Key concepts of tikanga Maori (Maori custom law) and their use as regulators of human relationships to natural resources in Tai Tokerau, past and present

Abstract

In this study I seek to uncover and analyse the concepts that, as jural principles, formed the basis of Maori custom law in the past, and to compare their application in a modern context. As such, this study is both historical - a glimpse of the past - and contemporary - an indicator of changes that have occurred and of potential future directions. The historical aspect of the study focuses mainly on the Papatupu Block hearings that took place in the mid Tai Tokerau region in the early 20th Century. It draws information from a number of Maori texts that have not been critically analysed before. The purpose of the hearings was to facilitate the transmission of Maori land tenure from "collective title" held under Maori custom law, to an English-based land tenure system of "individualised title" that could be more easily understood and controlled by the newly imposed English Parliamentary processes and legal system. This information is supplemented by Native Land Court hearings from the same area. The contemporary aspect focuses on two more recent attempts by Maori to assert custom law within the same general area, within a New Zealand legal framework. It draws on material gathered for the Waitangi Tribunal claim to hapu ownership of the Ngawha geothermal resource in 1992-1993, and evidence presented in hearings for the granting of resource consent to build a prison at Ngawha, in 2001-2002, Section A establishes the ambit of the study. J introduce myself as the writer and establish my whakapapa connections to the area and people whose information forms the main part of the study. This is an essential step in establishing my turangawaewae (standing) to speak about the area and people covered by this study. I also set out the title and intended scope of the study, its boundaries and limitations, and why I believe there is a need for academic research into tikanga Maori (Maori custom law) today. Section B looks at a Maori worldview as the cultural source from which Maori custom law is drawn. It establishes the theoretical framework for the analysis that is to follow. Importantly, Section B provides a discussion of the key concepts that, as working principles, are to be examined in later sections. The purpose of Section B is to provide an understanding of the basic concepts of Maori custom law that will be discussed in Sections C and D. Section C forms the main pan of this study. In this Section I extract the key jural concepts and principles identified by kai korero (speakers) during the Papatupu Block hearings and Native Land Court hearings, and measure them against the framework set out in Section B, in order to demonstrate how they were used to regulate Maori relationships on the land. In Section D. I examine the modern application of the key principles examined in Section C. by examining evidence provided by local Maori in two recent hearings. The first is the Ngawha Geothermal Claim heard by the Waitangi Tribunal in 1992-1993. The second is the resource consent applications for the building of Ngawha Prison, heard by the Northland Regional Council and later successfully appealed to the Environment Court in 2002, and upheld by the High Court and Court of Appeal. The purpose of this Section is to identify the changes that have occurred in the application of fundamental Maori custom law principles in the past 100 years. Section E concludes that the application of the key principles of Maori custom law has altered over time to reflect changes in the material circumstances of Maori living within the area. Some important principles have fallen into disuse. Others have been extended to reflect modern Maori needs and external trends in the New Zealand legal system. Some of the values that underpin the key foundational principles have also altered. I believe that Maori must develop a more systematic and universal approach to tikanga if it is to survive as more than a rudimentary, tokenistic form of regulating peoples' actions and relationships to resources, into the future. The purpose of this study is to trace the development of Maori custom law in a small part of Aotearoa/New Zealand. The relationship of this system to the English-based New Zealand legal system introduced in 1840 is not a prime focus of this study. However, because the presence of the New Zealand legal system continues to affect the way Maori custom law has and will develop, it is included as part of Sections A and Section D.