Issue 6, Jan 2003

TETE MATAHAUARIKIMATAHAUARIKI Laws and Institutions for Aotearoa/

WIREMU TAMIHANA: RANGATIRA No te tekau ma waru o Noema i haere ko te whanau nui On 18 November colleagues, friends and family joined tonu, nga hoa mahi o Kahurangi Stokes me tetahi ope nui Dame Evelyn Stokes and a large contingent of Ngati Haua tonu o Ngati Haua ki te whare taonga o ki te at the Waikato Museum of Art and History to launch her whakamarewa i tana pukapuka hou e pa ana ki Wiremu latest publication, : Rangatira. Tamihana - te Rangatira. The book documents the life of Wiremu Tamihana He pukapuka tenei e tirohia atu ana ki nga mahi a Tarapipipi Te , rangatira of the Ngati Haua . He Wiremu Tamihana Tarapipipi - te rangatira o te is probably most remembered as the Kingmaker for his iwi o Ngati Haua, mai ano i tona whanautanga mai ki tona role in the institution of the Maori King Movement. Dame matenga. Ko te mea ke e tino Evelyn describes him as a respected and maumaharatia ana e te nuinga mo visionary leader and one of new ana mahi - ko tona tautoko ki te Zealander’s most important Maori lead- whakatu i te Kingitanga. E meatia ers: “Tarapipipi stood at the interface of ana e Kahurangi koia tetahi o nga nineteenth-century encounter, culture rangatira waewae kaikapua ki Niu contact and conflict between Maori and Tireni nei. “I tu a Tarapipipi ki mua i Pakeha in New Zealand. He was a peace- te aroaro o nga tuahuatanga o tera maker, but he was labeled a rebel, and rautau ara ko te papakitanga o nga his influence was systematically under- Iwi e rua. He tangata tenei i mau ai mined by government agency. His vision te rongo ahakoa he mea tapatapa is still valid: that of a Maori society in kau ko te kupu waewae kowhana control of its own destiny, under a sys- ki runga i a ia, ka mutu, i kaha whai tem of Maori law, working in partnership wahihia ko te Kawanatanga ki te with Pakeha law, and participating in the tanoanoa i tona tapu, i tona mana. benefits of Pakeha settlement.” Heoi e whai take tonu ana ona Wiremu Tamihana: Rangatira is a his- whakakitenga ara kia te kaha tory, taken from his own words, represent- te pupuri o te Iwi Maori i tona ing the most complete collection of ano rangatiratanga i raro mai sources and commentary surrounding his ano i tona ano mana, e mahi life. The book is also a rich source of ngatahi nei te Pakeha me te Waikato history and is the result of more Maori, a, kei te whai hua te than a decade of research which had its ata noho ki waenganui i nga Pakeha." origins in Dame Evelyn’s work investigating land claims for He mea tango mai te nuinga o nga -based Ngati Haua. Published by Huia Publish- korero i ona ano kupu e matohu ers with the assistance of grants from Te Matahauariki and ake nei i te rahinga atu o nga puna korero e pa ana ki a ia. the Ministry of Culture and Heritage, the book was officially He nui hoki nga korero o roto e pa ana ki nga mahi whanui launched by the Institute’s Director, Judge Mick Brown. In o roto i a Waikato a he mea rangahau enei korero i roto i complimenting Dame Evelyn on this latest in a line of many nga tekau tau i pahure ake nei, i takea mai hoki i nga mahi achievements, Judge Brown welcomed the Institute’s as- rangahau kereme o Kahurangi ki Matamata. sociation with the work, albeit at the final stages. Judge

INSIDE THIS ISSUE pg. A Diary of Speaking Engagements 2002...... 2 Te Matapunenga:Defining Customary Law...... 3 Sir Apirana Ngata on the Treaty of Waitangi...... 6 And Several Provisional Te Matapunenga Entries

Dame Evelyn Stokes Senior Researcher Te Matahauariki Institute 1 Issue 6, Jan 2003 Na Huia, Te Manatu Taonga me Brown also made particular note of the matau ko te Matahauariki i awhina ki presence of Ngati Haua and Anaru HE AITUA te whakaputa i tenei pukapuka. Na te Thompson as the descendents and Tiati Mick Brown to matau tumu representatives of Wiremu Tamihana. Ngarue ana te whenua, ngaoko whakarae i whakamarewa te pukapuka Dame Evelyn is a Geography Pro- ana te moana, i te hinganga o nga totara whakahae o te wao, a, mowai nei. No roto mai i ona mihimihi ki a fessor at the University of Waikato, a Senior Research Associate of Te ana tera i te munga o nga kaka Kahurangi i tino harikoa te Tiati mo to haetara, nei kapoto ki te po. Ko Bill matau piringa ki a ia ahakoa kua tata Matahauariki and a former Member of Tamihana tena, ko Hirini Melbourne tae ki te pito o nga mahi. I whai kupu the Waitangi Tribunal. tena, ko Ta Hone Turei hoki tena. hoki te Tiati ki a Ngati Haua me Anaru No reira e nga Rangatira, haere, Tamihana hei kanohi ora mo Wiremu haere ki te putahitanga o Rehua. Tamihana. Haere ki te kainga o ratou ma kua He amokapua a Kahurangi Stokes tae atu ki tua te arai. Takoto koutou ki te kura Toiwhenua ki Waikato, he ki te Ao wairua okioki ai, takoto, takoto, moe mai. Te Matahauriki kairangahau matua i roto i te sadly notes the passing away of Matahauariki a, he mema hoki ia i BillTamihana, Associate Professor runga i te Taraipiunara o Waitangi i nga Hirini Melbourne and Sir John tau o mua. Turei.

A DIARY OF SPEAKING ENGAGEMENTS

On 1-3 September 2002, Dr Alex Frame and Paul Meredith attended the annual conference of the Maori Law Society in Dunedin where they had been invited to present a paper on Maori customary law for which they drew on work in progress for Te Matapunenga. On 12 September, Paul Meredith co-presented a paper with Judge Caren Wickliffe of the Maori Land Court and Kahui Maranui, National Maori Land Information Systems Manager, at the New Zealand Law Librarian’s conference ‘Visible Justice: Evolving Access to Law’, held at Te Papa in Wellington. The paper was titled ‘Access to Customary Law: New Zealand Issues’ and is available online at http://www.nzllg.org.nz/. On 24 September, Judge Mick Brown spoke to the Public Sector Senior Management Conference 2002, Facing the Future: the evolution of the Public Service to meet the challenges ahead. His paper is available online at http:// pssm.ssc.govt.nz/papers/brownm.asp On 10 October, Dr Alex Frame and Paul Meredith gave a Paper to the Members of the Waitangi Tribunal at their annual conference on the invitation of Chief Judge Joe Williams, Acting Chairperson of the Tribunal. Alex and Paul introduced the Members to the Te Matapunenga project and benefited from a most constructive exchange following the presenta- tion. Also on 10 October Robert Joseph presented a joint paper withTom Bennion to 'The Inaugural Maori Legal Forum' held at Te Papa Museum. The paper explored issues surrounding Tikanga Maori and the Resource Management Act. On 25 October, Paul Meredith and Dr Alex Frame spoke to the staff of the Alexander Turnbull Library on Te Matapunenga at the invitation of the Chief Librarian, Margaret Calder. The session provided an opportunity for Alex and Paul to update the staff on progress to date since their last presentation to the staff and continues a warm relationship between Te Matahauariki and the Library. On 22-24 November, Associate Professor Richard Benton attended the 'Pres- ervation of Ancient Cultures and the Globalization Scenario' International Cen- tre for Cultural Studies (India), 7th Joint Conference, with the School of Mäori and Pacific Development, University of Waikato, Hamilton. Associate Profes- sor Benton's paper was entitled “Te Matahauariki – the Imminent Dawn”: Customary Law in a Globalized Society. Associate Prof. Benton also dis- cussed aspects of Te Matahauariki’s programme informally with people at the “Being Human” Conference at Te Papa on November 22, and also at the Sus- tainable Development Forum (at the University of ) on 29 November. Tonga Karena also presented a paper to the “Preservation of Ancient Cul- tures and the Globalization Scenario” Conference. Tonga addressed some of Dr Alex Frame and Paul the epistemological implications that are emerging from our research for Te Meredith with Chief Judge Matapunenga. Joe Williams, Deputy Chairperson of the Waitangi On 6 December, Robert Joseph attended a 'Transparency International' work- Tribunal shop at Victoria Law School, Wellington where he discussed issues surrounding Maori Governance. Most of the papers will be available on our website in due course. 2 Issue 6, Jan 2003 TE MATAPUNENGA: DEFINING CUSTOMARY LAW Issue 5, Aug 2002

Alex Frame and Richard Benton, and the Te Matapunenga Team have contin- ued to work on the definition of ‘customary law’ for the purposes of Te Matapunenga. They have greatly benefited from comments on earlier drafts made in the course of presentations of Te Matapunenga material to outside groups, and from members of the Advi- sory Panel. Even now the proposed definition is to be regarded as draft only, and it is intended that it be the subject of discussion at the first Advisory Panel TIKANGA meeting in the new year. The present draft is offered to readers of the Newsletter as an indication of the present stage of the Team’s thinking. Reporting on a proposal by the Definition of ‘Customary Law’ Chief Justice in 1905 to codify Maori The Oxford English Dictionary records two distinct meanings of ‘Custom’1 : custom as it relates to land tenure, 1.A habitual or usual practice ; common way of acting; usage, fashion, habit. a newspaper notes: (either of an individual or of a community) 2.Law. An established usage which by long continuance has acquired the “What his Honour presumed, the force of a law or right. Native Court had to do, was to in- The distinction is thus made between custom which is mere habit (or fashion) corporate English law and Maori custom together, and from this con- – usual but nevertheless optional – and custom which gives rise to obligation glomerated law find succession, and right. To take a simple example , it may be one’s ‘custom’ to carry an and call it according to Maori cus- umbrella to work but one has no obligation to do so, and deviance would not tom. It seemed to his Honor that attract moral criticism. This Compendium concerns itself only with the second the time had come when there sense of custom – that which connects with legal obligation. The 1608 Case of should be some authoritative defi- Tanistry affirmed the potency of custom as a source of law in this way : nition of what Maori custom or us- ‘...custome , in lentendment del ley , est tiel usage que ad obtaine vim age was. It should not be left to Na- legis , & est revera un binding ley al tiel particular lieu ....Car lou le tive Land Court Judges to declare people trove ascun act destre bon & benificial , & apt & agreeable a lour what they think Native custom is.” ‘On Maori Customs be Codified’ in nature & disposition , ils usont & practisont ceo de temps en temps ; & New Zealand Times 30 August issint per frequent iteration & multiplication de cest act , Custome est 1905, p. 6. fait ; & esteant use de temps dont memorie ne court , obtaine le force de un ley...Et issint briefement , custome est un reasonable act , iter- Having spoken with the Chief Jus- ated , multiplied & continued per le people , de temps dont memory ne tice, the Attorney-General in a court.’2 memo to Cabinet, 1 September ‘...custom , in the understanding of the law , is such usage as has 1905, proposed the idea of codifi- acquired the force of law and is respected as a binding law in a particu- cation of Maori custom in principle. lar place ... Because when the people find any rule to be good and “His Honor, in an interview with beneficial , suitable and agreeable to their nature and disposition , they myself upon the matter, expressed use and practice it from time to time ; and it happens through frequent the opinion that steps should be repetition and multiplication of the rule , Custom is created : and having taken by the government to have been followed for as long as people can remember , acquires the force what constituted Maori custom and of law.... In brief , custom is a reasonable rule , followed consis- usage codified and enacted by the tently and continuously by the people from time immemorial.’ legislature. National Archives, MA 1, Sir John Salmond makes a similar distinction between mere habit and cus- 1906/285. tomary law when , in setting out the requirements for the reception of custom as law , he includes the following : It would appear that Cabinet was not too interested in solidifying Maori ‘The third requisite of the operation of a custom as a source of law is custom, the response being a that it must have been observed as of right. A merely voluntary prac- memo to Justice and Native Affairs tice, not conceived as based on any rule of right or obligation, does not that “where land clothed in Euro- amount to a legal custom…A legal custom must be the embodiment in pean title, Native Custom to be abol- inveterate practice of the conviction of the community as to the rights ished”. and obligations of its members towards one another…’3 But what will suffice to add the ‘obligatory’ aspect which turns custom into ‘customary law’? Will organised and systematic social pressure, in the ab- sence of formally constituted judicial and enforcing authorities, allow us to find ‘customary law’? The American theorist , Hoebel , says : ‘A social norm is legal if its neglect or infraction is regularly met , in threat or in fact , by the application of physical force by an individual or group possessing the socially recognised privilege of so acting’ 4 Hoebel’s definition is considerably wider than that of the school of Western jurisprudence which saw the predominant characteristic of ‘law properly so- called’ as a ‘command’ within a unitary political system, backed by force.The 3 Issue 6, Jan 2003 American jurist Lon Fuller has criticised this tendency to asssume: ‘..that law must be regarded as a one-way projection of authority, in- stead of being conceived as a collaborative enterprise’5 Whatever may have been the contemporary political reasons for the adop- tion of such a restrictive view by English and British theorists such as Hobbes, Bentham and Austin, the criticism of Sir Carleton Allen in his Introduction to Sir Henry Maine’s Ancient Law seems well aimed : ‘Its exclusion of historical considerations from the province of jurispru- dence led it into the radical fallacy of regarding all systems of law as being typified by Western European monarchical states.’6 Although Hoebel’s definition is open to objection for clinging to a central position for ‘force’ as the indentifier of ‘law’7 , the present compilers find the definition helpful, on the understanding that collective social recognition and TAPU reinforcement of ‘supernatural’ consequences constitutes a degree of social pressure which is functionally equivalent to more direct applications of physi- As part of the 1940 Centennial cal force. Fuller had raised, but left unanswered, this very question in relation Celebrations marking 100 years to Hoebel’s definition: since the signing of the Treaty of Waitangi, several Maori ‘waka taua’ ‘Just what is meant by force when it is taken as the identifying mark of or war canoes were constructed. law? If in a theocratic society the threat of hell-fire suffices to secure The building process, undertaken obedience to its law, is this “a threat of force”?’ 8 in the open, was considered tapu. Fuller preferred to say simply that : Some European observers failed to ‘A legal system, to be properly called such, has to achieve some mini- realise this as was reported in a mum efficacy in practical affairs , whatever the basis of that efficacy – newspaper article. It reports that a proposition both unobjectionable and quite unexciting.’9 they permitted themselves to be The approach which discounts centrally administered force as the defining photographed sitting on the canoe characteristic of ‘law’ has antecedents in the work of writers such as von Gierke, to the dismay of Maori who consid- ered such an act as desecration: Ehrlich, Weber, and Pospisil who deny that there is any practical reason to confine the meaning of ‘law’ to situations in which coercion is guaranteed by “The canoe which the Maoris are the political authority.10 building at Kerikeri is tapu. All Max Weber has pointed out that : Pakeha should remember this fact, ‘Law, convention, and custom belong to the same continuum with im- especially females to whom it is perceptible transitions leading from one to the other…..It is entirely a doubly tapu... It seems a pity that question of terminology and convenience at which point of this con- the Maoris, in leaving the Kerikeri tinuum we shall assume the existence of the subjective conception of canoe lying about in such an open a “legal obligation”.’11 and accessible spot, did not think to indicate its untouchable charac- We must be conscious also of drawing too fast a distinction between ‘obliga- ter. A notice: “This canoe is tapu, tory’ and ‘persuasive’ norms, a point recently made by Professor Bruno Saura please do not touch” would have the in Tahiti : desired effect. In the meantime, it ‘The very idea of distinguishing between obligatory customs, because is suggested that those who have they are of a legal nature, and customs which are more or less arbi- violated the tapu should make hand- trary stems from a Western perspective in which judges – rather than some donations to the funds which priests, sorcerers or divine forces – are in charge of issuing punish- it is proposed to organise so as to ments for breaches of matters that the community deems crucial to assist the Maoris in their entirely respect.’12 commendable work.” ‘The Place is Tapu’ in The Northern Advocate, Malinowski, in his introduction to Hogbin’s Law and Order in Polynesia , November 17, 1938. made some pertinent observations on the ‘law-not-law’ debate concerning cus- tom: ‘Those rules, the working of which are essential for the maintenance of such primitive institutions as the family, the village community, forms of organised economic co-operation, chieftainship or religious institu- tions, are entirely compatible with our rules of law. They are really obligatory, they are enforced…’ ‘Our own law is nothing but intrinsically valid custom , custom safe- guarding the smooth working of our institutions, custom obeyed not so much through the fear of penalties but for much deeper reasons which the sociologist and psychologist have to discover’ ‘Co-operation always implies a body of people united by some funda- mental constitution, that is , body of rules , which regulates their mu- tual behaviour.’13 The cooperative and reciprocal elements in customary law systems seem to require explicit recognition in any definition which aspires to comprehend the social foundation of law. Accordingly, Te Matapunenga proposes the following adaptation of Hoebel’s definition: 4 Issue 6, Jan 2003 ‘A social norm is legal if its neglect or infraction is regularly met, in threat or in fact, by the application of force or the imposition of serious social disadvantage by an individual, group, or agency possessing the socially recognised privilege of so acting.' Endnotes: WAHI TAPU 1 The Oxford English Dictionary , 2nd ed. (1989) , Vol.IV 2 Case of Tanistry 80 Eng. Rep. 516 (1608) , quoted in E.K. Braybrooke The Tarawera eruption of 1886 , ‘Custom as a Source of English Law’ , Michigan Law Review Vol.50 killed a number of Ngati Rangitihi. In a newspaper report of the event it (1951) p. 71 at page 73. For more detailed discussion, see Alex Frame is statedn that Ngati Rangtihi wished , Grey and Iwikau : A Journey into Custom, Victoria University Press, to place a blanket tapu over Lake Wellington, 2002 , p.29 Tarawera, Lake and all the 3 Sir John Salmond , Jurisprudence , 7th. Ed. , Sweet and Maxwell , neigbouring area. London , 1924 , p.219 4 E. Adamson Hoebel , The Law of Primitive Man : A Study of Comparative “E tika rawa atu ana tenei tikanga, Legal Dynamics , otira kei runga i te tikanga Maori, e Harvard University Press , 1954 , p.28 kore e tika kia karangatia kia titiro te 5 Lon Fuller, The Morality of Law, first published in 1964, revised edition motu katoa mo taua kupu. No te mea, e kore e tirohia e te ture i runga i te 1969, Yale University Press, at page 227. 6 tikanga Maori. Erangi ko te mea tika Sir Henry Maine, Ancient Law, first published 1861 , with Introduction rawa, ko nga waahi i mate ai nga by Sir Carleton Allen , The World’s Classics, 1959, p.xiii. tangata me kii, hei urupa. Kaua hei 7 Fuller, for example, states that ‘the notion that its authorization to whakatapua te whenua use physical force can serve to identify law…has done great harm to katoa.”[(Translation by Te clarity of thought about the functions performed by law’, The Morality of Matahauariki] This customary prac- Law, supra, p.108. tice is correct, however, based on 8 Lon Fuller , The Morality of Law, supra, p.109. Maori custom, it would not be cor- 9 Lon Fuller, The Morality of Law, p.109-110.Interestingly, the Maori rect to call for that for the whole area. The law will not consider tikanga and Polynesian concept of mana is often explained as requiring, among Maori. However the most appropri- other things, effectiveness in social affairs. ate thing would be for those places 10 See , L. Pospisil, ‘Legal levels and Multiplicity of Legal Systems in where people died, to be declared Human Societies’ , The Journal of Conflict Resolution, Vol.XI , No.1, as burial grounds. Don’t make all March 1967, p.2-26 the land tapu.) 'Te Whenua Kia 11 Max Weber , Economy and Society: An Outline of Interpretive Whakatapua' in Te Korimako, 23 Au- Sociology, ed G. Roth and C. Wittich , transl. E. Fischoff, University of gust 1886, vol. 0, no. 54, p. 6. California Press, 1978 , Vol.1, p.319-321 12 Bruno Saura , in Custom and the Law , ed. P.de Deckker and J-Y Faberon , Asia Pacific Press , Canberra, 2001, Chapter 4! , p.81. 13 B. Malinowski , Introduction to H. Ian Hogbin, Law and Order in Polynesia , first published 1934, Cooper Square, New York, 1972. The three quoted excerpts are from pages xxix, xxx and xxxii of the Introduction.

RAHUI

As part of their opposition to sporting contact between New Zealand and South Africa in 1979 Sidney Mead (Ngati Pahipoto and Tuhourangi), Joe Malcolm (Ngati Pikiao) and Tamati Kruger (Tuhoe) circulated a leaflet calling for a rahui on rugby in New Zealand. The organisers were using the idea of the rahui as a means of encouraging people to talk about the issue and as a way of expressing action in a Maori way. The rahui, neverthe- less, had its limits:

“The rahui is now focused only on Rugby Union competitive games. All other games including rugby league are excluded from the rahui. The rahui will not be placed on rugby football fields anywhere in the country. This is too drastic and too dangerous. Rather people voluntarily put a rahui on themselves and vow not to play or be spectators in any game of any age level that is organised by the local sub-union or by any organization acting under the authority of the New Zealand Rugby Union. Specifically excluded from the rahui are children from babies up to the primary school attendees.”

The organisers offered some advice on those wishing to place a rahui:

“Decide where your rahui ceremony is to be held. The name of that place will decide the name of your rahui, eg. The first rahui in this protest was performed at Te Wainui Marae. We refer to that as the Te Wainui Rahui or as the Rahui o Te Wainui.” Proposed rahui on rugby football, 1979, Alexander Turnbull Library Reference No. 99-278-34/ 09 5 Issue 6, Jan 2003

SIR APIRANA NGATA ON THE LEGAL STATUS OF THE GREY & IWIKAU: A JOURNEY INTO TREATY OF WAITANGI CUSTOM KEREI RAUA KO IWIKAU: TE HAERENGA ME NGA TIKANGA The status of the Treaty of Waitangi in our legal system is a well-worn ques- ALEX FRAME tion in these days of ‘Treaty Clauses’ in legislation. But interest in it is not new. On 25 July 1939 the Hon. Sir Apirana Ngata spoke of the Treaty in Parlia- "This book traces the journey over- ment in the run-up to the 1940 Centennial. From his remarks we learn the land from Auckland to Taupo of the Governor of New Zealand, Sir views of Ngata and also of Prime Minister Michael Savage and Attorney-Gen- George Grey, and the Upoko Ariki eral HGR Mason on the matter. The finding of the Privy Council in Te Heu (paramount chief) of Tuwharetoa, Heu’s case ([1941] AC 308) that the Treaty was not directly enforceable by the Iwikau Te Heu Heu, with their re- Courts except when, and to the extent, directed by Parliament still lay ahead spective parties, in the summer of (NZPD Vol.254 (1939) at page 731): 1849–1850. Through the skillful use of little-known contemporary diaries ‘I am conscious that I am trespassing on the indulgence of the House, and drawings, Alex Frame sheds light on the interaction between the but I feel that I cannot let the occasion go without making reference to respective cultures of Grey and one more matter, and that is the request made by Maori communities Iwikau – in particular as to custom that there should be some authoritative definition of the effect of the and law – in a period before the de- Treaty of Waitangi. I have here a copy of a letter sent by the Prime scent into hostilities between Gov- Minister to the Hon. Mr Mawhete. The letter is as follows: ernment and the tribes.

Dear Mr Mawhete – With reference to the interview which a deputation Alex Frame suggests that the les- th son to be gleaned from the Grey/ introduced by yourself had with me on the 13 instant, in the course Iwikau journey may be that under- of which it was urged that a Commission of Judges of the Supreme taking arduous or difficult work to- Court should be set up, to which the following matters should be re- gether creates a shared experience ferred: (a) whether the Treaty of Waitangi prevents Parliament from capable of superseding cultural di- legislating in breach of the Treaty ; (b) if not, what is its effect ? vides; the commonality creating, al- I desire to inform you that I duly submitted this matter , as promised, beit temporarily and artificially, a to the Attorney-General, and have now received his advice on the shared universe and a habit of co- subject…. As regards the effect of the Treaty of Waitangi, the Attor- operation which reduces the dis- ney-General states that of itself it creates no rights cognizable in a tance between the participants. His message is that the pathway for the Court of Law. Only so far as it is embodied in legislation does it create evolutionary development of a com- such rights. Its terms do undoubtedly bind the conscience of the mon law for Aotearoa/New Zealand Crown ; a fact the Government will, as in the past, neither overlook nor – one which recognises and accom- disregard… modates the best and most func- M.J.Savage. tional of the concepts and values of our two major cultures – lies open Notwithstanding that, I ask the right honourable gentleman and his colleagues before us." Victoria University Press to consider that it is not much they will concede in giving effect to the natural desire of the Maori that the Government signalize in some way the fact that this treaty has been in existence for a hundred years. The position stated in this letter may be the correct one, that is, the correct legal position , that the Treaty of Waitangi is a ‘gentleman’s agreement’ – that that is what it means - binding on the conscience of the crown; that it anything happens that is not quite in accord with the spirit or letter of the treaty, then all that results is that we have a good look at the other gentleman who is party to the agreement. I do not think that the Maori people will be satisfied with that. I can say to the honourable gentleman that they are not….’

.

POU WHENUA

Maika Purakau in a letter to the Superintendent in 26 July 1858 announces his decision to hold on to his land as a reserve under the mana of Queen Victoria. This is to be achieved by placing her name on the land and erecting a post:

"… ka pou ai te pou, ka whakairi ai i te paretao he tohu whakatapu tena na te maori mo te whenua, mo te kai, mo te pa karaka, mo te pa harakeke, mo ta mea, mo ia mea." ([Translation by Te Matahauariki] ... a post will be erected, and paretao (type of fern) hung on it. That is a sign to the Maori that the land, food, the karaka areas, the flax areas etc are tapu.) Te Karere o Poneke, Vol. 1, No. 39, 9 August 1858, p. 3.

6 Issue 6, Jan 2003 TeTe MaMatahauarikitahauariki WWisheishess YouYou AllAll tthehe BeBestst forfor 20032003

MANA

Responding to Hari Hongi’s criticism of his use of the term mana (see previous entry), Takaanui Tarakaawa offers his own understanding. Tarakaawa was of Tapuika, Ngati Rangiwewehi and Ngai Te Rangiand a tohunga, historian, genealogist, and writer. Tarakaawa recalls Tamatekapua and Ngatoro-i-rangi as illustrations between the two forms of mana. He also goes own to describe the transfer of mana to his child Tuhoro:

“Te mana rangatira, te mana ki runga i te iwi, te mana e kiia nei nga uri o nga tangata pu-korero mo te pakanga, mo te riri, mo te whakahaere i te iwi, mana ki te taonga, mana ki nga kai rangatira, huahua, aha, aha. E kiaa ana tena he mana rangatira ; e wehe ke ana te mana tohungia, kei nga mahi tonu ia o tona tohungatanga e tiaki ana.” ([Translation in the original by Percy Smith] The chief-like power, power over the people, power of oratory, such as is possessed by the offspring of the orators inciting to deeds of war and strife, for guiding the tribe, power over property, power over superior kinds of food, such as huahua (preserved foods), and so on. These are called chief-like powers; the power of the Tohunga is separate, and applies only to that which concerns his Priestcraft.) ‘Whakamaramatanga o te pepa o Te Hoenga mai o raua ko i Hawaiki’, in Journal of the Polynesian Society, 1894, Vol. 3, p. 169-173.

WHAKAPAPA

The Tainui scholar, Pei Te Hurinui Jones offers some commentary on ‘Maori genealogies’ which he believes are troubling some European observers. He cites, in particular, the work of A. Sharp ‘The Role of Trial Tradition in New Zealand Prehistory’, in Journal of the Polynesian Society, Vol. 66, pp. 249-263 and J.W Robertson, ‘Maori Genealogies and Canoe Tradition’, in Journal pf the Polynesian Society, Vol. 67, pp. 37-38. Jones associates their difficulty with having to contend with unfamiliar names of contemporary ancestors, whose genealogies show a variation in the number of generations, when attempting to follow the tribal accounts of historical events and marriages. The result is confusion and wrong deductions:

“The Maori placed great importance on his genealogies and on the genealogical method of fixing the sequence of events. Variations in the number of generations is a common feature and can all be explained but, for this purpose, it is necessary that a wide knowledge of the tribal lines of descent should be acquired. Before attempting a critical evaluation of the traditions of our people as handed down through successive generations, the whakapapa lines should be carefully examined in conjunction with the history…. It is an invariable feature that males line of descent are of fewer generations. The women of our race married early and it is quite common to find sisters with grandchildren of the same age or older than the children of brothers. It was also usual for the older time chiefs to have several wives and the younger wives were often of the same age or younger than the grandchildren by the senior wives. These are factors which result in the wide variation in the number of generations in our lines of descent from a common ancestor. A Maori can trace several lines of his whakapapa with a different number of genera- tions in each line. As a matter of fact on account of the increase in recent times of inter-tribal marriages we often fix our tribal affiliation on a eponymous ancestor from whom we can trace the most lines of descent."

Jones offers the example of Maniapoto, who first married the great-granddaughter, Hinewhatihua, of his elder half-brother, Te Ihingarangi ; and later to the daughter, Paparauwhare, of Hinewhatihua by a former marriage. History relates that Te Ihingarangi was already a grandfather when Maniapoto was born. ‘Maori Genealogies’, in Journal of the Polynesian Society, 1958, Vol. 67, pp. 162-163.

7 Issue 6, Jan 2003

Te Matahauariki Online at Te Matahauariki i te Ipurangi ki www.lianz.waikato.ac.nz www.lianz.waikato.ac.nz

Researchers Some Publications Available Nga Kairangahau Dame Evelyn Stokes, Wiremu Tamihana: Judge Michael Brown Rangatgira Tui Adams Dr Alex Frame, Property and the Treaty of Associate Professor Richard Benton Waitangi: A Tragedy of the Commodities? Professor Dame Evelyn Stokes Rachel Parr and Paul Meredith, Collaborative Dr Alex Frame Cross-Cultural Research for Laws and Institu- Nena Benton tions in Aotearoa/New Zealand. Robert Joseph Dame Joan Metge, Korero Tahi – Talking Together. Rachel Parr Dame Evelyn Stokes, Tikanga Maori and Geother- Wayne Rumbles mal Resources. Tonga Karena Robert Joseph, The Government of Themselves: Paul Meredith Case Law, Policy & Section 71 of the New Joeliee Seed-Pihama Zealand Constitution Act 1852 Dame Evelyn Stokes, Bicultural Methodology and Consultative Processes in Research. The Advisory Panel Robert Joseph, Comparative Analysis of the Te Ropu Kaitohutohu Constitutional Frameworks of New Zealand and Canada within a Pluralistic Context. Hon Justice David Baragwanath Dr Alex Frame Grey & Iwikau: A Journey into Professor Richard Bedford Custom. Professor Margaret Bedggood Gay Morgan Reflections on Pluralist Conundrums. Hon Justice Eddie Durie Leilani Tuala-Waren, A Study into the Ifoga: Professor Mason H. Durie Samoa’s Answer to Dispute Healing Denese Henare Dame Evelyn Stokes The Individualisation of Maori Dr Manuka Henare Interests in Land Hon Justice Paul Heath Dr Dame Joan Metge David Oughton Professor Mathew Palmer See http://www.lianz.waikato.ac.nz/ Professor Tamati Reedy publications.htm Professor James Ritchie Judge Anand Satyanand Professor Dame Evelyn Stokes Professor Richard Sutton

Contact: Whakapa Mai: c/- School of Law c/- Te Wahanga Ture University of Waikato Te Whare Wananga O Waikato Private Bag 3105 Pouaka Poutapeta 3105 Hamilton, New Zealand Kirikiriroa, Aotearoa Ph 64 7 858 5033 Waea 64 7 858 5033 Fax 64 7 858 5032 Whaki 64 7 858 5032 Email [email protected] E-mere [email protected] 8