Study Paper 9 MÄORI CUSTOM AND VALUES IN NEW ZEALAND LAW March 2001 Wellington, New Zealand The Law Commission is an independent, publicly funded, central advisory body established by statute to undertake the systematic review, reform and development of the law of New Zealand. Its purpose is to help achieve law that is just, principled, and accessible, and that reflects the heritage and aspirations of the peoples of New Zealand. The Commissioners are: The Honourable Justice Baragwanath – President Judge Margaret Lee DF Dugdale Timothy Brewer ED Paul Heath QC The Executive Manager of the Law Commission is Bala Benjamin The office of the Law Commission is at 89 The Terrace, Wellington Postal address: PO Box 2590, Wellington 6001, New Zealand Document Exchange Number: SP 23534 Telephone: (04) 473–3453, Facsimile: (04) 471–0959 Email: [email protected] Internet: www.lawcom.govt.nz Use of submissions The Law Commission’s processes are essentially public, and it is subject to the Official Information Act 1982. Thus copies of submissions made to the Commission will normally be made available on request, and the Commission may mention submissions in its reports. Any request for the withholding of information on the grounds of confidentiality or for any other reason will be determined in accordance with the Official Information Act 1982. Study Paper/Law Commission, Wellington, 2001 ISSN 1174–9776 ISBN 1–877187–64–X This study paper may be cited as: NZLC SP9 This study paper is also available from the internet at the Commission’s website: www.lawcom.govt.nz ii MÄORI CUSTOM AND VALUES IN NEW ZEALAND LAW E KORE E NGARO HE KÄKANO I RUIA MAI I RANGIÄTEA I WILL NEVER BE LOST FOR I AM A SEED SOWN FROM RANGIÄTEA Rangiätea refers to the original homeland of Mäori before they came to Aotearoa. In using this saying a speaker claims his or her identity as Mäori, as one grown from that original homeland. The saying expresses pride in being Mäori and confidence in the future for Mäori. iii The Law Commission acknowledges the financial contribution from the New Zealand Law Foundation towards this project. Contents Para Page PREFACE vii Te ao Mäori vii The project vii Acknowledgements viii 1 INTRODUCTION 1 Purpose of the paper 1 1 Terminology 3 1 Mäori custom law is dynamic 7 2 Structure of the study paper 26 7 2 INDIGENOUS CUSTOM LAW AND THE DOCTRINE OF ABORIGINAL RIGHTS 8 Introduction 33 8 Indigenous custom 34 8 The doctrine of aboriginal rights 47 11 3 MÄORI CUSTOM LAW 15 Introduction 66 15 Terminology 67 15 Mäori custom law as “law” 76 17 Colonial treatment of Mäori custom law 80 18 Recognition of Mäori custom law 81 18 Recognition was temporary 93 21 The eclipse of Mäori custom law 97 22 Tikanga today 116 26 The spectrum of tikanga 119 27 Ngä uara o ngä tikanga: the values underpinning tikanga 124 28 Tikanga tangata: social organisation 167 41 Tikanga rangatira: leadership 183 44 Tikanga whenua: land 193 47 The treatment of custom in the legal system 49 Introduction 202 49 Evidence and proof 204 49 Discretionary powers of the courts 207 50 Some examples 221 52 4 MÄORI CUSTOM LAW AND THE MÄORI LAND COURT 60 Introduction 258 60 Mäori land 264 61 Some statistics 268 62 The Mäori Land Court 270 63 Succession 283 66 Succession: the future 287 67 v 5 MÄORI CUSTOM LAW AND THE TREATY OF WAITANGI 69 The Treaty 300 70 Legal significance 300 70 Significance accorded by Mäori 305 71 The “Fourth Article” 312 72 The Waitangi Tribunal 74 Jurisdiction 317 74 Membership and procedure 320 75 Claims 323 76 The approach of the Waitangi Tribunal 329 78 Treaty principles 334 79 Treaty references in legislation 352 83 The Treaty of Waitangi and Te Ture Whenua Mäori Act 1993 354 84 Treaty claims and settlement process 358 85 6 FUTURE WORK 87 Introduction 364 87 The Law Commission 373 88 Succession 374 88 After Settlement Asset Project 382 90 Conclusion 402 95 APPENDICES A History of the Custom Law Project 97 B The Succession Law Project 98 History of the project B1 98 Extracts from the Succession Law Project – Part I B9 99 The present law of succession in relation to Mäori freehold land B12 99 History B25 102 The effects of the assimilation period B47 111 Extracts from the Succession Law Project – Part II B81 119 Oral wills (öhäkï) B82 119 The long term effect of wills and gifts B88 121 The requirements for a valid marriage B97 122 The requirements for a valid adoption B113 127 Bibliography 131 vi MÄORI CUSTOM AND VALUES IN NEW ZEALAND LAW Preface TE AO MÄORI PRINCIPAL FUNCTION OF THE LAW COMMISSION is to make recommendations Afor the reform and development of the laws of New Zealand. In doing so the Commission shall, under the Law Commission Act 1985, section 5(2)(a): take into account Te Ao Mäori (the Mäori Dimension) . Since 1997 Mäori values and principles have been discussed by the Law Commission in Justice: The Experiences of Mäori Women – Te Tikanga o te Ture: Te Mätauranga o ngä Wähine Mäori e pä ana ki tënei NZLC R53, Coroners NZLC R62, Adoption and Its Alternatives: A Different Approach and a New Framework NZLC R65, Juries in Criminal Trials – Part One NZLC PP32 and Juries in Criminal Trials – Part Two NZLC PP37, and The Treaty Making Process: Reform and the Role of Parliament NZLC R45. These reports suggest that some of our existing laws and institutions could learn with advantage from Mäori cultural values and institutions. In Evidence NZLC R55 the Commission considered the basis upon which Mäori custom is admitted in evidence; the definition of experts to include kaumätua, and matters relating to the questioning of kaumätua.1 The Commission also provides advice and assistance to any government department or organisation considering the review, reform or development of any aspect of the law of New Zealand.2 In the advisory report to Te Puni Kökiri on section 30 of Te Ture Whenua Mäori Act 1993, issues of mandate and representation were considered having regard to: 3 ◆ Te Ture Whenua Mäori Act 1993; ◆ the adjudicative and advisory jurisdictions of the Mäori Land Court; and ◆ matters raising questions of tikanga. THE PROJECT This project originally commenced in 1994 at the suggestion of the Honourable Justice Durie, who at that time was Chief Judge of the Mäori Land Court. Justice Durie was of the view that some knowledge of Mäori custom would greatly assist judges in carrying out their judicial functions. 1 New Zealand Law Commission Evidence NZLC R55 (Wellington, 1999) vol 2, paras C15, C323 and C401. 2 Law Commission Act 1985, ss 5(1)(c) and 6(2)(d). 3 This paper was presented to the Mäori Affairs Select Committee recently considering Te Ture Whenua Mäori Amendment Bill 2000. It is published as a companion paper to this paper: New Zealand Law Commission Determining Representation Rights under Te Ture Whenua Mäori Act 1993 – An Advisory Report for Te Puni Kökiri NZLC SP8 (Wellington 2001). vii Justice Durie’s view was:4 There is no text and study that casts our knowledge of Mäori custom in jurisprudential terms. Even for a Judge of the Mäori Land Court it is not a simple task to introduce Mäori Custom law. As a Judge of that Court for the last 20 years, I can say that in that time there has been no course of instructional training for the judges on customary tenure and ancestral law. The general courts have assumed however that the judges of the Mäori Court have a specialist knowledge of Mäori custom. This is probably because there is statutory provision for the Courts to state a case to the Mäori Appellate Court when a question of custom arises. In fact, however, the specialist knowledge that the Mäori Land Court possesses is not a knowledge of custom but of the complex laws introduced to replace customary tenure. Some knowledge of customary preference inevitably rubs off through the Judges’ long association with Mäori people; but the experience so gained is anecdotal and not founded in scholarship. Since 1994, there has been a great deal of scholarship shedding light on aspects of Mäori custom law. A number of informative texts have been published.5 In 1996 major research examining tikanga Mäori commenced at Waikato University.6 The Laws and Institutions for Aotearoa/New Zealand project, based at the Te Mätähauariki Research Institute at Waikato University, and directed by Adjunct Professor Judge Michael Brown (who is also a member of the Mäori Committee to the Law Commission), has as a particular aim: “the establishment of socially inclusive laws and political and legal institutions in Aotearoa/New Zealand that actualise the partnership explicit and implicit in the Treaty of Waitangi”. This project is undertaking the comprehensive examination of tikanga Mäori that is critical in developing laws and institutions to suit the particular conditions in New Zealand. One of this project’s particular strengths is its emphasis on a multi-disciplinary approach – as well as kaumätua, the project receives input from linguists, anthropologists, historians, lawyers and others.7 ACKNOWLEDGEMENTS In writing this paper, we have drawn extensively on the various writings of the Honourable Justice Durie, primarily his 1994 draft paper on Custom Law. 4 ET Durie “Custom Law: Address to the New Zealand Society for Legal & Social Philosophy” (1994) 24 VUWLR 325. 5 See Richard Boast et al Mäori Land Law (Butterworths, Wellington, 1999), (some of the contributors to this text are lecturers in Mäori land law and custom law at Victoria University); David Williams Te Kooti Tango Whenua: The Native Land Court 1864–1909 (Huia Publishers, Wellington, 1999).