The legal force of tikanga

The High Court’s decision to grant customary marine rights to several Bay of Plenty hapū earlier this month has been hailed as a “judgment for the century,” as consequential in our time as Wi Parata was in the late 1800s. 

In that notorious case, the chief justice ruled that the Treaty of Waitangi lacked legal standing because its Māori signers were “primitive barbarians” who lacked the capacity to enter into a binding agreement with the British Crown. 

Things look very different in Aotearoa today. Te Tiriti is central to law and policy, and tikanga, as defined by Māori and practised by Māori, is considered to have parallel standing with English common law. The High Court’s Whakatōhea decision is an emphatic recognition of the legal force of tikanga Māori. 

Kennedy Warne explores the background and marvels at what the court said.

 

In 1999, Whakatōhea rangatira Claude Edwards filed an application on behalf of his iwi in the Māori Land Court seeking recognition of customary rights in their marine rohe.

Four years later, in 2003, that claim was bolstered by the Court of Appeal’s landmark decision in a case that questioned whether the Māori Land Court had jurisdiction to determine claims of customary ownership to areas of the foreshore and seabed. 

That decision turned on its head the assumption that Māori customary rights and title in the foreshore and seabed had been extinguished when the Crown asserted sovereignty in 1840. No, they hadn’t, said the Court of Appeal. Those property rights continued to exist.

A year later, Whakatōhea’s hopes suffered a setback when the Foreshore and Seabed Act was passed. That contentious act extinguished the very rights the Court of Appeal had found to be in existence.

But then, in 2010, the Foreshore and Seabed Act was repealed and replaced with a new piece of legislation, the Marine and Coastal Area (Takutai Moana) Act 2011, which restored customary interests and opened a path — albeit a narrow one — by which the courts could recognise mana tuku iho — the authority iwi, hapū and whānau have traditionally exercised in the marine and coastal area. The act could serve as a vehicle for giving legal expression to those customary interests.

Now, in 2021, more than two decades after his initial application, Claude Edwards’ claim has come to fruition, though he is no longer alive to see the outcome. Earlier this month, the High Court granted customary rights over a portion of moana in the eastern Bay of Plenty to a cluster of iwi and hapū allied with Claude’s iwi, Te Whakatōhea.

It is a landmark decision that will likely serve as a precedent and a blueprint for more than 200 other applications for marine and coastal title currently before the court. And it is a triumph for Whakatōhea. 

As has been pointed out in the wake of the decision, hapū that have been recognised as holders of customary rights now have a “seat at the table”, and decisions about their marine environment, from harbour developments to aquaculture, must include them.

Not that the act makes it easy for applicants to be granted the rights they seek. 

For a protected customary right (PCR) to be recognised, the act says it has to have been exercised continuously since 1840 in a defined area of coastline and in accordance with tikanga. 

A customary marine title (CMT) is an even stronger form of property right than a protected customary right, and has a higher threshold of applicability. To be granted a customary marine title, a group has to demonstrate not only that it has exercised its rights in the area without substantial interruption since 1840, but that it has done so exclusively. And all in accordance with tikanga.

Tikanga is central to this case, and discussion about its meaning is prominent in the court’s decision. 

The court offers an expansive view of tikanga — much broader than its usual shorthand translation as “protocol,” a word that suggests that tikanga is primarily about etiquette and behaviour. 

In his decision, presiding judge Justice Churchman quotes the definition of prominent scholar Hirini Moko Mead: 

Tikanga are tools of thought and understanding. They are packages of ideas which help to organise behaviour and provide some predictability in how certain activities are carried out. . . . They help us to differentiate between right and wrong and in this sense have built-in ethical rules that must be observed. Sometimes tikanga help us survive.

Justice Churchman also cites the writings of Supreme Court justice Joe Williams (whose conversation with Moana Maniapoto was presented last Sunday in E-Tangata). 

Tikanga, says Justice Williams, formed the “first law” of Aotearoa. It operated for centuries before the British brought their law, the “second law,” to these shores. 

The two bodies of law intersected in 1840 with the signing of the Treaty of Waitangi, says Justice Williams. The Treaty was the “mechanism through which these two systems of law would be formally brought together in some sort of single accommodation.” 

For over a century, the first law was buried under the second. During that long dark age following the Wi Parata case in 1877, in which the Treaty was dismissed as a “simple nullity,” Māori customary title in the whenua and takutai moana — an expression of tikanga law — was denied. 

But now the relationship between the two systems of law has been vigorously reactivated. Recognition and application of tikanga is front and centre of this engagement, and customary title is one of the ways it is being expressed.

In 2003, the Court of Appeal drew a line in the sand when it stated that the existence and extent of customary property rights must be determined not from European-derived common law but from tikanga.

Justice Churchman’s decision reinforces and expands that finding. In its jurisdiction of the foreshore and seabed, he writes, tikanga “bore little resemblance” to the British legal system. 

“Tikanga reflected the belief systems, values and life experience of the tangata whenua,” he writes. “How the tangata whenua related to land differed fundamentally from concepts of land ownership and tenure that had been developed in feudal England and had led to a system where the monarch (the Crown) held absolute sovereign title to all land.”

One aspect of the case where tikanga law and common law diverge is the meaning of the word “hold.” The Marine and Coastal Area Act requires that for a customary marine title to be granted, the applicant group must “hold” the area under consideration in accordance with tikanga. 

The counsel for the Attorney-General (the government’s representative in the case) and for another group, the Landowners Coalition, an organisation that champions private property rights, asserted that the word “hold” has an intrinsic proprietorial aspect. To “hold” is to own and to control — and to have the power to exclude others. The thing that is held is a property of the person holding it.

The counsel for the applicants saw things differently. In their view, holding under tikanga differs from western ideas of property. It lacks the connotations of ownership. 

Justice Churchman agreed with them, saying it would be wrong to interpret the word “hold” as requiring that an applicant demonstrate a proprietorial interest just because such interests are present in common law. 

(Even in English, there are different meanings of the word “hold.” You can hold a position of power and you can hold the person you love — two very different types of holding.)

“Holding an area of the takutai moana in accordance with tikanga is something different to being the proprietor of that area,” Justice Churchman writes. 

Not only is it different, but the difference is something that must be specified by tangata whenua, he continued. 

Whether or not an applicant group has established that they held an area in accordance with tikanga is to be determined by focusing on the evidence of tikanga, and the lived experience of that applicant group. The exercise involves looking outward from the applicant’s perspective rather than inward from the European perspective and trying to fit the applicant’s entitlements around European legal concepts.

This is a remarkable statement. What the court is saying is that you can’t decide issues relating to customary land title by reference to common law concepts of property. That’s not only inappropriate, it’s wrong. You have to interpret property through the tikanga lens, not tikanga through the property lens. Not from the outside looking in but from the inside looking out.

Justice Churchman elaborated on the importance of seeing things from the inside by referring to the Māori view of creation. Ranginui and Papatūānuku are ancestors, “and one does not own one’s ancestors,” he wrote. 

Ancestors are the source of whakapapa and whakapapa is a tikanga that dictates Māori societal norms and relationships. In tikanga, rather than there being an emphasis on exclusive individual or collective title to any part of land, the focus was on the use of and relationship with resources of the land and sea including manaakitanga. Perhaps most importantly for this litigation, the concept of exclusion was fundamentally inconsistent with the tikanga values of manaakitanga and whakapapa.

Justice Churchman further cautioned against drawing on the experiences of first nations in other former colonies, such as Canada and Australia, and attempting to apply them locally. 

“It is not particularly helpful to attempt to apply Canadian and Australian jurisprudence on Aboriginal title,” he writes. “The critical focus must be on tikanga.”

He made this remark in the context of a discussion on exclusivity. What does the Marine and Coastal Area Act mean when it requires an applicant to demonstrate “exclusive use”? 

The counsel for the Crown submitted that the phrase “exclusive use and occupation” required the applicant to show that a group controlled the specified area to the exclusion of third parties. The Crown counsel pointed to a decision by the Supreme Court in Canada which had said that exclusivity of occupation “requires intention and capacity to control the land”.

Justice Churchman said Canadian cases related to a different type of property right from customary marine title, and were of limited relevance. They were another form of “outside looking in”. 

Rather, he wanted to know what tikanga Māori had to say about exclusive use of resources — especially in the situation at hand, where six Whakatōhea hapū asserted exclusive and uninterrupted use of their takutai moana. 

Could there be “shared exclusivity”, in which groups with whakapapa relationships to a marine area use that area cooperatively, but other groups may not do so without the permission of the holders of mana whenua?

The court found that there could be that form of cooperative use, and that a customary marine title could be jointly held by several applicant groups. How might that be achieved in practice? Could it be done without dissension? 

Justice Churchman expressed a confident view: “There will clearly need to be co-operation and agreement between the holders of joint CMT but these are not insurmountable issues,” he writes. 

“Tikanga has in the past provided for the exercise of a complex web of overlapping rights. It should be able to assist in parties holding CMT on a joint or shared exclusive basis working out how to jointly exercise the rights conferred by a grant of CMT.”

This is an important insight. Justice Churchman reinforces it by quoting a Canadian expert on shared exclusivity. Again, the emphasis is on looking from the inside. 

That expert, Kent McNeil, writes that “control, management and use of Aboriginal title land is a matter for the titleholders themselves to determine, which must entail self-government and the application of their own laws. Where joint title is concerned, the internal relationship is between the joint Aboriginal titleholders, not with the Crown.” 

In other words, let tikanga do what it evolved to do: to manage relationships and to manage resources.

A further challenge in the Whakatōhea proceedings came in the form of questions about what “substantial interruption” means. Did the presence of oysters farms or other aquaculture facilities mean that hapū use of the marine area had been interrupted — and therefore that they did not qualify for a customary marine title? 

How about a long history of commercial fishing in the area? Or a plethora of recreational boaties heading into the moana each weekend to fish?

The court decided that “the fact that third parties undertake both commercial and recreational fishing activities in the specified area does not amount to a substantial interruption of the holding of the specified area in accordance with tikanga.” 

In fact, far from being evidence of interruption, the court considered that sharing of a resource with outsiders can demonstrate tikanga. “One of the consequences of holding an area in accordance with tikanga is the obligation of manaakitanga. That obligation can extend as far as sharing the resources of the takutai moana with non-Māori.”

Use of the moana is, of course, much broader than just fishing. In his decision, the judge grants protected customary rights for activities as varied as the exercise of kaitiakitanga, including planting pingao and spinifex. Gathering firewood and collecting wood for artwork. Collecting shells (for jewellery, ornamentation or as scrapers), stones (for hangi, ornamental purposes, tools, foundation supports) and paru (mud) for staining and preserving carvings or fibre products. Gathering seaweed, whitebaiting, fishing. Placing umbilical cords in crevices of rocks on the seashore. Returning whenua to the foreshore. Travelling to sites for wānanga, sulphur and other minerals. Collection of rongoā material. And performing baptisms.

In discussing the tikanga of resource sharing, Justice Churchman quotes his fellow judge, Joe Williams, who regards whanaungatanga, the principle of kinship, as the “glue that holds the system of tikanga together”, particularly in relation to the use of resources. 

“The point is that whanaungatanga was, in traditional Māori society, not just about emotional and social ties between people and with the environment,” writes Justice Williams. “It was just as importantly about economic rights and obligations. Thus rights depended on right holders remembering their own descent lines as well as the descent lines of other potential claimants to the right.”

Relationships dictate the terms and conditions of resource use, says Justice Williams. And in this case, they argue for shared and overlapping customary rights. 

The principle of kinship “emphasises an inclusiveness and collectiveness which is contrary to the exclusionary exercise of rights which often forms the basis of the common law legal system,” Justice Churchman adds. It would be illogical, he says, to limit a recognition order to one applicant group only, when there are several within the application area. 

“For example, the landing and transport of vessels, collection of traditional resources for practices such as rongoā, and traditional practices at sites within the takutai moana, such as tangihanga and sharing of iwi/hapū/whānau mātauranga, occurred and continue to occur across a number of the applicant groups, as opposed to a single group,” he writes. 

“I therefore conclude that the fact that another group holds CMT in an area does not automatically preclude a different group from obtaining an order for PCR in respect of the same area.”

In fact, the conceptual framework the claimants in this case adopted was that of a poutarāwhare, a sheltering house under whose roof many may gather.

Does it seem strange to be reading a court decision and discover that you’re hearing a dissertation on Māori worldview? It is becoming the norm. 

In recent years, the courts have taken the lead in insisting that tikanga, Aotearoa’s first law, be recognised, understood and applied in parallel with British-based law. 

The courts have thus become a force for decolonisation, as Justice Williams said in his interview with Moana Maniapoto. This High Court decision proves his point.

 

© E-Tangata, 2021