisation of land in a market economy and mass society.144 However, it would not be a parallel system; the express goal was to assimilate one body of law within the other.145 Customary title was transformed into Crown-derived title, facilitating the alienation of Māori from their land. This occurred in three principal ways, each sanctioned by the law: purchases of land by the Crown; war and confiscation; and the individualisation of title by the Native Land Court.146
Under Article 2, Māori granted the Crown a pre-emptive right to any lands they wished to sell.147 Mason Durie explains that the clause’s dual purpose was to protect Māori from “unscrupulous dealers” and to “fund emigration by creating a price differential and providing a mechanism for colonisation”.148 Orange argues, however, that its implications were not well understood by Māori, only seen as “a minor concession in return for the guarantee of complete Māori ownership”.149
This left the Crown with a monopoly on land purchases from Māori. Yet, it was not in a financial position to act as an intermediate between Māori and the growing settler demand, delaying extinguishment of customary title.150 In 1844, the Governor waived the Crown’s pre-emptive right, certifying direct transactions between Māori and settlers without Crown agency. But what happened when the Crown sought to reinstate its right by granting title to someone other than the owner who had purchased from Māori under the Crown’s waiver? In R v Symonds, the Supreme Court affirmed the existence of Māori customary
143 At 390-391.
144 See generally Mason Durie Te Mana, Te Kawanatanga: The Politics of Māori Self Determination
(Oxford University Press, Auckland, 1998).
145 At 116.
146 At 117.
148 Mason Durie Te Mana, Te Kawanatanga, above n 144, at 118.
149 Claudia Orange The Treaty of Waitangi (Allen & Unwin, Wellington, 1987) at 100.
150 Alan Ward National Overview (Waitangi Tribunal Rangahaua Whanui Series, 1997) at 110.
title and its protection under the law but held that only the Crown’s grant of title could be recognised.151 Those who purchased from Māori under the waiver did so on the Crown’s behalf.
That decision enabled the Crown to resume its pre-emptive right, and with British government financial support, it embarked on an active government purchase policy.152 Those purchases probably ignored Māori custom, as admitted by some Crown land agents, because it appeared “strange” that tribes would “base their pretensions” on mana when “Māori law is almost annihilated by European usages”.153 Waitangi Tribunal reports have found sales were often legally dubious.154 But the purchase policy had the dual effect of transforming customary title into Crown title, and reducing the practice of long-term lease arrangements between Māori and settlers which “impeded the process of alienation”.155
In 1862, Parliament introduced the Native Lands Act 1862 which sought to assimilate Māori lands “as nearly as possible to the ownership of land according to British law”.156 In 1865, further legislation sought to “encourage the extinction of such proprietary customs”.157 It established the Native Land Court to ascertain who, as nearly as could be reconciled with native custom, should succeed to interests in Māori land.158
The Court’s work was problematic because the evidence before it may not have always been credible, partly in response to the Court’s misunderstandings of Māori custom.159 Further, the Government assured some tribes that surveys and investigations of their titles would not facilitate leases or sales.160 But following such inquiries, customary rights were
151 Symonds, above n 6, at 390-391.
152 Mason Durie Te Mana, Te Kawanatanga, above n 144, at 118.
154 See for example, Waitangi Tribunal Te Mana Whatu Ahuru: Report on the Te Rohe Pōtae Claims
(Wai 898, 2018).
155 Mason Durie Te Mana, Te Kawanatanga, above n 144, at 118.
156 Native Lands Act 1862, Preamble.
157 Native Land Act 1865, Preamble.
158 Section 30.
159 See further in Chapter 3.
160 O’Malley Agents of Autonomy, above n 153, at 86-87.
superseded by Crown grants as conclusive proof of ownership.161 Their rights were no longer communal, with a limit of 10 owners on a certificate of title, unless the block was over 5,000 acres which could be vested in a tribe.162
The individualisation of title fractured tribal customary land interests, making them more amenable to a free market economy. Tribal consent to sale no longer had to be obtained, only that of individual (or group of 10) owners. As Ngāti Rangiwewehi chief Te Rangikaheke commented, “[m]en of no standing in the tribe began to lease or sell without the knowledge or consent of the acknowledged leaders of the people”.163 Where consent remained unobtained, O’Malley describes that in the Arawa region, the Crown negotiated leases as a preliminary to purchase, and made advance payments to individuals “who would accept these in defiance of those seeking to maintain some form of tribal control” causing serious tribal rifts.164 Further, “many owners were forced to sell their lands to repay financial debt incurred in the transaction process”.165
Proposed kinds of alternative forms of resolution by runanga, which would have seen the tribes negotiate their boundaries between themselves and the Court ratify those decisions as a matter of form, were rejected.166 The Crown set aside “consensus-based, mutually beneficial, and reciprocal solutions” in favour of their “combative, winner-takes-all forum”.167 Because of the Court’s proceedings, “land was carved up at a rate of three- quarters of a million acres per year, and sold for a while at nearly the same rate”.168
161 Native Lands Act 1862, s 12.
162 Native Land Act 1865, s 23.
163 O’Malley Agents of Autonomy, above n 153, at 86-87.
164 At 93.
166 O’Malley Agents of Autonomy, above n 153, at 88.
167 Jackson, Potiki and Ngata The Findings of the Adjudication Panel, above n 49, at 19.
168 Durie “The Law and the Land”, above n 13, at 79.
Māori had opposed land alienation since shortly after the Treaty’s signing, marked by Hone Heke chopping down British flagpoles on his land in 1844.169 In 1863, Parliament passed the Suppression Rebellion Act which empowered the Governor to authorise “the most vigorous and effectual measures” to suppress “the Rebellion” across the colony.170 The Crown then assumed a confiscation policy against tribes who resisted land sales and surveying. The New Zealand Settlements Act 1863 empowered the Governor to declare lands held by rebellious tribes to be ‘districts’ eligible as ‘settlements for colonisation’ and confiscate those lands for the Crown.171 Approximately 3.25 million acres were seized in this way in the North Island.172
Having been affirmed in Symonds, aboriginal rights as protected by the common law were subsequently repudiated by the judiciary during the same era. In Wi Parata v Bishop of Wellington, Prendergast CJ held that no such native custom existed, despite the Native Lands Act’s express reference to the “Ancient Customs and Usages of the Native People”. He held that “a statute cannot call what is non-existent into being”.173 Yet, tikanga was reflected in other legislation. For example, The Native Exemption Ordinance 1844 reflected aspects of the muru custom.174 It provided that a Māori convicted of theft could pay four times the value of the stolen good instead of the usual punishment175 and for crimes other than rape or murder, they could continue at large, and a deposit could be paid to the victim if the offender did not appear at trial.176
Boast describes Prendergast’s approach as “idiosyncratic, and cannot be used to typify the approach of the New Zealand legal system as a whole, or indeed of the time”.177 The Privy
169 See further Paul Moon Ngapua: The Political Life of Hone Heke Ngapua, MHR (David Ling
Publishing, 2006).
170 Suppression Rebellion Act 1863, s 2.
171 New Zealand Settlements Act 1863, s 4.
172 Mason Durie Te Mana, Te Kawanatanga, above n 144, at 119.
173 Wi Parata v Bishop of Wellington (1877) 2 NZ Jur (NS) SC 72 at 79.
174 Mikaere “The Treaty of Waitangi”, above n 2, at 377.
175 Native Exemption Ordinance 1844 7 Vict 18, cl 7.
176 Clauses 6 and 8.
177 Boast “Māori Customary Law and Land Tenure”, above n 30, at 33.
Council in Nireaha Tamaki v Baker rejected Prendergast’s logic, stating that it was “rather late in the day” for the Courts to apply it.178 In reaffirming the existence of customary rights, the Board observed it was the Court’s duty “to interpret the Statute which plainly assumes the existence of a tenure of land under custom and usage which is either known to lawyers or discoverable by them by evidence”.179 However, in 1903, the judiciary and legal profession, led by Stout CJ, rejected the Privy Council’s reasoning in Baker and refused to apply it.180 They restated Prendergast’s logic that “[a]ll lands of the Colony belonged to the Crown”.181 The Crown was the “root of all title” so it could not “recognise Native title”.182 It argued that under the Privy Council’s view, “no land title in the Colony would be safe”.183 This reflects Mikaere’s observation that “the overwhelming response of the New Zealand legal system to tikanga Māori has indeed been typified, if not by complete denial, then at least by cynical pragmatism, and, ultimately, patronising intolerance”.184
Even the aforementioned Native Exemption Ordinance reflected a broader assimilation strategy in its long term goal of bringing the “whole aboriginal native population” to a “ready obeyance to the laws and customs of England”.185 The Native Land Court’s determinations were conclusive, “valid and effectual... as grants made by the Governor of Waste or Demense Lands of the Crown and as if the land comprised therein had been ceded by the Native proprietors”.186 The analogy to waste lands reinforced the notion that the Crown had gained sovereignty as if they had discovered New Zealand unencumbered.
Ultimately, Parliament passed the Land Titles Protection Act 1902, barring proceedings which challenged Crown grants of title older than 10 years.187 This made challenges based on customary ownership virtually impossible since many lands had long been converted
178 Nireaha Tamaki v Baker [1901] UKLawRpAC 18; [1901] AC 561 (PC) at 577 per Lord Davey.
179 At 577-578.
181 At 732.
182 At 746.
183 Ibid.
184 Mikaere “The Treaty of Waitangi”, above n 2, at 336.
185 Native Exemption Ordinance 1844 7 Vict 18, Preamble.
186 Native Lands Act 1865, s 23.
187 Land Titles Protection Act 1902, s 2.
into individual Crown grants. Parliament has carried over this limitation in subsequent legislation to the present day.188
The combined effect of these legislative, executive and judicial decisions was to displace many of the legal rights and duties of mana whenua. As Durie put it, “[t]he end result was that tribal authority and the communal Māori society, were finally destroyed”.189 By 1896, only 11 million out of 66.5 million acres of land remained in Māori ownership, and a century later, that had dwindled further to just 3.5 million acres.190 Of that, only 700 hectares in total is held by Māori according to custom.191
As a result, the Crown severed longstanding relationships with the land. This may have affected hapū at varying points and extents, but the common implication is that the Crown displaced the ultimate source of their authority and rights. Individualised title entailed enforceable property rights in land against others, but post-alienation, many would not have been able to exercise ahikā to the same extent. Previously hapū members would have had various use rights which derived from and depended on their kin, but now their rights derived from the Crown ‘sovereign’ to whom they were ultimately accountable. Therefore, mana whenua as a unified tribal unit could no longer exercise rangatiratanga over its land, resources and people, nor could it traditionally maintain ahikāroa.
B ‘By the Grace of Statute’ – Contemporary Mana Whenua Rights
McHugh observed that “Māori custom obtains legal status in the Pākeha system by the grace of statute”.192 Seven Acts of Parliament refer to mana whenua, according them contemporary rights and interests under environment, resource management, local
188 See the Native Land Act 1909, ss 84-93; the Māori Affairs Act 1953, pt XIV; Te Ture Whenua
Māori/Māori Land Act 1993, s 348; and the Limitation Act 2010, s 28.
189 Durie “The Law and the Land”, above n 13, at 79.
190 Mason Durie Te Mana, Te Kawanatanga, above n 144, at 120.
191 Māori Land Court “Your Māori Land” <https://Māorilandcourt.govt.nz/your-Māori-land/>.
government, and Treaty of Waitangi settlement legislation.193 There is also emerging jurisprudence for procedural and substantive rights under administrative law in the settlements sphere.
Mana whenua’s authority over environmental and resource management matters has been subordinated to a mere consultative, kaitiakitanga role or relevant consideration. For example, where Māori would have once had the customary authority to enforce rāhui over certain lands, now that is a Crown decision “having regard” to mana whenua.194 Resource consent applicants may consult with mana whenua, but consultation is expressly not required.195 The Resource Management Act 1991 also provides indirect recognition of mana whenua interests by overarching provisions recognising the Māori relationship to lands, waters, waahi tapu and other taonga,196 kaitiakitanga,197 and Treaty principles.198 But as Ruru pointed out, at least where water is concerned, the courts have tended to balance out Māori concerns in favour of competing economic and social considerations.199
193 Catherine Iorns Magallanes, “The Use of Tangata Whenua and Mana Whenua in New Zealand
Legislation: Attempts at Cultural Recognition” (2010) NZACL Yearbook 83 at 97. Aside from specific settlement legislation, these are the Resource Management Act 1991, the Fisheries Act 1996, and Local Government (Auckland Council) Act 2009 (as inserted in a 2010 amendment). The Local Government (Tamaki Makaurau Reorganisation) Act 2009 also used "mana whenua" but is now repealed. The Reserves Act 1977 and the Conservation Act 1987, both refer to “manawhenua” inserted in 1993 amendments, as does the Walking Access Act 2008. The Māori Fisheries Act 2004, sch 4 refers to proper names of Māori authorities which include "Manawhenua" in their titles. Magallanes argues, and I agree, that the inconsistent spelling of the terms should be corrected.
194 Reserves Act 1977, s 77A(1)(c).
196 Section 6(e).
197 Section 7(a).
198 Section 8.
Express provisions enable the transfer of powers,200 the formation of joint-management agreements201 or Mana Whakahono ā Rohe.202 Local authority powers have only been transferred once (in 2020) by transferring water quality monitoring functions from the Waikato Regional Council to the Tūwharetoa Māori Trust Board.203 Joint management agreements have been used comparatively more, although these may have limited scope. For example, in 2009, Taupo District Council and Tūwharetoa agreed to jointly decide on notified consents or plan changes applicable to multiply owned Māori land. But it is only optional for applicants to be heard by the panel, meaning Council members “do not have to worry about getting voted out of their positions for “forcing” a potentially unpopular administrative procedure on an unwilling population”.204 Limited post-settlement co- management regimes provide co-equal authority with the Crown in managing some freshwater, but this gives Māori a more kaitiakitanga role, rather than enabling economic development as they customarily did.205
Another issue with the Resource Management Act, however, is that it conflates several technically different Māori groups. Mana whenua is treated as being exercised by tangata whenua,206 and sometimes, “iwi authorities” are treated as representing tangata whenua207 in consultation for national208 and regional policy statements,209 or regional or district plans.210
Further, the Environment Court is reluctant to determine disputes of mana whenua status. Although they did in Ngāi Te Hapū v Bay of Plenty Regional Council,211 the court’s usual
200 Section 33.
201 Section 36B.
202 Section 58M.
205 Such as Te Arawa Lakes, Te Waihora (Lake Ellesmere), and the Waikato and Waipa Rivers.
206 Resource Management Act 1991, s 2.
208 Resource Management Act 1991, s 46.
209 Section 61(2A)(a).
210 Sections 66(2A)(a) and 74(2A).
approach is “if a party asserts this status to the Court, it is accepted”.212 Its focus is on the relevant cultural measures under ss 6(e), 7(a) and 8 of the Resource Management Act, which requires consideration of multiple affected groups rather than according to status per se.213 So for example, in Tūwharetoa Māori Trust Board v Waikato Regional Council, its finding that an impugned site fell within the iwi’s rohe did not determine who held mana whenua at the site.214 Even evidence of title from the Native Land Court to a different tribe was not determinative because they “turn on different kinds of relationships than matters of title”.215 The Court has also rejected determining primacy of mana whenua, because “[s]uch a question does not reflect the potential for there to be many layers of differing interests, some strong, some weak, and some in between”. They have acknowledged, however, that primacy or exclusivity might be found,216 and have jurisdiction to determine the relative strengths of iwi/hapū relationships in an area affected by a proposal.217 However, the latest RMA review noted that local authorities had difficulty in identifying mana whenua interests in view of the complexity.218
Mana whenua in the Auckland area have an advisory capacity to the Auckland Council. The city is highly urbanised and economically valuable, which also created “dense layers of interests” among hapū traditionally.219 Parliament established the Independent Māori Statutory Board to provide advice on the views of both mana whenua220 and mataawaka.221 This is the first legislative use of the term “mataawaka”, defined as “Māori who (a) live in
212 Auckland Council v Auckland Council [2011] NZEnvC 77 at [35]. See further Luston v Bay of Plenty
Regional Council A 49/94; Paihia v Northland Regional Council A77/95 (EC); Tawa v Bay of Plenty Regional Council A18/95 (EC); Te Pairi v Gisborne District Council W93/04 (EC).
213 Gerald Lanning, “Reconciling “Layers of Māori Interest” Resource Management Bulletin (online ed,
March 2020) at 73.
214 Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZRMA 520 at [139].
215 At [45].
216 Ngāti Whātua Orākei Whai Maia Ltd v Auckland Council [2019] NZEnvC 184 at [84].
217 At [88].
219 Waitangi Tribunal The Tāmaki Makaurau Settlement Process Report (Wai 1362, 2007) at 13.
221 Part 7.
Auckland, and (b) are not in a mana whenua group”.222 The Board has nine members sitting for three-year terms,223 seven of which are mana whenua representatives, and the remaining two for mataawaka.224
The Royal Commission on Auckland Governance deliberately drew this distinction. They defined mana whenua as “local Māori with ancestral ties to the region”225 or “Māori who have ancestral rights to occupy the Auckland region or part of it; namely, their tribal rohe falls within the Auckland region”.226 These groups stand in contrast to non-mana whenua groups who were defined as “Māori who may live in a certain area but have ancestral ties to another region”.227 That definition also mentioned their ‘loose’ description as urban Māori, who “greatly outnumber mana whenua Māori”.228
This approach accords with the Rekohu Tribunal’s view that if legislation intends to hear from particular Māori communities, especially with ancestral links, “then it would be best to describe the type of community be it traditional or modern”.229 But the Commission’s specific ancestral delineations were not included in the final legislation. As Magallanes notes, the courts can use the Commission’s findings as an extrinsic interpretive aid but such materials “are not as reliable as later sources, mainly because government and parliamentary purposes may have changed since such reports, so that the resulting legislation might not reflect the reform recommendations”.230
But the Board’s establishment is significant because mana whenua have a clear majority, so will lead the Board’s opinion. They also appoint mataawaka representatives, which is consistent with primary authority belonging to mana whenua. The Board is positive in terms of Treaty principles because it enables the Crown to be more informed of Māori
222 Section 4.
223 Schedule 2, cl 9(1).
224 Schedule 2, cl 1.
226 At [22.11].
227 Ibid.
228 Ibid.
229 Waitangi Tribunal Rekohu, above n 46, at [26]-[27].
views. However, the Board’s influence is ultimately subject to the attitude of an elected Council. Some have criticised the Board for under-representing mataawaka, since ‘urban Māori’ represent close to 90% of Auckland’s population.231
Mana whenua plays a significant role in Treaty settlements. The first significant Treaty settlement involved the fisheries which, as Cooke P observed, was “much influenced by the principle mana whenua mana moana”.232 The Māori Land Court has jurisdiction to determine tribal coastlines under customary ownership for settlement.233 Mana whenua participate in the content of sustainability measures under the quota management system,234 and the Minister of Fisheries can make special arrangements for customary non- commercial fishing, including steps for kaitiaki to “make bylaws restricting or prohibiting the taking of fish, aquatic life or seaweed”.235 They may also restrict fishing methods harmful to customary practices.236
Mana whenua is also the crucial factor determining the return of some 176,000 hectares of exotic pine forests, worth over $500 million, under the ‘Treelords’ settlement.237 The Central North Island Collective Settlement Act 2008 includes a tikanga-based dispute resolution process where there are overlapping claims,238 because:239
The Crown can only settle the claims of the group with which it is negotiating, not other groups with overlapping interests. These groups are able to negotiate their own settlements with the Crown. Nor is it intended that the Crown will resolve the question
231 Willie Jackson, “Independent Māori Statutory Board” Waatea News (online ed, 2 December 2014).
See also his successful challenge to the selection process for failing to account for mataawaka views in appointing mataawaka representatives: Jackson v Te Rangi [2014] NZHC 2918, and Te Rangi v Jackson [2015] NZCA 490 (appeal dismissed).
233 Māori Fisheries Act 2004, s 182(4).
234 Fisheries Act 1996, ss 12(1)(b), 25(3)(c), 115 and 116.
235 Section 186.
236 Sections 186A and 186B.
237 Wiri “Mana Whenua and the Settlement”, above n 42, at 1.
238 Central North Island Collective Settlement Act 2008, sch 2.
of which claimant group has the predominant interest in a general area. That is a matter that can only be resolved by those groups themselves.
This policy has had a profound effect on the Auckland isthmus. To avoid overlapping claims and layers of interest, Parliament granted all settling iwi a rotating right of first refusal to Crown-owned properties in Auckland.240 Ngāti Whātua brought proceedings challenging the Minister of Treaty of Waitangi Negotiations’ proposal to take land out of the right-of-first-refusal pool to apply it to a new settlement with Ngāti Paua and Marutūāhu.241 The decision would only take effect upon statutory ratification of the Deed of Settlement, which raised questions of non-interference in parliamentary proceedings. Ngāti Whātua sought declarations that the Crown’s overlapping claims policy, and the Minister's decision, were unlawful because transferring lands to other hapū would breach their mana whenua, maintained by their ongoing ahikā.242 They argued the Crown owed procedural duties to consult them on the proposed transfer.243
Both the High Court and Court of Appeal struck out the proceedings because it interfered in parliamentary proceedings.244 The Court of Appeal there were “no justiciable rights” affected by the decisions taken “in the development of legislative proposals”.245 In the Supreme Court, the parties accepted Ngāti Whātua could advance a claim based on customary rights.246 They cautioned the extent to which past cases applied the non- interference principle in this context:247
It would be overbroad to suggest that the fact a decision may, potentially, be the subject of legislation would always suffice to take the advice leading up to that decision out of the reach of supervision by the courts. That would be to ignore the function of the courts to make declarations as to rights.
Here, Ngāti Whātua was not challenging legislative proposals:248
240 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, s 120.
241 Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84 [Ngāti Whātua Ōrākei (SC)].
242 At [23].
243 At [26].
245 Ngāti Whātua Ōrākei (CA) at [95] per Kós P, Cooper and Asher JJ.
246 Ngāti Whātua Ōrākei (SC), above n 241, at [34].
247 At [46]. See also [113] per Elias CJ (partly concurring, partly dissenting).
248 At [48].
Rather, there are live issues as to the nature and scope of the rights claimed which Ngāti Whātua Ōrākei should be permitted to pursue in the usual way.
So, in allowing the appeal in part, the Court found it was open for Ngāti Whātua to argue at trial that both the Minister’s decisions and the overlapping claims policy breached their mana whenua, tikanga and settlement rights.249
This case marks a departure from previous approaches to the separation of powers in the Treaty settlements context. In Milroy v Attorney-General, Tuhoe challenged a proposed settlement between the Crown and Ngāti Awa over lands at which they were cross- claimants.250 The Court found that “no rights” were affected by the decision taken on officials’ advice.251 But in Port Nicholson Block Settlement Trust v Attorney-General, Williams J found jurisdiction to construe rights to different iwi under the relevant Deed.252 He said that “[u]nlike the way the case appears to have been pitched in Milroy, there are rights at issue here... [t]here is a satisfactory legal yardstick that a court can utilise in resolving the controversy”.253 He considered the Crown should not be the “sole arbiter of its own justice” when justiciable questions of statutory or Deed interpretation arose, “or indeed of customary law if properly pleaded”.254 Perhaps if Tuhoe based their challenge in Milroy as a breach of their mana whenua, it might have been decided differently.255
Therefore, depending on the outcome at trial, the Minister may be under duties to consult mana whenua on proposed transfers of Crown lands where they are affected. As Elias CJ stated, “giving greater significance to mana whenua rights based on tikanga, [may] invite greater scrutiny of Ministerial decisions in this area”.256 This may also demand substantive, not just procedural, outcomes. The Supreme Court recently held in Ngāi Tai ki Tamaki v Minister of Conservation that the Conservation Act’s Treaty clause was “powerful”,
249 At [59].
250 Milroy v Attorney-General [2005] NZAR 562.
251 At [11].
252 Port Nicholson Block Settlement Trust v Attorney-General [2012] NZHC 3181.
253 At [62].
254 At [63].
255 Note the Court’s hint at this in Ngāti Whātua Ōrākei (SC), above n 241, at [46].
256 At [92].
requiring not just procedural steps, but sometimes substantive outcomes too.257 One way to “give effect” to the principles was to enable reconnection to ancestral lands,258 but this did not create a general power of veto for mana whenua.259 It may be, therefore, that as new cases emerge, mana whenua could receive greater recognition under administrative law where legislation allows, as distinct from the currently limited forms of statutory mana whenua rights.
C Problems in Incorporating Tikanga Concepts in Statute
It is important that tikanga is included in statute to reflect its relevance across many different areas of law. As the Law Commission noted nearly 20 years ago, “there has been a steady increase in Māori terms used in statutes”.260 However, there are some difficulties in this ‘blending’ process. Statutory language may not convey the nuance and complexity of indigenous concepts, which risks fossilising tikanga concepts simplistically or incorrectly. Parliament did not include the ancestral delineations justifying the mana whenua/mataawaka distinctions in the Local Government (Auckland Council) Act 2009.261 And in many cases, English definitions may not correspond well to the Māori concept. There is a risk that Māori concepts are inevitably heard in their English meaning.262
The statutory definition of mana whenua, which settles on “Māori customary authority” causes such difficulties. It makes no reference to the concept’s tipuna and ahikā bases
257 Ngāi Tai ki Tamaki v Minister of Conservation [2018] NZSC 122 at [52(a)]. See Conservation Act
1986, s 4 (“This Act shall so be interpreted and administered as to give effect to the principles of the Treaty of Waitangi”).
258 At [52(c)].
259 At [95].
261 Magallanes “The Use of Tangata Whenua and Mana Whenua”, above n 47, at 96.
which combines whakapapa (genealogy) with territoriality.263 The Tribunal noted it was problematic to link mana whenua to tangata whenua because the latter was not customarily used to describe political power and so cannot be defined “by asking who has customary authority in a place”.264 The current definition also impliedly limits customary mana whenua rights in diluting it to mere “authority” when it traditionally entailed rights of tino rangatiratanga. This demonstrates Jackson’s point that “our tikanga has been diminished and constrained by the labels of colonisation”.265
Another problem is that its statutory treatment may not reflect the layers of mana whenua interests of different hapū in a location, as avoided with the rotating right of first refusal.266 The Settlement Act lists just 13 distinct groups; all deemed to be “ngā mana whenua o Tāmaki Makaurau”.267 But this treats all the iwi and hapū listed as having the same status, without the nuance of the relative strengths and dominance between the groups. As Williams J has commented in Port Nicholson:268
The problem with statutory acknowledgements and deeds of recognition in the modern era is that they do not reflect the sophisticated hierarchy of interests provided for by Māori custom. They have the effect of flattening out interests as if all are equal, just as the Native Land Court did 150 years ago. In short, modern RMA-based acknowledgements dumb down tikanga Māori.
Despite these challenges, there is clear utility in having statutory definitions for tikanga concepts. They may bring certainty to indigenous concepts that may not be as well understood by judges who rely on their linguistic competence to interpret statutes.269 This avoids litigation on terms. For example, whether Urban Māori Authorities fell within the
263 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, University of Auckland, 2006) at 91-92.
264 Waitangi Tribunal Rekohu, above n 46, at 26.
266 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, s 120.
267 Section 9.
268 Port Nicholson, above n 252, at [95] per Williams J.
269 Magallanes “The Use of Tangata Whenua and Mana Whenua”, above n 47, at 98.
definition of “iwi” to receive a portion of the Fisheries Settlement.270 Not only was that litigation extensive, but it also raised dangers of trying to define ‘iwi’ rather than ‘hapū’ as the core unit of Māori society.271 Each has unique histories, populations, geography, aspirations, and notions of tino rangatiratanga and mana motuhake.272 These issues demonstrate the importance of providing statutory definitions that are accurate, detailed, and culturally authentic. As Durie has commented:273
Many colonists perceived Māori law in the light of the Western system. Analogies assisted their understanding but distorted the reality. Māori law now has to be revised in its own cultural terms.
Where possible, it would be desirable for the Crown to partner with Māori to develop statutory definitions, to enhance authenticity and avoid shifting definitional issues to the Court.
D The Randerson Review and a New Statutory Definition for “Mana Whenua”
In 2020, a panel chaired by former Court of Appeal judge the Hon. Tony Randerson QC, reviewed the Resource Management Act 1991. They noted that mana whenua engagement has often been “inconsistent and ineffective”, treated as a “tick-box exercise”.274 Local authorities and consent applicants find it difficult to know which mana whenua groups should be engaged.275 They made several recommendations to improve mana whenua engagement, including repealing and replacing the current definitions of “iwi authority”
270 See Te Runanga o Muriwhenua, above n 232; Treaty Tribes Coalition, Te Runanga o Ngāti Porou &
Tainui Māori Trust v Urban Māori Authorities [1997] 1 NZLR 513 (PC); Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission [1999] NZCA 232; [2000] 1 NZLR 285; and Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission [2001] UKPC 32; [2002] 2 NZLR 17 (PC). On Urban Māori Authorities, see generally Pare Keiha and Paul Moon, “The Emergence and Evolution of Urban Māori Authorities: A Response to Māori Urbanisation” (2008) 1 Te Kaharoa 1.
272 Te Aho “Contemporary Issues in Māori Law And Society”, above n 45, at 117.
273 Durie Custom Law, above n 34, at 1-3.
274 Ministry for the Environment New Directions for Resource Management, above n 10, at 91.
275 At 88.
and “tangata whenua” with a new meaning for mana whenua. The proposed Natural and Built Environments Act would define mana whenua as:276
an iwi or hapū or whānau that exercises customary authority in an identified area.
There are two substantive differences from the current definition. Although slight, they raise the potential for inconsistencies with tikanga conceptions of mana whenua.
The first is that it would include ‘whānau’ as being able to exercise mana whenua. Under tikanga, however, mana whenua was collectively held by hapū as the core societal unit, to which whānau were responsible. This extension may cause further disputes, since there are many more whānau than hapū so that mana whenua views may become more split than at the hapū or iwi level. It also risks creating further overlapping interests because many Māori families can claim multiple whakapapa connections.
The second difference is the change from past to present tense (“exercised” to “exercises”). That raises a temporal problem because it risks conflicting with the ‘1840 Rule’: 277
The new definition could exclude hapū and iwi who ‘exercised’ mana whenua at 1840, but who no longer exercise sufficient ahikā to demonstrate a contemporary ‘exercise’. But as some tribes would not have been able to continue the same level of occupation because of alienation of their land post-1840, it risks causing unjust outcomes. For example, one tribe may have had mana whenua at 1840, but had their land awarded to a different (and wrong) tribe by a Native Land Court order or the Crown. They could not strictly maintain occupation against the new private property rights, while new tribes may have developed new connections over that land.
276 At 95. Compare current definition as “customary authority exercised by an iwi or hapū in an identified
area”: Resource Management Act 1991, s 2.
277 Waitangi Tribunal Rekohu, above n 46, at 132.
Further, hapū and iwi who did not exercise mana whenua at 1840 may now be recognised as such because of their contemporary ‘exercise’ of it. Ahikā evidence might show this, such as marae building, or use of land for certain purposes. Since the Native Land Court made its determinations over 150 years ago, there is a strong chance that new groups could have occupied new lands and developed ancestral links to them as well.
This is fundamental because either the law recognises customary interests at 1840, or it recognises those customary interests to the extent that hapū currently exercise them. Although the latter approach would recognise the evolution of traditional rights, it is problematic in Treaty terms because Article 2 of the Treaty guaranteed tribes their tino rangatiratanga. 1840 marked the critical date triggering the aboriginal title protection. The proposed definition risks undermining their recognition. It may become more important because while the Environment Court is principally concerned now with matters in ss 6(e), 7(a) and 8, the proposed reforms would replace tangata whenua and iwi authorities with mana whenua. If there are powers, joint-management agreements, or iwi participation agreements at stake, mana whenua status may become more contested.
A more tikanga- and Treaty-consistent approach would recognise mana whenua interests as they were at 1840, but identify new groups as mataawaka, similar to the approach taken in the Local Government (Auckland Council) Act 2009. A new statutory definition across all relevant contexts could be:
(1) Mana whenua means the one or more iwi or hapū who exercised customary authority or rangatiratanga over land and resources as at 6 February 1840 within an identified area on the basis of take tipuna and take ahikāroa.
a) Take tipuna means the customary right to land tenure under tikanga Māori based on ancestral connections to an identified area.b) Take ahikāroa means the customary right to land tenure under tikanga Māori based on the requirement for continued occupation in the identified area where mana whenua rights are claimed.
(2) Mataawaka means those iwi or hapū who have exercised acts of take ahikāroa on lands after 6 February 1840 which were customarily held by mana whenua.
(3) In exercising all relevant powers and functions under the Act, mana whenua takes precedence to mataawaka, unless mana whenua agree otherwise.
This approach reconciles both the interests of mana whenua and those living in that rohe without mana whenua connection. It recognises the fundamental requirements of take tipuna and ahikāroa in 1840. Delineating interests in this way improves certainty, because
they will only need to be determined once. A key criticism against this approach will be that it risks ‘fossilising’ tikanga when it is dynamic, flexible and evolving.278 As the Waitangi Tribunal explained:279
[M]ana is personal to persons or to people, and it comes and goes – it is not an institutional power given by history and then entrenched for all time. Were it the case that mana is irretrievably lost by conquest and enslavement, then many tribe, including Ngati Mutunga, would have no mana today. If it were true that mana went for all time when people were displaced from the land, then most Maori would be without mana today in light of the land losses and the outcome of the wars that followed European colonisation.
But it is precisely because of the post-1840 effect that mana whenua interests must be preserved at 1840. That avoids the multi-faceted ways in which Māori were dispossessed of the source of mana whenua and the subsequent effect of new groups. Hapū and decisionmakers could treat 1840 as a benchmark date, or a qualifying point when mana whenua interests can arise.280 Claims at that point should be the predominant reflection of the relative strengths of iwi, although subsequent acts could “feather” it to inform the assessment of relative strengths between other 1840 rights holders.281 But any effect should only reflect voluntary hapū acts that may affect their status under tikanga (e.g., voluntary abandonment). Involuntary consequences, such as confiscation or inconsistent Crown title, should not affect the primary assessment of strengths at 1840. In the High Court, Collins J appeared to accept the proposition that while a Court or the Crown can recognise mana whenua, “they cannot confer or take away mana whenua”.282
Subsequent groups that have interests post 1840 should be recognised as mataawaka to account for modern day interests in land within a mana whenua’s rohe. But they must be subject to the primary rights of mana whenua if the 1840 guarantee is to be meaningful. Under tikanga, the rights to people external to the hapū depended on mana whenua consent.
278 Hirini Moko Mead “The Nature of Tikanga” (paper presented at Mai i te Ata Häpara Conference, Te
Wänanga o Raukawa, Otaki, 2000) at 16.
279 Waitangi Tribunal Rekohu, above n 46, at 27.
282 Kamo, above n 81, at [77].
E Conclusion
When the Crown introduced British land law principles to New Zealand, they were inconsistent with principles of land tenure under tikanga. Instead of individual hapū authority sourced from longstanding relationships with the land, now the Crown had sovereignty. Its policies dispossessed Māori of their land by assimilating customary title into a system that gave them a redefined, individual right. With sovereignty, governance and land superseded by legislation, traditional mana whenua rights were virtually extinguished. They depend on the ‘grace of statute’. But contemporary rights have diminished their role to mere consultation or advice (aside from the return of property by Treaty settlement). Parliament should give further recognition to mana whenua and tikanga to evolve towards a more certain ‘Third Law’ of Aotearoa. But many concepts, including mana whenua, are insufficiently nuanced, omitting layers of interests. A new, consistent, authentic definition for mana whenua should recognise those nuances and the bases of take whenua. It should also preserve rights in 1840 to respect the guarantee of tino rangatiratanga. Groups that have formed new relationships on mana whenua lands could be recognised as mataawaka where necessary, but subject to mana whenua primacy.
III Resolving Mana Whenua Disputes under Aotearoa New Zealand’s Third Law
Ko te kai a te rangatira he kōrero The food of chiefs is dialogue
An approach that blends the roles of Kupe and Cook’s laws and processes could resolve these questions in a way that respects and upholds the place of tikanga in the law’s future. In contemporary Aotearoa New Zealand, identifying who mana whenua are can be a complex issue. There may be overlapping layers of interests without clear or exclusive boundaries of authority in the Western sense.
A Challenges for Legal Positivism in Mana Whenua Disputes
With a system as fluid as tikanga, there may be inconsistencies with a broadly positivistic legal system which values certainty, predictability and the rule of law. Mana whenua disputes bring forth clashes between legal traditions.
The first challenge is that there were not certain boundaries (in the Western sense) when one group’s mana whenua began to enable clear allocation of rights. Because the land was not divided into exclusive parts, different groups could share resources and mana whenua in the same location.283 That is not to say that people at the time did not know the bounds of their authority. White stated that Māori knew “with as much certainty as the exact boundary of his land as [Pakehā] could do from the distances and bearings given by a surveyor”.284 This knowledge was passed intergenerationally. 285 Large natural landmarks like streams or mountains (waewae kapiti) provided larger, general signifiers of the land-
283 Meredith Mana Whenua, Mana Moana, above n 60, at 17-18 as cited in Mead Tikanga Māori, above
n 3, at 230.
284 White Māori Customs, above n 72, at 185.
285 Firth Primitive Economics, above n 16, at 383-384.
people relationship. Further, hapū laid down certain marks to demarcate territory, including paenga,286 pokapoka,287 and pou paenga.288
A second challenge is that evidence of customary use rights may not be easily distinguished from proof of occupation. As Erueti explains, “competing claims of rights [to resources] coupled with the intricate system of overlapping and intersecting rights held by members of different kinship groups makes it difficult to say who “owned” the land, or waters of lakes, lagoons, rivers, and the open seas”.289 However, rights of use is a separate question from the boundaries of a hapū’s territory. One tribe may have use rights in another’s rohe, but that does not mean it is part of their territory over which they have mana whenua. There were also rights analogous to an easement, called pou rāhui, which provided “corridors of access” for neighbouring iwi to access food resources.290 The Adjudication Panel also found that the common use of huarahi291 did not give rise to mana whenua, analogising to powhiri in which manuhiri do not gain mana whenua from mere access to the land.292 So rights of use cannot per se demonstrate mana whenua, although it may show inter-tribal relationships providing evidence of belonging to the area.
There may also be a lack of primary evidence from 1840, or earlier events, relevant to the inquiry, mainly because these customs were exercised amongst a predominantly oral culture. For example, evidence of ancestral significance might be challenging to ascertain, as the Environment Court found in one case, being unable to decide whether certain lands were waahi tapu because of competing views on whether an ancestor was buried there.293 However, in Ngāi Te Hapū, responding to the notion that the lack of written evidence weakened the strength of oral evidence, it said:294
286 ‘Lines of flat boulders’.
287 ‘Holes or pits’.
288 ‘Carved posts’. Firth Primitive Economics, above n 3, at 383-384.
289 Erueti “Māori Customary Law”, above n 84, at 43.
290 Wiri “Mana Whenua and the Settlement”, above n 42, at 5.
291 ‘Roads’.
292 Jackson, Potiki and Ngata The Findings of the Adjudication Panel, above n 49, at 29.
294 Ngāi Te Hapū, above n 211, at [37].
By their nature, oral sources are transmitted in forms that are not written sources. The fact that they may be localised may indicate, as in this case, that those with the substantive history and traditions, and customary associations and activities associated to the reef are those with the most proximate relationship to it. In other words, those with the mana whenua and customary authority over the reef, along with those who have cultural and customary associations to Motiti and the reef are likely to be the holders of this knowledge.
It noted in another case that “differences occur in all forms of history, whether traditional, academic or popular, and whether oral or written”.295 Decisionmakers in such disputes could adopt a pragmatic approach to assessing the probity of evidence. Furthermore, the 2014 Adjudication Panel noted that disputing iwi accepted “the right of each iwi to tell their stories “for themselves, on their own terms, answerable to one another”.296
The difficulty in putting weight on Native Land Court decisions is that they may be defective in several ways. Wiri notes that many decisions were based on economic or political reasons, rather than mana and take whenua.297 For example, in the Papakura claim, the Court ignored ahikā and patrilineal descent of rights in deciding that all children of a deceased intestate person would share in the estate regardless of whether they lived on the lands.298 Erueti also notes that the Court placed disproportionate weight on take raupatu, resulting in some parties tailoring their claims to “fit with the Court’s version of custom”, despite not following it up with ahikā.299 In one case, the Court granted 97.3% of title to land to Ngāti Mutanga based on its 1835 conquest, with the remaining 2.7% awarded to Moriori. Ngati Mutunga only had 20 tribal members living there by 1868,300 despite the Moriori having occupied there for over 500 years with pacifist customs that did not recognise conquest-based land tenure.301 So there were sometimes problems of distorted,
295 Tūwharetoa, above n 214, at [38].
296 Jackson, Potiki and Ngata Findings of the Adjudication Panel, above n 49, at 18.
297 Wiri “Mana Whenua and the Settlement”, above n 42, at 7.
299 Erueti “Māori Customary Law”, above n 84, at 55.
300 See Kamo, above n 81, at [15].
301 See [13], [15] and [22].
even untruthful, evidence.302 As Durie puts it, “evidence given before the court and evidence on the marae is not the same”.303
Yet, where there may be a lack of primary evidence, the Courts’ decisions may nevertheless assist. As the Māori Land Court acknowledged, “the reality is that... the records that have survived provide a rich source of material on the historical overlays of Māori custom and tradition relating to land”.304 The ‘Treelords’ Deal requires adjudicators to account for the Court’s decisions, and the Adjudication Panel tested the weight it would put on them by using a two-fold measure:305
The first may be called a “tikanga respect measure” in which even allowing for the context within which court evidence was given, and the intent of the Court itself, there should be a presumption of respect for tīpuna kōrero unless there is clear and incontrovertible proof of dishonesty or deceit.
The second measure is the identification of consistency. That is, do the kōrero of tīpuna across a range of cases show consistency in their use and definitions of traditional knowledge, whakapapa, take, tikanga, and so on?
This approach would provide decisionmakers with the benefit of Native Land Court decisions, rather than excluding them altogether, except where the evidence shows that its credibility is questionable.
A fourth challenge is how to account for the ‘layers of interest’ that existed in 1840. Mana whenua groups may have different purposes in claiming mana whenua. They might seek exclusive interests in certain areas for commercial opportunities or primacy over others in advisory or consultative capacities. In many cases, however, there may be too many layers to recognise merely exclusive interests. But as the Waitangi Tribunal commented:306
302 Jackson, Potiki and Ngata Findings of the Adjudication Panel, above n 49, at 19.
303 Durie “Will the Settlers Settle?”, above n 12, at 452.
304 Bell v Churton (2019) 410 MB 244 at [21].
305 Jackson, Potiki and Ngata Findings of the Adjudication Panel, above n 49, at 19.
306 Waitangi Tribunal Rekohu, above n 46, at 28-29.
[S]ubject to such arrangements as may have been settled by the people themselves, our main concern is with the use of the words ‘mana whenua’ to imply that only one group can speak for all in a given area when in fact there are several distinct communities of interest, or to assume that one group has a priority of interest in all topics for consideration. Some matters may be rightly within the purview of one group but not another.
A more apparent distinction between mana whenua and mataawaka groups should assist here to exclude interest groups from the equation. But where these layers exist, they ought to be recognised to better match rights with consequences more proportionately. For example, in a case before the Māori Land Court, Ngāti Rehia sought exclusive rights in rediscovered taonga, but they had to take a non-exclusive approach to recognise the other “undeniable” hapū interests.307
Depending on the strength of each claimants’ evidence, multiple mana whenua interests could be recognised across a spectrum, as shown in Figure 2:
Figure 2: Spectrum of Mana Whenua Interests Based on Take Whenua and Ahikāroa as at 1840
Figure 2, which I have created, draws on some of the work of the Adjudication Panel.308 As shown, they broke down the different layers of interest into limited, medial and substantive interests based on the significance of the tribe’s presence (ahikāroa) and the strength of their authority, in view of others, over the relevant lands.309 They weighed substantive interests twice as much as medial interests, and four times as much as limited interests.310
307 Acting Chief Executive of the Minister for Culture and Heritage v Ngāi Tawake ki Tamaki (2015) 106
Taitokerau MB 210 at [49].
308 Jackson, Potiki and Ngata Findings of the Adjudication Panel, above n 49, at 33.
309 Ibid.
310 Ibid.
There appears to be support in the case law for more varied treatment of mana whenua rights according to layers. Gault J commented that where two entities representing mana whenua present competing evidence on cultural effects, the Environment Court would need to understand each’s claim for representative status which may affect the weight given.311
This may invite approximations or pragmatism in determining relative proportions, but that may be the best possible outcome anyway, even in a world of perfect evidence. It recognises though that this is a task of identifying the arrangements of relationships, rather than specific property rights (although they may be a consequence). As the Māori Land Court commented in recognising non-exclusive interests, it allows parties to “freely recognise their whanaungatanga and responsibilities to each other”.312
Greater accuracy may be obtained by applying an approximation approach over an area of land that is specific as possible. For example, the Environment Court recognised several distinct mana whenua interests in Ngāi Te Tapu.313 This case concerned who the mana whenua were in lands, islands and reefs affected by shipwrecking of the Rena on a reef off Motiti. Confronted with several competing claims of right, the Court looked at distinct areas. They found that three iwi had mana whenua status over Motiti, and one had mana whenua over the affected mainland.314 They recognised the mana whenua status accorded by statute. They made clear that those statutory rights did not extend over all the Mōtiti lands,315 but construed them to only the Ōtāiti reef to exercise kaitiakitanga for the fisheries. Any kaitiakitanga they sought to exercise over the lands “must depend on cultural and customary associations with Te Whānau a Tauwhao and for Ngāti Pukengā through Ngāi Te Hapū”.316
B A Blended Model for Resolving Mana Whenua Disputes
Finally, this paper sets out what a possible blended model for resolving mana whenua disputes could look like, applying the relevant principles as outlined. I argue this should be
311 SKP Incorporated v Auckland Council [2020] NZHC 1390 at [54] per Gault J.
312 Ngāi Tawake ki Tamaki, above, n 306, at [49].
313 Ngāi Te Hapū, above n 211.
314 At [84]-[87].
315 At [89].
316 At [90].
a three-stage process, which could enhance certainty and the exercise of mana whenua rights.
The starting point for mana whenua disputes should be direct negotiations between claimants. How these are conducted would a matter for them. To arrive at a more blended system, Māori are “seeking to reclaim the validity of our own institutions, the specifics of our own faith, and the truths of our own history”.317 Jackson notes that tikanga contemplated the “potential for conflict in human relations, conflict sourced in the beginning disputes of creation”.318 While some pre-colonial disputes over territory were settled by raupatu, Jackson notes that tikanga developed approaches of consensual mediation “to maintain balance in accordance with the notion of whakawhitiwhiti kōrero”.319 For example, Firth notes that members of the tribe had disputes over land:320
“[t]he question was generally thrashed out in an open assembly of the people, each party endeavouring to prove their claim by the recitation of whakapapa or genealogy, substantiating it by citing acts of ownership or occupation performed without opposition by his ancestors, such as cultivation, taking of game, putting a mark upon a tree or rock, or some similar deed by which priority was established.”
A range of factors, including the exercise of political authority, mana, rangatiratanga, utu and muru protected the parties’ performance interests.321 As Joseph states, Māori “gave more weight to mediated outcomes or they sought the justice of the case according to the whole context and without a comparable search for a single governing rule”.322
In the contemporary context, the first steps would probably include hui at the marae between all the hapū involved. They would be conducted in the spirit of manaakitanga,
317 Jackson “The Treaty and the Word”, above n 20, at 9-10.
318 At 5.
319 Ibid. Whakawhitiwhiti kōrero means discussion, deliberations, negotiations and communications.
321 Jackson “The Treaty and the Word”, above n 20, at 5.
which encompasses notions of mutual respect, generosity, hospitality, and recognition of the mana of others. However, Wiri has argued that that the ‘Treelords’ deal tikanga-based resolution processes have suffered from the “deliberate misinterpretation and false evidence of mana whenua by larger, more powerful iwi”.323 He notes an example one tribe argued ahi mātaotao was a claim to land tenure when it refers to extinguishment.324 He argues there is an imbalance in bargaining power present so that some smaller iwi with “substantial rights to the disputed lands” lose out.325 Some of this may down to lack of baseline clarity on the mana whenua concept because some thought ahikā was unnecessary for mana whenua.326 But given that the contemporary context may involve finite commercial opportunities in settlement of grievous Treaty breaches, and representation by modern commercial entities, there is a risk negotiations might be conducted in a more transactional, rather than tikanga, way.
There is something to be said for some level of broader involvement of iwi or hapū membership as customarily practised. It would enhance transparency and accountability, and ultimately the people are the source of knowledge for these kinds of historical matters, particularly kaumatua. Conducting these in marae would capture the negotiations’ gravity because they are “architectonic representation[s] of a sacred ancestor [that] incorporates the stories of the people, living and dead”.327
It is crucial to maintain whanaungatanga that negotiations are conducted in the spirit of good faith and co-operation. It is also how tikanga envisaged this form of customary resolution in terms of whakawhitiwhiti kōrero, and inherent in the values of manaakitanga and mana. That could embrace a willingness to compromise where possible because hapū would customarily give way in favour of tribal unity and the interests of others.328 The rest of the legal system should then recognise the outcomes of these negotiations. Ultimately, the parties can bring in independent assistance in the next stage, if necessary.
323 Wiri “Mana Whenua and the Settlement”, above n 42, at 1.
324 At 13.
325 At 1.
326 At 13.
327 Rosenfeld The Island Broken in Two Halves, above n 44, at 89.
328 Firth Primitive Economics, above n 16, at 371.
Arbitration or adjudication, according to tikanga, would be the next stage. As Kawharu notes, “arbitration of cross claims disputes has the potential to be a forerunner to wider use of arbitration for resolving intra Māori disputes”.329 The principal advantage is that arbitration allows the application of non-state laws to govern their relationships, as in religious and international commercial arbitrations.330 Arbitration would enhance rangatiratanga of tribes to control their own processes in a way that does not “unacceptably interfere with judicial powers of supervision”.331 For example, in Bidois v Leef, the parties could incorporate Māori norms, relax procedural formalities and the approach to witnesses, and try to conduct the proceedings in a “rangatira ki te rangatira” way with independent adjudicators.332 There is much more flexibility to apply all relevant tikanga than restrictive common law tests that require proof of tikanga before application,333 which is problematic because it treats it as analogous to foreign law.334
However, some argue arbitration methods create potential inconsistencies with the rule of law that like cases must be treated alike.335 But there are commonalities across tikanga and sufficient specificity and content in the principles of take whenua to support reasoned outcomes. To the extent those are common to the hapū concerned, there will likely be consistent application of the rules to the unique circumstances of each claim. However, it should be remembered that under tikanga, the maintenance of relationships, rather than strict consistency of application, is the primary goal. This might call for a degree of compromise and realism by adjudicators because the context is paramount under tikanga, which contemplates deviations from the norm.
Parliament has shown its support for the arbitrability of mana whenua disputes in the ‘Treelords’ settlement which allocates 176,000 hectares “on the basis of mana whenua and the agreements reached between iwi in a kanohi ki te kanohi process or otherwise determined by the resolution process”.336 The first stage identifies the mana whenua
329 Amokura Kawharu “Arbitration of Treaty of Waitangi Settlement Cross-Claim Disputes” (2018) 29
PLR 295 at 296.
330 At 303.
331 At 305.
332 Bidois v Leef [2017] NZCA 437 at [13]- [14].
333 Takamore (SC), above n 36, at [95].
334 Boast “Māori Customary Law and Land Tenure”, above n 30, at 36.
335 Kawharu “Arbitration”, above n 329, at 304.
336 Central North Island Forest Lands Collective Settlement Act 2008, sch 2, cl 2(1).
interests, accounting for non-exhaustive factors like take whenua, ahikāroa, ahi tahutahu337 and ahi mātaotao, based on oral kōrero, whakapapa, waiata, tribal history, written sources and Native Land Court decisions.338 The second stage is where overlapping interest groups negotiate, represented by two people appointed by the iwi governance entity in a kōrero rangatira way, without lawyers and historians.339 The Act promotes a range of “innovative solutions”.340 The final stage, if necessary, is mediation or adjudication, overseen by persons with fluency in Te Reo Māori and knowledgeable in tikanga.341 Legal advice may assist them, and they must give written reasons.342
The underlying principles of the process should promote mana, whanaungatanga, manaakitanga and kotahitanga and desire of post-settlement collaboration amongst the iwi.343 While this approach was novel in the Treaty settlement context,344 significant disagreements between interested iwi arose during the process.345 Two examples of the tests used for mana whenua in these contexts, by Jackson, Potiki and Ngata over the Kāingaroa Lands, by Sir Hirini Moko Mead for Ngāti Manawa, are located in the Appendixes. The former provides broad principles grounded in take whenua, and the latter offers more specific elements to provide a matrix to consider different claims.
Despite the considerable advantages of an arbitration approach to these disputes, it does not always work and sometimes results in extensive post-award litigation.346 Kawharu notes that appeals against tikanga based awards are limited because the tikanga has to be “notorious”.347 Only notorious customs can be the subject to an arbitral appeal.348 In Ngāti Hurungaterangi v Ngāti Wahiao, the High Court noted that the “variability of opinion on the topic, the influences of context (particularly time and space) and the deeply divergent views of the contesting parties necessarily means concepts of mana whenua have not
337 ‘Intermittent’ fires of occupation.
338 Schedule 2, cls 2 and 3.
339 Schedule 2, cls 5(1) and (2).
340 Schedule 2, cl 5(3).
341 Schedule 2, cls 6(3),(7) and (10).
342 Schedule 2, cls 6(11) and (15).
343 Schedule 2, cl 2(3).
345 Jones “Whakaeke i ngā ngaru”, above n 51, at 183.
346 See Bidois, above n 50, and Ngāti Hurungaterangi and others v Ngāti Wahiao [2014] NZCA 592.
347 Kawharu “Arbitration”, above n 329, at 305-306.
348 Ngāti Hurungaterangi v Ngāti Wahiao [2016] NZHC 1486, [2016] 3 NZLR 378 at [176].
assumed notorious status.”.349 Kawharu argues that the current approach “imposes a hurdle on Māori disputants that is not applied to non-Māori, and treats (local, indigenous) tikanga as a secondary (foreign!) source of law”.350 While finality of arbitrations is an important factor, she argues it denies Māori of the same access to judicial review available to all other arbitrating parties in New Zealand.351
In the final section, I argue the courts should better recognise tikanga, and adjudicate mana whenua disputes based on the take whenua principles in this paper.
Judicial involvement in the consideration and application of tikanga is a contentious issue from the perspective of some Māori. The concern is that the courts may misapply, change or subordinate tikanga to other statutory and common law principles. Many Māori consider tikanga to be a taonga because it was the practice of their tupuna and used in their daily lives, providing a direct connection to the ways of their ancestors. But ‘separating’ Māori laws from the administration of justice by the courts risks the common law, the practices and precedents of our collective society, developing in ways that do not reflect tikanga values. This means legal principles may not reflect New Zealand’s past and present circumstances.
Claimants in mana whenua disputes would benefit from a final judicial determination of status where they cannot negotiate or arbitrate the dispute.352 Wiri argued that in that situation, “the only solution is to allow an impartial legal body with expert knowledge of mana whenua” to determine rights.353 As Elias CJ observed:354
Rights and interests according to tikanga may be legal rights recognised by the common law and, in addition, establish questions of status which have consequences under contemporary legislation.
[...]
349 At [174].
350 Kawharu “Arbitration”, above n 329, at 306.
351 Ibid.
352 See Ngāti Whātua, above n 241, at [126] per Elias CJ.
353 Wiri “Mana Whenua and the Settlement”, above n 42 at 14.
354 Ngāti Whātua, above n 241, at [53].
Where claims of right or legal interest are made in our constitutional order, it is the function of the courts to determine them.
Mead argues that if a thorough historical consideration of the land ascertains who had authority and control of it in 1840, “should we not recognise that fact?”.355 There is, however, an acknowledged lack of expertise amongst the judiciary on traditional Māori words and concepts.356 Here, expert evidence on take whenua and associated mana whenua rights would assist.357
Notwithstanding that, tikanga is being engaged with because it is part of the “values and cultural precepts” of New Zealand’s law.358 The Supreme Court’s recent decision to continue Peter Ellis’s appeal against his convictions despite his death may provide an example of tikanga values of mana and ea might prevail over the longstanding common law position that a person’s rights end on death.359 The judgment may clarify that tikanga values can apply to Māori and non-Māori, elevating their role in New Zealand’s legal system. As more of these cases arise, there will be great value in precedents that appropriately set out and reason through tikanga principles and rules to assist in certainty and predictability.
But there may also be instances where the tikanga rule does not prevail, in favour of other statutory or common law rules. For example, the statutory allocation of mana whenua to one group (who may not have mana whenua, according to tikanga) means that tikanga may not be the sole judge of its own content.360 Ultimately that is a constitutional issue because tikanga, as custom, is recognised by the common law; subordinate to parliamentary supremacy.
355 Mead Tikanga Māori, above n 3, at 226.
359 The Court has not given its substantive reasons yet: Peter Hugh Mcgregor Ellis v R [2020] NZSC 89.
When considering statutory incorporation of tikanga, it will be crucial whether the judge treats it as an issue of interpretation, or a pure application of the custom. Under the former, they may not engage in the complexities of the custom.361 If they choose to apply it, it may be limited or restrained by the ‘reasonableness’ requirement.362 For example, in Takamore v Clarke, the High Court observed that the Tuhoe tikanga to take a deceased person to return them to the tribal whenua was unreasonable because it would conflict with the personal rights belonging to each citizen subject to the benefits of the common law.363 They also took the view that the deceased’s person’s choice to live away from the tribal lands meant the tikanga did not apply to him.364 As both higher courts observed, however, a perceived conflict with one’s personal rights would mean no communal or whakapapa based right would survive.365 In their view, the High Court should not have “jumped to the conclusion” that one had repudiated tikanga by choosing to live away from the lands.366
However, the Court of Appeal found the tikanga unreasonable because the custom, which sometimes involved the taking of a deceased,367 inconsistent with the common law principle of “right not might”,368 and the custom’s provision for “debate and negotiation” may not make the custom sufficiently certain for recognition.369 Both of these concerns would also be relevant in understanding the mana whenua concept. Still, they would not seem apt limitations when the custom’s subject matter is about territory, authority and jurisdiction.370 Ultimately, the Courts should not be expected to apply unreasonable customs, but they should take care to make that finding:371
361 For example, in Te Runanga o Muriwhenua v Te Runanganui o Te Upoko o Te Ika Association
Incorporated [1996] 3 NZLR 10, the High Court treated the issue as one of statutory interpretation rather than an incorporation of Māori customary law, without hearing evidence on the question: at 18.
362 Public Trustee v Loasby [1908] NZGazLawRp 71; (1908) 27 NZLR 801 at 806.
363 Clarke v Takamore [2009] NZHC 901; [2010] 2 NZLR 525 (HC) at [82], [87]-[88].
365 Takamore (CA) at [150], and Takamore (SC), above n 36, at [99]-[100].
366 Takamore (CA) at [158], and Takamore (SC) at [30].
367 Takamore (CA) at [326] per Chambers J (dissenting).
368 At [163]-[166].
369 At [167].
371 Takamore (SC), above n 36, at [97].
The role of the Court is not to judge the validity of traditions or values within their own terms. It is concerned with the application of established traditions and values in fulfilling the Court’s own function of resolving disputes which need its intervention. The determination of the Court says nothing about what is right according to the value systems themselves. Indeed, the determination of the Court can only settle the immediate legal claim.
Many of these issues could subside by careful analysis of historical evidence as applied to well defined, customs. The High Court has “the judicial jurisdiction that may be necessary to administer the laws of New Zealand”.372 It can also state a case to the Māori Appellate Court on any “questions of fact relating to the interests or rights of Māori in any land” or “any question of tikanga Māori”.373 The Waitangi Tribunal has similar powers,374 and the Māori Land Court has jurisdiction to advise other courts on representative status.375 The Environment Court has commented that if a mana whenua dispute does have to be settled, it would prefer the Māori Land Court to deal with it under that jurisdiction.376
In these ways, legislation has established mechanisms to ‘funnel’ tikanga-related disputes to the Māori Land and Appellate Courts. This recognises that those bodies are well placed to deal with tikanga matters. There is a certain irony in having these Courts, the Native Land Courts’ predecessor, resolving mana whenua disputes in view of the historical effect on customary land tenure. But its judges are now appointed having regard to their knowledge and experience of Te Reo Māori, tikanga and the Treaty of Waitangi.377 But Judge Fox argues “it would be a mistake to conclude that the judges are experts in tikanga Māori” because the complex statutory framework “means that lawyers... have in the past dominated our bench”.378 But she also notes the Court has more flexible procedures379 which allows it “to adopt marae kawa or protocols and to hear cases in the Māori language”.380 She used these procedures to sit with elders at many standard court sittings,
372 Senior Courts Act 2016, s 12(b).
373 Te Ture Whenua Māori Act 1993, s 61(1).
375 Te Ture Whenua Māori Act 1993, s 30.
376 Auckland Council, above n 212, at [37].
377 Te Ture Whenua Māori Act 1993, s 7(2A); Erueti “Māori Customary Law”, above n 84, at 60.
379 See Te Ture Whenua Māori Act 1993, s 66.
380 Fox “Access to Customary Law”, above n 97, at 322.
not as part of the Court, but to provide assistance on tikanga issues.381 The Court is also exploring options to include kaumātua or “pūkenga” as full members of the bench.382 In view of their relative expertise, and flexibility to bring in tikanga experts, the Court is best placed to resolve mana whenua disputes where negotiation and arbitration have failed.
C Conclusion
Resolving disputes of mana whenua in the contemporary context is not a straightforward issue. At issue are real challenges to the Western legal positivistic paradigm which aims for certainty and predictability, when tikanga matters principally aimed for the complex arrangement of relationships between people. There are not the same kinds of clear boundaries of authority, because authority often overlapped amongst hapū and iwi, and shared resources which can blur the line between evidence of territory and use rights. This is difficult where there is a lack of primary evidence, and when the reliability of Native Land Court decisions can be questionable.
But where there are rights at issue cognisable to the dominant English legal paradigm, difficulty cannot be an excuse. A system that pays appropriate respect to tikanga traditions should recognise those rights and the layers of substantive, medial and limited interests within them. These must be primarily assessed as at 1840 to reflect the promise of tino rangatiratanga. Still, only subsequent voluntary acts of hapū and iwi should inform those interests, not acts of the Crown.
These matters should be decided principally by the hapū and iwi involved in a way consistent with tikanga and ultimately determined by them. If that fails, arbitration approaches permit adjudication according to tikanga. A blended Kupe-Cook system demands that the Courts engage in matters of tikanga where there are rights at stake. If parties cannot determine their dispute themselves or by arbitration under their own laws, the Māori Land or Appellate Court is well placed to decide the matter for them at first instance in a way that appreciates and understands tikanga.
381 Ibid.
382 Ibid.
Conclusion
He manu aute, e taea te whakahoro A kite that is slackened off flies away
This paper has traced mana whenua under Kupe’s law, its historical treatment under Cook’s law, and how contemporary disputes might be resolved in a process that blends the principles and methods of both traditions.
Their rights mostly depend on statutory incorporation, because their customary rights are inconsistent with the current structure of New Zealand’s system of government, which recognises Crown sovereignty and its system of land law and governance. This leaves mana whenua with largely consultative or kaitiaki rights in the resource management, environmental, and local government area, with others standing to gain from relatively meagre compensatory measures from Treaty of Waitangi settlements. Should New Zealand’s constitutional and political culture continue to evolve to give further recognition of the Treaty and tikanga Māori, it will become even more critical to identify who mana whenua are in a certain way.
But their definition has not been sufficiently nuanced to recognise their customary bases and layers of interests, and proposed reforms to the RMA risk upsetting the principle that mana whenua should be determined at 1840. That marked the time when customary rights in land received common law protection under a new sovereign which promised tino rangatiratanga over their lands. Opening the potential for mana whenua groups to arise post-1840, when Māori were dispossessed of their lands (often through Treaty breaches) undermines the protection accorded to their customary rights in 1840.
New groups who have formed new relationships with the land in the zone of another’s mana whenua might receive recognition in a contemporary form of mataawaka. Still, their rights should be subordinate to those with mana whenua under custom. Any voluntary mana whenua acts after 1840 which may have customary consequences may “feather” the assessment at 1840. However, they should not fundamentally disturb the layers of interests as at 1840 to respect their protection, nor should any Crown action disturb those rights.
Often disputes of mana whenua status among multiple claimant groups when it is in their interests. I have set out a method of resolving disputes based on embracing the best of both Kupe’s and Cook’s legal traditions. The first step should be negotiations between the
claimant hapū, as those with the foremost expertise and knowledge to apply their own laws. This might involve a marae style hui, in a way that fosters values of manaakitanga and ultimately kotahitanga. It might also involve wider hapū engagement, to ground the process in accountability as was customary.
If parties cannot agree, they could arbitrate the dispute, having the crucial advantage of being able to apply their laws, free from the restraints of a court process and remedy. But experience has shown that these still may not be determinative, and I argue that the courts should finally adjudicate the dispute. There may be difficulties with ascertaining primary evidence or the credibility of Native Land Court decisions, but the courts are well placed to deal with this. Where there are rights at issue, parties should have the right to have their cases decided in a way that understands the complexities of their history and tikanga. The Māori Land and Appellate Courts are best placed at the first instance to resolve them, and other courts have statutory avenues to refer cases to them on such matters.
Over time, that will generate consistency, and once rights and layers of interest are determined as they were at 1840, there will be greater certainty in who should exercise or possess current and emerging rights of mana whenua.
Words: 14,785.
Bibliography
A Cases
Acting Chief Executive of the Minister for Culture and Heritage v Ngāi Tawake ki Tamaki
(2015) 106 Taitokerau MB 210.
Attorney-General v Ngāti Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA). Auckland Council v Auckland Council [2011] NZEnvC 77. Bell v Churton (2019) 410 MB 244.
Bidois v Leef [2017] NZCA 437.
Clarke v Takamore [2009] NZHC 901; [2010] 2 NZLR 525.
Golden Bay Marine Farmers v Tasman District Council EC Wellington W19/2003, 27 March 2003.
Heybridge Developments Limited v Western Bay of Plenty District Council EC Tauranga A231/2002.
Jackson v Te Rangi [2014] NZHC 2918.
Kamo v Minister of Conservation [2018] NZHC 1983, [2018] NZAR 1334.
Luston v Bay of Plenty Regional Council A 49/94.
Ngāti Hurungaterangi and others v Ngāti Wahiao [2014] NZCA 592.
Ngāti Hurungaterangi v Ngāti Wahiao [2016] NZHC 1486, [2016] 3 NZLR 378
Ngāi Te Hapū Incorporated & Anor v Bay of Plenty Regional Council [2017] NZEnvC 073.
Ngāti Whātua Orākei Whai Maia Ltd v Auckland Council [2019] NZEnvC 184.
Nireaha Tamaki v Baker [1901] UKLawRpAC 18; [1901] AC 561 (PC).
Paihia v Northland Regional Council A77/95 (EC).
Papakura - Claim of Succession in Oakura Case (Compensation Court, New Plymouth, 1866) in Fenton Important Judgements Delivered in the Compensation Court and Native Land Court (Henry Brett, General Steam Printer, Auckland, 1879) at 19.
Peter Hugh Mcgregor Ellis v R [2020] NZSC 89. Public Trustee v Loasby [1908] NZGazLawRp 71; (1908) 27 NZLR 801 at 806. R v Symonds (1847) NZPCC 382 (SC).
SKP Incorporated v Auckland Council [2020] NZHC 1390.
Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733.
Tawa v Bay of Plenty Regional Council A18/95 (EC).
Te Kura Pukeroa Māori Inc v Thames-Coromandel District Council (NZEnvC W069/07, 5 September 2007).
Te Pairi v Gisborne District Council W93/04 (EC).
Te Rangi v Jackson [2015] NZCA 490.
Te Runanga o Muriwhenua v Te Runanganui o Te Upoko o Te Ika Association [1996] 3 NZLR 10 (CA).
Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission [1999] NZCA 232; [2000] 1 NZLR 285.
Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission [2001] UKPC 32; [2002] 2 NZLR 17 (PC)
Te Weehi v Regional Fisheries Officer [1986] NZHC 149; [1986] 1 NZLR 680.
Treaty Tribes Coalition, Te Runanga o Ngāti Porou & Tainui Māori Trust v Urban Māori Authorities [1997] 1 NZLR 513 (PC).
Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZRMA 520.
Wi Parata v Bishop of Wellington (1877) 2 NZ Jur (NS) SC 72.
B Legislation
English Laws Act 1858. Native Lands Act 1862.
Suppression Rebellion Act 1863. New Zealand Settlements Act 1863. Native Land Act 1865.
Native Land Purchase and Acquisition Act 1893. The Māori Lands Administration Act 1900.
Land Titles Protection Act 1902. Native Land Act 1909.
Māori Affairs Act 1953. Treaty of Waitangi Act 1975. Reserves Act 1977.
Conservation Act 1987. Resource Management Act 1991.
Te Ture Whenua Māori/Māori Land Act 1993. Fisheries Act 1996.
Māori Fisheries Act 2004. Walking Access Act 2008.
Central North Island Collective Settlement Act 2008. Local Government (Auckland Council) Act 2009.
Local Government (Tamaki Makaurau Reorganisation) Act 2009. Limitation Act 2010.
Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014. Senior Courts Act 2016.
C Ordinances
Native Exemption Ordinance 1844 7 Vict 18.
D Treaties
Declaration of Independence of the United Tribes of New Zealand 1835.
The Treaty of Waitangi 1840.
E Books and Chapters in Books
Andrew Erueti “Māori Customary Law and Land Tenure: An Analysis” in Richard Boast, Andrew Erueti, Doug McPhail and Norman Smith (eds) Māori Land Law (2nd ed, LexisNexis NZ, 2004).
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 (2nd ed, Oxford University Press, Auckland, 2005).
Aroha Harris and Melissa Matuina Williams “Tangata Whenua, Tangata Ora, 1990-2014” in Atholl Anderson, Judith Binney and Aroha Harris Tangata Whenua: An Illustrated History (Bridget Williams Books, Wellington, 2014).
Carwyn Jones “Whakaeke i ngā ngaru – riding the waves: Māori Legal Traditions in New Zealand Public Life” in Lisa Ford and Tim Rowse (eds) Between Indigenous and Settler Governance (Oxon, Routledge, 2013).
Claudia Orange The Treaty of Waitangi (Allen & Unwin, Wellington, 1987).
Clive Barlow Tikanga Whakaaro: Key Concepts in Māori Culture (Oxford University Press, Melbourne, 1991).
Eddie Durie “The Law and the Land” in Jock Phillips (ed) Te Whenua, Te Iwi: The Land and the People (Allen & Unwin/Port Nicholson Press, Wellington, 1987).
Hirini Moko Mead Tikanga Māori: Living By Māori Values (Revised Edition, Huia Publishers, Wellington, 2016).
HLA Hart The Concept of Law (2nd ed, Oxford University Press, 1994).
Jacinta Ruru, “Constitutional Indigenous Treaty Jurisprudence in New Zealand” in Patrick Macklem and Douglas Sanderson From Recognition to Reconciliation: Essays on the Constitutional and Entrenchment of Aboriginal & Treaty Rights (University of Toronto Press, Toronto, 2016).
Jean E. Rosenfeld The Island Broken in Two Halves: Land and Renewal Movements Among the Māori of New Zealand (Pennsylvania State University Press, 1999).
John Locke Two Treatises on Government (1690).
John White Māori Customs and Superstitions (Kiwi Publishers, Christchurch, 1999). Margaret Mutu The State of Māori Rights (Huia Publishers, Wellington, 2011).
Mason Durie Te Mana, Te Kawanatanga: The Politics of Māori Self Determination
(Oxford University Press, Auckland, 1998).
Michael Reilly “Te Tīmatanga Mai o Ngā Atua: Creation Narratives” in Michael Reilly, Suzanne Duncan, Gianna Leoni, Lachy Paterson, Lyn Carter, Matiu Rātima and Poia Rewi Te Kōparapara: An Introduction To The Māori World (Auckland University Press, Auckland, 2018).
Moana Jackson “The Treaty and the Word: the Colonisation of Māori Philosophy” in G. Oddie and R. Perrett (eds) Justice, Ethics and New Zealand Society (Oxford University Press, Auckland, 1992).
Norman Smith Native Custom and Law Affecting Native Land (Māori Purposes Fund Board, Wellington, 1942).
Paul McHugh The Māori Magna Carta (Auckland, Oxford University Press, 1991).
Paul Moon Ngapua: The Political Life of Hone Heke Ngapua, MHR (David Ling Publishing, 2006).
Peter Buck The Coming of the Māori (Māori Purposes Fund Board, Wellington, 1929).
Ranginui Walker Ka Whawhai Tonu Matou: Struggle Without End (Penguin Books, Auckland, 1990).
Raymond Firth Primitive Economics of the New Zealand Māori (Routledge, Oxon, 2011).
R Dworkin “Is Law a System of Rules?” in The Philosophy of Law (Oxford University Press, Oxford, 1977) 38.
R Dworkin Law’s Empire (Harvard University Press, Cambridge, 1986).
R Dworkin Taking Rights Seriously (Harvard University Press, Cambridge, 1977).
Richard Boast “Māori Customary Law and Land Tenure” in Richard Boast, Andrew Erueti, Doug McPhail and Norman Smith (eds) Māori Land Law (2nd ed, LexisNexis NZ, 2004).
Robert J. Miller, Jacinta Ruru, Larissa Behrendt, and Tracey Lindberg Discovering Indeginous Lands: The Doctrine of Discovery in the English Colonies (Oxford University Press, New York, 2010).
Suzanne Duncan and Poia Rewi “Tikanga: How Not to Get Told Off!” in Michael Reilly, Suzanne Duncan, Gianna Leoni, Lachy Paterson, Lyn Carter, Matiu Rātima and Poia Rewi Te Kōparapara: An Introduction To The Māori World (Auckland University Press, Auckland, 2018).
Vincent O’Malley Agents of Autonomy: Māori Committees in the 19th Century (Huia Publishers, Wellington 1998).
F Journal Articles
Caren Fox “Access to Customary Law: New Zealand issues” (2010-2011) 13-14 Yearbook of New Zealand Jurisprudence 224.
Carwyn Jones “A Māori Constitutional Tradition” (2014) 11 NZJPIL 187.
Catherine Iorns Magallanes “The Use of Tangata Whenua and Mana Whenua in New Zealand Legislation: Attempts at Cultural Recognition” (2010) NZACL Yearbook 83
ET Durie “Will the Settlers Settle? Cultural Conciliation and the Law” [1996] OtaLawRw 1; (1996) 8 Otago L Rev 449.
Jeremy Waldron “Enough and as Good Left for Others” (1979) 29 The Philosophical Quarterly 319.
John William Tate “The Privy Council and Native Title: A Requiem for Wi Parata” [2004] WkoLawRw 6; (2004) 12 Waikato L Rev 99.
Joseph Williams "Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law" (2013) 21 Waikato L Rev.
Linda Te Aho “Contemporary Issues in Māori Law And Society: Mana Motuhake, Mana Whenua” [2006] WkoLawRw 6; (2006) 14 Waikato L Rev 102.
Natalie Coates, “Joint-Management Agreements in New Zealand: Simply Empty Promises?” [2009] JSPL 4; (2009) 13(1) Journal of South Pacific Law 32 at 39.
Pare Keiha and Paul Moon, “The Emergence and Evolution of Urban Māori Authorities: A Response to Māori Urbanisation” (2008) 1 Te Kaharoa 1.
Rāpata Wiri “Mana Whenua and the Settlement of Treaty of Waitangi Claims in the Central North Island of New Zealand” (2013) 9 AlterNative 1.
Robert Joseph “Re-Creating a Legal Space for the First Law of Aotearoa-New Zealand” [2009] WkoLawRw 5; (2009) 17 Waikato L Rev 74.
G Parliamentary and Government Materials
Ministry for the Environment New Directions for Resource Management in New Zealand: Report of the Resource Management Review Panel (June 2020).
Ministry of Justice He Hinatore ki to Ao Māori: A Glimpse into the Māori World (Ministry of Justice, 2001).
Office of Treaty Settlements Healing the Past, Building a Future: A Guide to Treaty of Waitangi Claims and Negotiations with the Crown (Wellington, 2018).
Peter Salmon, Margaret Bazley and David Shand Report of the Royal Commission on Auckland Governance (2009).
“Wallis and Others v Solicitor General, Protest of Bench and Bar, April 25, 1903” [1840- 1932] NZPCC Appendix 730.
H Waitangi Tribunal Reports
Waitangi Tribunal Rekohu: A Report on Moriori and Ngāti Mutunga Claims in the Chatham Islands (Wai 64, 2001).
Waitangi Tribunal The Tāmaki Makaurau Settlement Process Report (Wai 1362, 2007).
Waitangi Tribunal He Whakaputanga me te Tiriti: The Declaration and the Treaty: The Report on Stage 1 of the Te Paparahi o Te Raki Inquiry (Wai 1040, 2014).
Waitangi Tribunal Te Mana Whatu Ahuru: Report on the Te Rohe Pōtae Claims (Wai 898, 2018).
I Unpublished Works
Alan Ward National Overview (Waitangi Tribunal Rangahaua Whanui Series, 1997).
ET Durie Custom Law (unpublished paper for the Treaty of Waitangi Research Unit, 1994).
Hirini Moko Mead “The Nature of Tikanga” (paper presented at Mai i te Ata Häpara Conference, Te Wänanga o Raukawa, Otaki, 2000).
Joan Metge "Commentary on Judge Durie's Custom Law" (paper prepared for the Law Commission's Customary Law Guidelines project, 1996).
Joseph Williams He Aha Te Tikanga Māori (unpublished paper for the Law Commission, 1998).
Helen Winkelmann, Chief Justice of New Zealand “Renovating the House of the Law” (Keynote Speech to Te Hūnga Rōia Māori o Aotearoa, Wellington, 29 August 2019).
Moana Jackson, “Labels, Reality and Kiri Te Kanawa: The Origins of the Culture of Colonisation and their Influence on Tikanga Māori” (paper presented at the Mai I te Ata Hapara Conference, Te Wananga o Raukawa, Otaki, 2000).
Moana Jackson, Tahu Potiki and Wayne Ngata The Findings of the Adjudication Panel in the Mana Whenua Process (convened by the Central North Island iwi for Te Kāingaroa a Haungaroa Crown Forest Licences, 2014).
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, University of Auckland, 2006).
Paul Meredith Mana Whenua, Mana Moana Ki Te Rarawa (paper commissioned by Dr Aroha Harris of Te Uira Associates for the Te Rarawa claim, 2010) as cited in Hirini Moko Mead Tikanga Māori: Living By Māori Values (Revised Edition, Huia Publishers, Wellington, 2016) at 230.
J Internet Sources
David Fisher “The lockdown roadblocks – just how legal were they?” New Zealand Herald (online ed, Auckland, 12 July 2020); “Iwi say they will reopen Northland checkpoints near Kawakawa” Radio New Zealand (online ed, Auckland, 12 August 2020).
Gerald Lanning, “Reconciling “Layers of Māori Interest” Resource Management Bulletin
(online ed, March 2020) at 73.
Kendall Hutt and Melanie Earley “Ihumātao: Māori King says mana whenua want land back” Stuff (online ed, Auckland, 18 September 2019).
Waikato Regional Council, “Go-ahead to transfer functions to iwi authority a New Zealand first” (30 July 2020) <https://www.waikatoregion.govt.nz/community/whats- happening/news/media-releases/go-ahead-to-transfer-functions-to-iwi-authority-a-new- zealand-first/>.
Appendix 1
Moana Jackson, Tahu Potiki and Wayne Ngata The Findings of the Adjudication Panel in the Mana Whenua Process (convened by the Central North Island iwi for Te Kāingaroa a Haungaroa Crown Forest Licences, 2014) at 26-27:
The Principle of Identified Land or sites – a recognised whenua that can provide the base or origin of one’s mana whenua (take whenua).
The Principle of Ancestral Connection – a proven whakapapa connection to the identified land or sites (take tīpuna, take taunaha, take kitenga).
The Principle of War and Peace – the acquisition and retaining of mana whenua through conquest (take raupatu, take ringa kaha, take pakihiwi kaha) and the subsequent cementing of authority through intermarriage and ongoing relationships in times of peace.
The Principle of Unbroken Occupation – proven intergenerational occupation of a site through until recent times or until an unjust intervention by the Crown (ahi kā roa).
The Principle of Unbroken or Regular Use – proven use of a particular site or sites for cultural, food gathering, or other social purposes on a regular, semi-permanent basis until recent times or until an unjust intervention by the Crown (ahi tahutahu).
The Principle of Permitted Use or Occupation – evidence of use or occupation granted to one iwi by another with agreed or proven paramountcy (take tuku).
The Principle of Joint Use or Occupation – proven rights of two or more iwi to access or occupy a site with no iwi able to assert a right of paramountcy.
Appendix 2
Hirini Moko Mead Tikanga Māori: Living By Māori Values (Revised Edition, Huia Publishers, Wellington, 2016) at 228-229:
The Elements of Mana Whenua
a) Ringa kaha b) Take kite c) Other
a) If yes, who? b) If not, how?
a) Yes b) No
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