ehara te toka i a Kiha, he toka whitianga ra, a, ka pa taaua ko te toka i Mapuna tena taau e titiro ai ko te ripo kau

Transcription

1 1 ehara te toka i a Kiha, he toka whitianga ra, a, ka pa taaua ko te toka i Mapuna tena taau e titiro ai ko te ripo kau liken me not to the rock Kiha on which the sun constantly shines but liken me instead to the rock Mapuna viewed only by the swirling tides Na te Tupuna Tarutaru

2 2 NGA MIHI KI NGA KAI TAUTOKO O TENEI TUHITUHINGA Acknowledgments Ka nui aku mihi ki a koutou katoa e tautoko mai ana i ahau i te wa tino roa e mahi ana ahau i tenei mahi. I thank the many people who have supported me in the long time that it has taken to complete this work. Greatest thanks must go to my own people Dr Cleve Barlow of Ngapuhi, who has guided me through this entire process from start to finish Marara Hook of Ngai ta Wake ki te Moana, who patiently translated the texts used in this study and Waerete Norman and Rehi Rihari (both deceased), whose lives epitomise the struggle of Maori women to gain academic recognition and the determination required to achieve success. I also wish to thank the Faculty of Law for letting me take so long to complete this work, and, more especially, the succession of supervisors that I have worn out in the process. This has not been an easy study for Maori academics to advise on how much more difficult it must have been for Pakeha supervisors. Special thanks must go to Dr David Williams as the sole Pakeha survivor, whose encouragement and guidance throughout the process and up until completion has remained steadfast, to Dr Kenneth Palmer for always being available and supportive when I have needed him and to Dr Charles Rickett for being willing to give it a go!

3 3 TE WAAHI TAKE O TE MAHI NEI 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 20 th 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 , and evidence presented in hearings for the granting of resource consent to build a prison at Ngawha, in Section A establishes the ambit of the study. I 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.

4 4 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 part 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 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.

5 5 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.

6 6 NGA TUHITUHI KEI ROTO Contents NGA MIHI KI NGA KAI TAUTOKO O TENEI TUHITUHINGA Acknowledgments...2 TE WAAHI TAKE O TE MAHI NEI Abstract NGA TUHITUHI KEI ROTO Contents WAHANGA TUATAHI SECTION A HE KORERO TIMATANGA INTRODUCTION TE KAI TUHITUHI THE WRITER (a) Ko Wai Te Kai Tuhituhi? (b) Who Is The Writer? TAKU ROHE TIROTIRO THE AREA OF MY STUDY (a) The Scope Of My Study...19 (i) Title...19 (ii) Thesis...19 (iii) Developing My Thesis Into A Study...19 (iv) Research Archive Used...21 (b) Delimitations Of The Study (i) Author s Position...26 (ii) The Nature Of The Study And The Geographical Region Covered...27 (iii) Limited Availability Of Written Information About Tikanga Maori / Maori Custom Law...28 (iv) Use Of Te Reo Oral Traditions...29 (v) Use Of Te Reo Written Works...31

7 7 (vi) Translating Maori Concepts Into English Language HEI AHA TENEI MAHI? WHY THERE IS A NEED FOR THIS STUDY (a) Introduction...33 (b) Abstract Thinking As A Fundamental Requirement of Maori Custom Law...35 (c) Need For Research To Support The Work Of The Maori Land Court And The Waitangi Tribunal...40 (i) The Call For Research Into Maori Custom Law...40 (ii) The New Zealand Law Commission Maori Custom And Values In New Zealand Law Paper...43 a. The Ability Of Maori Custom Law To Change Over Time...44 b. Aligning Maori Custom Law With The English Common Law System Introduced Into Aotearoa In (iii) Conclusion...47 WAHANGA TUARUA SECTION B TE KAUPAPA O TE MAHI A MAORI CONCEPTUAL FRAMEWORK TIMATANGA INTRODUCTION AND STRUCTURE OF SECTION B 2. TE AO MAORI A MAORI WORLD VIEW (a) Introduction...52 (b) Wairua Maori Reality...53 (c) The Importance Of The Creation Stories...60 (d) Nga Kete Tuatoru The Three Baskets of Knowledge...61 (e) Conclusion KEY CONCEPTS / PRINCIPLES UPHOLDING A MAORI WORLD VIEW (a) Introduction...67 (b) WHAKAPAPA...68 (i) Whakapapa As A Process...69

8 8 (c) (d) (e) (f) (ii) Whakapapa As A Vehicle For Conveying Wairua...71 (iii) Whakapapa as A Hierarchical Process Of Authority...73 (iv) Conclusion...75 WHANAUNGATANGA (i) Introduction...77 (ii) Whanaungatanga As A Concept Highlighting Relatedness...77 (iii) Whanaungatanga As A Principle Of Inclusion...78 (iv) Whanaungatanga As A Principle Highlighting Moral Responsibilities...79 a. Family Relationships i. Papatuanuku Aroha...79 ii. Group Identity Whanau, Hapu And Iwi...80 iii. Relationship To Natural Resources...81 b. Utu Reciprocity...81 MAURI (i) Introduction...83 (ii) What is Mauri?...83 (iii) What Is the Job/Purpose of Mauri?...85 (iv) Why Does Mauri Need Protection?...86 (v) Conclusion...88 MANA (i) Introduction...89 (ii) The Double Aspect of Mana As Power and Authority...89 (iii) Sources of Mana Recognised By Maori Society a. Mana Wairua...90 b. Mana Atua...90 c. Mana Tupuna...91 d. Mana Whenua...91 e. Mana Tangata...92 (iv) Conclusion...95 TAPU

9 9 (i) Introduction...96 (ii) What is Tapu?...96 a. Inherent Tapu...97 b. Imposed State Of Tapu...98 (iii) Rahui...99 (iv) Tapu Nature Of Knowledge (v) Conclusion CONCLUSION TO SECTION B WAHANGA TUATORU SECTION C WHAKAPAPA, WHANAUNGATANGA, MANA ME TAPU MAORI CUSTOM LAW IN THE 19 TH CENTURY AND EARLIER INTRODUCTION WHAKAPAPA (a) Introduction (b) Four Tenets of Maori Custom Law Relating to Whakapapa (i) Whakapapa Links To Important Ancestors Ngapuhi Whakapapa (ii) Whakapapa Links To Specific Areas (iii) Whakapapa Links Through Significant Events (iv) Whakapapa Maintaining Inter-generational Links (c) Establishing Whakapapa Entitlements To The Lands Under Claim (i) Senior Whakapapa And The Right To Speak On Behalf Of Others (ii) Senior Whakapapa And Territorial Authority a. East Coast Claims b. West Coast, Hokianga Claims (d) Women With Senior Whakapapa Lines Exercising Authority (i) Kohinemataroa (ii) Taimihitata...128

10 10 (iii) Ruapounamu (iv) Ngakahuwhero (v) Patu Wahine (vi) Men Living Under The Authority Of Women Of Senior Lineage (e) Conclusion WHANAUNGATANGA (a) Introduction (b) The Importance Of Kinship Links (i) Kinship Links And Group Identity (ii) Naming Of Groups a. Augmentation Over Time b. Specific Events (c) The Principle Of Aroha Benevolence Toward Kin (i) The Sharing Of Authority And Leadership Within A Group Teina/Tuakana And Tupuna/Matua status (ii) The Duty Of Rangatira To Atawhai Kin Under Their Authority (iii) Tuku As A Vehicle For The Duty To Atawhai (iv) Conclusion (d) The Principle Of Utu Sanctions And Reprisals For Wrongs Against Kin (i) Categories Of Offences Committed a. Breach Of Rahui b. Theft c. Causing The Death Of A Relative (ii) Liability Settled By Physical Combat Seeking Utu a. Pakanga Rangatira i. The Role of the Peacemaker b. Patu Aware c. Cannibalism Custom Law Eating Practices...168

11 11 (e) Conclusion MANA (a) Introduction (b) Mana Tangata Mana Of Individuals On The Land (i) Introduction Whakapapa, Status And Individual Mana (ii) Rangatira a. Mana Rangatira (iii) Tohunga (iv) Kaumatua/Kuia (v) Warriors (vi) Gardeners (vii) Pononga (viii) Conclusion (c) Mana Tupuna (i) Introduction (ii) Hokianga Hearings (iii) Waireia Native Land Court Hearing (iv) East Coast Papatupu And Native Land Court Hearings (v) Conclusion (d) Mana Whenua Mana And Territory (i) Introduction (ii) Huaina Whenua Naming The Land (iii) Tuku Whenua Granting Property Entitlements To Others a. Temporary Tuku When Leaving Territory b. Tuku Whenua Within Settled Territorial Boundaries i. Granting Of Tuku Title...203

12 12 ii. Tuku Made To Individuals For Whanau And For The Community c. Tuku Personal To The Grantee And Their Uri d. Duration Of Tuku e. Type Of Title Held i. Tuturu Entitlement ii. Aroha Title f. Residence/Occupation As Proof Of Title g. Challenges To Mana Rangatira The Advent Of New Opportunities For Trade Timber Cutting At Hokianga And Waireia h. Conclusion (iv) Raupatu As A Means Of Acquiring Territory a. Introduction b. Okuratupe, Waimate Papatupu Hearings c. Te Tii, Mangonui, Waimahe Blocks i. Tuku By Auha d. Matawaia No. 1 Block e. Conclusion 238 (v) Setting Boundaries Between Group Territories (vi) Retaining Territory Ringa Kaha (e) Conclusion TAPU (a) Introduction (b) Tapu And The Formation Of Property Relationships (i) Extending Personal Tapu To Other Things Tapu And Mana Tangata a. Extension Of Tapu To The Personal Belongings Of Rangatira b. Extension Of Tapu To Things Touched By

13 13 A Tohunga c. Tapu And Individually owned Food Resources d. Birth And Death Of A Rangatira (ii) Tapu Associated With Wahi Tapu Or Burial Grounds Mana Tupuna (iv) Tapu As An Administrative Device For Regulating Resource Relationships a. Authority To Impose tapu States On Resources Mana Rangatira i. Trees ii. Huke Roi iii. Areas Of Sea b. Rahui And Territoriality Tapu And Mana Working Together c. Tapu Following Raupatu d. Wahi Tapu As A Source Of Land Entitlement e. Removal Of Tapu (c) Conclusion WAHANGA TUAWHA SECTION D TWO MODERN CASE STUDIES NGAWHA GEOTHERMAL HEARINGS 1992 AND NGAWHA PRISON HEARINGS INTRODUCTION AND BACKGROUND (a) The Ngawha Geothermal Hearings (b) The Ngawha Prison Hearings WHAKAPAPA (a) Introduction (b) Boundaries And Origins Of Ngapuhi Set Out (c) Development of the Principle of Whakapapa (i) The Geothermal Claim...293

14 14 (ii) The Prison Hearings (d) Conclusion WHANAUNGATANGA (a) Introduction (b) Changing Group Identity (i) The Geothermal Hearings (ii) The Prison Hearings (c) Aroha/Atawhai (i) The Geothermal Hearings (ii) The Prison Hearings a. The Ambit Of Kaitiakitanga b. The Nature Of The Kaitiaki RelationshipPut Forward By Ngati Rangi (d) Utu (e) Conclusion MANA (a) Introduction (b) The Statutory Framework Of The Geothermal And Prison Hearings (c) Ngawha Geothermal Claim (d) The Prison Hearings (i) Whakapapa And Mana The Exclusive Claim By Ngati Rangi... To Mana Whenua And Kaitiakitanga (ii) Ngapuhi Tikanga vs Bay Of Plenty Tikanga (e) The Environment Court (f) Conclusion TAPU (a) Introduction (b) The Geothermal Claim (c) The Prison Hearings (d) Conclusion WAHANGA TUARIMA SECTION E...356

15 15 THESIS CONCLUSION APPENDICES Appendix 1: The Treaty of Waitangi/Te Tiriti o Waitangi MAPS Area of Study Wahanga Tuatahi Section A...27 Tai Tokerau Region Covered In Wahanga Tuatoru Section C Ngawha Geothermal Region Covered in Wahanga Tuawha Section D BIBLIOGRAPHY GLOSSARY...379

16 16 WAHANGA TUATAHI SECTION A HE KORERO TIMATANGA INTRODUCTION

17 17 1. TE KAI TUHITUHI (a) Ko wai te Kai Tuhituhi? He uri ahau no Ngati Korokoro, no Te Hikutu, no Te Rarawa, no Ngati Kahu, Te Aupouri me Taranaki hoki. E marara ana oku tupuna, ka huna ki roto i nga kohao rau o Te Tai Tokerau, me etahi atu wahi. Ko toku tupuna papa, no Ngati Tarara. Ka pupuke rawa taku whakapapa ka pa ki te ao whanui me te reo tawhiti. Ka puta mai ahau, he kotiro, me te potiki, te pepi i karanga mai ai i taku mama i te matenga o taku tuahine. I tupu ake ahau i Lake Ohia. Ka tukuna atu ki Marist Convent i Akarana, i au e tamariki tonu ana. I muri i tena ka hou atu ki te kura o Kuini Wikitoria. I muri i tena ka whai pepi ahau, he tamaiti na whai hoki i te matauranga e pa ana ki te tangata me te ture i te Whare Wananga o Tamaki Makaurau. He mahita ahau i te Kura Ture inaianei. Ahakoa ko te nuinga o taku mahi e pa ana ki te ture Pakeha e ahei ana ahau ki te whai i te ture Maori hoki, penei me tenei. Ki etahi Maori, na te mea he wahine ahau, horekau au i ahei ki te whai i nga tikanga e pa ana ki te matauranga me te whakapapa o nga tupuna, penei i taku mahi, ma te taane hoki anake. Horekau au e whakaae ki aua korero. Ko tenei mahi he mahi mo te hinengaro me te wairua ehara tenei i te tino waahi pakanga kia whai mana ai te tane, kia wehe ai te wahine, e ai ki o tatou tino tikanga no mua ake ra, kei raro ke, kei waenganui i nga huha o te wahine. E whai ake ahau i tenei mahi, i te mea, e whakaro ana ahau, mena e hiahia ana matou, te iwi Maori, ki te kume i to matou rangatiratanga i tahaengia atu e te Tauiwi, ko te mea tuatahi, titiro ki mua, tangohia nga mea tika no mua, mauria mai hei poutokomanawa kia hangaia hei ture mo nga wa kei te haere mai, kia kaha ai tatou i tenei ao hou. Ehara ahau i te wahine tino mohio, tino kaha mo enei momo take. Engari, ko tenei taku mahi iti, hei koha mo koutou e haere ana i tenei haerenga nui mo a tatou nei iwi.

18 18 (b) Who is the Writer? I am a descendant of Ngapuhi Ngati Korokoro, Te Hikutu, Te Rarawa, Ngati Kahu, Te Aupouri are my hapu. I also whakapapa to Taranaki. My Maori tupuna spread out and hide inside the hundred holes of Te Tai Tokerau and other places. My grandfather is Croatian from Tucepi. This adds another, completely new dimension and language to my whakapapa framework of analysis. I am the baby called for by my mother when my older sister died. I grew up in Lake Ohia in the Far North. I was educated at Marist Convent and Queen Victoria School in Auckland. After my son, Inia, was born, I attended Auckland University to study Arts and Law. For the past 12 years I have taught in the Faculty of Law at Auckland University. My teaching, although primarily English common law based, also provides room for research into the subject of this study, Maori custom law. I embarked on this study over 10 years ago because I believed that if we, as Maori, were to reclaim our self-determination, rangatiratanga, mana, (or whatever other name we might give to exercising greater authority over our lives), we had to first go back and pick over the best and worst of our past. Then we could use that knowledge to guide us into a future that was of our own crafting. I was not sure how to do this in a western legal-academic institution that takes for granted the pervasive application of its own concepts and principles, and whose purpose is to entrench those principles into the minds of its students. This study has been a journey of discovery for me of dead ends, new directions, and much discarding of information. What have I achieved as a result? I have not become an expert in tikanga or te reo Maori. This seemingly endless process of inquiry, evaluation and constant revision has made me aware of how very little I know, or matter in the wider scheme of things. In the end, all I can say with certainty is that the work is mine. I hope that it makes a small contribution toward the survival

19 19 and progress of my people, and New Zealand society generally. At the very least, I hope that it provides a skeletal framework for others to pick over and build upon. 2. TAKU ROHE TIROTIRO THE AREA OF MY STUDY (a) The Scope of my Study (i) Title The identification and use of key concepts/principles of Tikanga Maori (Maori Custom Law) and their use as regulators of human relationships to natural resources in Tai Tokerau past and present. (ii) Thesis In this study, I posit that Whakapapa and Whanaungatanga provided the conceptual framework within which Maori custom law operated as a system of law in Aotearoa/New Zealand since the time of contact, 1 and that Mana and Tapu were the principal determinants of the content and operation of custom law. I further posit that these four fundamental concepts gave rise to jural principles that have been developed over time to suit the changing circumstances of Maori since the introduction of a second, Englishbased system of law after I believe that these principles need to be developed further if Maori are to develop a modern system of Maori custom law capable of sustaining Maori society into the future. (iii) Developing my Thesis into a Study This study is framed as a series of narratives, which I have linked together in a way that makes the information more easily accessible to readers whose main frame of reference is 1 Throughout this study I adopt the modern trend of naming the entire country Aotearoa, rather than using the terms Niu Tireni, Niu Tirene or tenei motu as is often found in the early 20 th Century Maori transcripts referred to in Section C.

20 20 English language concepts. Although using English language instead of te reo Maori detracts from the comfortable fit that Maori terms enjoy within their own language context, many Maori and most non-maori do not read te reo. Although it would be a lot easier and more fluid to write this thesis using te reo Maori, in order for the study to be accessible to a wider audience I have chosen to write in English. Thinking and writing about one society using the language and assumptions of another society presented difficulties for early Pakeha writers, and the way they thought is still reflected by some modern writers. This is briefly discussed in Section A, as a personal motivator for writing this thesis. More important though, is the need to provide research into tikanga for the judges of the Maori Land Court and Waitangi Tribunal, who must deliberate tikanga issues as part of their judicial roles. In Section B, I set out the conceptual approach I will use in the study and the intellectual framework within which further discussion will take place in later sections. The first part of Section B focuses on the importance of Te Ao Wairua (the spiritual realm) as the basis of the Maori worldview from which Maori custom law emerges. The Maori creation stories exemplify the Whakapapa process for thinking about and organising all Maori relationships. Nga Kete e Toru (the three baskets of knowledge) create divisions between the different types of knowledge recognised by Maori. In this section I also flesh out the concepts of Wairua, Whakapapa, Whanaungatanga, Mana, Tapu and Mauri, which I view as being pivotal to understanding Maori custom law as a self-contained system of law. Section C is the major part of this study. It focuses on information drawn from the written records of Papatupu Hearings that took place after the Native Land Court was established in These Hearings took place at the beginning of the 20 th Century. The material is recorded in te reo Maori. Much of it involves the narration of events that took place before They are recollections of incidents that have been passed down by successive tupuna (ancestor/s). Information about the role of women in the area is an important part of this Section.

21 21 The Papaptupu hearings material has not previously been the subject of academic research. In Section C, I examine the application of the key concepts of Whakapapa, Whanaungatanga, Mana and Tapu as jural principles, against the framework set out in Section B. In Section D, I compare the key concepts and principles discussed in Sections B and C with modern Maori usage. I examine the arguments used by Maori claimants when asserting their right of ownership and control of the Ngawha geothermal resource before the Waitangi Tribunal in I also analyse the affidavit evidence provided by Maori to the various statutory bodies responsible for hearing the applications for resource consents necessary to build a prison at Ngawha. The purpose of this examination is to demonstrate that changes have taken place in the hierarchy of importance and application of the jural principles identified in Sections B and C. (iv) Research Archive The main source of historical information drawn upon in this study is contained in material recorded by the Papatupu Committees established to hear native land claims, and other Native Land Court records at the beginning of the 20 th Century. The Maori Lands Administration Act 1900 established 6 Maori District Land Councils in the North Island. 2 Each District was to establish a Maori Land Council of 5 to 7 members. 3 Each Council was presided over by a European judge of the Native Land Court. 4 These councils comprised 2/3 members appointed by the Governor, 1 of whom 2 Section 5 of the Maori Lands Administration Act Ibid, section 6. 4 Ibid, section 6(1).

22 22 had to be Maori, 5 and 2/3 Maori members elected from the land district. 6 The District Land Councils possessed all the powers and jurisdiction of the Native Land Court. 7 The Papatupu Block Committees were established under the Maori Lands Administration Act to assist the work of the District Land Councils. A District Land Council was able to refer matters to a Block Committee for investigation and report, and to give effect to the report provided if it so wished. 8 Papatupu Block Committees consisted of 5-9 Maori members elected from within local communities. 9 Their task is set out in the Act as follows: Section 17 The committee, having due regards to Maori customs and usages, shall make full investigation into the ownership of the block, and, as the result of such investigation, shall cause a sketch-plan of the block to be prepared adopting hapu boundaries as far as practicable. Section 18 The committee is to prepare a report setting forth: 1. Names of owners of a block grouping families together, but specifying the name of each member of each family 2. The relative share of the block to which each family member is entitled 3. The relative share to which each member of the family is entitled in such family s share of the block; The conduct and processes of each Papatupu Block Committee was internally regulated by the Committee. 10 The usual procedure was to employ a kaiwhakahaere (conductor), and kaikorero (speakers) to present testimony on behalf of whanau. Cross-examination 5 Ibid, section 6(2). 6 Ibid, section 6(3). 7 Ibid, section 6(9). 8 Ibid, sections Ibid, section 16(1). 10 Ibid, section16(4).

23 23 of those who presented evidence was permitted. Site visits were conducted whenever the Committee deemed them necessary. Elder committees were established to sort out matters of contention that arose between claimants and to facilitate agreement. Proceedings were conducted totally in te reo Maori. According to Jane Mcrae, who wrote her Masters thesis about the operation of Papatupu committees: 11 this inspired confidence being a correct and satisfying way of discussing topics central to Maori thought and behaviour and of deep emotional attachment. Mcrae notes the downside to this as being that knowledge previously discussed within the intimacy of the marae: 12 lost much of its subtlety as it became relevant only to pronouncing facts and providing information in a legally malleable form. Another salient point is noted by Grant Young who says that from the mid-1880s onwards, Maori giving evidence before the Native Land Court were not the sons and daughters of the great rangatira who had led their tribes but a landscape of voices asserting smaller kinship group rights within the same iwi territory. 13 The voices may have multiplied but the beat-line remained the same. From the mid- 1800s onwards, Native Land Court processes and authority began to replace traditional leadership processes of allocating entitlements to land within a given territory. This being the case, applicants for title determinations may have become more adept at tailoring their stories to fit what they believed the Court needed to hear for a successful claim to result. Despite this, both the Papatupu hearings and the Native Land Court 11 J Mcrae, Participation: Native Committees (1883) and Papatupu Block Committees (1900) in Tai Tokerau, Thesis submitted in partial fulfilment of the requirements for the degree of Master of Arts in Maori studies, University of Auckland, 1981, Ibid at G Young, A Short History of Post-Treaty Maori Customary Rights to Land, in Waitangi Revisited: Perspectives on the Treaty of Waitangi, ed. M Belgrave, M Kawharu and D Williams, Oxford University Press, Melbourne, 2004, 259.

24 24 records of the time show that those seeking to have their land rights recognised still based their claims upon traditional tikanga principles. Papatupu Block Committees worked closely with the District Land Councils. According to Mcrae, during the investigation of titles, agreement amongst claimants was encouraged at both levels. Objections to Committee decisions were heard by the Council. Councils were able to adopt the views of the community elder committees set up to reach agreement between claimants, and willingly did so, particularly if an arrangement had been adopted by the Block Committee. 14 The work of the Papatupu Block Committees in Tai Tokerau was positively acknowledged by the Native Land Commission when it reviewed Maori land holdings in the Tai Tokerau region in 1907: 15 In 1900 Parliament delegated to Maori Committees elected by claimants to papatupu land, some of the powers of the Native Land Court on investigation to title. We were given to understand that this method of investigation had ignobly failed. Yet its results are astonishing, judging from the following figures which summarise the position for all counties north of Auckland: Area of blocks dealt with: 175,393 acres Area affirmed by Board and not appealed against: 28,315 Area appealed against and finally determined by Appellate Court: 73,217 Area referred to Native Land Court, or for which no title issued: 72,420 The time occupied was seven years, and in our opinion there was considerable saving of money to the state. 14 Mcrae, supra note 11 at Interim Report of Native Land Commission on Native Lands in the Counties of Whangarei, Hokianga, Bay of Islands, Whangaroa, and Mangonui, AJHR 1908, Volume IV. F-G, G-1J, 8.

25 25 Mcrae notes that despite the fact that Maori showed a marked preference for the Papatupu Block Committee process over the Native Land Court and the richness and extensive nature of the material recorded, these records have been accorded scant acknowledgment by researchers to date. 16 This may be because the material is written in te reo Maori. As such it has not been readily accessible to the Pakeha researchers who have provided most of the written scholarship about Maori. Other reasons could be respect for the integrity of the archive itself, or a desire to maintain the privacy of the resource by the whanau to whom the records belong. The material drawn from the Papatupu Block Committee Hearings forms the heart of this study. It is supplemented by other information taken from Maori manuscripts that deal with the pre-contact and contact period, held at the Auckland Library, Turnbull Library and in private collections. I have also drawn from the English writings of Europeans and Maori during the early 20 th Century. These English language sources have already been extensively examined by researchers. In my view, research conducted by Maori whose natural framework of thinking is referenced in terms of Maori concepts and principles, will add a valuable dimension to the body of knowledge that already exists. Although the New Zealand legal system is not the primary focus of this thesis, I will refer to New Zealand case law and statute law where relevant, as well as to a variety of commentaries on Maori land law and writings about Maori custom law. (b) Delimitations of the Study This study is circumscribed by the following factors, which ought to be taken into consideration when assessing its authority for future use. 16 Mcrae, supra note 11 at

26 26 (i) Author s Position As a legal academic whose tools of trade are principles and rules, I find that concepts naturally take on different cultural perspectives, depending on whether I position myself as Maori, Pakeha, Croatian, woman, lawyer, or a combination of the foregoing. Sometimes concepts that are perfectly reasonable when employed in one mindset and set of practices, take on a whole new meaning when viewed from the experiences of those to whom they have been applied. This is particularly so if the recipient is from a different culture. For instance, as a lawyer, the need for objectivity is a paramount requirement for dispassionate evaluation and good legal decision-making. But for Maori generally, objectivity, when backed by the force of law, is also be a value-laden term that masks a colonial history of negative consequences for Maori in Aotearoa/New Zealand. ie Objectivity >objectify > object > Maori Maori evidence before the Waitangi Tribunal shows how Maori from throughout Aotearoa/New Zealand have experienced the objective processes of the law as part of a rationalising process used by colonial governing institutions to facilitate and legitimate the ousting of Maori authority throughout Aotearoa/New Zealand. 17 In contrast to an objective approach, within Tai Tokerau Maori society, the way to truth has been promoted by elders such as Maori Marsden, as being through a passionate, subjective approach, which engages the heart, the spirit and the ancestors, before ever consciously touching the mind. 18 The ideal process advocated and widely employed by Maori in group discussion and decision-making, is one in which principles are often 17 The Waitangi Tribunal was established under the Treaty of Waitangi Act Section 6 of the Act sets out the Tribunal's jurisdiction to investigate claims by Maori that any Acts, policies, practices or actions of the Crown are inconsistent with the principles of the Treaty of Waitangi and have prejudicially affected Maori. Numerous claims have been made by Maori hapu and iwi to the Waitangi Tribunal under section 6, some of which have led to legislative recompense and an apology being made by the Crown. Tribunal reports are available online at 18 M Marsden, God Man and Universe: A Maori View, in Te Ao Hurihuri: The World Moves On, ed. M King, Longman Paul, Auckland, 1981, 143.

27 27 layered, one upon the other, and the ramifications of their application discussed, until an agreed outcome that is in accordance with those principles is reached. The two approaches are not always easy to reconcile. In this study, I try to locate myself at a juncture between cultures, languages and disciplines, where I can traverse Maori and English concepts without undermining the integrity of either too much. In this way I seek to minimise the tension of the dualistic approach that Maori academics working within English-based colonial learning institutions must continually negotiate. Location Map 1 (AREA OF STUDY) (ii) The Nature of the Study and the Geographical Region This study is an analysis of the written material gathered from specific hearings conducted as part of the Papatupu Block Hearings process established by Act of Parliament. The Land Blocks discussed fall within an area extending from Hokianga on

28 28 the west coast, up to Ahipara in the north, across to Mangonui on the east coast, down to Waitangi and back across to Hokianga. 19 Within this region Maori regularly moved about visiting relatives and for a number of other reasons, thus making it impossible to constrain the study strictly within the defined boundaries. It is easier to trace the actions of specific individuals from the region through the important events that are related by kai korero (speakers). For this reason, the study can best be described as one that is people focused. The whakapapa of the individuals giving evidence is, itself, determinative of the information related as the important history for the area. Enmasse, the records provide a series of snapshots from the past, connected by a whakapapa and whanaungatanga framework of relatedness that the speakers all understand but do not always clearly set out. In Section B, I have constructed and set out the Whakapapa framework I believe underpinned Maori custom law. This is the theoretical framework of my thesis, against which the information in Sections C and D is discussed and evaluated. (iii) Limited availability of written information about Tikanga Maori / Maori Custom Law The events recorded are unlikely to be the only significant ones in determining the tikanga practices that existed within the areas covered in this study. Nevertheless, within Tai Tokerau the main principles associated with various practices were broad enough to encompass changes in circumstances encountered as members travelled outside their territories. This study does not exemplify general Maori practices throughout Aotearoa. Knowledge of events is extremely contextualised in the Papatupu Hearings, with several rangatira laying out the tikanga for an area. There are numerous, distinctly identifiable groups. Each had its own established rangatira, who embodied the group s identity at a given time. Although whanau relationships and time frames are rarely clearly spelt out, it is 19 See Location Map 1, above.

29 29 clear that group formation and allegiances, though always in flux, occurred along a whakapapa continuum of known kinship ties. The information gathered in this study is an important indicator of how Maori custom law once operated in Tai Tokerau. The information provided by rangatira was not restricted to Blocks under discussion. Rangatira korero (the speeches of rangatira) encompassed the entire region and laid out the history of their people on the land for several prior generations. Of particular interest are the insights provided by rangatira as to the degree of authority exercised by rangatira women within the Hokianga area. At a basic level, a universal set of broadly defined jural principles is shared by all Maori living within Aotearoa. For this reason it has been possible to use general writings about concepts and principles from outside Tai Tokerau in Section A, which discusses why there is a need for this study. At the same time, I have tried to be careful to ensure that precedents specific to one area and whanau/hapu group are not transposed into Tai Tokerau. However, in Section B, when constructing my theorectical framework for this study, I have relied principally on information provided by writers from within Tai Tokerau, or who have written about the area, in order to give the study greater integrity. (iv) Use of Te Reo Oral Traditions Maori knowledge is based on oral traditions that have been handed down through successive generations within whanau and hapu. The use of oral recitation affects the way custom law was recorded, developed and transmitted between generations. Much of the wananga, or specialised knowledge, was restricted to certain classes of people and has been lost, either intentionally or through lack of use. The Tohunga Suppression Acts 1907 and 1908 also assisted this process by outlawing Tohunga practices. Section 2(1) of the 1908 Act stated:

30 30 Every person who gathers Maoris around him by practicing on their superstition or credulity, or who misleads or attempts to mislead any Maori by professing or pretending to possess supernatural powers in the treatment or cure of any disease, or in the foretelling of future events, or otherwise, is liable to a fine or to imprisonment. The Act was strongly supported by influential Maori of the time in order to outlaw the practices of quackery by Maori who were holding themselves out as being able to cure illnesses and to stop fatalities occurring from their inability to do so. 20 In failing to distinguish the legitimate role of tohunga in the transferal of knowledge, however, the Act also undermined the standing of holders of customary tikanga. Despite this, verbal transmission of local knowledge and history continued to occur on the marae and as part of the everyday processes of Maori community life and some ancestral knowledge survived. The advantage of verbal transmission is that it allows for information to remain contextualised and localised. It provides room for the local people to justify, explain, protect, direct and guide the dissemination of information to their audiences. In this way they are able to better control its application as a precedent, and prevent it being applied to circumstances that do not suit the needs of the community. There are, undoubtedly, sources of oral history within Tai Tokerau that will conflict with the information recorded by those who gave evidence before the Papatupu Block Committees and the Native Land Court. Thus, this study is not proffered as the truth about the area. It is the work of a single mind, guided by others, using the resources cited. In western academic studies it is usual for the writer to proclaim his or her expertise at the end of the study. In Maori custom, the opposite is true. The writer acknowledges that at the end of the day, she knows far less than she did at the outset of her journey, but nevertheless leaves a small offering for those who will follow to build upon. 20 NZPD 1907 Vol 139,

31 31 (v) Use of Te Reo Written Works Following European contact, some Maori knowledge was committed to writing in te reo. Of this, the Native Committee and Papatupu Block Committee Hearings provide one of the richest sources of material concerning tikanga relating to land. Although the opportunity for tikanga to be skewed towards maximising each speaker s own land entitlements was great, Mcrae records that the Tokerau District Maori Land Council responsible for confirming the reports provided by the Papatupu Committees and hearing any objections, expressed surprise at the degree of fairness shown by elder committees: 21 The first matter the Council has to decide is the claim under conquest. The Council has come to the conclusion that there has been no conquest the Committee of elders who were well acquainted with the history of the land refused to recognise the alleged conquest although some of them would have benefited to a large extent under it and this fact has influenced the minds of the Councillors considerably as against the Conquest. The decision in this case was arrived at by a Committee of Elders after months of work and consideration and was confirmed and adopted by the Block Committee After perusing the evidence given before the different Committees which sat on the Block and hearing the evidence given at this sitting the Council has come to the conclusion that its proper course is to adopt the Block Committee decision. In order to gain a better understanding of the information used in this study, I had to learn the whakapapa links of the rangatira whose evidence I was using, to Ngapuhi nui tonu (the wider Ngapuhi iwi) and the ancestor Rahiri, to whom all claim a connection. In this, I have relied heavily on Marara Te Tai-Hook, who belongs to Ngai Tawake ki te Moana and Dr Cleve Barlow of Ngapuhi. Without Marara s translations there would be no material to study. And without Cleve s guidance there would be a lesser understanding of that material. Notwithstanding that, responsibility for the selection and interpretation of the material used is mine alone. 21 Mcrae, supra note 11 at 78.

32 32 In conducting this study I do not seek to trample local knowledge held by kaumatua today, which may be at odds with my analysis or the information I have used to support it. My intention is to assist with providing a clearer idea of Maori custom law by examining what our tupuna said took place in the past, extracting key principles, looking at their past application and then comparing it with a modern application under the New Zealand legal system. (vi) Translating Maori Concepts into English Translating across cultures is a difficult task. At best the process is an imprecise one that relies on approximation and loose parallel as a means of conveying meaning and context across cultures. Added to this difficulty is the high expectation of Maori, that abilities acquired in the Pakeha world and Pakeha knowledge institutions will be equally matched by those gleaned from operating with great patience and practice on marae and at Maori gatherings throughout the country. 22 As Maori lawyers, we are often challenged by our own people about the authenticity of the learning we have acquired outside of our own territories and from within the confines of Pakeha institutions. The best way of minimising such criticism is to use the Maori language as the vehicle of communication rather than trying to invest English language with Maori values and concepts. I choose to write in English, however, because I work and teach in an English-speaking environment and want the results of my study to be widely accessible. Although some of the richness of language and culture that informs tikanga may be sacrificed in the process, I have tried to keep the main themes constant and clear throughout. 22 M Mutu, Cultural Misunderstanding or Deliberate Mistranslation, Te Reo: Journal of the Linguistic society of New Zealand, Auckland, 1992,

33 33 3. HEI AHA TENEI MAHI? WHY IS THERE A NEED FOR THIS STUDY? (a) Introduction I believe that a modern, coherent system of Maori custom law, whose principles are widely understood and used by Maori, is necessary in Aotearoa/New Zealand. I also believe that the acceptance of such a system requires greater education of both Maori and non-maori New Zealanders in the principles of Maori custom law and how they apply in practice. At present Maori custom law consists of a loose association of ideas, concepts and principles that has no particular pattern of organisation or hierarchy of principles. Its hallmark seems to be the flexibility with which these concepts and principles can be made to apply to any situation, in any order, by those who assert them. On the marae, tikanga is being argued vigorously to support the views of a growing number of selfstyled Maori leaders. While this process is politically sound, it lacks the discipline required for the application of law in a modern society. Maori custom law needs to be more than just a grab bag of amorphous concepts and principles if it is to have credibility as a coherent, workable system of law within the Maori community and wider New Zealand society. It needs to be understood as having internal coherence and consistency. This in turn, requires the articulation of a structured framework within which tikanga principles can be applied. It also requires decisionmakers capable of properly appreciating and applying those principles. The fear that such a framework would lead to rigid application of tikanga principles as fixed rules, is to misunderstand the nature of principle-based decision-making. Principles by their nature, are flexible tools that can be applied to a variety of different situations to produce significantly different outcomes. The quality and acceptance of a particular outcome by the individuals it affects is reliant on a number of factors. They include the information available to all participants, the arguments produced, as well as the quality and nature of the decision-making process itself, who the decision-makers are and where

34 34 the final decision rests. This is true whatever the culture. These are matters that have to be addressed if Maori custom law is to be workable in today s society. In Section B, I articulate the thinking framework that I believe holds a system of Maori custom law together. In Sections C and D, I employ this thinking framework to structure the information provided in legal hearings, by two different generations of Maori, living 100 years apart. In this way I am able to test whether the principles set out in Section B and applied in Section C have remained relatively stable over time even though the outcomes of their application may have changed. Although I do not attempt a detailed analysis of the relationship of Maori custom law to the English-based New Zealand legal system in this study, it is nevertheless, an important part of this study. In this Section I briefly refer to the New Zealand legal system in order to support why I think the study is necessary in the first place. In Section D the New Zealand legal system forms the formal hearing process within which Maori custom law principles are now being employed. There are two quite distinct underlying reasons for this study, one positive and the other negative. First, there is the recent call by His Honour, Justice Eddie Durie, for research to support the work of the Waitangi Tribunal and the Maori Land Court when applying Maori custom law within the framework of the New Zealand legal system. In order for Maori custom law to be applied as part of another system of law it is advantageous to understand it as a stand-alone system capable of existing on its own terms. Thus, there is a need for a better understanding of how Maori custom law fits together as a coherent, principle-based system of law. This is discussed further in (c) of this section, Need for research to support the work of the Maori Land Court and the Waitangi Tribunal. Second, is my personal conviction that there is still a need to dispel the perception conveyed by some influential early Pakeha settler-writers that Maori were an

35 35 intellectually inferior race and that Maori custom law existed as a set of discrete practices devoid of a coherent principle-base or any reference to abstract thinking. I also read this type of thinking into the writing of some modern academics and judges and believe that such views have strong genealogical connections to those of earlier Pakeha writers about Maori society. Closely aligned to this is the difficulty that some judges have in dealing with Maori spiritual concepts as part of modern New Zealand law, that is reflected in the weight given to those considerations in judicial decision-making. This issue is discussed further in Section D. (b) Abstract thinking as a fundamental requirement of Maori custom law In 1984, English legal scholar Peter Stein, writing about legal institutions generally, stated that as societies move from simple, hunter-gatherer societies, to agricultural, to commerce based, their thinking becomes more abstract. 23 Writing in 2004, Grant Young refers to Maori custom as being the result, not of abstract thinking, but of practical debates: 24 Custom can be neither abstracted nor reduced to rules. Rather, it is defined by the specific circumstances in which it operated relationships between people with common whakapapa or descent lines, occupation and use rights which are defined in a process of ongoing debate and dialogue. These debates (not abstract rules) were the very essence of custom. While the statement as to the importance of debate in Maori society is correct, the more important point that Young, and perhaps even Stein, overlooks, is the basic fact that the ability to think in abstraction is an adaptive device necessary to cope with daily living, irrespective of circumstances or culture. The debates referred to by Young were based around highly abstract notions of the concepts, principles and rules that a particular community considered important enough to be accepted as conceptual regulators of correct behaviour amongst members of the group. It is vital that this complex of abstract concepts, principles and rules that lies at the heart of custom is not obscured by the 23 P Stein, Legal Institutions: The Development of Dispute Settlement, Butterworths, London, 1984, Young, supra note 13 at

36 36 practice of debating, or by focusing exclusively on the practices found within Maori society at the expense of their underlying principle-base. I think that the ancestry of this type of thinking is found in the writings of influential early New Zealand writers who studied Maori society. Edward Shortland, ( ) for example, described Maori as having a very limited notion of the abstract so that all his ideas take naturally a concrete form. 25 This judgement about Maori enabled Shortland to compare Maori with Greek thinking in which he noted an absence, too, of all abstract and metaphysical ideas from Homer, 26 and to reach the conclusion that the Maori creation stories he was gathering were simply mythology and primitive religion. This marks an important wrong-turn in cross-cultural understanding. Shortland was unable to see that the creation stories provided an entry point for understanding Maori thinking about the world and the abstractions necessary to sustain the attendant ideas as part of an ongoing systemic process. Later on, Stephenson Percy Smith, ( ), whose major work, the Lore of the Whare Wananga, was a compilation and translation of Maori traditions from tohunga (experts in Maori knowledge), 27 reinforced these negative views by writing that he was dealing with the working of the mind of primitive man in 2000 isolation from higher culture and trapped in the stone age. 28 The link between mind, culture and technology reflects a common fallacy of Smith's time, that of linking the mental processes of an entire race of Maori to the nonavailability of technology in the society in which they live, and seeing the two as being parallel processes. While Smith admitted that he was unable to occupy the same stand point as the two tohunga whose knowledge he was recording, he did not see that he was in the presence of highly skilled men whose designated role was to formulate and meld 25 E Shortland, Maori Religion and Mythology, Longmans, Green and Co., London, 1882, Ibid. 27 Within Maori society supreme knowledge of spiritual matters was once held by tohunga (experts) and disseminated to chosen others in a series of wananga (teaching forums), which took place throughout Aotearoa. 28 SP Smith, Lore of the Whare Wananga, Polynesial Society, New Plymouth, 1913, iii.

37 37 concepts in a completely abstract world of existence. Wairuatanga (spirituality) as a complex abstract process of Maori thinking and conceptualising, slipped by him. During the mid 19 th early 20 th Century period most of the information gathered about Maori spirituality was written down by Pakeha. Together with a few private Maori manuscripts and oral traditions handed down on the marae, these writings form the basis of our present day knowledge about early Maori spirituality. Not all of the early writers minimised the cognitive ability and spiritual leanings of Maori society. Gudgeon, ( ) described the Maori as a man of powerful intellect, whose mind can think and reason as logically on any subject with which he is acquainted as his more favoured European brethren. 29 Elsdon Best, ( ) was fascinated by what he termed the mystic nature of the Maori that had prompted him to indulge in introspective thought, to evolve abstractions, to conceive qualities and potentiae spiritual and intellectual. 30 Gudgeon and Best s acceptance of the Maori ability to create and deal with abstractions placed them at an advantage when dealing with matters of a spiritual nature. Best particularly, had a lot to say on the subject. He acknowledged that he was dealing with a different worldview from that of his own and that Maori often assigned a greater number of spiritual potentae to man than did the English. He also understood that to extend spirituality to inanimate objects in the way Maori did would require the English imagination to stretch beyond accepted 19 th Century Christian thinking which elevated humans above all other aspects of creation. Such a shift, he thought, would require a mental revolution by no means easy to bring about. 31 Best s analysis of Maori thinking led him to believe that concepts associated with Maori ideas of spirituality originated in 29 TW Gudgeon, History and Doings of the Maoris, From the Year 1820 to the Signing of the Treaty of Waitangi 1840, H Brett, Auckland, 1885, E Best, Spiritual and Mental Concepts of the Maori, Monography No. 2, Dominion Museum, Wellington, reprinted 1978, Ibid at 6.

38 38 thinking about the human person, which had been extended to other objects via the process of personification. 32 In his endeavours to conceive the marvels of life the Maori, as we have seen, evolved the belief in several spiritual and intellectual potentiae. He not only endowed man with these principles, but he also assigned them to animals and to inanimate objects. To the extent that any conceptualisation is a product of the human mind and imagination, Best is correct in thinking that Maori had extended their thinking about human spirituality to other things. But Best s Maori view of the world is essentially anthropocentric, and does not fit comfortably with a paradigm of Maori philosophy that sees humans as a very small section of a wider world that is beyond human control. Despite Best s identifying the Maori usage of qualities, spiritual potentiae and intellectual potentiae he made no attempt to further define what they were and how they fitted with various Maori concepts. For example, mana can be termed a substantive component of all things, but it can also be independently viewed as a symbolic reference to power and authority. Other concepts, such as whakapapa and whanaungatanga are important structuring concepts, which provide Maori with an intellectual infrastructure within which other concepts can be linked coherently. Had Best differentiated Maori concepts according to the jobs they do and the purpose they serve, he would have shepherded future scholars toward an understanding of Maori custom law as a consistent framework of abstract jural principles, and away from the opposite tendency of viewing custom simply as an amalgam of discrete practices. Unfortunately, despite his astuteness, Best also reflected the thinking of the day in believing that the lot of people of the higher culture-plane, when brought into contact with those of an inferior grade, is not to cultivate their sense of the abstract, but to curb it Ibid at 7 and Ibid at 5.

39 39 The ongoing difficulty of dealing with Maori concepts, particularly those of a spiritual nature, is addressed by John Patterson in his book Exploring Maori Values. 34 As a Pakeha philosopher, he tries to overcome the problem and achieve a sympathetic and deep understanding of Maori thought and practices to take Maori values seriously, try to understand Maori philosophy on its own terms, try to see the world as Maori see it. Patterson approaches Maori spirituality by searching for the underlying values associated with various Maori concepts, in preference to examining a metaphysical world that has its origin in the spiritual realm. Thus he separates the everyday usage of terms and their application from the belief system that produces them. So for example: 35 In the parallel case of mana (and the other Maori spiritual concepts), what I am proposing is that, however spiritual the explanation of mana given by the experts, the everyday meaning of the term does not necessarily depend on or entail any spiritual ingredient it does not commit the user to that particular metaphysics. This approach has the advantage of avoiding a head on collision with a Maori explanation of the spiritual origin and composition of the universe as real, something that cannot be substantiated by tactile physical evidence. It also allows scholars to study Maori thinking processes via English language-based concepts through employing a set of English values that are considered broad enough to be acceptable to Maori and English language speakers and writers. In a predominantly English-speaking and writing society, this offers a practical solution. The downside is that it will always be open to the criticism that it settles the issue of dealing with Maori spiritual concepts by removing them from their natural language context, and therefore, is inherently flawed J Patterson, Exploring Maori Values, Dunmore Press, Palmerston North, 1992, Ibid at Despite its advantages, using English language to convey thoughts, ideas, concepts and principles that fit more naturally within a Maori language contextual framework always raises issues relating to the unavoidable pitfalls of cross-cultural translation.

40 40 Irrespective of the approach or language adopted, it is important to understand that the rules, principles and values that comprise any system of law are built up by a society over many years. The perceptions and attitudes held by members of that society influences the type of rules and principles that develop and the manner and degree to which they are enforced. Two different societies living in total isolation of each other will very likely produce totally different systems of law. 37 Should they then come to occupy the same geographical space, the extent to which one is successfully superimposed over the other may be reliant as much on physical force as it is on any sense of moral or intellectual supremacy. Although it is possible for the two to co-exist in harmony, it is just as likely, as occurred in areas of Aotearoa/New Zealand, that physical force will be used to consolidate a sense of moral supremacy arising from the view that the English culture and race are superior to Maori. After contact, the English common law was imposed as the overriding law of New Zealand, to which Maori and colonist alike, became subject. Within the new system, the place of Maori custom law, while notionally still extant, became relegated to second place. The need to acquire land for settlement meant that many early laws were passed to facilitate the acquisition of land from Maori. The translation of Maori customary title into a title cognisable under the colonial law after 1862, when the first Native Land Act was passed and the Native Land Court established, made this much easier. The specialist nature of the Native Land Court, while notionally based on tikanga practices, was Pakeha controlled, and tikanga was interpreted and rules of practice adopted that assisted the alienation of Maori land out of Maori hands. 38 (c) Need for Research to Support the work of the Maori Land Court and the Waitangi Tribunal 37 A Erh-Soon Tay and E Kamenka, Introduction: Some Theses on Property, UNSWLJ, Vol 11 (1988) DV Williams, Te Kooti Tango Whenua : The Native Land Court , Huia Publishers, Wellington, 1999.

41 41 (i) The call for Research into Maori Custom Law In January 1994, Eddie Durie, New Zealand s foremost modern Maori jurist, produced an informal discussion paper titled, Custom Law. 39 Although initially confidential, the paper was well circulated and discussed amongst the Maori legal community. In his paper Durie defined custom law as meaning: 40 law generated by social practice and acceptance as distinct from institutional law which is generated from the organs of a super-ordinate authority. Custom was a significant source of English law but has since been mainly replaced by common law (case law) and statutory regulation. Durie's reference to acceptable social practice as the basis of Maori custom law does not detract from the idea that there is a principle base from which these practices are derived. He later defined Maori custom law as: 41 the values, standards, principles or norms to which the Maori community generally subscribed for the determination of appropriate conduct The purpose of the 1994 paper was to encourage discussion and research into Maori custom law, which Durie felt was urgently needed to assist the processes of both the Maori Land Court and the Waitangi Tribunal. 42 In 1994 the need for assistance became apparent in Tribunal hearings outside the Tai Tokerau area. During the Eastern Bay of Plenty hearings before the Waitangi Tribunal a question arose as to whether Ngati Tuwharetoa-ki-Kawerau could define a boundary for themselves within the rohe of Ngati Awa. An examination of the history of the claim 39 ET Durie, Custom Law, (Unpublished paper for Waitangi Tribunal members and later referred to the Law Commission), January, Ibid. 41 ET Durie, Will the Settlers Settle? Cultural Conciliation and Law (1996) 8 Otago Law Review At the time Durie was Chief Judge of the Maori Land Court and Chairperson of the Waitangi Tribunal. He has since been appointed to the High Court of New Zealand.

42 42 raised the further general question as to whether defined boundaries existed between iwi in pre-contact Aotearoa: 43 The question of where the boundaries lie between contending iwi, assumes such boundaries existed. The Tribunal is not entirely convinced that iwi were arranged as state-like institutions with borders of approximate definition fuzzed only by contestable zones. In the same hearing another question arose as to the meaning and origins of the term mana whenua as a principle of Maori custom law: 44 the modern use appears to be that in s2 of the Resource Management Act 1993 where mana whenua means the customary authority exercised by an iwi or hapu in an identifiable area. Sometimes however it is also used as a cultural equivalent for western concepts of suzerainty. The alternative proposition is that mana accrued to people not land, and that those of great mana could unite many hapu as one iwi to exert influence over a wide territory. Similarly if mana was lost, territory was lost as hapu found alternative allegiances. Counsel should also be aware of some argument that the use of mana whenua, or mana as applied to land as distinct from persons, may be new and arose from Maori attempts to adapt to the new exigencies that land purchase operations and the Native Land Court imposed. In Section C, the Papatupu information establishes that in Tai Tokerau the setting of boundaries was important in the demarcation of territory between hapu. The use of the term mana whenua however, is not used and the term mana rangatira is used instead. In his original, Durie identified several key concepts of Maori custom law. These included whanaungatanga, mana, manaakitanga, aroha, mana tupuna, 43 Waitangi Tribunal, Direction, Memoranda on Procedure, Evidence and Issues in the Inquiry into the Ngati Awa, Tuwharetoa and other claims of the Eastern Bay of Plenty as at end October 1994, WAI 46, Papers in Proceedings 2.59, 18. Questions concerning boundaries and mana whenua had arisen in the earlier Ngaitahu Hearings and had been referred to the Maori Appellate Court for decision. See Re a claim to the Waitangi Tribunal by Henare Rakihia Tau and the Ngai Tahu Trust Board, 12/11/90, Maori Appellate Court, Te Waipounamu District, Case Stated 1/89, 4 South Island Appellate Court Minute Book, folio 673, Ibid.

43 43 wairua and utu, which he stated to be conceptual regulators of tikanga, or as providing the fundamental principles or values of Maori law. 45 (ii) The New Zealand Law Commission Maori Custom and values in New Zealand Law Paper In March 2001, 7 years after Durie produced his initial Discussion Paper, the Law Commission published Maori Custom and Values in New Zealand Law, as a partial response to the concerns Durie had expressed about the lack of knowledge held by the judiciary regarding Maori custom law: 46 Even for a Judge of the Maori Land Court it is not a simple task to introduce Maori 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 Maori Court have a specialist knowledge of Maori custom. In fact, however, the specialist knowledge that the Maori 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 Maori people; but the experience so gained is anecdotal and not founded in scholarship. The paper produced by the Law Commission is an extension of Durie s 1994 Custom Law paper, and is supplemented by the views of Joe Williams, Chief Judge of the Maori Land Court and academics David Williams and Joan Metge, as well as those of several other legal and non-legal academics. 45 Durie, supra note 39 at New Zealand Law Commission, Maori Custom and Values in New Zealand Law, Wellington, March 2001, viii; original reference ET Durie, Custom Law: Address to the New Zealand Society for Legal and Social Philosophy (1994) 24 VUWLR 325.

44 44 As with Durie s original paper, one of the purposes of the Commission s study was to identify underlying values and fundamental principles of Maori custom law and to encourage further research. While happy to collate the views of various commentators, the Commission was clear that it did not want to go any further than that: 47 The Commission does not inject its own view on these matters. Recognising that ultimately it is only Maori who can decide what their values are and how each value applies in a particular context, we wish only to highlight the mosaic of thinking and opinions that exist concerning Maori values and perhaps to stimulate further debate on these issues. The Law Commission identified a number of central values it sees as underpinning the totality of tikanga Maori. They include whanaungatanga; mana; tapu; utu; and kaitiakitanga. 48 The list is stated as not being exhaustive: 49 These values in no way form a definitive list. Each tribal grouping will have its own variation of each of these values. Some will also have slightly different ideas as to which values inform tikanga Maori. Further reflection is required in the search within Maori society for the basic norms which might constitute Maori law. This study is partially motivated by a desire to respond positively to the Law Commission s call for more study to be carried out into Maori custom law. a. The ability of Maori Custom Law to Change over time It is accepted by the contributors to the Law Commission paper that tikanga (Maori customary principles) adapts to new circumstances. That changes occur in customary 47 NZLC, ibid at The list is taken from J Williams, He Aha te Tikanga Maori (unpublished paper for the Law Commission), 1998, NZLC, supra note 46 at 28.

45 45 practice was picked up by the Native Appellate Court in Hineiti Rirerire Arani v Public Trustee of New Zealand, 50 where the court stated that Native custom is not a fixed thing. It is based upon the old custom as it existed before the arrival of Europeans, but it has developed, and become adapted to the changing circumstances of the Maori race today. The Privy Council upheld this, noting the different sources of Maori and English law. 51 It may well be that this is a sound view of the law, and that [Maori] as a race may have some internal power of self-government enabling the tribe or tribes by common consent to modify their customs, and that the custom of such a race is not to be put on a level with the custom of an English borough or other local area which must stand as it always has stood, seeing that there is no quasi-legislative internal authority which can modify it. All systems of law have some mechanism for allowing change to meet new circumstances. That Maori were able to modify their customary practices by applying the same principles to different situations to reach different outcomes is no different to what occurs when judges apply principles to cases under the English common law. The modification of customs referred to by the court in this case is simply the result of principle-based reasoning in an inclusive community forum. This fact should not have been obscured by formal processes that relied on oral tradition, personal integrity and status within the group, or the manner of enforcement found within Maori society. A notable difference between Maori and English custom law appears to be that while Maori custom law focuses on maintaining the underlying relationships between parties and uses its principles to uphold those relationships, English law appears to place more reliance on observable practices as the basis of custom law. 50 [1920] AC 198 at Ibid at

46 46 The Law Commission refers to Durie s statements that pre-contact practices such as cannibalism, infanticide, warfare and slavery are no longer in use within Maori society as providing evidence of radical change having taken place in practices associated with Maori custom law. I would say that these changes in practice are superficial manifestations only, being based on the successful introduction of Christian morals into Maori society. However, the principles underlying these unacceptable practices are those of whakapapa, whanaungatanga, mana and tapu, which the Commission identifies as being amongst those principles that are still relevant today. What has changed is their outward expression, which has been re-aligned to suit the mores of modern western society. This points to Maori custom law as having maintained stability over time in terms of its underlying principles. It also accords with Durie s statement that: 52 adherence to principles, not rules, enabled change while maintaining cultural integrity, with out the need for a superordinate authority to enact amendments. Custom does not, therefore, appear to have been lacking for vitality and flexibility. Inconvenient precedent could simply be treated as irrelevant, or unrelated to current needs, but precedent nonetheless was regularly drawn upon to determine appropriate action. Accordingly, while custom has usually been posited as finite law that has always existed, in reality customary policy was dynamic and receptive to change, but change was effected with adherence to those fundamental principles and beliefs that Maori considered appropriate to govern the relationships between persons, peoples and the environment. This reliance on principle instead of practice in setting the framework for Maori custom law is further examined in Sections C and D of this thesis. b. Aligning Maori Custom Law with the English Common Law System introduced into Aotearoa in Durie, supra note 39 at 3-4.

47 47 There are three avenues referred to in the Commission study paper by which Maori custom law remains a relevant part of the law applicable in Aotearoa/New Zealand today. They are via the doctrine of aboriginal title; through the passage of domestic legislation and via Te Tiriti o Waitangi/the Treaty of Waitangi. It can be argued that each of the above avenues provides some recognition for Maori custom law under the law of New Zealand. A lot of research has already been conducted into these areas and I do not intend to cover what are already well worn paths. What I am interested in exploring is a fourth avenue, one by which Maori custom law could become even more relevant for the future, should Maori choose to adopt through selfrecognition, a modern system of Maori custom law. In order to facilitate the choice the question must be asked Are our principles strong enough to sustain a modern, selfcontained system of Maori custom law capable of operating in today s society? If, as the Privy Council has stated, Maori custom law is capable of internal development, then the principles and concepts that hold it together must be clearly articulated in a framework that suits today s living. Even if the application of Maori custom law is restricted to a second tier of law within Aotearoa/New Zealand, and remains subject to New Zealand parliamentary processes, greater clarity as to its past use will ensure better understanding and could indicate future directions for development to coming generations of New Zealanders. My task in this study is to assist the accomplishment of that goal by piecing together a potential framework for others to pick over. (iii) Conclusion Even though neither paper specifically argues for it, I think that both the original Durie paper and the Law Commission paper highlight the need for greater research into how custom law operated in early Maori society, in order to provide a coherent basis for a modern system of Maori custom law. Whether or not Maori society had law before contact with Europeans is no longer an essential or necessary part of the discussion. It is

48 48 well recognised within the English-speaking world that indigenous peoples, including Maori, lived in established societies with their own internal regulators of social behaviour. It is also accepted that those regulators were part of a wider framework aimed at maintaining order within society. The more pertinent question therefore, is the one posed by Durie. What were the important concepts by which Maori people, regulated and governed their society? There are a number of other questions that stem from this. How did those concepts operate in the past to provide a stable society? Can they be transposed into modern society to regulate interactions between Maori people and others? If so, how is the incorporation of principles from one legal system into another being managed by judicial decision-makers at the present time?

49 49 WAHANGA TUARUA SECTION B TE KAUPAPA O TE MAHI A MAORI CONCEPTUAL FRAMEWORK

50 50 1. TIMATANGA INTRODUCTION AND STRUCTURE OF SECTION B At a conceptual and attitudinal level, Maori and Pakeha have very different ways of thinking about fundamental aspects of life, living, what it is to be human and the place humans occupy in the greater scheme of things. These differences are the product of different worldviews which, in turn, have given rise to two very different systems of law, both of which now exist within the same geographical space. Maori custom law had its beginnings in ideas, concepts and practices that originated in the wider Pacific and which have been adapted to meet the exigencies of the new circumstances encountered after arrival and settlement in Aotearoa. Within Tai Tokerau, Maori were very mobile. Although frequent interaction and marriage with other groups, and the recruitment of pononga (prisoners whose status had been diminished by defeat) after wars, may have led to the adaptation of existing practices to incorporate new initiatives, the primary links between people were locally rooted in genealogical associations to their lands. In this Section, I identify the broad intellectual framework of Maori custom law and identify the main concepts and principles that I believe inform that framework. In building this framework, several sources of information are used. They include information gathered by some Pakeha writers whose works have provided a record of Maori principles and practices in the early colonisation period 53 modern Maori research conducted by academics such as Maori Marsden, Pat Hohepa and Cleve Barlow who are from Tai Tokerau, and modern Pakeha writers such as Michael Shirres and Joan Metge, who have researched within the area. 53 In using this material a distinction is made between the information gathered directly from Maori and the interpretation of that material once it had been gathered which has been the subject of academic criticism by modern scholars. Elsdon Best, for example, is a contrary character who has often been criticised for referring to Maori as primitive and barbaric and for perpetuating the myth of an earlier race of settlers that had been overborne by Maori. see R Walker, Ka Whawhai Tonu Matou, Penguin Books, Auckland, 1990, 40. Despite these statements, Best s descriptions of Maori spiritual and mental concepts provides a thorough written account of the time. His view of Maori as a strong minded people capable of formulating complex intellectual structures that are the equal of, and perhaps even superior to, those of the European, is often overlooked in favour of his racist comments, by later writers.

51 51 My experience as a legal academic has led me to the the conclusion that there are some general statements about Maori concepts and principles that apply to all concepts and principles, irrespective of the language from which they derive or that is used to articulate their associated ideas. It is my view that in order for Maori concepts and principles to be part of a jural framework requires: 1. The identification of the relevant concepts and principles. 2. A general understanding of the content and purpose of each concept/principle. 3. An understanding of how particular concepts/principles relate to each other in a broader conceptual framework. 4. Examples of the relevance and importance of particular concepts/principles to different practical situations. 1 3 are discursive, being born of a world of abstraction, in which ideas and concepts are each assigned specific content and purpose, and then ordered to form a coherent pattern. Once that pattern becomes systemised it forms the basis from which a system of law can develop. 4, sits at the practical end of the process, where application of principles to existing factual situations can produce a range of different outcomes. Reliance on overt practices without due consideration also being given to underlying concepts and principles and their relationship to each other, can lead to a facile understanding of Maori custom law which downgrades it from a complex system of law to a series of disconnected practices. When Maori were the only inhabitants of Aotearoa, there was no need to articulate a rigid Maori custom law structure because Maori concepts and principles were used without interference or challenge from any competing ideology. Maori society organised itself along whanau (family) relationships and the underlying concepts and principles were ones that could be readily used in daily living by all members of the society. In this respect, Maori society can be viewed as self-regulating from within, making an external

52 52 legal framework, divorced from daily living, unnecessary. Did a common set of concepts and principles exist amongst Maori before colonisation from which a universal system of law can be drawn? An affirmative answer can be given because, in my view, law is an abstract concept that is language-based. A single, mutually intelligible language existed amongst all Maori in Aotearoa at the time of European contact. If the language is shared, the likelihood is that some of the concepts that inform the language will also be shared. In Aotearoa, it is well established by the early writers about Maori that the same fundamental concepts were used by all Maori hapu and iwi. Differences in dialect and the range of practices that resulted from applying these basic concepts and principles locally, does not alter that. After the advent of the Native Land Court in 1862, however, major inroads were made into tikanga Maori, as Pakeha judges sought to implement what they understood as being tikanga. 54 This attenuated system of Maori custom law is not what I am looking at in this Section. Instead, I attempt to identify the Maori foundations of a system that had its basis in a series of concepts and principles that originated from tikanga Maori, as a separate source of law. 2. TE AO MAORI A MAORI WORLDVIEW (a) Introduction The Oxford Encyclopedic English Dictionary 55 has no comprehensive definition for the term worldview. In a definition of world which takes up two-thirds of a page, the definition of worldview takes up half a line and simply states worldview = WELTANSCHAUUNG. Weltanschauung is defined as a particular philosophy or view of life; a conception of the world Note for example the Papakura Claim of Succession, where Chief Judge Fenton introduces the practice of all siblings taking equal shares in land from their parents as a rule applying to succession. Important Judgments Delivered in the Compensation Court and Native Land Court, , Auckland, Native Land Court, 1879 (Southern Reprints 1994) Oxford Encyclopedic English Dictionary, eds J Hawkins and R Allen, Clarendon Press, Oxford, 1991, Ibid at 1642.

53 53 In this Part of Section B, I introduce and discuss three important aspects of a Maori worldview. They are the Maori view of ultimate reality, the creation stories and Nga Kete Tuatoru (the three baskets of knowledge). (b) Wairua Maori Reality The Maori of Te Ao Kohatu (ancient times) lived in a dynamic universe, which they perceived as a continuous stream of interwoven spiritual and physical genealogies. According to Ngapuhi kaumatua and philosopher, Maori Marsden: 57 the ancient seers, created their sets of symbols to provide them with their maps/models to portray each state in this evolutionary process. These representations were the means by which they could elucidate the various worlds; and grasp what they perceived as ultimate reality. Ngapuhi tohunga (philosophers) constructed their knowledge within a meta-physical reality in which all things were believed to have originated from a wairua (spiritual) source. Within the teachings of the Whare Wananga (houses of learning) in Ngapuhi, the wairua was considered to be part of a much broader, overall conception. It was a descriptive term used to describe the original source and stuff of the universe that permeated all things and had the potential to take on the shape and form necessary for all matter of existence to develop and thrive. In 1988, Marsden recorded his view of the ultimate reality of the Maori people as part of the Resource Management law reform process: 58 - That ultimate reality is wairua-spirit; - The Universe is Process ; - Io-taketake, is First Cause, Ground of Being, Creator and Genesis of the cosmic process; 57 M Marsden, The Natural World and Natural Resources: Maori Value Systems and Perspectives in Resource Management Law Reform, Volume 29A, Ministry for the Environment, Wellington 1988, 9, reprinted in The Woven Universe Selected Writings of Rev. Maori Marsden, ed T Royal, Te Wananga o Raukawa, Otaki, 2003, 31. Marsden was also ordained as an Anglican Minister. According to his mokopuna Jenny Quince, during his lifetime Marsden saw no difficulty in combining the roles of rangatira, tohunga and priest in the service of his people. Interview with Rev. Quince at Auckland, 6 November M Marsden, ibid at 11 and 33.

54 54 - Spirit is ubiquitous, imminent in the total process; Upholding/sustaining/replenishing/regenerating all things by its Hau or Mauri (Breath or Lifeprinciple); - As a corollary of the above, the All is One and interlocked together; - Man is both human and divine an integral part both of the cosmic process and of the natural order; - The Maori approach to life is holistic. There is no sharp division between, culture, society and their institutions. Because of his holistic approach the Maori avoids the disjunction between the secular and spiritual, the compartmentalisation and isolation of one institution from another. Marsden s theory of reality being spirit-based is similar to that of Maori elders from other areas of Aotearoa/New Zealand and is closely aligned to that of the tohunga whose knowledge was recorded by early Pakeha writers. 59 Further elaboration of Marsden s theory is provided in his description of Maoritanga as being about the corporate view that Maori hold about ultimate reality and meaning. 60 The Maori does not, and never had accepted the mechanistic view of the universe which regards it as a closed system into which nothing can impinge from without. The Maori conceives of it as at least a two-world system in which the material proceeds from the spiritual, and the spiritual (which is the higher order) interpenetrates the material physical world of Te Ao Marama. 61 Two important points are made by Marsden: First, that the universe is not static but is a stream of processes and events 62. So what might appear from the outside to be a rigid unchanging format actually masks a reality in which change is constant. This is reinforced by his second statement that history is not cyclical but lineal it is an 59 G Grey, Polynesian Mythology and Ancient Traditional History of the New Zealanders, Whitcombe & Tombs, Auckland, 1906; H Beattie, Tikao Talks, AH and W Reed, Wellington, 1939; C Servant, Customs and habits of the New Zealanders , ed D Simmons, AH and W Reed, Wellington, 1973; J White, The Ancient History of the Maori, His Mythology and Traditions, Government Printer, Wellington 1887; Lore of the Whare Wananga, trans. SP Smith, Polynesian Society, New Plymouth, Marsden, supra note 18 at Ibid at Ibid at 162.

55 55 ongoing process. This reference, which may otherwise appear to contradict his prior statements, makes sense in the context of a whakapapa process in which: 63 each man is an event within the on going procession of nature and so is each created object. Man withdraws from the mainstream of the universal process by returning to the spirit realm of Hawaiki, there to continue a spiritual existence after the pattern of the earthy one. The idea of a universal process in which change and development is a natural part, reinforces the need to look beyond the practices observed by the early Pakeha writers to trying to understand the concepts and principles that gave rise to, and upheld them. Some contrasts can be drawn between Maori beliefs and standard western Christian spiritual beliefs that have helped shape the New Zealand legal system. The moral precepts of good and evil that emanate from a single God and Devil who are locked interminably in a battle for human souls, popularised by some European versions of Christianity, is absent from Maori philosophy. Responsibility for human fortune and misfortune is more evenly distributed amongst the many deities known to Maori. 64 Rather than making a stark distinction between good and evil, Maori attribute distinctive character traits and realms of existence to specific deities. The principal connection between these deities and humans is via the concept of mana the power and authority invested in a realm by its deity the violation of which can invite negative repercussions for any human offender and his or her relatives. The notion of collective responsibility amongst families, led to great care being exercised in the conduct of daily activities. As a consequence, within Maori society, the closest parallel to notions of good and evil that can be made is that actions that reinforced family links and the mana of atua were seen as good, whereas actions that undermined them were considered to be bad. 63 Ibid. 64 Whiro and Aitua are two deities who are specifically linked to bad fortune.

56 56 Another notable difference, according to Marsden, is that Maori have an afterlife that is far more benevolent than that of Christians, devoid as it is of notions of Heaven or Hell: 65 The idea of rewards and punishment was not developed by the Maori except in the limited sense of the super-heroes and demi-gods dwelling with the gods in Hawaiki Nui. So for Maori, regardless of one s behaviour in this life, there is an assurance of being reunited with your relations after death. This belief is reinforced in the whaikorero (formal speeches) made on the marae at the beginning of all official Maori gatherings. Thus, Maori thinking extends family relationships beyond physical life, to include death and the hereafter, as part of ordinary daily living. The Maui traditions recorded by Grey show that the fear of retribution, accountability and damnation in the afterlife were absent from Maori thinking after death the beliefs recorded show that life remained family centred and continued in much the same fashion as before death. 66 Furthermore, although the idea of a supreme being, and a will responsible for ordering creation is present in Marsden s Io theory, it seems to be more concerned with the process of creating than with monitoring activities and sorting out the trials and tribulations of what it creates. 67 Further the universe itself is a process or event within the cosmic process by which Io orders creation. The ultimate reality, therefore, is Io, and the expression of this reality is the cosmic process in which all things are immersed and find their reality. So the temporal is subordinate to the eternal, the material to the spiritual, for the situation below is ordered by an ideal determination from above by Io as origin of the cosmic process. 65 Marsden, supra note 18 at162; This is also pointed out by Te Rangi Hiroa in, The Coming of the Maori, Whitcombe and Tombs Ltd, Wellington, 1949, G Grey, The Legend of Maui, Polynesian Mythology and Ancient Traditional History, H Brett, Auckland 1885, Marsden, supra note 18 at 162.

57 57 There are several other versions of the Io theory of ultimate reality, which set out a variety of originating points and jobs for Io. According to Ngai Tahu tohunga, Teone Tikao: 68 Io was the supreme god of the Maori. He is far and away the greatest of our many gods, and it was through his act of creation that the other gods appeared, as comes out in the history. Kahungunu tohunga, te Matorohanga, stated that there was only one source of all things, Io-Matua, who has 14 associated omni aspects and qualities. 69 Wiremu Mahupuku, another tohunga from Kahungungu, 70 says that after Io had completed his work of creating the world he divorced himself entirely from the doings of humans and lived in isolation above the topknot of Rangi. Rose Pere, a Tuhoe tohunga, says simply that Papa and Rangi are the universe and that their children are supernatural beings possessing strange powers. One of these children, Tane, possesses both spiritual and earthly characteristics, and transmits the divine seed of life from Io-Matua-kore the supreme spiritual being to his offspring. 71 Ngapuhi Wananga uphold Io traditions similar to Ngati Kahungunu. 72 A debate has arisen amongst Maori theologians and academics as to whether Io was part of pre-contact Maori philosophy or a post-contact invention aimed at aligning Maori philosophy with Christianity. According to Ngapuhi kaumatua and academic, Pat Hohepa, the idea of a single Christian God has infiltrated Maori traditions and tikanga with assistance from several Maori academics who have been theologically brainwashed 73 into interposing good and evil, and angels and demons into Maori thinking and then drawing analogies that do not fit with earlier Maori traditions. Te 68 Beattie, supra note 59 at Smith, supra note 59 at H Mahupuku, Whakapapa Tupuna, private manuscript on file with author, R Pere, Ako Concepts and Learning in the Maori Tradition, University of Waikato,Hamilton, 1982, Marsden, supra note 57 at 73-79; MP Shirres, Te Tangata the human person, Auckland, Accent Publications, 1997, P Hohepa, Te Tiimatanga Mai, nga Kupu, me nga Tikanga Whenua, seminar on Maori Land Law, Faculty of Law, Auckland, 23 June 1994.

58 58 Rangi Hiroa, ( ) also doubted that Io predated European arrival in Aotearoa. 74 Hiroa believed that the concept of Io was a local development in New Zealand and apparently originated with the Kahungunu tribe, from which rumours of the cult spread to a few other tribes. 75 The views expressed in the Io debate exemplify the difficulty of trying to establish firm parameters for concepts at a given time, and the impossibility of verifying belief systems. Michael Shirres, wrote a Doctoral thesis on karakia (Maori rituals), 76 in which he reviewed all the references he could find to Io in written literature. He concluded that Io was a genuine pre-contact entity known to Tai Tokerau Maori, which established the first principle and foundation for all other knowledge. 77 Manuka Henare, in his doctoral thesis, The Changing Images of Nineteenth Century Maori Society - From Tribes to Nations, 78 also concludes that the Io tradition is authentic and pre-dates the influences of christianity. One benefit of the belief in a single originating source known as Io is that it provides an ultimate point of unity between Christian and Maori beliefs about ultimate reality. Once the Tohunga Suppression Act had outlawed the practice of tohungaism, Christianity offered another vehicle for legitimating Maori spiritual beliefs, which was both acceptable and held status within Pakeha society. In this thesis, material relied upon as Tohunga information is taken from Maori Marsden, an Anglican Priest, and Henare Tate, a Catholic priest, neither of whom sees a conflict in the dual roles they occupy. Hiroa, on the other hand, who was from Ngati Mutunga of Taranaki, says the source of the Io school of thought is Kahungunu iwi. However, Kahungunu was originally from Kaitaia in the Tai Tokerau area. He traveled widely, as did his father Tamatea, who 74 TR Hiroa, The coming of the Maori, Whitcombe and Tombs Ltd, Wellington, 1949, A similar view is expressed by JP Johansen, Studies in Maori rites and myths, Ejnar Munksgaard, Copenhagen, 1958; Early Missionary, Richard Taylor also says properly speaking the Maori had no idea of a supreme Being. R Taylor, Te Ika a Maui, Wertheim and MacIntosh, London, 1855, Hiroa, ibid at MP Shirres, An Introduction to Karakia, Unpublished PhD thesis, Auckland University, Shirres is guided in his research by kaumatua from the Tai Tokerau area, including Maori Marsden, who is an adherent of the Io theory. 77 Shirres, supra note 72 at M Henare, The Changing Images of Nineteenth Century Maori Society - from tribes to nations, thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy in Maori Studies, Victoria University of Wellington, August 2003,

59 59 circumnavigated Aotearoa. It is possible that knowledge of Io was originally brought into the Wairarapa area from Tai Tokerau by the tohunga who accompanied Tamatea and Kahungunu on their travels. This would explain the link between the Tai Tokerau and Wairarapa wananga and the similarity in the Io tradition. But it remains conjecture and does not explain why Tuhoe and South Island tohunga also hold to the Io tradition. An important point to note is that, despite disagreement about the origin and existence of Io, all proponents are united in agreeing that the central, originating point for discussions about Maori reality is Wairuatanga or spirituality. From this principle source and primary cause all things conceivable, including thoughts, emotions, intellect and the physical world, are held to emerge. 79 According to Pere, at the working end of the discussion where cause takes fruition in actuality, wairua, is a symbolic reference to a physical world that is immersed with that of the spiritual. 80 Thus, all actions and natural things have both physical and spiritual aspects, the spiritual component being internalised at conception. Viewed in this way wairua becomes a passive spiritual backdrop against which all activity occurs. However, wairua was also acknowledged as being actively engaged in all human activity. 81 In this latter sense it is better viewed as a guiding force and source of power impelling activity. Both of these aspects of wairua are apparent in Maori thinking and conceptualisations of reality. Over 150 years of exposure to European ideas and beliefs has not displaced the widespread Maori belief in a pervasive spirituality underpinning reality. It remains firmly entrenched in modern Maori philosophical thought. According to Marsden: 82 Whether this orientation is articulated or not, it remains the subconscious attitude of the Maori and is reflected in his whole mode of thinking and the expression of it in his language and its structure. 79 The term wairua is used here in a broad philosophical sense. It is not referring to the non-physical human body that Maori also call the wairua, or to ghosts, which are also known as kehua. 80 In the Maori language Wai means water, rua means two. Pere, supra note 71 at Ibid at Marsden, supra note 18 at 162.

60 60 Today the energy and dynamism of Wairua is constantly reaffirmed and reinforced at Maori gatherings on the marae: 83 When Maori people assemble on the Marae, and especially in the Whare Whakairo, they are, in essence, returning to their roots and to the source of their being. They congregate in the bosom of the house to be instructed on tribal matters and to be rejuvenated in spirit by being among their ancestors. Many Maori will travel from miles around on the occasion of the death of kin or for some other hui or meeting. When they enter into the whare whakairo they virtually cut themselves off from the outside world and concentrate on the revitalising aspect of their experience there in order that they can later return to face the outside world with a new zest for life. What then is Wairua? Wairua is Maori existence writ large. An analogy can be drawn to the air we breathe in that we take the existence of both for granted. We cannot see, touch or smell either. But for Maori, both are essential parts of existence, one physical, the other spiritual, the former being derived from the latter. (c) The Importance of the Maori Creation Stories The Creation Stories are important to the fundamental thinking of Maori people. They serve as an explanation of existence, of those things that cannot be physically measured, by answering the ultimate questions humans have asked throughout time who am I? and where did I come from? For Maori, the answer to these questions lay in explanatory narratives, which began with an ultimate Wairua source that contained both active and passive elements of existence, and which, through a series of events, developed into the modern world of physical matter and spiritual substance that exists today. According to Ranginui Walker, important information and the mores of Maori society were conveyed simply and easily to successive generations of Maori by way of the 83 C Barlow, Te Wheiao ki te Ao-Marama - Worlds in Transition, unpublished paper presented at Archeology Conference held at Auckland in July 1984, 9.

61 61 creation stories. 84 Personification allowed important values associated with various aspects of the natural world to become inculcated into society. The various stories set precedents and standards for behaviour, as well as highlighting important relationships that had to be upheld and reinforced. Retelling of stories meant that human relationships and relationships between humans and other parts of nature were constantly being reinforced through acknowledgement. In a society without written language, this method of knowledge transferral was extremely successful in maintaining cohesion amongst members of the group and between successive generations. For the purposes of this study, the creation stories explain the origin of the concepts and principles that derive from a Maori worldview. They also exemplify how those concepts and principles fit together and operate as part of a coherent whole. In so doing, they lay the foundation from which all Maori thinking about relationships between things, whether abstract or material, is organised as a series of ongoing family links between ancestors and descendants, with the boundary between life and death being of a temporary, temporal nature, only. (d) Nga Kete Tuatoru The Three Baskets of Knowledge A different approach to understanding Maori spiritual concepts through the examination of Karakia (ritual) has been undertaken by theologian, Michael Shirres. 85 His research was of around 400 karakia (prayers) written in the early to mid 1800s. His analysis is open to the caution that he, like other Pakeha who have written about Maori, might lack the conceptual background necessary to properly appreciate the material he was dealing with. A stronger caution could be that as a Catholic priest already entrenched in Christian dogma, he may have unwittingly transposed this thinking into his Maori research. On the other hand, it can also be argued that intimate knowledge of one spiritual belief system provides a greater impetus for gaining access to another, and that the difficulties in understanding faced by earlier Pakeha writers made him more aware of 84 Walker, supra note 53 at Shirres, supra notes 72 and 76.

62 62 the need to tread carefully when examining another worldview. The best guarantee of reliability lies, however, in the fact that Shirres research analysis is heavily reliant on key Maori informants, including Ngapuhi kaumatua, Maori Marsden and Henare Tate, both of whom are widely accepted as Ngapuhi authorities on tikanga Maori. It is of note that Marsden and Tate were also priests, and therefore, similar criticisms could be levelled at Marsden and Tate as have been made of Shirres. However, one difference is that both men grew up in rural Maori communities amongst their own people and were heavily enculturated into tikanga Maori at a very early age. The decision to become a priest later in life has never dulled the separate role each has played within Tai Tokerau Maori society and their acceptance amongst their own as being an authority on Tikanga Maori, independent of their Christian leanings. According to Shirres there are three sources of Maori knowledge: what we experience with our senses; what we understand as upholding our sense experience, and our experience of our relationships with each other and the past that he calls oneness. 86 These sources are contained in Nga kete tuatoru, the three baskets of knowledge. Shirres sources his knowledge of the three baskets of knowledge in the wisdom passed to him by Marsden, 87 Similar statements are found in the Maori oral traditions written down by H. Whatahoro from the teachings of the Kahungunu tohunga, Te Matorohanga and Nepia Pohuhu, who were born in the early 1800s. 88 According to Shirres, the first kete, Aronui, contains what we perceive with our senses; the second, Tuauri, our understanding of the real world that lies behind our everyday perceptions, and the third, Tuaatea, knowledge beyond space and time that is only accessible through ritual. 89 The content of the first kete, Aronui, is similar to western understandings of natural phenomena and the laws of nature apprehended through the senses. Within this kete the 86 Shirres, supra note 72 at M Marsden, supra note 57 at 73-79; 88 In the Matorohanga transcripts the three kete are differently named, being kete-ururu-matua, kete-uruuru-rangi and kete-uruuru-tau, and the contents are differently ordered. SP Smith, supra note 28 at Shirres, supra note 72 at16; Marsden, supra note 57 at76-79.

63 63 development of western technology and scientific methodology has fine-tuned what can be observed using our senses: 90 This is the source of all knowledge about the world and the things contained therein, including fishing, astronomy, carving, weaving, building, medicine, entertainment, and every subject taught in our modern educational institutions. The second kete, Tuauri, is described by Marsden as the real world behind the world of sense perception of the natural world. 91 Although this has a Platonic resonance to it, it is closer to an expanded idea of the western concept of a pervasive spirituality than to Plato s conception of real forms existing for all things. Into this basket can be placed the concepts, principles and values that form the intellectual framework of Maori thinking and understanding of a universal nature. The third basket, Tuaatea, contains the knowledge by which all the relationships recognised by Maori were capable of being enhanced and diminished through the use of appropriate ritual: 92 The idea of manipulating environment is based on the Maori view that there are three orders of reality the physical or natural, the psychic and the spiritual. Whilst the natural realm is normally subject to physical laws, these can be affected, modified and even changed by the application of the higher laws of the psychic and spiritual. Physical phenomena and the energy sources that motivate and uphold the physical world in the first two kete, together form the two-world system that Marsden, one of Shirres key informants, refers to in his writing. 93 The third basket contains the enabling rituals by which transition between stages is managed at a spiritual level C Barlow, Light and Knowledge in Introduction to the Foundations of Maori Psychology, Department of Psychology, University of Auckland, 1994, 2; Marsden, supra note 57 at Marsden, ibid at Marsden, supra note 18 at 121. A similar sentiment is expressed by T Paraone in A Maori Cosmogony (translation by Hare Hongi) in Journal of the Polynesian Society, Volume XVI, Whitcombe and Tombs, Wellington, 1907, Marsden, supra note 18 at 160 and Shirres, supra note 72 at Shirres, ibid at 88.

64 64 At this level of understanding, in the world of the spiritual powers and of ritual, time and place come together the past is moving in the time of the eternal present. According to Marsden, Tuaatea is the world beyond any space-time framework. 95 The knowledge by which entry could be gained into this realm was closely guarded and taught to only a chosen few in Wananga. According to Hauraki tohunga, Tiwai Paraone, of Maru-tuahu iwi, ritual enabled individuals to craft the spiritual essence of the world to their own use through the understanding that the world operated in accordance with a series of repetitive patterns. New situations were interpreted by reference to the cycles that existed in nature and ritual served to integrate the new information into what was already known: 96 There are three very important applications of those original sayings, as used in our sacred rituals. The first occurs in the ritual for implanting a child within the barren womb. The next occurs in the ritual for enlightening both the mind and the body. The third and last occurs in the ritual on the solemn subjects of death, and of war, of baptism, of genealogical recitals, and such like important subjects, as the priests most particularly concerned themselves in. The words by which Io fashioned the Universe that is to say, by which it was implanted and caused to produce a world of light the same words are used in the rituals for cheering a gloomy and despondent heart, the feeble aged, the decrepit; for shedding light into secret places and matters, for inspiration in song-composing, and in many other affairs, affecting man to despair in times of adverse war. The various tohunga interviewed by early Pakeha writers note that much of this learning has not been passed on to post-contact generations of Maori. According to Nepia Pohuhu of the East Coast, that which has been passed on has been debased by the presence of Europeans: Marsden, supra note 57 at Paraone, supra note 92 at Smith, supra note 28 at 160.

65 65 In these days of the white man, everything has become void of tapu; and, hence it is that the learning of old is gradually becoming lost. We never wished that these [sacred] things should fall into the white man s hands, lest our ancestors became a source of pecuniary benefit. All that the white-man thinks of is money; and for these reasons this ancient knowledge of ours was never communicated to the Ministers and Bishops. As later generations of Maori in the Tai Tokerau region did attend Wananga, and some, like Marsden, also became Anglican priests, either the institutions that existed in the East Coast were far more rigid in process than those in the north, or, given the difference in time between writers, these rules were relaxed as time passed. According to Shirres and Marsden, a three kete model of the universe has parallels with modern physics and quantum mechanics in that both have a beginning from nothing, develop and expand over time, and highlight consciousness and the fundamental importance of energy. 98 A Nga-Kete-e-Toru model offers a key to understanding Maori intellectual processes of compartmentalising concepts. It creates divisions between the different types of knowledge known to Maori during the pre-contact period, some of which, according to Pohuhu, is no longer available. Inside the first kete rests the natural laws that are discernable from visual observation. Advances in western technology have allowed us to gain more information about how these laws operate. In the second, lies the concepts and principles that uphold a Maori worldview. This kete contains the intellectual knowledge that underlies the Maori understanding of reality. In the third is the ritualistic knowledge that enables individuals to move between dimensions and alter states of being, knowledge of which held the whole Maori universe together. In pre-contact Maori society, rangatira and tohunga, as the principle decisionmakers of a group, held this knowledge. 98 Marsden supra note 57 at 30-31; Shirres, supra note 72 at 88.

66 66 (e) Conclusion Most research about Maori society is anthropological in nature and has not focused on the basic constituents of the processes that underpin Maori thinking. Therefore, the significance of wairua and the creation stories in Maori thinking has been overlooked and their strength as the basis of Maori custom law has, accordingly, been read down. Hiroa's attempt at rationalising Maori thinking, and Hohepa's cautionary approach alerts us to the possibility that mixing of tikanga with Christianity may have produced a merged point of ultimate reality. There is no doubt that, since colonisation, Christian thinking has affected tikanga. But the extent is unknown. Notwithstanding these critiques, Barlow as a Psychologist and Marsden as a Philosopher, offer modern, Tai Tokerau insights into Maori conceptualisations and build the base of our understanding about Maori thinking further. Shirres, assists this process by employing an emanuensis style of writing in order to maintain the integrity of his sources. The Maori worldview stresses the importance of te Ao Wairua (the spiritual realm) as being the source of all things. From that source wairua reaches out and permeates everything else. The creation stories provide a structure for the evolution and development of all things from the wairua source through to physical existence. This creative process of development provides the blueprint for all thinking about relationships as being inseparably linked and familial in nature. Within this framework, nga kete tuatoru allow us to compartmentalise knowledge according to its different purposes. The first contains natural, observable laws that exist independent of humans and in accordance with the cycles of nature, the second kete contains the concepts and principles that underpin our understandings of the relationships that link everything together, and the third deals with the ritualistic knowledge that creates and influences change.

67 67 3. KEY CONCEPTS/PRINCIPLES UPHOLDING A MAORI WORLD VIEW (a) Introduction Although Pakeha writers in the1800s and early 1900s collected a lot of information about Maori concepts, they did not appreciate their worth as jural constructs. They tended to treat them as quaint remnants of a swiftly vanishing past that had little relevance in a European world. While Maori tohunga were giving out vital information in order to preserve precious knowledge about ways of thinking and viewing the world that included jural guidelines Pakeha were recording myths and curiosities. Far more emphasis was placed on the practices observed within Maori society than on the principles that underpinned those practices. Both Durie and the Law Commission identify a number of core values, concepts and principles considered to be fundamental to Maori custom law. Durie draws on over 20 years experience as a Maori Land Court judge and Chairman of the Waitangi Tribunal. 99 In order to be effective under existing New Zealand law, both forums require members who have a knowledge of Maori custom law. The Maori Land Court operates according to a mixture of New Zealand statute law and Maori custom law principles and practices that have been codified by legislation. Its principal Act is Te Ture Whenua Maori Act 1993 and its predecessors. The Waitangi Tribunal process focuses around te Tiriti o Waitangi/Treaty of Waitangi and, particularly, on rangatiratanga and taonga as Maori custom law concepts protected by the second article of Te Tiriti o Waitangi (Maori text). 100 Durie s writings mark a new era in the definition of Maori custom law. He sets out the beginnings of a coherent system of modern, Maori custom law that is principle-based and evolving rather than being restricted to practices observed by Europeans at Durie 99 The Waitangi Tribunal was established under the Treaty of Waitangi Act 1975, to hear claims from Maori against the Crown for breaches of the Principles of the Treaty of Waitangi, a covenant signed in 1840 by over 500 Maori hapu and William Hobson, representing the British Queen. 100 See Appendix 1.

68 68 is careful not to venture beyond viewing Maori custom law as more than a loose assemblage of values, concepts and principles drawn from a wider tikanga Maori worldview. He postulates no particular order or hierarchy of principles. Marsden assists the process of constructing a modern framework of Maori custom law by setting out a philosophical framework within which it can exist. 101 Knowledge has always been highly valued in Maori society and important knowledge was restricted to selected individuals within a group. In today s world, however, where a Maori worldview competes for existence with other worldviews, such preciousness cannot be maintained if Maori custom law is to continue to have relevance. Maori custom law needs to be set out as a complete process, with a framework that is clearly articulated and widely understood. This is an important step in the process of updating Maori custom law to meet the needs of a modern world. In this part of my study, I identify five fundamental concepts of tikanga Maori that inform a modern system of Maori custom law and indicate how they fit into a custom law framework. These concepts are Whakapapa, Whanaungatanga, Mana, Tapu and Mauri. I have included the concept of mauri (life-force), even though it is not referred to in the Papatupu Hearings that form the heart of my research archive, because it is a fundamental aspect of existence that provides all the other principles of Maori custom law with coherence and relevance. In my understanding, which I will flesh out in later discussion, without the presence of mauri as the principle of life, the other four principles have no reason to exist. (b) WHAKAPAPA In a mindset that held Wairua to be the raw material and principal component of the Maori universe, the organising principle that held that universe together was Whakapapa. 101 Marsden, supra note 57.

69 69 According to Marsden the creation stories conveyed an understanding of the underlying structure of reality as a process of ongoing development: 102 the ancient Maori seers, like the later modern physicists, created their sets of symbols to provide them with their maps/models to portray each state in this evolutionary process. These representations were the means by which they could elucidate the various worlds; and grasp what they perceived as ultimate reality. There are three ways in which Whakapapa can be usefully employed as part of a Maori mindmap: first, it provides an ordered process within which other ideas and concepts can be structured into a coherent format; second, it acts as a vehicle for the conveyance of wairua to the rest of creation, and third, it establishes a hierarchy of authority as a guideline to the formation of all relationships. i. Whakapapa as a Process The concept of Whakapapa sets the basic structure for Maori thinking as a progression through a series of incremental stages. According to Walker, the ideas of orderliness, sequence, evolution, and progress are implicit in the meaning of whakapapa. 103 The idea of orderliness is also present in the several meanings provided for whakapapa in the Williams Dictionary, which include lie flat, place in layers, lay one upon another, recite in proper order genealogies, legends, etc. 104 It is common to describe the whakapapa process either as one of genealogical descent or as a process of layering in which each new layer augments that which it succeeds. In this respect Whakapapa can be seen as a global, all-embracing concept linking the stages by which systematic augmentation occurs in Maori thinking. As such, it acts as a guideline for the logical sequencing of related events. 102 Ibid at R Walker, Nga Pepa a Ranginui, Penguin Books, Auckland, 1996, HW Williams, Dictionary of the Maori Language, 7 th Edition, BP Publications Ltd, Wellington, 1992, 259.

70 70 This sequencing of events uses the creation stories as a precedent for all other relationships. As Walker points out, this methodological approach enabled important information to be easily passed from generation to generation by weaving it into a whakapapa narrative. Sir George Grey translated the story of Rangi and Papa which has become the standard New Zealand creation story, from te Arawa rangatira, Wiremu Te Rangikaheke s original Maori text written down in Although there are several other explanations of existence held by various iwi throughout Aotearoa, 106 they employ the same structure of recitation. The process begins with an orginal source that is sometimes referred to as Io and sometimes simply as wairua. Irrespective of nomenclature, the source is held to contain the potential for all existence and being. Within the source developments take place and various named epochs emerge. Each epoch augments that which precedes it. The sequence unfolds as a continuous process, until finally, the natural world and humans are produced. This process of incremental development is reflected in the whaikorero (formal speechmaking) heard on marae. Speakers often use metaphoric narrations depicting various stages of augmentation the development from spirituality, to potential for existence, to gestation, and then birth the physical growth of a plant from a single main taproot to an adult tree the gradual movement from darkness into daylight the weaving of an intricately patterned whaariki, in order to structure ideas and convey information to their listeners. 107 This process of transferring knowledge presupposes an awareness of the stories to which the speaker is referring amongst one s audience and the ability to place language in context. Understanding is facilitated by the carvings inside the meeting house, which provide a visual aid to interpretation. 105 Grey, supra note Shirres, supra note 72 at Marsden, supra note 18 at ; Shirres, ibid at

71 71 ii. Whakapapa as a Vehicle for Conveying Wairua Widespread acceptance of the concept of whakapapa as an ordering principle meant that nothing was disjointed in the Maori mind. Everything had a prior cause and explanation. All things were related, however distant that relationship may be and could be linked back to the wairua source. The process of whakapapa acted as a vehicle for conveying wairua from the original source into all other aspects of existence. In the physical world of sense perception, the whakapapa process can be viewed as the enabling device by which wairua was able to permeate all things: 108 Whakapapa is the genealogical descent of all living things from the gods to the present time. Everything has a whakapapa: birds, fish, animals, trees, and every other living thing; soil, rocks and the mountains also have a whakapapa. Everything has its own form of life; everything has a spirit. Io is the origin of all things the spirit and the life and the form. 109 In 1855, Taylor recorded that the degree of thought perceptible in the Maori creation traditions marked a culture far more advanced than was readily apparent from the pretechnological social conditions in which Maori lived. 110 Linking lack of technology to mental backwardness was not uncommon amongst the early writers. In this instance the observation was made with regard to the whakapapa process Taylor had recorded outlining the gestation of thoughts, ideas and reasons towards conclusions emerging from the Wairua, in the first of six epochs that eventually led to the creation of the physical universe: 111 Na te kune te pupuke Na te pupuke te hihiri Na te hihiri te mahara Na te mahara te hinengaro From the conception the increase From the increase the thought From the thought the remembrance From the remembrance the consciousness 108 C Barlow, Tikanga Whakaaro, Key concepts in Maori culture, Oxford University Press, Auckland, 1996, Smith, supra note 28 at Taylor, supra note 74 at Ibid at

72 72 Na te hinegaro te manako From the consciousness the desire This thinking epoch preceded others in which night, light, physical existence, land and the gods came into being. The recitation depicted long periods in which Te Kore (nothingness) and Te Po (darkness) existed before light finally dawned and produced the world of sense perception. The way Maori depicted the emergence of the world as we know it, led Marsden to suspect that Maori had traditionally organised their thinking in accordance with a three-world view, of potential being symbolised by Te Korekore, the world of becoming portrayed by Te Po, and the world of being, Te Ao Marama. 112 According to the Io tradition, Te Waipuna Ariki is the fountain through which the primal energy of potential being proceeds from the infinite realms of Te Korekore through the realms of Te Po into the world of light (Te Ao Marama) to replenish the stuff of the universe as well as to create what is new. Thus it is a process of continuous creation and recreation. Te Korekore is the realm of potential being. Te Po is the realm of becoming and Te Ao Marama is the realm of being. 113 Barlow holds a similar view to Marsden, but calls the intermediary phase te wheiao ki te ao-marama which he translates as worlds in transition : 114 the meaning of world, as I intend it, is not limited to the general meaning of this earth and its inhabitants or some other sphere or entity within the cosmos, but it also refers to places and states (and actions to a limited degree). In addition, states, or states of being, incorporate physical, psychological and spiritual dimensions (worlds), which undergo change at various levels within these dimensions, and in other situations, inter-dimensional changes. The use of the word transition intimates change and in particular, the change experienced or enacted in moving from one state or condition to another. 112 Marsden, supra note 18 at Ibid at Barlow, supra note 83 at 1.

73 73 These traditions and korero give us an understanding of how Maori thinking processes have been developed in alignment with the stages set out in the creation stories. Following the journey of the Wairua into different states of being also gives us an understanding that change is a natural part of Maori existence. In its second aspect, therefore, Whakapapa acts as a symbolic reference to a material world that is infused with wairua. iii. Whakapapa as a Hierarchical Process of Authority Maori thinking attributed value and importance to prior causes and invested them with authority. In the metaphysical world portrayed in the creation stories, Io, Wairua, Rangi and Papa stood at the apex of authority. They were followed in the process by a series of Atua (deities) who held authority over various physical realms. In some korero these atua were posited as discrete entities with specific spheres of influence, in other korero jurisdictions overlapped. The atua possessed diverse personalities, with negative as well as positive characteristics. There is no definite number of atua, although the Grey writings state that they are all male. 115 Insufficient material exists to work out why this is so, although Grey s principal informant, Te Rangikaheke, was from Te Arawa, an iwi with a strong adherence to the importance of the male role in traditional practices. Iwi had their own atua. Some, such as Rangi and Papa, were shared amongst several groups. As the principal regulators of natural phenomena and protectors of the world, atua were a natural source of authority outside of human control and were to be respected if not feared. The belief that each thing existed in its own realm, possessed wairua, and was under divine protection was a serious constraint on human behaviour. However, the respect due to the atua as the ultimate ancestors and the source of one s own origin, authority and power, did not mean that it was always given. The conflict between the children of Rangi and Papa established a hierarchy amongst the various atua, which transferred over to their descendants in the physical realm. The ongoing contest of 115 Grey, supra note 59 at 1-9.

74 74 authority meant that Maori took little for granted. Ritual was often used to mediate human actions viewed as intruding into the realm of the various atua and upsetting an already precarious balance. In human whakapapa, ancestry acted as a primary indicator of individual authority. In common parlance, Whakapapa as a noun referred to the specific ancestry of an individual or group of individuals. Terms such as tatai and heke were used to denote this application of the whakapapa process to produce pedigree lineages of a private, individualistic nature. Whakapapa not only linked specific individuals, it also clearly delineated who was not part of that lineage. It was a method of determining inclusion and exclusion in a group. And it was immutable in that no individual could determine their own ancestry or alter it, Whakapapa was the ultimate fact that made descent both rigid and lineal: 116 By descent, we refer, firstly, to the implicit or explicit claiming of descent from the acknowledged founder of the hapu, Tuperiri (through either parent in any one generation) to justify the right to live in Orakei. Secondly, and within the hapu, we apply the term to the criterion used to define membership in those factions whose own particular founders were the sons of Tuperiri. The hapu and its constituent factions are thus descent groups in the strict sense. Despite this, there was also flexibility associated with whakapapa lineage in that it was possible to stress descent from one line and not another, as particular circumstances demanded. In this way one could remain true to one's genealogy while not being constrained by it. Treated thus, whakapapa was also a malleable, inclusive mechanism that enabled individuals to follow the most advantageous line, according to need. In a paper discussing Tikanga Maori, anthropologist, Joan Metge highlights selfidentification as the main factor in deciding who is Maori. She states there has to be some indication of ancestry (the name of a Maori ancestor or physical features) for a person s identification as Maori to be accepted by other Maori, but with that proviso I 116 IH Kawharu, Orakei, A Ngati Whatua Community, Wellington, NZ Council for Educational Research, 1975, 22.

75 75 argue that a Maori is a person who identifies as such. 117 This is reinforced by a further statement that identity is too personal an issue to be decided by any but the person concerned. 118 Lineage was extremely important to Maori society at the time of contact and is still the principal indicator of belonging to a group. Identity is not a private matter. It is a matter of public record and knowledge amongst Maori. In a community defined by whakapapa, how an individual feels is largely irrelevant compared to how the community of which he or she is a part perceives him or her according to their own criteria of assessment. The inclusion of whangai (adoptive children), in-laws and others who are blood strangers, as central parts of a community, would strain the principle of whakapapa beyond its traditional limits. Blood strangers can be included within a group by employing the principle of whanaungatanga, also an organising principle, without the need to do violence to the principle of whakapapa. The blurring of the boundary between the two principles that sometimes occurs, highlights the need for more clarity in setting the conceptual boundaries between the various principles of Maori custom law. iv. Conclusion The concept of Whakapapa provided the intellectual framework within which Maori thinking about the world as a combination of spiritual and physical phenomena could develop in an orderly fashion. The whakapapa process meant that Maori emphasised continuity and augmentation in their thinking and reasoning about the world. Whakapapa provided a logical order for the development of thinking about the universe, its construction and composition. As a conveyancing mechanism for wairua, whakapapa provided the means by which other substantive concepts such as mana and tapu (discussed later in this Section) could emerge as integral part of existence and essential 117 J Metge, Succession Law: Background Issues Relating to Tikanga Maori, Report For the New Zealand Law Commission, 1995, Ibid. Metge is clear in her view that Whakapapa is a fundamental requirement for inclusion as part of a group. Personal communication, 29 April 2005.

76 76 components of Maori custom law. As a system of hierarchy, whakapapa also provided a process from which power and authority could be derived through ancestral connections.

77 77 (c) WHANAUNGATANGA (i) Introduction Oral and written accounts show that at the heart of early Maori thinking lay the knowledge that everything they could see, hear, taste, smell, anticipate and conceive of was part of a greater, unified whole. The ideas that all being was rooted in wairua and that change by augmentation occurred through successive whakapapa stages, provided the rationale for all relationships being perceived as kin-based and familial. The ongoing product of the whakapapa process was a complex, web-like, genealogical structure within which kinship links were constantly being formed and extended. Within this complex whole, everything had its own place and function. (ii) Whanaungatanga as a Concept Highlighting Relatedness Whanaungatanga is the expression used to cover the various relationships recognised by Maori of a kinship nature. While whakapapa as a principle, emphasises order and place, whanaungatanga emphasises relatedness : 119 This, also, must be clearly understood: Everything is a part of the Heavens and the Earth; there is nothing of which it can be said it is of the Earth alone or of Heaven alone; all things have been placed, each in its own position and after its own kind by them and their offspring [the gods], and, hence it is [we say] all things emanate from them the Stars, the Moon, the Sun all of those are part of the Earth and Heaven. Today the importance of relatedness is highlighted by the widespread use by writers of terms such as holistic, inter-related, inter-dependent and inextricably linked. According to Barlow, a clear distinction between the concepts of whakapapa and whanaungatanga is now hard to draw. This is because the concept of whakapapa has 119 Smith, supra note 59 at 172.

78 78 been extended beyond lineal descent to include a wider range of relationships of a lateral nature as well, as between humans and other things. According to Barlow, if the term whakapapa is altered so that the end of the word is extended to paapaa with a long a vowel, the meaning changes to to touch and thus conveys continguousness. This, he believes to be the true application of the term. In his view, whakapaapaa has always been a broad enough term to encompass the wider kinship links that are more commonly associated with the concept of whanaungatanga. 120 In any system of Maori custom law that seeks clarity in its application, as clear a distinction as possible should be made between the principles of whakapapa and whanaungatanga. Both Metge s discussion of whakapapa as it relates to tikanga Maori and succession and Barlow s view of whakapapa as being an expansive concept that incorporates whanaungatanga raise the necessity for distinguishing between the two. The problem is one of boundary vagueness between two ordering principles. One natural distinction that can be drawn between them is that whanaungatanga is widely used to refer to the responsibilities inherent in kinship relationships, while whakapapa is used to represent the genealogical connections that form the basis of those relationships. (iii) Whanaungatanga as a Principle of Inclusion that is devoid of Social Rank There are two ways in which Whanaungatanga is central to this thesis. The first is by way of contrast with Whakapapa as it applies to human ancestry. Whakapapa as it applies to human ancestry, has, traditionally, distinguished between senior and junior lines of descent and placed emphasis on the distinction as a means of allocating authority amongst individuals within a group. As a principle, Whanaungatanga is more egalitarian in nature. It highlights belonging and inclusiveness amongst members of a kin group, irrespective of authority or ranking. In applying whanaungatanga as a principle of Maori custom law, group membership is able to be broadened to a wider whakapapa base of relatives. 120 Interview with Cleve Barlow at Kaikohe, 4 February 2000.

79 79 (iv) Whanaungatanga as a Principle highlighting Moral Responsibilities The second way that whanaungatanga is now commonly used is as a principle which highlights the morality of the whakapapa process what is tika (correct) and what is he (wrong), in terms of interactions between the various things linked in any relationship. In order to achieve this, whanaungatanga has its own set of attendant values and concepts that give it coherence. These concepts reflect the importance of family relationships and highlight reciprocity. a. Family Relationships The obligations inherent in kinship relationships can be broadly divided into the way Maori perceived the place of humans within the universe, human relationships with each other, and human relationships with the particular resources Maori considered necessary for their survival. i. Papatuanuku and Aroha The ethics for all family relationships are set out in the creation stories. They depict a strong emotive energy emerging from within the Wairua and spreading out to all things. The ideas and ethics of protecting and nurturing appear in the narrations of the strong emotional bond between Rangi the skyfather and Papatuanuku the earthmother, followed by their eternal sorrow at being parted. The children of Rangi and Papa are generally portrayed as competitive, jealous, territorial, unforgiving and passionate males. Overarching their actions is the ongoing maternal affection or aroha of Papatuanuku toward her many offspring. The gentle authority with which she infuses her power into the physical world provides respite, protection and healing for all her children, human and others. In many respects she is the ultimate mother and parental role-model. Rangi, taking his cue from Io perhaps, who according to Mahupuku sits in splendid isolation above the topknot of Rangi, does not seem to have been invested with the same degree of concern for the wellbeing of his offspring. The ability to exercise aroha towards others

80 80 and to atawhai (care for) one s relations, was a highly valued personal characteristic of Maori leadership for males and females. Both sexes in Maori society seem to attribute the caring attributes of the various roles within Maori society to Papatuanuku, the female role-model, and strength and ability in various endeavours to her male children. ii. Group Identity Whanau, Hapu and Iwi Within traditional Maori society, political, social and economic rights and obligations attached to whanau, hapu and iwi. All three names reflect the collective ethos of precontact Maori society. Iwi is often said to be derived from the term koiwi which means bones. According to Barlow it is also the term used to refer to the human embryo at the beginning of its existence. 121 Hapu is the name given to the state of being pregnant. Whanau relates to birthing and the processes that surround it. Tangata are individuals, collectively named. The metaphor is one of a single body that is linked by bones, and which renews itself through the birthing process. The identification of an eponymous ancestor created a point of unity for groups to unite along multiple lines of descent. Kawharu explains the relationship between whakapapa and whanaungatanga and how the two principles apply to his people at Orakei: 122 By kinship, we refer to the acceptance of ties between those descended from a common ancestor, whether or not they live together in Orakei. It is the simple recognition of consanguineal kinship unqualified by residence. Its main ingredient is belief in an all-inclusive solidarity among kin, and it has had the effect of over-coming the conceptual and actual divisions created by descent, and thus to tying not only the constituent groups within Orakei to each other and, in post contact times, to individual households beyond Orakei, but also Orakei itself to a certain number of other hapu communities. Kinship as used here thus refers to categories of people, not to local groups; although all members of the Orakei hapu are also members of one or more such categories. 121 Interview with Cleve Barlow at Kaikohe,15 April Kawharu, supra note 116 at 22.

81 81 iii. Relationship to Natural Resources Within pre-contact Maori society, group identity was greater than the sum total of its living individuals and their actions. Whakapapa and whanaungatanga extended the group s identity beyond direct biological associations to include ancestors (human and non-human) and their actions, future generations, and the group s territory. The mana and tapu attaching to natural resources meant that they could not simply be treated as objects for humans to despoil and waste at will. The creation stories, particularly the belief that Papatuanuku, as earth, was the physical manifestation of the mother of all other deities, invested the land with enormous inherent value and authority. According to Patterson, the idea that a person carries, as part of their own personhood, the culmination of an extensive ancestry filled with spiritual and land associations is not easily equated with Pakeha ideas of individuality, family and community: 123 To the Pakeha, a community obtains its nature from the nature of its constituent members, present and past, and their relations. Society is seen as a result of the bringing together of a number of essentially individual persons. To the Maori the opposite tends to be the case. Kinship to the Maori is more than what to us [Pakeha] is community and solidarity. The common will which conditions the solidarity is rooted in something deeper, in an inner solidarity of the souls. To the Maori, then, persons obtain their nature largely from their communal environment, their kin group, their whakapapa (genealogy). They are not essentially individual. Without kin present and past they are literally nothing. b. Utu Reciprocity As a concept, principle and practice of Maori custom law, utu was highly developed in Maori society. As a society based around recognising family links and associations, the consequences of human interactions were rarely neutral. Positive actions bestowed on others gave rise to an obligation to reciprocate. The same applied to negative actions and affronts felt by others. An affront to an individual was an affront to the group as a whole. 123 Patterson, supra note 34 at 153.

82 82 Grudges could be carried over to successive generations until balance had been restored into the relationship between individuals and/or groups. The concept of utu is frequently referred to in the Papatupu records and will be discussed in more detail in Section C of this study, as a process of retribution for wrongs committed against one s kin.

83 83 (d) MAURI (i) Introduction The concept of Mauri is not specifically mentioned in the Papatupu Hearings, whose purpose was to transfer customary Maori title into Native Land Act title. Within this context, emphasis was on the quantification of entitlements under the new system of ownership amongst existing groups on the land. Why Mauri as a concept was excluded from the open discussions designed to allocate rights to areas of land is a matter for speculation. References to Mauri in early Pakeha writings show that it was a central part of Maori thinking at the time. It may be that the whole process of establishing land titles was seen by Maori as being of an administrative nature only, with the substance of that tenure retaining its strength under tikanga Maori. As Mauri, like Wairua, sits at the esoteric, highest-values end of Maori principled thinking it may not have been a suitable subject for discussions that were primarily focused on administrative matters. Notwithstanding the above, an understanding of Mauri as a value/principle underpinning Maori custom law is central to understanding this study. In a mindset that perceived ultimate reality as wairua, whakapapa as the process for organising relationships, whanaungatanga as investing them with moral and ethical values, mana as the principle of authority and power, and tapu as the concept of sanctity and restriction what was the ultimate purpose of these principles? The answer is to safeguard the mauri. (ii) What is Mauri? In a Maori framework of thinking, mauri stands for the source of vital energy that everything perceivable by the senses, the mind and the heart, possessed. In writing for the resource management law reform in 1988, Marsden drew together the universal nature and fundamental importance of Mauri to all created things: Marsden, supra note 57 at 20.

84 84 Imminent within all creation is mauri the life-force which generates, regenerates and upholds creation. It is the bonding element that knits all the diverse elements within the Universal Procession giving creation its unity in diversity. It is the bonding element that holds the fabric of the universe together. 20th century Pakeha writers also recognised Mauri as an important, although difficult to grasp, abstract quality. Best defined it as an active life principle or physical life principle 125 of general application: 126 Everything animate and inanimate possesses this life principle; without it nought could flourish. Nor is this potential quality confined to material objects; not only does the unstable ocean and fleecy mist wraith possess a mauri, but also wind, winter, summer, night and day, etc., are endowed with this life principle. A simpler explanation of Mauri is given by Tai Tokerau researcher Manuka Henare, who says that Mauri is not the principle of life, but life itself. 127 In his doctoral thesis Henare only makes cursory reference to Mauri as part of a broader discussion on Vitalism in which Ngapuhi elder, Sir James Henare, describes the meaning of the term whenua (land) as: the term used for both the land and the placenta of afterbirth; therefore, the land for Maori people has the same deep significance as the placenta, which surrounds the embryo. Giving it warmth and security, a mauri, a life force that relates to and interacts with Mother Earth's forces. From this explanation Mauri can be viewed as an interactive force capable of binding objects and otherwise separable things such as land and people, or placenta and human, together in a co-dependant relationship. 125 Best, supra note 30 at E Best, The Maori, Harry H Tombs Ltd, Wellington, 1924, Interview with Manuka Henare at Auckland, 19 October Although it is easier to think of mauri simply as life this does not overcome the need for a meta-language by which to discuss the concept and its application. 128 Henare, supra note 78 at 35.

85 85 (iii) What is the Job/Purpose of Mauri? Barlow develops the description recorded by Best by adding that Mauri, infused at the beginning of life, enabled perception, identity, personality and character to form and develop and that: 129 Everything has a mauri, including people, fish, animals, birds, forests, land, seas, and rivers; the mauri is that power which permits these living things to exist within their own realm and sphere. The concept of mauri functions as an identifiable repository for the vital energy necessary to keep things alive and/or to maintain them in an identifiable state of permanence. In this sense vitality refers to two distinct things: first, the production of animus or life force in things that breathe such as humans and other animals: second, it also refers to a cohesive energy that enables inanimate objects to take a specific form and maintain a unique identity. Even purely abstract things like ideas, plans and group endeavours are imbued with mauri. In trying to bridge the cultural barrier between himself and Beattie, Tikao elaborated what he thought a European might liken Mauri to: 130 You who are Pakeha might call it spiritual knowledge, the intellectual faculty or the accumulated mental experience which comes from observation and instruction. It was an invisible essence in the composition of the spirit or soul, and if it departed or was taken away, the person died. This description of Mauri from an early Maori tohunga reinforces the idea that "Mauri" is a force that binds together important aspects of existence which would otherwise revert to their separate components. 129 Barlow, supra note 108 at Beattie, supra note 59 at 74.

86 86 (iv) Why does Mauri need Protection? As a jural concept, Mauri was part of the spiritual content of a person, without which that person could not live. It was part of the spiritual content of all other things as well, without which they would lose their vitality and coherence. Take away the mauri and a mountain would crumble, forests would wither, humans would die. According to Muru, the term Mauri was very tapu (sacred), relating as it did to the deepest aspect of existence. As such it was spoken about in wananga but rarely discussed in common parlance. 131 The use of the term "Tihei Mauri Ora" in whaikorero, as part of the formal speechmaking on the marae indicates a traditional use of the term in a highly tapu (restricted) situation when groups of strangers come together for the first time. A modern story demonstrating the application of Maori thinking about Mauri is told by Marsden, who after returning from the second world war, explained to his kaumatua (elders) how the splitting of the atom had produced the atomic bomb that had been dropped on Hiroshima and Nagasaki, in Japan. One of the kaumatua, Toki Pangari, interjected to ask whether the Pakeha tohunga had learnt how to tear the fabric of the universe. On being told that this was so he then asked E taea e ratou te tuitui? (Do they know how to sew it together again?) On being given a negative answer, he responded. Na, koia tena te mate o te whangai i nga matauranga tapu ki nga tutua, ka tukinotia i a ratou (That is the trouble with sharing tapu knowledge with the low born, they will abuse it). 132 As the source of vital energy of an object, mauri could be manipulated to increase the generating power, fertility, performance or productivity of different things. It could also be interfered with in a negative manner in order to reduce the generation of vital energy below that necessary to sustain things in a permanent, or living, state. When applied to whenua (land) and other natural resources, mauri is the life force that is reflected in the physical health and vitality of the resource. If the mauri of a resource is strong it will be 131 Interview with Herewini Muru at Auckland, 29 September Marsden, supra note 57, Introduction at xiii.

87 87 reflected by abundance, if the mauri is weak it will similarly be reflected by the weakening of a resource and could possibly result in its death. In conversation with historian Herries Beattie, Teone Tikao, Ngaitahu tohunga, described the consequences of manipulating Mauri: 133 The Mauri might be called the knowledge that was held within the Wairua (soul) of man or the animating principle of anything it is very hard to describe in English. Besides invoking the Mauri of anything, the skilled tohunga could take it away from anything. He could take it from a man the man would die; he could take it from the bush the bush would die; he could take it from a mountain the mountain would fall. Solid objects such as stones and trees were often used as symbolic representations or repositories to protect and foster the life-principle and general welfare of man, birds, fish, land forests, and other things. 134 These objects were hidden to protect them from violation by those who might wish to negatively affect the mauri of whatever the object symbolised. Throughout Aotearoa/New Zealand, writers noted that success, prosperity and good fortune persisted only while the Mauri remained inviolate. 135 As a consequence, human behaviour was adapted to avoid violating the mauri of the resources: 136 The Maori believed that nothing in this earth existed without its mauri and that if this were violated in any way, its physical foundation was open to peril or exposed to great risk. If the mauri of a forest were violated, the trees and plants would not be able to produce in abundance, but fruits would be scarce, and there would be very few birds. At a practical level, Maori understanding of mauri can be simply explained as a need to protect resources in order to maximise group survival. At a conceptual level, however, it is not such a simple matter. Whakapapa and whanaungatanga links meant that damage to the mauri of one object could cause a chain reaction which would, in time, link itself back to humanity with potentially catastrophic results. Hence the dismay of Toki Pangari on 133 Beattie, supra note 59 at Best, supra note 30 at TG Hammond, The Story of Aotea, Lyttleton Times Co Ltd, Christchurch, 1924, Makareti, The Old Time Maori, V Gollancz, London, 1938, 181.

88 88 hearing that the universal fabric had been torn by an atomic explosion that had unleashed so much energy without concern for possible adverse consequences. As a consequence of this type of thinking, actions affecting mauri were closely attended by rules associated to the concept of tapu, which constrained human interference with natural resources. At a purely pragmatic level, the concept of maximising the protection of the mauri of objects associated with a person or group, ensured a better livelihood. Where interference did occur and negative consequences resulted, measures were taken to revitalise the object and restore it to its original state. Mauri has emerged as an important Maori value in judicial decision-making in recent years because legislation such as the Town and Country Planning Act as amended in 1977, which has since been replaced by the Resource Management Act 1991 has permitted the inclusion of tikanga values in resource management activities that are monitored by territorial and regional councils. The establishment of the Waitangi Tribunal in 1975 as a forum for hearing Maori grievances against the Crown for breaches of the principles of the Treaty of Waitangi/Te Tiriti o Waitangi has also reinforced the importance of mauri. 137 (v) Conclusion The concept of Mauri lies at the heart of the Maori metaphysical world and Maori custom law. It is the fundamental building block of physical existence without which nothing else can exist or take an identifiable form. Its presence allows things to move towards realising their full potential. As such, mauri needed to be protected against adverse and unwarranted interference. The ideas associated with the concepts of mana and tapu, and the principles and rules to which those concepts give rise, provided that protection. In Section D, mauri is integrated into the discussion of Kaitiakitanga (guardianship) and Tapu, rather than dealt with as a discrete topic. 137 see infra page 329 where the relevant sections of the Resource Management Act are laid out. The Waitangi Tribunal is covered at supra note 100 and infra pages

89 89 (e) MANA (i) Introduction The first important substantive concept of Maori custom law is Mana. Whereas Mauri as the life principle of an object is the primary element of being that requires protection in order for life and form to exist, Mana refers to the various sources of authority and power recognised by Maori society that enabled that protection to be forthcoming. (ii) The Double Aspect of Mana Power and Authority Power and authority are two associated ideas that convey the meaning attributed to Mana by Maori. Marsden defines this double aspect of mana as: 138 lawful permission delegated by the gods to their human agents and accompanied by the endowment of spiritual power to act on their behalf and in accordance with their revealed will. This delegation of authority is shown in dynamic signs or works of power. Authority and power must be clearly distinguished as to exercise power outside its delegated limits was viewed as an abuse of authority, and would result either in its withdrawal or in harm to the agent and others. The example of using an atomic explosion to end the Second World War highlights the difference between the two. For Maori, such a gross demonstration of power against the universe would have been difficult to justify as a quick fix measure for settling a dispute between groups. The cancer caused by radiation as a result could be interpreted as utu, divine retribution wrought by angry atua in response to human interference in their realm, at the site of the event. 138 Marsden, supra note 18 at145.

90 90 (iii) Sources of Mana Recognised by Maori Society Mana is most commonly categorised according to its source of origin. These are set out by Barlow according to source and relative strength as Mana Wairua, Mana Atua, Mana Tupuna, Mana Whenua and Mana Tangata. 139 a. Mana Wairua. The attribution of mana to wairua gave recognition to the original source of all things being spiritual. It acknowledges the universal source from which everything derives, as containing the raw material for all existence, and invests it with supreme authority and power. According to Barlow, in Ngapuhi traditions, wairua represents absolute power and authority and the ultimate divine will. 140 Mana wairua reinforces the importance of spirituality in life and recognises the power of spiritual processes. Although wairua represents absolute power and authority and the ultimate divine will, its main contact with the world of humans appears to be through the creation of the substantive concepts that are part of the creation whakapapa process, one of which is mana. b. Mana Atua gave recognition to the various atua of the Maori as being the source of authority vested in humans and other parts of the created world. The Maori worldview contains numerous atua, who together are responsible for a variety of physical and spiritual creative processes. Best formed a four stage, divine hierarchy of atua with Io at the top, having little to do with humans, followed by a series of departmental gods which were personifications of natural phenomenon earth and sky, war and peace, then tribal gods, and, finally, family gods or familiar spirits. 141 All humans possessed inherent mana through their whakapapa links to the atua. Natural talent was also attributed to the atua bestowing their mana on specific individuals at 139 Barlow, supra note 108 at Mana Wairua is a concept that emerged during discussions about tikanga Maori held with Barlow at his home in Kaikohe, in In this sense divine refers to the acceptance of a non-physical realm that is not of human origin. 141 E Best, Social Usages of the Maori, Maoriland Worker Printing and Publishing, Wellington, 1918, 9.

91 91 conception. In addition, mana could be bestowed on individuals for a particular purpose, such as protection in war and to enhance gardening activities, through karakia, which invoked their attention and enabled individuals to enter into direct covenantal relationships with them. 142 At a practical level, the enactment of ritual signified to others within the group than an individual was being singled out for a particular task or purpose associated with the group s overall welfare. c. Mana Tupuna refers to mana that is derived from ancestry. The dual ideas that mana was derived from a spiritual source and that various atua held authority over the different parts of existence, continued into human ancestry. In the temporal realm, tupuna (ancestry) was the main basis for claiming authority amongst and over other humans within a group. According to Durie: 143 Mana tupuna expressed the basic ideology that all things came from ancestors, land rights, status, authority, kinship, knowledge, ability etc. Mana was usually presented as ascribed but ascription was usually retrospective to validate achievement ( he is brave, caring etc for he is the descendant of so and so ) so that in practice, mana was both ascribed and achieved. Genealogical connections were the main determinants of all entitlements to whenua (land) claimed by an individual or group. Once territory was settled, ancestral actions provided a guideline for the interaction of successive generations with others who wanted to live within a group s territory, temporarily or permanently. The principles of Whakapapa, Whanaungatanga and Mana all came into play in governing interactions on the land. d. Mana Whenua is a term that incorporates the collective ethos of Mana Atua, Mana Tupuna and Mana Tangata into a concept that combines whakapapa and territoriality. There is debate within the Maori legal community as to whether mana whenua derives from the pre-contact period or is a modern innovation Some 142 Shirres, supra note Durie, supra note 39 at Waitangi Tribunal, supra note 42 at 18.

92 92 support for the claim that it is a modern collation of two traditional Maori concepts can be found in its lack of usage as a single land concept in the Papatupu Hearings records, where, had it been in common use at the time, it should have appeared. Instead the term "mana rangatira" is found. However, the term is now in common usage and its ongoing use is guaranteed by inclusion in Section 2 of the Resource Management Act 1991, which defines mana whenua as customary authority exercised by an iwi or hapu in an identified area. This change in terminology is elaborated further in Sections C and D. Modern use of mana whenua is an acknowledgement of two things. First, it acknowledges the independent spiritual power and authority invested in te whenua (the land) by association with the primordial parent, Papatuanuku. This association highlights the importance of te ira wahine, or the female ethic, in recognising the mana, mauri and tapu of the land, and invests it with authority. In its co-existence with humans, the relationship between land and people is unequal in that humans are always dependant on it for their physical and spiritual fulfilment. The second aspect of mana whenua relates to the political power associated with group territoriality. This latter definition accords with the definition in the Resource Management Act and is closely affiliated to the concept of mana tangata. The combined product of the above two aspects of mana whenua meant that not only did humans hold the mana of te whenua and its resources, but, conversely, the whenua ensured that the mana of the people was upheld by sustaining them with its resources. The central ideas of nurturing and dependence carried over into human relationships in that the human placenta, which nourishes the child in the womb, is also called whenua. This dual association emphasises the perception of land as Papatuanuku, being the principal source of temporal power and authority for humans. 145 Re a claim to the Waitangi Tribunal by Henare Rakihia Tai and the Ngai Tahu Trust Board, 12/11/90, Maori Appellate Court, Te Waipounamu district, 4 South Island Appellate Court Minute book, folio 673, 1. This case is included as Appendix 4, Ngai Tahu Report WAI 27, Wellington, 1991, 1122.

93 93 e. Mana Tangata refers to human authority as exercised in relationships with other humans. It is closely associated with the second meaning of mana whenua and is circumscribed by mana wairua, mana atua, mana tupuna and mana whenua. Mana Tangata is the least enduring of the several sources of mana recognised by Maori, being totally dependent on the others for its existence. Barlow describes it as the power acquired by an individual according to his or her ability and effort to develop skills and to gain knowledge in particular areas. 146 Territorial authority was generally associated with groups. However, within the group, individuals had defined roles and there was flexibility to move within ranks, using the institution of mana. According to Te Rangi Hiroa, the role which epitomised the ideal to which Maori aspired was that of the rangatira, a person who possessed an amalgam of traits prized by the group, including the ability to lead, care for, and unite, others. 147 The mana of a chief carries the meaning of power and prestige. The first-born son inherited the power to rule and direct his tribe, but this mana lay dormant within him, so to speak, until it was given active expression on his father s death. He also inherited the prestige of his position, and the greater the prestige acquired by the family and tribe, the greater the mana that was inherited. Besides the inherited mana, a new ariki could acquire additional mana by the wise administration of his tribe at home and by the successful conduct of military campaigns abroad. The mana of a chief was integrated with the strength of the tribe. It was not a mysterious, indefinable quality flowing from supernatural sources; it was basically the result of successive and successful human achievements. Later on Te Rangi Hiroa adds that while achievement was important to leadership, rangatira possessed unique qualities and gained access to restricted knowledge of a highly tapu (restricted) nature that was not available to other members of the group: Barlow, supra note 108 at Hiroa, supra note 74 at Ibid at 475.

94 94 First-born chiefs inherited certain religious powers (mana atua) by reason of primogeniture. In youth, they were admitted to the schools of learning together with theological students and thus acquired a good deal of religious theory and practice. This acceptance by Te Rangi Hiroa that primogeniture invested one with mana atua is odd, given his otherwise practical analysis of mana. Whether the rangatira acquired mana through personal achievement acknowledged by the group, however, or through ancestry, he or she was always dependent on the group s support to maintain that mana. The result of this, Best records, is a society in which Maori balanced demonology with a peculiar combination of democrat and aristocrat : 149 He ever held his high-born chieftains in esteem, so long as they conducted themselves in an able, unselfish, and conscientious manner. Should they fail, however, to uphold the standard demanded by the people, then their influence waned, and others were elevated to such positions. At the same time, the Maori, in many ways, was a democrat. Every freeman, and woman, had a right to public speech in the arrangement of any matters connected with the family group, the clan, or the tribe. Chiefs would lay proposals before the tribe or clan, and the latter would accept or reject them. The chief would not, indeed, could not, command the people to act on his own initiative. Secret diplomacy was an impossible thing; all political and social matters must be discussed and settled by the people. Shane Jones of Ngapuhi nui-tonu, as Manager of Maruwhenua, the Maori Policy Unit of the Ministry for the Environment, extended the discussion on rangatira into rangatiratanga during the government consultation with tangata whenua, (people who whakapapa to the land), before the enactment of the Resource Management Act 1991: 150 Historically authority was exercised by rangatira. They executed a range of functions. The procedures and goals however which they worked towards derived their legitimacy through acceptance by the people. They needed to mobilize support and could not function through simple fiat or distant commands. Thus the importance of oratory and a knowledge of tatai, kinship, as a basis for alliances. The authority of the rangatira weakened when the manner in which they exercised the authority became disconnected from the interests of people. 149 Best, supra note 140 at S Jones, Consultation with Tangata Whenua (unpublished paper on file with author), 1992, 4-5.

95 95 Jones discusses how mana can be lost if it is abused: 151 The expression, poka noa, refers to the misuse of mana. Inherent in the Maori conception of power is the notion that the agent who uses it in an unprincipled manner will lose it. Authority which is exercised beyond the value framework is not rangatiratanga. It might be described as naked power or he takatakahi. This expression means to violate. Given that mana is endowed from above and endorsed from below the actions of the powerholder, te tu o te rangatira, are expected to conform with kaupapa. Rangatira hold and use power as representatives of and trustees for a defined group. Mana tupuna, ancestral descent identifies the group and endows the rangatira with power to exercise authority in relation to that group. The mana attributed to rangatira by others meant that they were central to group decisionmaking about matters affecting the group. In theory, the decisions they made were always subject to ratification by the other members of the group. In practice, a strong leader could become an autocrat. (iv) Conclusion Mana takes us into a head-on collision with other worldviews which, in their modern application, do not include notions of a series of deities who preside over the world around us, investing power here and there, as they please. Although Christianity has a strong spiritual belief, as a monotheistic western religion, the multitude of deities and spiritual beings that the Maori worldview recognises can be problematic. To this mindset, Io, as a single supreme Maori god, is far easier to accept than a pantheon of gods with a multitude of interests and personalities, who play havoc with the world. The current trend of legal positivism within Aotearoa/New Zealand on the other hand, is to restrict ideals to mana tangata values and go no further than humanity and human institutions in seeking ultimate sources of power and authority. 151 Ibid at 6.

96 96 (f) TAPU (i) Introduction Another important substantive concept of pre-contact Maori society and principle of Maori custom law, was Tapu. Pre-colonial European writers noted the widespread recognition and use of tapu amongst Maori and throughout the Pacific. Father Servant, a Marist Missionary who arrived in Aotearoa in 1838 and spent 4 years in the Hokianga devoting himself entirely to the Maori community, wrote: 152 Nothing is more common amongst the natives then the use of the tapou: the tapou affects people, animals, fields, houses, woods, properties, work, political and religious matters. When one asks the natives about the nature and origin of tapous they are embarrassed. But nevertheless, among their tapous they recognise some extraordinary ones which they say came from the gods; these tapous are regarded as powerful ones. There is another kind which the great chiefs impose on their inferiors. Both kinds are observed with the most scrupulous care. Every aspect of Maori life was accompanied by some form of tapu associated with different Atua, and each had its own set of attendant rules. (ii) What is Tapu? In the metaphysical world of the Maori, tapu can best be described as a quality that emanates from the wairua source, investing objects with value. In its practical application, tapu was the principal means by which the mauri of an object could be protected from harmful interference by overlaying the object with tapu. The concept of tapu is closely related to that of mana in that the authority attributed to wairua and atua provided the impetus for investing objects with tapu. Additionally, mana tangata enabled those rangatira and tohunga with the requisite mana, to impose a state or condition of tapu over a person or object. 152 Servant, supra note 59 at 34.

97 97 The concept of tapu is circumscribed by ideas of privacy and exclusiveness. According to Marsden it is close to the Jewish idea of sacred. However, although it has religious and legal connotations, it is devoid of an accompanying New Testament flavour of moral righteousness. 153 There are two different ways that tapu was used by Maori. The first was as a reference to the divine quality attaching to all things by virtue of their whakapapa relationship to the atua. The second was as a term used to describe a condition or state of restrictedness imposed on a person, place or object by someone else. While both are referred to in the Servant passage quoted above, Taylor refers to tapu in terms only of the latter, as being a religious observance established for political purposes. 154 a. Inherent Tapu In Maori thinking everything has inherent Tapu. The land has tapu as well as the oceans, rivers and forests, and all living things that are upon the earth. 155 Shirres refers to this naturally occurring tapu that is part of the make-up of all things as primary tapu. 156 Attached to this concept of naturally occurring primary or inherent tapu are ideas associated with personal identity and individuality. In a society where group welfare often overrode individual concerns, the idea of inherent tapu served an important purpose. It enabled value to be given to privacy of the person. Strict rules were employed to protect personal integrity. As the head was considered the most tapu part of a person there were rules prohibiting the passing of food over the head, especially if the person was of senior lineage. There were also rigidly applied rules protecting the bodily integrity of warriors preparing for war, women during birthing, and burial Marsden, supra note 18 at Taylor, supra note 74 at Barlow, supra note 108 at Shirres, supra note 72 at Makareti, supra note 136 at 146.

98 98 Frederick Maning, who lived amongst the Hokianga Maori during the pre-colonial period, states that the original object of tapu was the preservation of personal property. In Old New Zealand, 158 he describes the strictness with which rules of tapu were observed. Punitive measures imposed for breach of the rules of personal tapu varied. Death was frequently the penalty, particularly if the person whose tapu had been violated was of high rank within the group. Maning relates how an involuntary offender, a stout, hungry fellow who unknowingly ate the leftover food of a rangatira, left behind when he went into battle, was seized by convulsions when he found out and died within six hours. 159 As a regulator of human behaviour the institution of tapu was a powerful psychological deterrent to breaching the rules that existed within the group. b. Imposed State or Condition of Tapu The second way that the concept of tapu was employed was to describe the state imposed when a person of mana performed the correct ritual and decreed that a person, place or thing was under tapu. Once the necessary formalities of dedication had been enacted, the place, person or thing became off-limits, being subject to whatever restrictions had been imposed, until the restrictive state had been lifted. Both the ritual performed and the resultant state, were referred to as tapu. 160 A person, place or thing is dedicated to a deity and by that act it is set aside or reserved for the sole use of the deity. The person or object is thus removed from the sphere of the profane and put into the sphere of the sacred. It is untouchable, no longer to be put to common use. It is this untouchable quality that is the main element in the concept of tapu. In other words, the object is sacred and any profane use is sacrilege, breaking the law of tapu. It was common to say that a tapu had been laid when referring to the actions and words of the tohunga or rangatira responsible for conducting the ritual of laying the tapu. It was also common to refer to the new relationship that had been established simply as the 158 FE Maning, Old New Zealand, R Bentley, London, 1887, at Ibid at Marsden, supra note 18 at146.

99 99 person, place or thing being tapu or that such-and-such is tapu without further elaboration. In the enactment of ritual, a clear distinction between the concepts of mana and tapu is not always clearly made by those who use the terms. A distinction can be made, however, in that mana describes the authority and power necessary to conduct the ritual and effect change, while the resultant, altered state is better described as tapu. (iii) Rahui The regulation of natural resource property relationships was achieved by intensifying or diminishing the inherent state of tapu of a resource through ritual dedication to the relevant atua. Rahui were restrictions set in place by rangatira and tohunga to make specific areas and resources out of bounds to certain people, or to set them aside for a particular purpose or use. The result was an imposed state of restricted access acknowledged and upheld by members of the community. The resource was thereafter referred to as being tapu and rules were attached to safeguard the new state from violation. The institution of rahui included a series of rules relating to digging, planting, weeding and harvesting of crops, particularly kumara, to tree felling, hunting, fishing, and to gathering other sorts of food. The general sanction for breaching these rules was death, sometimes self-inflicted through fear. In terms of natural resource property relationships, tapu or rahui, with its accompanying physical and spiritual sanctions, was an extremely effective means of controlling social behaviour. Makareti Papakura of Arawa records that while a crop of kumara was growing only those who were authorised were allowed to step on to paths leading to the garden once the surrounding area had been declared tapu. Anyone who violated the no access rule by going to view the garden, or who asked how the crop was progressing, would be put to death Makareti, supra note 136 at 193.

100 100 Shirres draws a distinction between the primary tapu inherent in all things, and its extensions as new states brought about through the enactment of protective rituals restricting the activities of others. 162 Aside from this, he does not discuss how tapu can be manipulated to serve a variety of practical ends and political needs. The omission to do this means that the distinction between the origin of tapu and its functional use as a primary regulator of human behaviour within Maori society is not as fulsome as it might have been. Distinguishing the extension of personal tapu to form personal property relationships, from the dedication of people and resources by rangatira and tohunga, clarifies the application of tapu as a jural regulator of human activity. (iv) Tapu Nature of Knowledge The degree of tapu recognised within Maori society as attaching to an activity or place varied according to the value and importance of that activity or place to the group. Profound knowledge was imparted to selected pupils chosen from the group in restricted teaching fora. According to Teone Tikao of Ngaitahu, the imparting and acquisition of knowledge in the Wharekura and Whare Maire, where general instruction on diverse subjects including carving, agriculture, astronomy and remedies for diseases took place, was particularly tapu work. The rules associated with acquiring this knowledge were punitive and strictly adhered to. Classes were often conducted from dusk to daybreak without interruption. Students were not permitted to leave the building during that time for any reason. The penalty for violation of this rule was death. 163 However, in the Whare-pu-rakau, where the tactics and strategy of war was taught, It was Tapu, too, but not of course to the peculiarly deep extent the other two schools were. Astronomy, on the other hand could be taught outside as it was not so tapu as the rest. 164 In this instance the rules associated with tapu can be seen as upholding the secrecy and privacy of knowledge considered important to the group s survival, as well as ensuring that those who held it were worthy recipients. 162 Shirres, supra note 72 at Chapter Beattie, supra note Ibid at

101 101 The East Coast tohunga from Kahungunu believed that with the advent of white people changes had occurred in the fixed learning of the whare wananga and that the tapu associated with the teachings of the old tohunga had been diminished: 165 The tapu has ended; the true teaching has been lost Because the tapu was all important the first of all things; without it none of the powers of the gods were available, and without the aid of the gods all things are without authority and ineffectual; Despite these words of despair from the tohunga, tapu still remains firmly entrenched in Maori thinking about the natural makeup of the world today. According to Marsden, 166 in Tai Tokerau, the Whare Wananga (the House of Higher and Esoteric Learning) was convened in winter. Students were made aware of the serious and tapu nature of what they were being taught and learning could take years before students were tested by tohunga. He does not tell us what the content of the whare wananga learning was, except that it included the three baskets of knowledge, Te Kete Tuauri, Te Kete Aronui and Te Kete Tuaatea, and that the highest heaven is called Te Toi-o-ngarangi, where Tanenuiarangi was cleansed by Rehua and obtained the three kete and the stones, Hukatai and Rehutai. The restricted nature of the Whare Wananga makes it very possible that many of the terms now in common use amongst Maori, including mauri and Io, were once only spoken about by those who had been dedicated to learning the lore associated with the Maori world view and the laws relating to imparting that lore to common folk. (v) Conclusion There are three ways that the concept of tapu can be viewed. First, Tapu refers to a quality or state of existence that Maori hold to be naturally occurring in all things by 165 Smith, supra note 28 at Marsden, supra note 57 at

102 102 virtue of their whakapapa relationship to the Atua. This is commonly referred to as inherent tapu, primary tapu, natural tapu, or ordinary tapu. It entails ideas of personal integrity and privacy. This natural attribute extended to personal belongings and reserved items belonging to individuals for their own personal use, the result being something akin to the concept of personal property in western thinking. Second, Tapu also referred to the ritual of dedication carried out by tohunga and rangatira to reserve the use of specific things to certain people, or to dedicate people for particular purposes. In this instance, tapu is the product of mana being actively asserted by someone with the requisite authority and ability to do so. The imposition of rahui over resources falls within the former category and symbolised the imposition of an exclusive property relationship exclusive relationship. The dedication of warriors for warfare is an example of the latter. Third, tapu was used to refer to the new state or condition produced as a consequence of the ritualistic dedication of an object or person to the atua by tohunga and rangatira. It served as public notice to all members of the group of the new state of affairs. Finally, particular importance attached to the knowledge and ability required to impose states of tapu, knowledge of which was also considered tapu, and was restricted to those fortunate enough to be chosen as initiates of the whare wananga.

103 CONCLUSION TO SECTION B SUMMARISING A CONCEPTUAL FRAMEWORK FOR MAORI CUSTOM LAW In the abstract thinking drawn from a Maori worldview, Wairua is the original source of all things, and the ultimate answer to the ultimate questions who am I? how did I get here? why am I here? where did I come from? Wairua is now commonly used in Tai Tokerau as a generic term to refer to all the non-physical aspects of a Maori worldview. These non-physical aspects can be alternatively categorised as meta-physical components of a supra existence that Maori believed in, in much the same way as Plato and his real forms. Or they can be viewed as purely intellectual constructs essential to Maori thinking and reasoning about the physical world, and necessary for regulating their relationships to it. In Maori thinking, a natural emphasis is placed on linking rather than disassociating objects from each other. However, in order to establish a clear framework of custom law suitable for a modern society, dismantling of the system in this way is unavoidable. From Wairua other important concepts are derived as substantive principles of Maori custom law. The first substantive principle is Mauri, the concept representing life and identity. Wairua perpetuated itself throughout creation via the medium of mauri. As such, Mauri can be viewed as an enabling concept that acted as the key to life or simply as life. Wairua also gave rise to the concept of Mana, which represented the authority and power exercised by all things in celebration of their existence and an imperative force essential to safeguard and maximise that existence. Wairua was also the source of the protective power inherent in all things by virtue of their Tapu. In a custom law framework, the best description of Tapu, is as a concept that protects mauri by controlling activity. As an organising principle, Whakapapa provides the intellectual framework for ordering all the relationships that Maori recognise as being important to their worldview. It links

104 104 everything conceivable into a complete whole and created a series of familial hierarchies within creation. Whanaungatanga is also a structuring principle that, in practice, highlights relatedness and kinship over process and hierarchy. Whanaungatanga provides the moral basis for the relationships established by the whakapapa process. It has its own attendant concepts, including aroha, the principle of feeling and caring for others, and utu, the principle of reciprocity. At this level values are very much in existence and morality colours the picture so that tika (right) and he (wrong) tell us which actions are good and which are bad, and why. Good actions are those that uphold kinship and family relationships, bad actions are those that devalue or undermine kinship and family relationships. In the past, important actors in terms of decision-making were rangatira and tohunga. These two roles were attributed the requisite mana and tapu to act in a jural capacity with regard to the rest of the group. The words, actions and person of a rangatira was highly respected. The words of a tohunga could alter states of being. Together they were able to manipulate the tikanga on the land for the benefit of the individuals of a group. Ritual provided a formal process for regulating and altering relationships. It served a two-fold purpose. It was viewed as ceremonial manipulation of the wairua component by invoking the mana of the atua and altering the existing tapu state. In temporal terms it served to signal the establishment of new relationships within the community and provided public notification of changed circumstances that had to be observed. The other concepts and principles that flesh out Maori resource relationships are combinations of whakapapa, whanaungatanga, mana, tapu and mauri in action. In total, they combined to form a systematic process that was jural in nature and which included all the constituents necessary for a Maori system of custom law.

105 105 WAHANGA TUATORU SECTION C WHAKAPAPA, WHANAUNGATANGA, MANA I TAPU MAORI CUSTOM LAW IN THE 19 TH CENTURY (AND EARLIER)

106 106 Location Map 2 (AREA OF STUDY) 1. INTRODUCTION In this Section, I will examine the application of the 4 main principles of Maori custom law identified in Section B Whakapapa, Whanaungatanga, Mana and Tapu in the mid Tai Tokerau region during the 19 th Century (and earlier). I have included (and earlier) in the title because the concepts/principles I am referring to have their origin in a time far earlier than the written records that are the main source of this study. Oral traditions handed down on the marae at Maori gatherings throughout Tai Tokerau depict the activities of ancestors whose actions are explained and determined in accordance with these concepts/principles. The handing on of this traditional oral knowledge by generations of Maori elders has inculcated an appreciation of concepts such as Wairua, Whakapapa, Whanaungatanga, Mana and Tapu, at a broad conceptual level in successive generations of Maori. It is this understanding that enables Maori to link past to present and future as part of an ongoing whakapapa process and to maintain its continuity at a principle-based, values level. Although the people on the land have changed, the traditional principles that governed their lives have remained remarkably stable in most areas of Tai Tokerau. Today, although some of the practices associated

107 107 with principles have changed in their practical implementation, they are still considered to be fundamentals of Maori thinking about right actions on the land at a values level. It is this appreciation of the whakapapa of oral tradition that leads Marsden to call for a subjective approach to finding the truth by way of engaging the heart, spirit and ancestors, 167 and an absence of it that leads Young to focus instead on the changing landscape of persons and personalities in the 19 th and 20 th centuries. 168 I have added (and earlier) into the title because it is part of my own background and is the unarticulated backdrop against which the written records I have used are being assessed. Most of the information in this chapter is taken from Papatupu Books of the Tai Tokerau area gathered during the early 1900s, when land entitlements according to tikanga Maori were being investigated by Papatupu Block Committees established under sections 17 and 18 of the Maori Lands Administration Act The purpose of each investigation was to facilitate the transfer of title to land from Papatupu whenua or customary Maori land administered by Maori according to their own customary practices, to Native land administered under Pakeha law by the Native Land Court. The process was fraught with difficulty from the outset. The impossibility of replacing one set of conceptual understandings about the core and associated meanings of whenua and land, one with the other, would give rise to ongoing problems in the future administration of natural resources in Aotearoa/New Zealand. That the administrative structures imposed by New Zealand law would rival and eventually oust existing Maori institutions was a consequence many Maori did not foresee or fully appreciate in the 1800s. The injustice of such a process is still argued with vigour within my own extended whanau and on the marae, today. The tension between Maori and the Crown as to whose mana lies over the land and seas of Aotearoa remains with us today as the ongoing business of New Zealand law and politics. 167 Marsden, supra note 18 at Young, supra note 13 at 23.

108 108 The Papatupu information is probably the most reliable written source of information available about pre-colonial land tenure in the Tai Tokerau region. Its credibility rests on four factors: first the information is gathered from several rangatira, all of whom are speaking about the same general area, but each from his own knowledge and experience; second, opportunity was provided for rangatira to clarify and elaborate points made by others, or to challenge the veracity of the information presented by others and for the person challenged to respond; third, the panel members hearing the evidence were also Maori from within Tai Tokerau, who were knowledgeable in tikanga o te whenua or laws for the land, and fourth, the hearings were conducted and recorded in te reo Maori and without translation. This latter was probably the most important factor in maintaining the integrity of the entire process, as it avoided the inherent difficulties associated with cross cultural translation discussed in Section A. On the other hand, each claimant was putting forward his own case with the intention of maximising the number of shares in defined areas of land that he, and those claiming under him, would be awarded by the Papatupu Committee. There is every likelihood, therefore, that kaikorero (speaker/s) emphasised those matters that supported their own case while playing down those that went against it, or which may have enhanced the claims of others. There is evidence of collusion between applicants in order to maximise their own awards while blocking out others who may have been equally entitled. And as time progressed and a better grasp of Pakeha law developed, the likelihood of Maori tailoring their korero to suit what was most likely to succeed under European law, also increased. However, as a counter to the above, there are instances where rangatira supported claims that went against their own interests. In some cases rangatira refused to accept remuneration from claimants for lands earlier gifted by their tupuna (ancestors), on the basis that it would demean the mana of the words spoken by their tupuna if they took payment.

109 109 The main source drawn upon for the west coast of Tai Tokerau is Karanga Hokianga the printed version of the Whakarapa and Waihou Block Committee Hearings held in This is reinforced with information from hearings for the adjacent Waireia Block held ten years later in 1913 in the Native Land Court. For the east coast of Tai Tokerau the sources are the Papatupu records for the Te Tii, Mangonui, Waimahe block hearings in 1904, and the Moturoa and Opito Native Land Court hearings for Rawhiti that took place during the years For the central Tai Tokerau area, information is drawn from the Matawaia Papatupu Block hearing in 1904, and the Okuratope and Waimate Papatupu Block hearings held in These areas all fall within the ambit of the broader general area occupied by Ngapuhi, a group of affiliated whanau and hapu who trace their ancestory to the tupuna Rahiri. The hearings provide snapshot examples of what was happening on the land, through the eyes of the grand-children of those who were born in the pre-contact period, and who are now senior members of their whanau and hapu. The west coast hearings for Whakarapa and Waihou, and Waireia, show a pattern of settled tikanga on the land. By way of contrast the east coast hearings are marked by raupatu claims and ongoing conflict between the various claimants as to the correct root of entitlement. The information taken out of the Papatupu records is not put forward as a true, finite history of the area. Different whanau have different stories relating to the events that have been recorded, some of which may conflict with what I have chosen to highlight in this study. I am guided by the words of the rangatira whose testimonies are contained in these official records. The information provided by the Papatupu records illustrates how the concepts of Whakapapa, Whanaungatanga, Mana and Tapu functioned as jural principles within a

110 110 system of Maori custom law based on tikanga. As such, the main focus of the study is on the application of the tikanga principles rather than the actors. Translation from Maori to English often distorts the meanings of words, particulary if one tries to order the translation according to the grammatical rules of English language. In order to retain the meaning of some important Maori terms, such as mana, tapu, tuakana, teina and whenua, I have not translated them into English. For the same reason I have sometimes retained a literal translation of the Maori text into English. Even though the result is awkward and out of step with English rules of grammar, it retains the feel of the Maori meaning, better. A final question to be addressed when using Papatupu and Native Land Court records is whether there is a discernable difference between the approach and emphasis of the two fora? The main differences I discern are these: The Papatupu Committee s inquiries are backward looking. That is, they look to the historical association between people and the land the further the historical link stretches into the past, the stronger the entitlement of the people making claim. As a consequence, relative newcomers to the land are treated as having lesser entitlements than those with longer associations that have continuted to exercise mana on the land. The strongest claim to land is via senior whakapapa which has been consolidated by the exercise of mana in a continuing line of rangatira. The Native Land Court, is more pragmatic and business-like in its approach, dealing with the here-and-now with little concern for the future. It uses a series of tikanga principles which it applies without the same depth of discussion, or apparent concern for keeping matters stable on the land in the future. One way of viewing this is to see the Court as replacing the role of the rangatira in determining matters on the land. Another is to see the Court as refining the principles associated with the exercise of mana on the land and making them more rule-like. Whichever way I look at it, there is not the same degree of direct concern for the ongoing wellbeing of the people on the land in the subjective way evidenced by the actions of rangatira in the Papatupu hearings.

111 WHAKAPAPA (a) Introduction In theoretical terms, the concept of whakapapa acted as an organising principle for the structuring of all relationships conceived of by Maori. In human society the practical application of whakapapa as a jural principle provided a natural order based around birth and lineage, which upheld continuity of leadership by highlighting ancestral connections. It also provided a natural hierarchy of authority amongst successive generations of Maori who were related to each other, based around the relative degrees of inherited mana that flowed through whakapapa connections. Bloodlines acted as a conveyancing mechanisms by which mana and tapu could be transferred to successive generations. In this way, whakapapa provided a group with the necessary order to ensure stability and continuity of membership. (b) Four Tenets of Maori Custom Law relating to Whakapapa The testimonies presented in the Hokianga hearings highlight four general whakapapa requirements: first, whakapapa had to be linked to an important ancestor; second, the link had to be to a specific area; third, the link had to be traceable to a significant event that anchored the whakapapa to the land, and, fourth, the link had to be maintained. (i) Whakapapa Links to Important Ancestors Ngapuhi Whakapapa It was a basic tenet of Maori custom law that a person had to be able to anchor his or her ancestry to a person of mana from a prior generation, in order to be identified by others as having senior status within a group. The people occupying the areas that are the subject of this study are all related, being descendants of Rahiri, who is one of the most important ancestors for Ngapuhi. Revered

112 112 Ngapuhi kaumatua, Sir James Henare, ( ), when alluding to the importance of Rahiri to the wider Tai Tokerau whakapapa, used to say that you were either descended from Rahiri or from a horse. Sir James died in 1989 but the saying lives on and is still referred to by kaumatua on Ngapuhi marae as a way of signifying the wide spread of Ngapuhi whakapapa across the entire Tai Tokerau region. Jeffrey Sissons, Wiremu Wi Hongi and Pat Hohepa identify many of the hapu who are descended from Rahiri in Nga Puriri o Taiamai, a political history of Ngapuhi in the inland Bay of Islands area. 169 Another common saying often heard on Tai Tokerau marae is Ngapuhi kohao rau, or Ngapuhi of many holes. It also refers to the many different hapu who trace descent from Rahiri and who often united in common ventures. There are sources of ancestry other than Rahiri in Tai Tokerau. Several waka landed in the Hokianga region at various intervals and each left behind people who settled at different places inland. For example, Ngapuhi kaumatua, Cleve Barlow, 170 states that on its journey from Hawaiki, the waka Tinana landed first at Ahipara where it let some people off and then came down the west coast to Hokianga where it deposited other people who took up residence at Mitimiti and Whirinaki. According to Barlow, some of this group later moved across to live on the east coast. Barlow s statements are borne out by information in the Papatupu Hearings in which some claimants from the Hokianga and Te Tii areas also trace their ancestry to Te Rarawa, one of the names held by the descendants of Tumoana, the rangatira who brought the waka Tinana to Aotearoa. 171 Members of Te Rarawa and Ngapuhi inter-married and formed a lattice of inter-related whakapapa whose individuals either identified directly as Ngapuhi, or could claim strong connections to Ngapuhi. A single, complete and unchallenged whakapapa record for Ngapuhi has never been compiled. To achieve it would require widespread co-operation between an extensive 169 J Sissons, W Wi Hongi and P Hohepa, Nga Puriri o Taiamai, Reed Publishing Ltd, Auckland, 2001, Interview with Cleve Barlow at Kaikohe, 15 June The origins of Te Rarawa are also referred to by D Urlich-Cloher in The Tribes of Muriwhenua: Their Origins and Stories, Auckland University Press, Auckland, 2002, All the claimants were able to trace connections to Te Rarawa, but choosing Ngapuhi instead produced a stronger claim to the lands in Hokianga.

113 113 network of whanau. The tapu, or privacy and restrictiveness, still associated with individual whakapapa in Tai Tokerau makes the level of co-operation necessary for such a task, difficult to achieve. Whanau are the principal holders of information concerning their own genealogy, and, historically, the pieces were only rarely placed alongside each other. The common practice throughout Tai Tokerau has always been for whanau to state the relevant parts of their own whakapapa at hui as the need arises, in order to discuss and debate specific issues, and then take it home again. Even if sharing of whakapapa could be achieved, the knowledge, if not already written down, is being lost as kaumatua continue to die without imparting it to others. Maori society may soon be reduced to relying solely on written records and archives, as a means of gleaning whakapapa information. The compilation of a single, accurate lineage for Ngapuhi is further complicated by other practices associated with its public use. Whakapapa are often collapsed so that only the tupuna, considered relevant to a particular discussion or event are put forward, while all others are left out. Whole generations can be omitted if they are not relevant to the subject under discussion. Also the term maatua (parents) is broad enough to allow lateral, inter-generational movement, enabling uncles, aunts and more distant relations from one generation to be cited as direct ancestors, by their descendants. The whakapapa record produced at any single hui, or gathering, is, therefore, unlikely to be an accurate record of direct lineal descent. (ii) Whakapapa Links to Specific Areas A second tenet of Maori custom law was that whakapapa lineage had to be linked to a specific place where a person was considered by others to be tuturu. The term tuturu is hard to translate, but means something along the lines of where one really belongs, or where one has the authority to stay permanently and does so.

114 114 Tumoana s descendants are spread throughout northern and central Tai Tokerau. As a result, specific lines of whakapapa have developed and attached themselves to different areas. Rahiri is a descendant of Nukutawhiti, who brought the waka, Ngatokimatawhaorua from Hawaiki to Aotearoa. He is the main ancestor set up by those who trace their ancestry to Ngapuhi. The Hokianga region was settled by Rahiri and his descendants, who are uri (descendants) of his son, Kaharau. The elder son, Uenuku, settled in the Bay of Islands area of Pouerua. In successive generations, although groups divided and spread out to settle in various places, they still retained their broader kinship links. Knowledge of shared whakapapa retained a link between otherwise independent groups occupying different areas of land. In Hokianga, settled patterns of living on the land were intermittently interrupted by raids from their Ngati Whatua and inland Ngapuhi relations, and forays into other areas to lend support to their relatives in battle. (iii) Whakapapa Links through Significant Events The third tenet of Maori custom law discernable from the Hearings was that the whakapapa connection had to be anchored by a specific event that attached it to the land. In the Hokianga region the first person of importance to enter the area of north Hokianga under claim was Kohinemataroa, the neice of Rahiri. She established her mana and that of her people on the land by naming various places and occupying the land. According to Te Tai nobody challenged her entitlement or came on to that land without her permission. 172 In later generations, intermarriage with other groups brought others on to the land as well. This gave rise to multiple links to the land via whakapapa. The lack of contest for the lands claimed by Kohinemataroa is due to two factors. Her senior lineage and superior status as a member of Ngati Rahiri, was respected by local communities, as being in accordance with tikanga (correct values and practice). The 172 R Te Tai in Karanga Hokianga, ed H Tate, Motuti Community Trust, Hokianga. 1990, 67.

115 115 second is pragmatic. She had the backing of a powerful military force, Ngati Rahiri, to call upon to enforce her claim if necessary. (iv) Whakapapa Maintaining Inter-generational Links The fourth tenet of Maori custom law was that the whakapapa association of a family line to the land had to continue into future generations unabated or it became mataotao, or cold. This provided a means of addressing the problems of multiple whakapapa claims to land based on ancestry alone. It allowed for modern ancestors to be set up as a root of entitlement, provided that their claim to the land was widely substantiated. Re Te Tai, 173 the principal claimant for the Whakarapa/Waihou area, traced his ancestry back 10 generations to the time of his tupuna Te Reinga, a descendant of Rahiri and Kohinemataroa, stating that only once had the territorial authority of his ancestors to the Blocks under claim been seriously challenged. That was when Te Reinga, had been challenged by his relative, Te Wairua, another noted Ngapuhi warrior. The challenge had not been successful and Te Wairua died in battle. 174 The Waireia Hearings provide examples of claims having become mataotao because the descendants of an original ancestor had moved away, died out, or been absorbed into another whakapapa line. The original root of entitlement set out for the entire area, is Moetonga, who is thirteen or fourteen generations from the time of the hearing. However, more recent ancestors who had established specific links to different parts of the original area, were put forward by claimaints as a source of entitlement. Three sources of entitlement were put forward by Ngakuru Pene Taio, Maraewhiti and Takateauahi, but only Takateauahi still retained links to the land. These had been maintained by his son, Tarutaru, who had laid down boundaries to his territory that had 173 H Te Toko in Karanga Hokianga, supra note 172 at 33-35; Te Tai, ibid at Ibid.

116 116 held until the present time. 175 Other claimants, such as Wiremu Rikihana, had stronger whakapapa claims to the ancestor Tarutaru than did Pene, whose tupuna had worked on the land under the recognised leaders of the hapu. 176 As a matter of tikanga, those relying purely on ancestral connection were successfully challenged by those with tuturu entitlement on the basis that they had both senior ancestral connection and continuing occupation. Skirmishes amongst the related groups within the Hokianga area were generally minor disputes over access to resources and brief forays to support relatives in other areas, in their disputes. The exception to this was the battle that took place for possession of the territory and resources of Te One Roa A Tohe in the late 18 th century between members of Te Rarawa (then known as Te Tawhiu) 177 and Te Aupouri, after which Poroa shifted a section of his relations from Hokianga to Ahipara, where they lived permanently, having taken control of the area by raupatu. In comparison, the descendants of Rahiri who populated the middle and east coast regions seem to have been engaged in more vigorous disputes with each other over possession of land and sea resources. During the Papatupu and Land Court Hearings for these areas, raupatu or conquest was frequently asserted as having ousted the authority of the prior occupant groups. Material drawn from the middle and east coast areas provides a good source of comparison with Hokianga when dealing with group territoriality and the strength of individual whakapapa lineage. It shows that the fact of common descent from Rahiri, although prized, did not prevent competition for resources escalating into fully-fledged battles over territory between the various hapu. 175 Native Land Court Hearings in, Transcript of Waireia Block Hearings, ed. H Tate, Native Land Court, 1913, 168, 171. See NMB 51. In the Hokianga Hearings rangatira often held entitlements in several adjacent Blocks which varied according to the strength of their whakapapa links to the land. 176 Ibid at H Te Wake in Karanga Hokianga, supra note 172 at 3.

117 117 (c) Establishing Whakapapa entitlements to the Lands under Claim (i) Senior Whakapapa and the Right to Speak on Behalf of Others The process by which information was presented to the Papatupu Committees is itself an example of how whakapapa to the land determined authority and gave rise to rights of representation. Possession of senior lineage was important in determining who had standing to represent others publicly, in matters affecting the group. All the speakers in the Papatupu Hearings began by stating their whakapapa and then connecting it to specific areas of land. The establishment of a senior line on the land was generally anchored by an event that linked a specific ancestor to a particular area. The event was one by which an ancestor had established his or her mana over territory through actions and words that had been accepted and acted on by others. Those who descended from that ancestor generally inherited his or her mana. In this way, seniority within a specific descent group and authority over territory was merged to produce a specific type of mana tangata or personal mana that of mana rangatira or leadership mana. The individuals who gave evidence before the Committees were all male. Why this is so is unclear, given that the evidence presented shows that women were also recognised as exercising authority over the land and its people and were active participants in decisionmaking affecting the entitlements of others. It could reflect a developing, public / private, post-contact role distinction between males and females. Men had always been the principal protectors of a group s physical welfare through their warrior ability. After European contact, that protective role was expanded to include a growing number of matters requiring external group representation. Consequently, women, as protectors of the group s internal welfare through the establishment of large gardens to feed the group, were quickly relegated to the domestic role of looking after the family s immediate needs. During the time period covered by the hearings, which I estimate to be from at least the 1600s onwards, (the sacking of Clendon's ship at Hokianga took place in the 1830s but whakapapa accounts predate this by several generations) domestic roles such

118 118 as gardening and seafood gathering were shared by males and females alike, and authority within the group was focused around senior lineage rather than gender. In order to establish his credentials as a person with an authoritative voice for the people living on the land, each speaker began by reciting his whakapapa (genealogy) links to the area, in order to establish his mana as a rangatira (leader). In the Hokianga hearings for Waihou and Whakarapa, Re Te Tai, cited direct descent from Rahiri, Kaharau, Rongomai, Matauturangi, Te Reinga, Te Kuri, Te Ruapounamu, Kahi, Ngakahuwhero and Te Tai. He also traced descent from another prominent line beginning with Tupoto, Kairewa, Tamatea and Takateauahi, even though it was not directly linked to the land under claim. A third line of descent came from Tangaroa Tupo, Pari, Kiriwhakangahu and Utuutu. All three are powerful Ngapuhi lineages linked to the Hokianga region. It was the strength of the first whakapapa line to the land under investigation, however, that led the other thirteen rangatira claimants and the Papatupu Committee to conclude that his ancestral claim to the block was the strongest in terms of mana rangatira. 178 Some of the other claims were found to be too tenuous to provide any entitlement to the land, some to be part of Te Tai s claim, and others to be upheld by agreements reached between rangatira with strong entitlements at an earlier time, and therefore, were held to be binding. During the Hearings for the adjacent, Waireia Block, Re Te Tai s whakapapa line to that land was stated as deriving from Moetonga, Puaiti, Kaharaukoro, Kiritai, Tunuiatawheta, Waimirirangi, Tamatea, Takateauahi, Tarutaru and Kahi. 179 His entitlements under these tupuna were again held by the Native Land Court to be those of a principal claimant. 180 The recitation of whakapapa at the hearings served a dual purpose: It was a public assertion of senior lineage by virtue of whakapapa links to important ancestors related to the area under the Maori custom law principle of mana tupuna, or ancestral authority. It also demonstrated to others that the speaker was a person of knowledge and authority 178 R Te Tai in Karanga Hokianga, supra note 172 at R Te Tai, Waireia Hearings, supra note 175 at Decision of Native Land Court, ibid at 171.

119 119 because he possessed whakapapa knowledge, which was highly valued and restricted information generally held only by chosen members from senior lines. Participation in the Papatupu Hearings forum was a public assertion of one s authority to represent the views and interests of others. It also challenged those who wanted to contest the authenticity of the speaker and the veracity of the information being put forward, to demonstrate their own calibre. In this way, rangatira were able to use the Hearings process as a means of reaffirming their status and relative authority within the group in a public forum and before their own people. (ii) Senior Whakapapa and Territorial Authority Loyalty born of kinship links and wise leadership ensured continuity of leadership positions passed to successive generations, unless and until a major disruptive event occurred to disconnect the claim of the group and/or its leadership from their land. As time passed and families became more dispersed and distanced from the original claim, new events could be set up in challenge, as establishing new claims to authority in opposition to, or replacement of, older claims. Generally, the older whakapapa claim would prevail as a matter of tikanga as long as occupation was maintained. In the Papatupu Hearings, the strongest challenges to mana tupuna based on unbroken senior whakapapa came from those asserting raupatu, or conquest, as having diminished the political force of a group on the land to the point where it was no longer dominant, and its leaders had lost their mana rangatira (administrative powers). Raupatu did not totally undermine the tikanga (principle) that held seniority of whakapapa lines on the land to be authoritative, it simply asserted that a new and different whakapapa line was now in control. During the Papatupu and Court Hearings, speakers often set up opposing claims based on disparate events having linked their ancestry to the land, or raupatu as having established their authority on the land. The Papatupu Hearings were part of a land alienation, transferral and individualisation process that was foreign to the claimants. They had to take part if they wanted to

120 120 preserve their land rights in any form. In the process of quantifying land shares, the importance of whakapapa as a principle that stablilised relationships on the land became a competitive mechanism for claiming exclusive rights to absolutely defined areas of land within the hapu territory. Because the Blocks under investigation were relatively small areas of less than 5000 acres, references to broader territorial claims were not uncommon. The small size of the blocks being investigated meant that a rangatira could claim rights of overlordship in one area where his mana was strong, as well as weaker entitlements in other areas where his whakapapa links to the land were not as strong. a. East Coast Claims In claiming entitlement to lands within the Te Tii, Mangonui area on the east coast, Hone Rameka claimed that his mana rangatira began with Rahiri and extended down to himself. He did not provide a full ancestral recitation, and it is not clear whether this is because his lineage was already known to the Papatupu Committee or because he felt they ought to have known it. It is not clear, either, whether Rahiri was personally connected to the land Rameka was claiming, or the statement was made in order to indicate to others that Rameka was a senior member of a powerful ancestry whose mana was respected in the region under claim. He then picked up his whakapapa again with later ancestors, Tuhukeia and Torongare, whose land occupation and ancestry linked back to Rahiri. This was in response to other claimants who had set Tuhukeia and Torongare up as part of a separate claim based on raupatu. Rameka stated that they were part of the whakapapa he had already given, thus attempting to diminish the raupatu claim by absorbing it into a senior ancestral line already connected to the land under mana tupuna. 181 Later, in giving evidence for Waimahe Block, Rameka agrees that the correct claim for that block is through the ancestor Auha, who was widely acknowledged as a main participant in the raupatu of Waitangi northwards to Mangonui. According to Rameka, however, Auha s proper entitlement is through senior ancestry from Mirupokai, the 181 H Rameka, Te Tii, Mangonui Waimahe Block Papatupu Committee Hearings, 1904 MB 51,

121 121 founding ancestor of Ngati Miru, who occupied the area before the raupatu took place. Rameka supported the korero of the uri rangatira, or senior-line descendants, whom he stated were correctly claiming through senior lineage under take tupuna, and dismissed that of others, whom he claimed were teina, or junior lines seeking to strengthen their claim by virtue of raupatu. 182 According to Rameka the whakapapa lines of those being put forward as conquerors of Ngati Miru were actually part of the same descent line as those claiming from Rahiri. Common descent from a single ancestor, Mirupokai, linked them all together. 183 In both examples above, what one claimant is asserting as a complete ousting of authority by strangers, which would have the effect of setting up new senior lines and a new source of authority, Rameka is claiming as being in the nature of a whanau dispute that leaves the original senior descent lines from Rahiri, and the authority over land that goes with those lines, intact. One advantage of Rameka s approach is that it allowed conflicting claims to be reconciled without either party being totally excluded. However, another claimant, Hiramai Piripo challenged the order of the tatai, or lineage, put up by Rameka and produced a tatai to support his own raupatu claims. He agreed that Auha was a descendant of Mirupokai, but asserted that Ngati Miru were descended from the ancestor Mirutehe, and not Mirupokai. 184 The implication of Piripo s korero is that the raupatu claimed could provide a supervening event that started an entirely new chain of senior ancestry from Auha, unless Rameka could disprove what he said or provide a common ancestor connecting Mirutehe to Ngati Miru. A new senior line on the land would have the effect of either completely displacing the pre-existing group s rights or at least seriously diminishing them. The hearing body could not decide the matter conclusively in favour of either claimant. Of 182 Ibid at Ibid at Ibid at 189.

122 122 the six panellists responsible for deciding the claim, three supported Rameka and three supported Piripo. The shares were equally divided between the two. The panel was obviously unhappy about unsettling the current occupation of the land, given that both sides had put forward arguments which could lead to a strong and legitimate claim to the whole territory under discussion. Therefore it took the practical expedient of including both. Thus tikanga was upheld on the land and neither party missed out. However, had a few more generations passed and the claims under raupatu strengthened, it is just as likely that the prior occupants would have been considered as having come under the mana rangatira of the new man on the land. The Papatupu Hearings information presents a society in which almost everyone appears to have been able to draw upon a greater or lesser degree of whakapapa connection to the founding ancestor of a region under claim. Although discussion centres mainly on the relationships and entitlements of those who belonged to the rangatira class by virtue of senior lineage, the closeness of family relationships meant that other members of the group could also claim the same lineage, even if they did so from a greater distance. The practice established in the hearing of claims was for those claiming senior whakapapa lines to include other occupants of the land under their claim. Effectively, this placed them in the role of trustees for their people in terms of the obligations associated with the principle of atawhai that are dealt with in the next part of this section under the heading of Whanaungatanga. Where raupatu was concerned, however, matters were not so easily resolved. In the Land Court Hearings held for Rawhiti and its surrounding islands in 1898, 185 members of Ngaitawake, a hapu of central Ngapuhi, claimed the area by virtue of a raupatu that had taken place in the early 1800s. During the battle they had taken captives from the resident group, Ngare Raumati. At the Land Court Hearings in 1898, Ngapuhi claimed that the status of those taken as prisoners had been reduced to that of pononga 185 Okahu Hearings, 20 January 1898, NMB 25.

123 123 (servants). 186 This act of subjugation meant that their personal mana and tapu as leaders, and any prior administrative role on the land, was completely removed. However, two important Ngapuhi rangatira, Kemara and Wharerahi, had taken women of senior lineage from Rawhiti as wives after the raupatu. Ngapuhi claimants argued that one of the women, Puatea had seduced Kemara, who already had four wives, and lured him to move with her to Mapuka Island where they had several children, before he returned to his own people. 187 During the Rawhiti Hearings, Puatea is referred to by Ngapuhi claimants for the lands at Rawhiti, as Kemara s slave wife, indicating that in their view, she was taken as part of the conquest of the area. In the same hearings however, Edward and Henry Williams refer to Puatea as the favourite wife of Kemara, who was openly acknowledged by Ngati Rahiri and held in very high regard within the community, 188 while Kau, the senior wife from Ngapuhi had a very low public profile. Descendants of the original occupants from Ngare Raumati argued that their fire had not been extinguished on the land and that they had continued to live freely in the area after the battle. They claimed land entitlements under mana tupuna derived from whakapapa connections to Puatea, whose mana Kemara had lived under while he was at Rawhiti. They supported their arguments by pointing out that Kemara had not set foot on their land until after he had formed an alliance with Puatea. 189 b. West Coast, Hokianga Claims By way of contrast, in the west coast, north Hokianga regions of Whakarapa and Waihou, the thirteen rangatira who gave evidence in 1903 all agreed that Te Reinga, mokopuna (grandson) of Rahiri, was the ancestor who held mana tupuna for the entire region under claim. Te Reinga s whakapapa traced directly from Rahiri through Kaharau, Rongomai and Matauturangi. A further ten generations separated him and Re Te Tai. 186 Opito Hearings, 14 January 1898, NMB 25; Okahu Hearings, ibid; Moturoa Hearings, 3 March 1901, NMB TW Hakuene, Opito Hearings, ibid at H Williams, Moturoa Hearings, supra note 186 at H Te Rangi, Okahu Hearing, supra note 185 at

124 124 According to two of the claimants, Re Te Tai and Herewini Te Toko, the mana rangatira of Te Reinga had only once been challenged during his lifetime, by Te Wairua, who had been killed during the ensuing battle. Since that time Te Reinga s authority had been tuturu, or permanent, on the land. His descendants had increased and his mana rangatira had passed to successive generations. 190 The importance of senior whakapapa lines was upheld by the Hearing Committee, who noted that of the thirteen Hokianga rangatira, only Re Te Tai was able to whakapapa directly to Te Reinga. The others were descended either from one of his sisters, or related through marriage. Re Te Tai was also able to trace direct descent from several other senior lines linking him to the hapu of Ngati Manawa, Te Kaitutae and Te Rarawa, who were also living in the area under claim. Because he brought together several senior lines with strong current and past connections to the land, his claim to the area was considered to be the strongest, by all the other claimants and the Papatupu Committee. By way of contrast, Heremia te Wake, who was the other main claimant, traced his ancestry directly from Te Huakioterangi, the brother of Pare, who was the wife of Te Reinga. He also claimed entitlement under another ancestor, Matangi, who had lived on the land. The Papatupu Committee established that Matangi had arrived on the land after Te Reinga had already established his mana and had lived alongside, but under the mana of Te Reinga. Through intermarriage, Matangi s descendants had been absorbed into the resident group and the uri had since been merged through intermarriage. Heremia s lineage and his links to the land were therefore, not considered to be as strong as Re Te Tai s. Re Te Tai was the son of Te Tai. Te Tai and his brother Te Hira had exercised mana rangatira during their lifetimes, often sharing it with others, over the entire area under claim. The bestowal of mana rangatira over territory in the Hokianga district had been made to their mother, Ngakahuwhero, by senior relatives after the birth of Te Tai H Te Toko in Karanga Hokianga, supra note 172 at 33-35; R Te Tai, ibid at R Te Tai ibid at 79.

125 125 Later on, Te Tai had made tuku (gifts) of land to the descendants of Matangi that Heremia was claiming entitlements under. 192 In their Decision the committee stated: 193 i te titiro a te komiti, kotahi tonu te haere a nga uri o Te Reinga, me Te Matangi ma, mai i reira, tae noa mai ki o ratou uri e ora nei. Engari ko te mana nui ki runga i enei whenua, ki runga hoki i te iwi, no Te Reinga, tae iho ki ona uri. English Translation as far as the committee can see the uri [descendants] of Te Reinga and Te Matangi are united, from that time right down to their present descendants. But the mana nui [supreme authority] on these whenua, and on te iwi [the people] as well, was that of Te Reinga and his uri. In accordance with the tikanga that dictated that senior whakapapa connections to the particular lands under investigation be given priority, Heremia te Wake had to defer to Re Te Tai as having stronger ancestral authority on the land. However, in apportioning the shares for the land to its current occupants, the gifting by Te Tai and Te Hira was taken into account and those claiming under Heremia were granted full entitlements on the land. Other claimants also traced descent from close relatives of Te Reinga, or from more recent ancestors. Herepete Rapihana traced his ancestry from Taimihitata, sister of Te Reinga. Wiremu Rikihana traced back to Te Ruapounamu, a female descendant of Te Reinga, and Herewini Te Toko traced through Te Pekatahi, a male descendant of Te Reinga. All these ancestors had acknowledged senior whakapapa lines and were able to exercise a degree of authority over others on the land within the north Hokianga region during their lifetime. The Committee acknowledged that although the claims were being made under different mokopuna (descendants), they could all be traced back to Te Reinga: Decision of Papatupu Committee, ibid at Ibid. 194 Ibid at133.

126 126 Ki te titiro a te komiti he kotahi ano enei keehi i runga i te take kotahi, ia a Te Reinga, no te mea, he uri enei no Te Reinga. Ko Taimihitata, he tuahine no Te Reinga, kua oti te whakamarama. Ko nga pa, me nga wahi tapu, o tenei whenua, no Te Reinga, tae iho ki ona uri, me te mana nui ki runga i enei whenua, no Te Reinga, tae iho ki ona uri. English Translation In the view of the committee, they are all one case, that of Te Reinga, because they are uri belonging to Te Reinga. Taimihitata is a sister belonging to Te Reinga as has already been explained. The pa and the wahi tapu of this whenua, belong to Te Reinga, right down to his uri and the mana nui [supreme authority] on these whenua was Te Reinga s right down to his uri. In the later hearing for the Waireia Block in 1913, three separate ancestral lines were put forward as connecting to different parts of the block. Re Te Tai claimed under the original ancestor, Moetonga, and through a later descendant, Tarutaru. Tarutaru was the first of Moetonga s descendants to settle permanently on the land and establish a territorial boundary for Waireia. 195 Herewini Te Toko also claimed under Moetonga, but through another female descendant, Ihengaiti. Ihengaiti had established the boundary for her area with Tarutaru, at Te Peke. 196 Herewini Te Toko also claimed senior ancestral links to the third portion of Waireia, Pupuwai, through a recent ancestor Ngono, by virtue of his whakapapa links to an earlier ancestor, Tangaroa Tupo. 197 The claims under these three ancestors were all upheld by the Native Land Court. (d) Women with Senior Whakapapa lines exercising Authority The information provided in the Whakarapa and Waihou Papatupu Hearings and the Waireia Hearings, shows that in the Hokianga region, women with senior whakapapa lines also exercised mana rangatira. Women were often put forward as a source of authority for their land rights by claimants. No distinction is made either by the claimants or the Hearing Committee between males and females in terms of senior whakapapa. More women than men appear to have moved permanently off the land and 195 R Te Tai, Waireia Hearing, supra note 175 at H Te Toko, ibid at 96 and Ibid at 96.

127 127 gone to live with their husband s people, thereby encouraging a stronger affiliation to their paternal whakapapa. However, this was not always the case. Heremia te Wake stated that the mana rangatira of Kairewa s children living at Motukaraka pa was derived from their female tupuna Waimirirangi, a descendant of Maui and Te Huakioterangi. 198 Herewini Te Toko says that at the death of Pere Te Tai in 1871, the lands he was occupying were returned to him and his sisters by Tawio, Te Tai and Meri Te Tai. 199 In this instance women were involved on both sides of the tuku back to the grantor whakapapa line. In the Waireia Hearings, the main ancestor for the entire area, Moetonga, is female. Te Toko s claim to holding the principal authority on the land at Te Peke, is also successfully argued under his female tupuna, Ihengaiti. Four women are especially prominent in the ancestry of those linking their whakapapa to the areas of Whakarapa and Waihou. They are Kohinemataroa, Taimihitata, Ruapounamu and Ngakahuwhero. These women are part of a single ancestral line to the area. (i) Kohinemataroa 200 The first person to set foot on the land around the mid northern side of the Hokianga was Kohinemataroa. She was the daughter of Punateariari, who was a sister of Rahiri. As she journeyed across the land she named various places, including Waireia, Waihou, Oruaanui and Patiki (later renamed Whakarapa). The mana rangatira on the land was hers because she was the first person who travelled across the land, establishing her links to it through naming. Her son Rongomai accompanied her on her second visit, during which she named various other places. After she died her authority on the land passed to her son, Rongomai, and then down to her uri or descendants. Waihou, Whakarapa, Motuti, and Whangapatiki all belonged to her, according to Re Te Tai. She consolidated 198 H Te Wake in Karanga Hokianga, supra note 172 at H Te Toko, ibid at R Te Tai, ibid at 67.

128 128 her claim by working on the land and establishing kumara plantations. While she was working there she lived at Waihou and Whakarapa. She had another home, Te Kakaho, on the southern side of the Hokianga River, where she lived as a member of Ngati Rahiri hapu. Her uri took over her work when she died. (ii) Taimihitata Women with senior whakapapa lines also held their own resources. Taimihitata was Te Reinga s sister. She had gardens at Ahimoho, Papakuwhenua, Whakarapa, Te Raekaikoa and Kiwitangiao. These were reserved for her use and that of the people attending her. Some were shared with others, having been granted to her as communal gardens by her brother. 201 According to Re Te Tai, Te Reinga also made a tuku of land to the uri of Taimihitata and Rakeiti and set aside a communal garden for them at Whakarapa. 202 Taimihitata married Kaiawha, a warrior chief from Ngapuhi. He took her to live with his people inland at Taiamai. She was accompanied by other relatives, who remained under her authority and care. Later she and Kaiawha returned to live in the Hokianga. According to Re Te Tai, Te Reinga then made a tuku of land to Taimihitata in Whakarapa so that his brother in law would be comfortable staying there i raro i tana wahine, i a Taimihitata, i raro hoki i a Maruwhenua under the authority of his wife, Taimihitata and mokopuna Maruwhenua. 203 This indicates that whakapapa connection and the authority invested in senior lines prevailed over both Kaiawha s gender and fame as one of the great warriors of his time. Rakeiti was Taimihitata s sister. She lived at Taheke and Waima with others under her authority. Although also mentioned in the hearings as being of importance by virtue of her blood connection to Te Reinga, her authority on the land at Waihou and Whakarapa is not argued, because she lived permanently, elsewhere. 201 R Te Tai, ibid at 90. H Karaka, ibid at R Te Tai, ibid at H Rapihana, ibid at 54.

129 129 (iii) Ruapounamu The mana rangatira of Wiremu Rikihana for Waihou was derived from his female tupuna, Te Ruapounamu. 204 According to Heremia Te Wake, Ruapounamu was also the source of her husband, Tarutaru s entitlements to Waireia, even though he was a rangatira in his own right, because she was a descendant of Te Reinga and Moetonga. 205 Ruapounamu exercised authority within the Hokianga region and is named by Re Te Tai, as the principal holder of mana, together with Pekatahi and Maro, in the area stretching from the Motuti river, Waipapa and towards Whakarapa and on to Waihou. He says that they were the tuturu (true and permanent), holders of authority over that area and that no-one else went there without first gaining their permission. 206 (iv) Ngakahuwhero Ngakahuwhero was a direct descendant of Te Reinga and was Re Te Tai s grandmother. She exercised an immense amount of authority during her lifetime. Whangapatiki belonged to her. She worked on the gardens in that area with Haaiti, whom Re claims as a rangatira and tangata tuturu (man with a true claim), given that he had ancestral rights to the area through direct whakapapa connections to Tupoto. 207 Her mana rangatira later passed to her children Te Tai and Te Hira, who exercised joint authority over the entire north Hokianga region. 208 Ngakahuwhero married Muriwhenua who was from Ngati Manawa. Her authority was later shared with her two sons, Te Tai and Te Hira. She made several tuku to individuals 204 H Te Toko, ibid at H Te Wake, Waireia Hearings, supra note 175 at The Court held that Tarutaru was a descendant of Moetonga. The claim of Re Te Tai to Waireia under Moetonga was also considered to be correct. Ibid at R Te Tai in Karanga Hokianga, supra note 172 at Ibid at Ibid.

130 130 who wanted land to make gardens, build houses, or work on the trees in the area. 209 Attempts were sometimes made to flout her authority. When she refused to tuku land at Kaitara to Wirepa, he attempted to pass it to Bishop Pompallier anyway. The transaction was thwarted by the intervention of her sons, Te Tai and Te Hira. 210 While Ngakahuwhero was living at Otupahero, the mana of the area was taken by her. After a battle was fought there, Takahoorea of Ngapuhi asked her to clear the tapu of the land and she agreed. Takahoorea came with his root crops, planted them and then ate them. Those actions cleared the tapu so that others could live there. 211 Ngakahuwhero also exercised authority over her two sons, Te Tai and Te Hira, who were acknowledged as holding mana rangatira over the north Hokianga area of Whakarapa and Waihou. When they got into a serious quarrel with their elders at Whangape over land issues, she reminded them of their rangatiratanga (chiefly status and duty to care for others) with the words: 212 E koro 213 ma, kia atawhai ki o korua tuakana, ki o korua maatua E koro ma, me waiho tenei whenua, mo o korua maatua, tuakana, teina hoki. Meake o korua maatua hoki, I tena mahi. Me hoki tatou ki Waihou, ki Whakarapa. English Translation My sons, be kind to your tuakana, [elders/seniors], to your maatua [parents] Both of you, leave this whenua for your maatua, tuakana, teina [parents, elders/seniors and juniors]. This work is for your maatua [parents]. Let us all return to Waihou, to Whakarapa. The children agreed and all three shifted back to their holdings in Waihou. 209 K Puhirere, ibid at 62; R Te Tai, ibid at 98, R Te Tai, ibid at Ibid at Ibid at The term koro is used within Ngapuhi as a means of friendly address to a young adult male. Alternatively, it is sometimes used as a shortened form of koroke, a casual term frequently used to mean fellow. Source: Marara Te Tai Hook, Ngai Ta Wake ki te Moana, 2 May 2005.

131 131 (v) Patu Wahine Women from the Hokianga with senior whakapapa lines were also important enough to be killed as a means of diminishing another group s mana, or to have their mana impinged to the extent that battles were fought on their behalf as utu, (retribution), for the affront. There are several instances referred to in the Hearings for both Waihou and Whakarapa, and Waireia, where women either fought in battles or were the cause of warfare: Te Ruawai was the mother of Poroa, a fighting chief from the Hokianga. She went into battle with Te Rarawa against Te Aupouri at Waimimiha and entered into the fighting. She acquitted herself well, killing a man in hand to hand combat before being killed herself. 214 Her son, Poroa later defeated Te Aupouri in battle and took the southern portion of Te Wharo One Roa A Tohe under the permanent authority of Te Rarawa. Koo, the sister of Te Kaka of Te Aupouri was killed for accusing the slaves of Kaha, who lived at Ahipara, of stealing her kumara, sparking a long series of reprisals between the two groups before peace was eventually made. 215 When Te Koiuru s garments were worn by others, her husband, Papahia, arranged a taua to seek utu for the trespass to her tapu and mana. 216 When Ngati Whatua kidnapped and killed Te Ripo, a large group of Ngapuhi and those who later became known as te Rarawa, crossed the Kaipara harbour to seek utu, sparking the battle which earnt them the name Te Rarawa H Te Wake in Karanga Hokianga, supra note 172 at R Te Tai, ibid at Ibid at Ibid at 126.

132 132 (vi) Men living Under the Authority of Women of Senior Lineage The Papatupu records also show that senior lineage prevailed over gender in marital relations. It was usual for senior women to take their relatives and servants with them when they went to live in other areas with their husbands and to maintain independent control over them. When Te Tai s daughter, Tuha, married Puriri against her father s wishes he banished her to Whangapatiki. She took others with her for company. While there she held the mana for that land by virtue of her senior lineage. Puriri accompanied her and lived there under her authority. Re Te Tai worked with Tuha and Puriri on her gardens. After she died Puriri continued working there by himself. When he was near death and gave his ohaki (death bed statement), he acknowledged his subordinate position on the land and asked Re Te Tai to return there, to his home: 218 E koro, ko au te kai tahu ahi a o matua ki runga ki Whangapatiki, i o tupuna, tae noa mai ki o matua. Ko tenei ka mate nei au, me hoki koe to kainga noho ai, ki Whangapatiki, ki te Hiahia English Translation My son, I was the one who lit the fires for your parents at Whangapatiki, from your ancestors right down to your matua [father]. Now that I am nearly dying, you return to your place to stay at Whangapatiki, at Te Hiahia. On the authority of those words, Re Te Tai returned to Whangapatiki. In the Waireia hearing, there are also instances of male relatives of women who had married into a senior line being gifted land because of that relationship. Ngono was the father of Kaimanu who had married Kahi of Waihou, the son of Ruapounamu and Tarutaru. He was granted land entitlements because he was father in law to Kahi. Later on Ruapounamu asked Ngono to tuku the land to the uri of Ngawha, who had been killed 218 Ibid at 88.

133 133 on the land. Ngono agreed and the land was passed to Punakiwai and Kaurehu. After that they all lived there together. 219 (e) Conclusion Whakapapa connections produced strong bonds of affection and loyalty between whanau members in pre-contact Maori society. Whanau generally married relatives from within their own ranks. Siblings often lived together for long periods of time, even as adults, and after marriage. Individuals frequently moved residence and accompanied each other on journeys to other places, taking those under their authority with them. While senior lineage was a principal determiner of who exercised authority within a group, there was no strict rule of primogeniture, whereby authority passed to the eldest child, usually male. Once the ancestral connection to land had been formalised and accepted by others, senior siblings in later generations all inherited the potential to become rangatira irrespective of gender. The main determiner of authority appears to have been the ability to lead others and to look after the needs of the people. Te Reinga s two sisters, Taimihitata and Rakeiti exercised independent mana in different areas of the Hokianga. When Taimihitata moved to Taiamai she maintained authority over those who accompanied her. When Kaiawha came to live in Hokianga with her, he did so under her authority. Rakeiti lived at Taheke and Waima with others under her authority. That the authority of the sisters was acknowledged outside the territory to which their ancestral land connection directly attached, is due in large measure, to the respect given to the seniority of their whakapapa line by their close relatives in other places. The pattern in Hokianga indicates a class of rangatira drawn from close whanau, who protected their bloodline and its connection to the land through marrying close relations. However it does not appear to rigidly adhere to first born, or males as holding overall 219 Ibid at 91.

134 134 authority over people and land. It points instead, to authority being shared by members of the whanau, who may be siblings, but who could also be more distant relations invested with mana by elders. Continuous fighting on the east coast makes it difficult to draw a stable pattern for the area, because the claimants are not a united group and the raupatu claims are very recent, having occurred within the last three or four generations.

135 WHANAUNGATANGA (a) Introduction The Maori of Te Ao Kohatu perceived the world as kinship based with everything having its own natural place and function. The idea of kinship as an inclusive structure extending beyond human society to include all things, provided the mental framework by which Maori assessed the world and constructed it as a series of interlaced relationships. As a microcosm of the wider universal whakapapa, human society was also based around ideas of belonging and inclusiveness and an identity gained through affiliation to one s blood relatives, past, present and future. Within this arrangement, the principle of Whanaungatanga acted as a second ordering principle of Maori custom law, by highlighting another dimension of the Whakapapa process. Whereas Whakapapa, strictly applied, highlighted lineal descent, hierarchy and the authority that went with senior lineage within a kinship system, whanaungatanga highlighted lateral links within the whakapapa relationship, emphasising relatedness and the obligations inherent in those kinship relationships. Whanaungatanga had a set of attendant principles and associated expectations, which guided the authority and actions of those who exercised authority over others. The principle of aroha was informed by the notion that generosity ought to be shown towards one s close kin. On the other hand, practices associated with utu, were based around the idea that wrongs to kinfolk ought to be repaid. In this part of my study, I examine whanaungatanga as a principle that highlights kinship links, and the practices associated with the supporting principles of aroha affection for one s kin, and utu sanctions imposed for wrongs committed against kin.

136 136 (b) (i) The Importance of Kinship Links Kinship Links and Group Identity The basic economic and social polities identifiable within the Hokianga Hearings for Whakarapa and Waihou are the whanau (extended family), and the hapu, a group of blood-related individuals clustered around a central leader. Several related groups lived in the area. Most of them were able to trace descent from a single ancestor, Te Reinga, and through him, further back to Rahiri. Intermarriage had reinforced these links and extended them to whanau and hapu groups living outside the Hokianga area. The closeness of kinship ties encouraged movement within Tai Tokerau to Muriwhenua in the North and Tamaki (Auckland) in the south, and beyond. Sometimes individuals remained with relations, marrying into the group and becoming part of the whakapapa of its future generations. Ngamotu, for instance, was the daughter of Tarutaru, a Hokianga rangatira who married her relation Te Pa and became the main ancestor of the people now living at Ahipara and Pukepoto in the Far North. At other times they returned home and married within their own, or a closely related, group. Marriage between close relations was not unusual. Strategic marriages in order to consolidate existing control over territory in senior lines and to maintain and increase group strength through reinforcing familial loyalty, were common. For example, Taurapoho and Ruakiwhiria, were mokopuna of Rahiri, and first cousins. Their marriage brought together the whakapapa of Rahiri s two sons, Kaharau, who held authority within the Hokianga area, and Uenuku, whose authority was in the Bay of Islands area. Rangatira males often took multiple wives, which extended their links to other groups. The Ngati Rahiri rangatira, Kemara, for instance, is known to have had at least five wives, including Puatea of Ngare Raumati.

137 137 It was common practice for children to be sent to live with their relations in other places. While this was based on affection, it also strengthened whanau links with extended family. These fosterings were not always successful. According to te Rarawa kaumatua, Ngakuru Pene, when Pokaia from Ngapuhi let his son be taken to live with relatives in Ngati Whatua, the boy was killed, thus sparking a long running and vicious feud between Ngapuhi and Ngati Whatua. 220 A more successful example is that of Rikihana, who was taken from Hokianga by his uncle, Muriwhenua, to live with his relations in Ngati Whatua. He was later asked by his Hokianga elders to return home to become a rangatira for his people in Hokianga who were without a leader. 221 Where fostering was successful, the family ties created often came in handy later in life when the home group needed assistance. The Ngapuhi ancestor Tarutaru, for example, placed his seven children strategically in different areas around the mid Tai Tokerau area in order to consolidate his political links within Ngapuhi. The children later became leaders in the areas to which they were despatched. His daughter, Ngamotu became the main ancestor for the Pukepoto, Ahipara area; Tungutu went to Takahue/Peria; Pakurakura went to Herekino, Manukau and Waikeri; Kahi remained at Waireia; Kahuwhakarewarewa was sent to Taumarere, More to Peria/Kaeo and Manihi remained in Hokianga. 222 In later years the actions of some of those children and their followers in battle gave rise to the iwi name Te Rarawa, (in reference to the extreme desecration of tapu that took place before a battle with Ngati Whatua), 223 thus demonstrating the advantages of strong inter-group affiliations. Even if help was not forthcoming from one s relatives, if a group was decimated in battle, any survivors could seek refuge with their relatives in other areas. The strength of support from and between groups was 220 N Pene, Nga Pakanga, Typescript of Manuscript held by writer, 1. Reproduced with permission of Fred Penney and Cleve Barlow. Restricted access available at Auckland War Museum Library, Microfilm It is not known when the information contained in this file manuscript was written down but the archive reference is to it having been created in I take this to be the time of its collation as a written source of oral information held by Pene. Pene was also an applicant in the Waireia Native Land Court hearings of Although his claim was considered marginal by the Court, this should not be read as diminishing the importance of the record that he wrote down, or his knowledge of tikanga Maori. 221 R Te Tai in Karanga Hokianga, supra note 172 at Interview with Ross Gregory of Te Rarawa at Auckland, 3 August H Rapihana, Karanga Hokianga, supra note 172 at 54 and R Te Tai, ibid at 126.

138 138 dependent on existing loyalties at any one time. These loyalties were in turn, dependant on the state of the relationship between individuals from different whanau at a given time. The Waihou and Whakarapa hearings provide evidence of there being great affection between whanau members so that they often traveled in groups. For example, when Poroa left the Hokianga to avenge the death of his tupuna who had been killed by Te Aupouri in the North, he took all his people with him so that they might die or be victorious as one. 224 There is a noticable closeness between male and female siblings. Whakarongouru was the brother of Ngakahuwhero, who was the grandmother of Re Te Tai, the main claimant for the Whakarapa and Waihou areas. Although Whakarongouru was a warrior of renown, he spent a lot of time living and working with his sister and generally seems to have followed in her wake when he was not engaged in fighting. Both accompanied Poroa on his journey north to the battle with Te Aupouri at Te Wharo One Roa A Tohe. On his return, Whakarongouru built a house for his sister and then fetched her from Whirinaki to come and live there with him. She went, taking her husband, Muriwhenua, with her. 225 Another example occurs with Te Reinga, the main ancestor for the whole Hokianga region. He was so distraught when his sister, Rakeiti died, that he carried her around on his back for days, even though she was beginning to putrefy. 226 (ii) Naming of Groups a. Augmentation over time Groups often fractionated along the lines of whakapapa connections for a variety of reasons. In each generation central actors could break away to form new groups, or move to strengthen related groups in other areas. Even if the whakapapa line remained linked 224 H Te Wake, ibid at W Rikihana, ibid at R Te Tai, ibid at 125.

139 139 to the same area, group names could change to reflect new leaders in successive generations. Group names were not as important or as durable as one s kinship links through shared genealogy. However, despite close genealogical connections, small, discrete groups are identifiable, each of which operated as an autonomous unit on the land. The observance of kinship links between whanau, and the maintenance of good relations, was vital to survival and protection from outside attack. Should relationships sour, relations could be treated with the same suspicion and hostility as complete strangers. Whakapapa connections and whanaungatanga links formed a concentric pattern of family relationships radiating from a central ancestor, or a current leader. So for example, Te Reinga s people were known as Ngati Te Reinga, while the people affiliated to his grandson, Rongomai were known as Ngati Rongomai. 227 Likewise, on the northern side of the Hokianga harbour, Tupoto s people were known as Ngai Tupoto while his sons people took the name of Ngati Kairewa. 228 The current name of a group is sometimes used by speakers, in the Hokianga Hearings, when referring to the deeds of ancestors that occurred before a particular group name came into existence. In these instances the name is used as a reference point for entry into a particular line of ancestry. Apparently distinct and unrelated groups, are, when you look closely at the genealogy, simply new names for the same people or a large part of them at a different time or place. It is difficult to decipher a lot of the information without first working out the whakapapa links between the various people named in the Hearings information. What is clear is that while the people-scape was always in flux, the concepts and principles by which they attached themselves to the land remained constant. 227 Ibid at Ibid at 65.

140 140 b. Specific Events There are several examples in the hearings, of specific events giving rise to new names being bestowed on groups by outsiders. For example the name Te Rarawa draws its origin from a battle between people from the Hokianga with Ngati Whatua. The term rawa can be translated here as extreme. The addition of the prefix ra intensifies the term which follows to give the meaning of extremely, extreme. According to Herepete Rapihana, 229 the name was bestowed on the children of Tarutaru and Ruapounamu, by a woman from Ngati Whatua who witnessed the actions of Pakurakura, Te Tungutu and others desecrating a tupapaku (dead body) and other taonga (sacred possessions) belonging to Ngati Whatua, before a battle. In his evidence, Re Te Tai includes Kahi in this foray and says that several tupapaku were lying on enclosed death platforms. They were burnt in a hangi, thus giving rise to the name Te Rarawa Kai Whare or Te Rarawa eaters of houses. 230 The name Te Rarawa has since been applied retrospectively to Tarutaru and Ruapounamu and is used today as a group name to refer to all their descendants. This battle with Ngati Whatua is also referred to by Ngakuru Pene, 231 in Nga Pakanga o Ngapuhi. Pene challenges the limited application of the name to the children of Tarutaru and Ruapounamu. He says that the name should either be restricted to the direct descendants of Te Ripo, the woman for whom the battle was fought, or extended to cover all those who participated in the fight with Ngati Whatua. The first of Pene s views employs the principle of whakapapa, as determining entitlement to the name Te Rarawa, according to direct lineal descent from the ancestor Te Ripo, as the person over who the battle was fought. The second option employs the expansive principle of whanaungatanga, extending entitlement to all those [relatives] who took part in the battle. That the name has been successfully appropriated by the uri of Tarutaru, who were central actors in the desecration, lends some force to naming requiring active rather than passive participation. 229 H Rapihana, ibid at R Te Tai, ibid at N Pene in Nga Pakanga, supra note 220 at

141 141 Another example of events giving rise to the naming of a group occurs with the naming of Te Aupouri. According to Pene, a battle took place between the rangatira Ikanui and Painga at Nukupure in Whangape. Painga died and Ikanui was saddened because it meant that reprisal would be sought. He married his daughter to one of Te Painga s uri but knew that that would not be enough to avoid reprisal. So he decided to move his people out of harms way by shifting further north to Muriwhenua. Before they left they dug up all their tupapaku, put them inside a whare and burnt them. The smoke from the fire was the reason they stopped calling themselves Ngati Aranui and took the name Te Aupouri. 232 Another version is provided by Re Te Tai in the Waihou and Whakarapa hearings. 233 He says that a dispute arose between Ngati Te Reinga of Hokianga and Ngati Te Awa of Whangape over territorial fishing rights. Ngati Te Reinga went to Whangape where Ngati Awa were in their pa at Makora. A battle was fought and the people were crammed into the house and it was burnt. The name Aupouri was bestowed because of the sadness that settled over Whangape. The survivors moved to Ahipara and their numbers increased until they extended all the way to Muriwhenua (North cape). There may be other versions of the naming of Te Aupouri. These examples demonstrate how names came about through important events affecting a group. (c) The Principle of Aroha Benevolence toward Kin (i) The Sharing of Authority and Leadership within a Group Teina/Tuakana and Tupuna/Matua status. The existence of a rangatira class drawn from those with senior whakapapa lines appears to have been the practice in the Hokianga. However, the exercise of this authority was constrained by two things. First, rangatira were expected to look after the needs and general welfare of one s relations on the land. Second, a protocol existed requiring 232 N Pene, ibid at R Te Tai in Karanga Hokianga, supra note 172 at 75.

142 142 deference to members of the parent generation, irrespective of their status within the group. The affection for relatives, and respect and deference to elders, was not automatically extended to outsiders unless they could establish whakapapa links to the group. Otherwise, they were treated with suspicion and distrust as trespassers on group territory. The terms matua (parents) and tupuna (elders) appear throughout the korero for Waihou and Whakarapa, alongside tuakana (senior) and teina (junior/younger) and are used as general terms of reference to indicate the relative status of group members. In the Papatupu Hearings, members of the older generation refer to younger members of the group, including those with senior lineage, as teina. Likewise, deference is shown when a person of senior lineage is referring to an elder from his or her parents generation through use of the term matua. Matua is used not only to refer to biological parents but is an extended term including all blood relations belonging to the parent generation. Tupuna and tuakana are used in the same sense to indicate generational seniority. In terms of personal mana, this generational status appears to have outranked that accorded to senior birthright by virtue of whakapapa lineage. The older generations, or maatua, were very important within the group. The advice of elders was regularly sought and constantly adhered to by rangatira. Their approval was generally viewed as a pre-requisite to the rangatira exercising his or her authority in matters affecting the group. With the support of the elders, the pronouncement of a rangatira had the force of absolute authority, whether dealing with external matters or with internal administration. In authoritative decision-making, it was the highest temporal authority known to Maori in Tai Tokerau. The application of the principle of maatuatanga (eldership my term), led to some interesting outcomes. For example, when Te Rarawa went to assist Ngati Whatua in battle and left Te Pekatahi, an old warrior of repute, at Mataraua Pa, he took umbrage at

143 143 being left behind to look after the food. In a fit of pique, he burnt the food from all the storage places inside the Pa. The first of his relations to return was his grandson, who feared that the others would beat him for his actions. However, no sanction was imposed. According to Herewini Te Toko: 234 I te taenga mai o Te Rarawa, kaore i ahua ki aua kai i tahuna ra e Te Pekatahi, i te mea, ka tae mai ki tenei wa, ara, i a Te Hira ma, ki a te Tai ma hoki, koina to ratou tupuna, me to ratou mana. Koiana ano hoki to matou mana, i te mea, e whakahaere ana i nga tikanga katoa mo runga i te whenua nei, tae noa mai ki te wa i a raua tamariki e noho nei, ara, i a Te Tai, i a Hohepa Te Tai, i a Wi Tana hoki, koiana to ratou tupuna me to ratou mana, me to ratou take, tae noa hoki ki te whakatunga o te keehi a Re Te Tai i Rawene English Translation When Te Rarawa returned, they noticed that the food had been burnt by Te Pekatahi. This was because, right to this time of Te Hira and others, of Te Tai and others too, that was their tupuna [ancestor] and their mana. It is also our mana, because all the tikanga are still operating right to this time that their children are living here, that is, to Te Tai, Hohepa Te Tai, and Wi Tana that is their tupuna and their mana, and their take [claim] right to the establishment of the case of Re Te Tai at Rawene. Te Pekatahi was a descendant of Te Reinga. One can only conclude from this evidence that he was held in great esteem and affection by the group, and that his status as matua, tuakana, and tupuna all came to fruition at the same time, for the rest of the group to have been so tolerant. There are instances of individuals being despatched for actions with far less serious consequences than this. Likewise, when Whakarongouru, another descendant of Te Reinga, returned to Hokianga after a lengthy absence supporting Poroa in his Te Aupouri campaign at Te Wharo One Roa A Tohe, and began clearing land currently occupied by members of Ngati Korokoro, Moetara, who was the rangatira of Ngati Korokoro at the time, is reported to have removed his own people from the land and greeted Whakarongouru with the words, 234 H Te Toko, ibid at 34.

144 144 Haere mai e kara, ka tae mai ano koe te tangata, i te whenua (Welcome old one, you have arrived again, the man of the land). 235 Moetara was a rangatira from South Hokianga who was a warrior of renown at the time, and was extending his territory into north Hokianga at the time. The deference shown toward Whakarongouru, as a prior occupant, can be explained as a combination of an acknowledgement of his whakapapa connection to the land, his blood link to Moetara, (whanaungatanga) and his status as an elder (tuakanatanga). There are few mentions of disputes within groups in the Papatupu Hearings. I asked Hinerangi Rapihana, Te Rarawa kuia, 236 why this may be so. Her response was that whanau were very closely linked in the Hokianga area and regulation of the internal matters of the group was the domain of the elders, who met regularly to discuss issues affecting the welfare of the group. Young people were permitted a lot of freedom and encouraged to explore and become independent. Exuberant, boisterous behaviour was welcomed as indicating potential for the many physical roles that needed filling within the group to ensure its survival. When individual behaviour caused concern, the elders met, discussed the problems, resolved the issue and then dealt with the person concerned. Banishment, such as that of Te Tai s daughter Tuha, because he disliked her choice of husband, was a severe penalty sometimes imposed, and people always could leave of their own accord, but killing members of the one s own group was not common. According to Hinerangi, affection for family members meant that tolerance of behaviour was the norm, unless and until matters began to cause concern. Then the elders would step in to resolve the matter. The power of the elders was broad enough to cover all matters concerning the welfare of the group, at that time. So for example, if a group lacked a leader, the elders of other closely related whanau met and decided what should be done. Thus Rikihana was brought back from Tamaki to become a rangatira for his people of Te Hokokeha in the 235 W Rikihana, ibid at Interview with Hinerangi Rapihana at Kaitaia, 17 December 2004.

145 145 Hokianga region of Tuauru, and the elders invested him with the mana necessary to fulfil his role. 237 The exercise of the authority that accompanied senior lineage, and gave rise to mana rangatira, was thus constrained by the combined mana and power of the group s elders. In practice the two were often excercised together, with the rangatira acting as spokesperson for the group and its elders. 237 R Te Tai in Karanga Hokianga, supra note 172 at 122; H Te Wake, ibid at 20.

146 146 (ii) The Duty of Rangatira to Atawhai Kin under their authority Dying was a public event for those of senior lineage who were not killed in battle. The responsible role of the rangatira was passed on at his or her death. When a rangatira was nearing death members of the whanau would gather to hear the restatement of the tikanga operating on the land. These gatherings were the principal means by which the transfer of mana rangatira from one generation to another was publicly notified, and responsibilities handed on to other individuals. In these forums the role of the incumbent rangatira as trustee for the welfare of his people was established and its parameters set out. A graphic example of the process by which the obligations of rangatira for their people was passed on, is provided by Re Te Tai, in the Papatupu Hearings for Hokianga. When Te Tai became ill, he summoned his son, Re Te Tai, and set out the responsibilities he would soon have to undertake. As the mauri and wairua of the recorded korero is impossible to properly convey in English, I have included the entire Maori ohaki, as paraphrased by Re Te Tai, before the Papatupu Committee: 238 I tetahi po ka karanga mai a Te Tai ki au, ka kii mai: E koro, kotahi ano aku kupu ki a koe. I muri nei, kia atawhai ki aku iwi mokai. Kia atawhai ki te iwi i whakanuia ai au, kei whakaaro koe ki to taha rangatira. E nui ana tena taha ou. E nui ana o maatua, o tuakana, o teina hei hapai i tena taha o koutou, engari me atawhai koe i enei maatua ou. Kaore he kainga o enei o maatua. Ko to ratou nei kainga ke tera, ko Whirinaki. Naku tenei kumenga mai, i kitea mai ai ratou ki konei, na maua ko Ngakahuwhero. Ko tenei whenua, e nohoia e taaua nei, kei au. Ko tenei whenua, he mea tuku na oku maatua ki au, i mea ai au ki a koe, kia atawhai ki o maatua, ko te iwi tenei i hutia ake ai tenei whenua, i roto i te moana. Me i kore te kaha o taku taha mokai ki te hapai i au, e kore e kiia he whenua te whenua, he tangata te tangata, e noho nei. Ko tenei whenua, he whenua e riro ana i a Moetara. Koia taku kupu ki a koe kia atawhai ki taku iwi mokai. Titiro atu hoki ki o maatua nunui, e noho mai ra. Kia mahara ki o maatua mo Whakarapa. He whenua kai huihui tenei, na ratou, i nga ra e ora ana o maatua, me o tuupuna. Ahakoa te whenua nei kei roto i o maua ringaringa e pupuri ana, kia mahara ko o maatua ki Whakarapa. Hei taunga iho o aku kupu ki a 238 Ibid at105.

147 147 koe, kia mahara koe ki taku iwi mokai ki Whakarapa, kei warewaretia e koe. Ko te rohe o Waihou, me Whakarapa kei Waipapa, ka tutuki ki Herepahore. Ko Te Hiahia, ki a koe tenei, ki a koutou ko o tuakana, teina, maatua hoki. Kia mahara ki o tuaahine mo tenei whenua. Mo nga uri o Whatiia tenei kupu aana, Kia mahara ki to tuakana pakeha nei. Mo Taui raua ko Hori tena kupu aana. Hoiano aku korero ki a koe mo runga mo tenei whenua e noho nei taua. Kaore aku korero mo Waihou. I korero ai au mo Waihou, na te mea, kei au tuturu tenei whenua. I tena wa e tangi mai ana a Puriri, kua mohio ke ia he aitua. Ko Te Papa, kei a koe. I te kupu taku ki a koe mo tena whenua, timata i Kohatuhapai, ka ahu ki roto i te awa o Toungarangara, ka ahu ki runga, ka marere ki te taha ki waho o Te Papa, kei pokanoa koe ki te pupuri i tenei wahi mau, ara, i te taha e ahu mai ki Kohatuhapai. Ko tena whenua kua whakahokia atu e au ki a Kereti, mo te tapahanga o Te Ngawha. Ko aku tukunga whenua ki o maatua i roto o Whakarapa, kaua koe e whakararuraru. Tera atu te roanga o aana kupu. Ko ena korero katoa aana, i rongo hoki a Puriri, ka tango au ki ena kupu ka puritia, me taku mahara ano, e kore e rite i au. English Translation My son, there is only one thing I want to say to you. Hereafter, atawhai [be kind] to my iwi mokai [humble people]. Be kind to the iwi who respected me, you might think only of your rangatira side. That is a big part of you. You have many maatua, tuakana, teina who will uplift that side of your people, but you must be kind to these maatua of yours. These of your maatua have no place, their place is really Whirinaki. I brought them here, where they eventually ended up, it was Ngakahuwhero and I. I have this whenua where you and I are staying. This whenua was tuku by my maatua to me, and is the reason I am saying to you, atawhai your maatua, these are the iwi who hauled this whenua out of the sea. Were it not for the strength of my taha mokai [humble side] to uplift me, it would not be said that whenua is whenua, and that tangata is tangata, here today. This whenua would have been taken by Moetara. That is why I have said, atawhai to my iwi mokai. Look at your maatua of rank, staying over there. Remember your maatua for Whakarapa. It was a whenua where everyone shared food in the days that your maatua and your tuupuna were alive. Even though this whenua is being held in our hands, remember that Whakarapa is for your maatua. As a final word to you, remember to put my iwi mokai at Whakarapa, lest you forget them. The boundary of Waihou and Whakarapa is at Waipapa, and finishes up at Herepahore. Te Hiahia you may have, together with your tuakana, teina and maatua as well. Remember this whenua for your sisters too. These words were for the uri of Whatia: Remember your tuakana pakeha. This was meant for both Taui and Hori. This is all I have to say for this whenua on which you and I are staying. I

148 148 have nothing to say about Waihou. I am able to speak about Waihou as kei au tuturu tena whenua [that is truly my land]. At this time Puriri was crying already knowing that there was an omen. You already have Te Papa. I have something to say to you about that whenua, starting from Kohatuhapai, go to the river of Toungarangara, go towards the top, descend to the outer side of Te Papa, you may hold this place for you without authority, that is, the side coming from Kohatuhapai. That whenua I have given back to Kereti, for the cutting up of Te Ngawha. You are not to cause trouble for my tukunga of land to your maatua in Whakarapa. There were additional things that he said that were heard by Puriri and which I held on to, although knowing that I would not be able to fulfil what he had said. Later, when death was imminent several rangatira gathered to hear his ohaki. During the hui he asked for a closed audience with his immediate family, and Re Te Tai relates the following: 239 Tae mai matou ki Waihou, ahau, a Tawio, a Te Rakena, a Hoera Tuhiparu, a Te Pahii, a Taniora, e rua tekau matou. Ka mutu te tangi, ka noho. I taku taenga mai ka mea a Te Tai kia hui atu matou aana tamariki ki tana aroaro. Ka mea kia waatea nga tangata, kia whai kupu ia ki a matou, ki a Tawio hoki. Ko tana kupu: E koro ma, i muri nei kia atawhai, kia atawhai, ki te iwi. Ki te puta he raruraru ki roto o Manganuiowae, i o koutou maatua, i o koutou tuaakana e noho ake ra i raro, whakapuehutia te wai o Manganuiowae. Whai hoki ko te motunga o ta koutou ahi e kaa nei, kia maia ki te kanga o ta koutou ahi, kei tikina mai, kei tineia e te tangata. Kia maia ki to koutou kainga. Ka huri aana kupu kia Tawio, E hoa, hoki mai hei matua mo a taua tamariki na. E te whanau, i muri nei kia mahara ki to koutou matua, ki te whenua ra, ki Te Hiahia. E mara, koutou ko a taaua tamariki, kia atawhai ki taku iwi mokai. Tera atu te nuinga o nga kupu a Te Tai; Hei konei kia mau ki te tiriti o waitangi hei matua mo koutou. Kua kite i a Tia, ka hou mai ki roto i te whare, ka puta ake te kupu; E hoa, i muri nei kia atawhai ki te tangata. Whakautua tonutia atu e Tia, e; E maatau ana koe ehara au i te tangata he atawhai i te tangata. Ka kii atu a Te Tai; mehemea e kore e kite e koe tenei mea te atawhai, haere mai, taau ka haere. I te po ka tikina a Te Manene ki etahi rongoa, kia mauria mai hoki tana patu. Tae tonu mai a Te Manene ki etahi rongoa, kia mauria mai hoki tana patu. Tae tonu mai a Te Manene i taua po, ka titiro, ka mea E kore e taea, kua tino he. Katahi ka kokiritia iho te mere pounamu e Te Manene kia a Te Tai, ka 239 Ibid at 109.

149 149 kii ake a Te Tai ki a Te Manene, Kia atawhai ki a taua tamariki i muri i au. Ka tangi a Te Manene, ka puta iho te kupu: Ae, ka atawhai au. English Translation We arrived at Waihou, Tawio, Te Rakena, Hoera Tuhiparu, Te Pahu, Tanioro and I, about 20 of us. After we finished our crying we sat. When I got there Te Tai told us, his children, to gather before him. He asked the other people to leave so he could speak to us and to Tawio also. He said: My children, after I have gone, atawhai, atawhai to the iwi. If there is trouble in Manganuiowae, with your maatua, with your tuaakana who are staying down there, stir up the waters of Manganuiowae. Following which, at the fuelling of your fire to be lit, they may come and get it and extinguish it. Hold fast to your home. He turned to Tawio and said, E hoa, return as matua [father] for our children. Whanau, from now on remember your matua to that land, to Te Hiahia. Friend, you and all our children, be kind to my iwi mokai. There were many other words said by Te Tai. From now on carry the Treaty of Waitangi as a matua for you all. He saw Tia entering the house and spoke to him, Friend, after me atawhai to the iwi. Tia immediately replied, You know that I am not one to be kindly to people. Te Tai then said, If you cannot see this thing called atawhai, come, come with me. That night Te Manene was asked to bring some medicine and to also bring his patu. Te Manene arrived that very night, looked at him and said, It is no use, he is too far gone. His greenstone mere was thrust toward Te Tai, who said, Be kind to our children, after I have gone. Manene cried and said, Yes I shall be kind to them. Ohaki pronouncement laid out the important aspects of Maori custom law affecting the lands and people of the dying rangatira. It reaffirmed the authority of those with senior whakapapa links to the land and identified the new leader, chosen from within that lineage. Te Tai s ohaki identifies kindness toward people as being the principal characteristic required of the new rangatira in order to manage the land and its people well. While this attitude may have been reinforced by the influence of Christianity values within the area, whanaungatanga alone, without any outside influence, highlighted obligations toward one s kin. Te Tai also set out the various land entitlements of those living on the land and the capacity in which those interests were held. The areas that he had been granted were passed to Re Te Tai and his family as being exclusively theirs. The entitlements of those to whom Te Tai had made grants during his lifetime were also

150 150 set out. That these lands were held without authority indicates that the rangatira retained a broad administrative power of disposition and re-allocation of lands should the need arise. Te Tai s ohaki also sets out the responsibilities owed by his successor to others on the land. He is mindful of those that he and his mother had brought from their homes in Whirinaki on the south side of the Hokianga river to help them become established on the land. He reminds his son of the long term obligations owed to these people as original inhabitants and asks that they be treated with kindness. There is also advice, given from an old leader to his successor, as to likely areas of dispute in the future and encouragement to hold fast to his lands and people. Tikanga also gave rise to a reciprocal duty on those who had been recipients of tuku (grants of land and resources within the area), to acknowledge that their entitlements were not tuturu, or permanent to the land. These were also the subject of ohaki. Despite his ascerbic response to Te Tai before he died, when Tiapakeke gave his own ohaki, he reminded his immediate whanau of their lesser status and entitlements to land and the importance of atawhai. Re Te Tai recalled the occasion of Tiapakeke s death, thus: 240 Ka tata Tiapakeke ki te mate, ka tonoa ki au kia kite ia. Ka haere katoa matou, ko aku teina, maatua, me nga tangata o Motuti. Tae atu matou ka tangi au. Ka mutu, i te po ka karangatia matou. Ka mutu, ka tu atu au. Ka kii atua au: Kei kona, e kara, takoto mai ai i tou mate. Kua pahere atu o taina, ko koe tenei, ko a koutou kupu, me a koutou tikanga mo te tangata, ki te he koe maua atu a koutou tikanga hei kona mutu ai. To koutou waka e tau nei, ka pakaru i au i muri i a koe. Ma Te Tai e mau atu tena maramara ki tena kokorutanga, ki tena tumu rae, akina ai e te hau. No ena korero aku, katahi ka aue mai a Tia i roto i te whare, ka mea: E koro, ee, kia atawhai. E, mau e, kia atawhai, kia atawhai, e koro, ki nga huruhuru o nga wae o o maatua. E Here, e, kei whakahiihii koe ki a Re Te Tai i muri i au. Ko Heremia i tena wahi, kei Te Tuauru e mahi muka ana. E rua aana hokinga ki taua kupu aana ki a Heremia ra: E te whanau, kei pokanoa koutou ki te whakahiihii ki a Re Te Tai, mo te whenua e takoto nei. Ko matou ko oku matua, ara, ko Wharetohunga ma, kaore i pa ki tenei whenua. Ko tenei whenua i aku teina anake, i a Te Tai raua ko Te Hira. He noho noa ino ta matou noho i tenei whenua. Kei aku teina ke te mana o tenei whenua. Ko tenei, e koro, kia atawhai i muri nei, ko te 240 Ibid at 119.

151 151 mea tenei i tonoa atu ai au i a koe, kia rongo koe i taku kupu. Ka mea atu au: Ae, mehemea hoki e rite. I pena atu ai au, he pouri noku, kei mate wawe taua kaumatua. Ka mea mai kia haere atu au ki tana taha noho ai, ka haere atu au. Ka korero ano ki au, kia atawhai. Ko aana kupu mutunga ena, a, i rongo katoa hoki enei iwi i te korero a taua kaumatua ki au, i reira katoa hoki matou. English Translation When Tiapakeke was nearing death, he sent for me. We all went, my teina, maatua and the people of Motuti. On arrival, I cried and at night we were welcomed. I stood and said: Remain there, old man, lie there in your near death state. Your teina have all passed on, this is you, and when you pass on, take all your words and all your customs for the people with you, and let it finish at that. Your canoe will be broken by me after you have gone. Te Tai can take the chip of the waka to that bay, to that headland, to be pounded by the wind. At those words of mine Tia cried out from inside the house and said, Son, atawhai the hair on the legs of your maatua. E Here, you may jeer at Re Te Tai after I have gone. Heremia at that time was working flax at Te Tuauru. He repeated his words twice to Heremia E te whanau, you might unwittingly jeer at Re Te Tai for the whenua lying here. We and our maatua, that is, Wharetohunga and others, do not have any connection to this whenua. This whenua was to my teina only, to both Te Tai and Te Hira. We are just staying here on this whenua. It is my teina who have the mana on this land. This, my son, show atawhai hereafter, this is the reason I sent for you, so as you can hear my words. I then said Yes, if it can be fulfilled. I said that because I was so down hearted that he might die soon. He asked me to sit by his side and I did. He said again, kia atawhai. Those were his last words and everyone heard the words of that kaumatua to me as we were all there. The relationship between Re Te Tai and Tiapakeke illustrates the complex nature of whakapapa relationships on the land. The status of tuakana, teina, maatua, were interwoven to constrain and guide the actions of the person who possessed mana rangatira. When Re Te Tai inherited the mana rangatira for the region from his father, Te Tai, Te Tai referred to Tiapakeke as both Re s matua (parent) and his tuakana (senior). There is no mention at all of Tiapakeke s lack of whakapapa links to the land. In his ohaki Tiapakeke reinforces the generational distinction between himself and Re by constantly referring to him as teina. At the same time, he acknowledges that Re holds the mana rangatira of the land on which he lives and implores Re to show kindness to his

152 152 children, particularly his son Heremia Te Wake, whom he acknowledges as having no true claim to the area. (iii) Tuku as a Vehicle for the Duty to Atawhai There was little to distinguish the physical living conditions of rangatira from others. Everyone lived a subsistence lifestyle. Group survival relied on the maintainence of stable internal relationships and an ability to withstand external attacks. Effective leadership was pivotal to achieving both. The principle of Atawhai ki te Tangata enabled internal group cohesion to be maintained. The vehicle by which stability on the land was achieved was through tuku, or grants of land made by rangatira so that people had a place to live on the land. The practice of tuku will be dealt with fully in the next part of this Section dealing with the principle of Mana. It is included here as an example of the principle of atawhai ki te tangata and the duty it placed on rangatira to look after the welfare of those under his or her care. According to Re Te Tai, when Pauro Te Rangaihi reported to Te Tai that his tuakana, Tiapakeke, was anxious because he was getting old and had no tuturu (permanent), claim to the land he was living on, it invoked Te Tai s duty as rangatira of the group to assist him. The conversation between Tiapakeke and his children is reported to have been along the following lines: 241 E koro ma, kaore tatou i pa ki Waihou, ki Whakarapa, ki Whangapatiki, ki Motuti, mai i nga tupuna, tae noa mai ki a matou, kaore i pa. English Translation Children, we have no connection with Waihou, Whakarapa, Whangapatiki, Motuti, right from the time of the tupuna, down to us, we have no connection. 241 Ibid at 106.

153 153 After pointing out their land entitlements at other places that were derived through his mother, Tiapakeke had continued: 242 Ko tenei whenua i aku teina anake, i a Te Tai raua ko Te Hira, i Te Rarawa tenei whenua. Ki te he au, kei whakapehapeha koutou ki a Te Tai. Maana koutou e aroha, e atawhai hoki, maana e kore, hoiano. This whenua at Te Rarawa was to my teina alone, to both Te Tai and Te Hira. When I die you might jeer at Te Tai. It is for him to show aroha and atawhai you, if he does not, that is that. The response from Te Tai at hearing this was e aroha au ki taku tuakana ( I feel aroha for my elder ). When he encountered Tiapakeke at a hui held for another matter, he made a tuku (grant) of the land Tiapakeke was living on to him and his children. He also made separate dispositions to the children of Tiapakeke, and later told them to survey the land. 243 At that time, (around the mid to late 1800s), without the tuku from Te Tai, Tia s occupation and that of his children would have been without authority under Maori custom law, because their whakapapa links to the senior line incumbent on the land were not strong enough to sustain a more durable claim. The reference to Te Tai s later telling Tia to survey out the lands granted, while suggesting an appreciation of a Pakeha system of land tenure that includes surveys, does not appear to have eroded the application of traditional tikanga operating on the land at the time. The consideration shown to relatives was more than simply an emotional response to the needs of one s whanau. It had developed into a duty that gave rise to trust responsibilities relating to the preservation and maintenance of one s whakapapa line. That duty was satisfied by the rangatira making tuku, or grants of land to others so that they could provide for their whanau. The duration of the grant was dependant on a number of 242 Ibid. 243 Ibid at 106.

154 154 factors, including the strength of the whakapapa connection between the rangatira and grantee. The duty of rangatira to atawhai others, as manifested in tuku, is upheld by the Papatupu Committee in its award of land shares for Whakarapa. Having acknowledged the disparate whakapapa authority (mana rangatira) between Re Te Tai and Heremia Te Wake, within Waihou and Whakarapa, the Committee confirmed the several tuku that had been made to Heremia s ancestors in prior generations by Te Tai, as being in accordance with tikanga or Maori custom law. This duty was reinforced by Re te Tai s own statement that he was bound by the words of his tupuna: Kia atawhai ki o raua iwi mokai e noho mai ra i Whakarapa. ( To help and be merciful towards his lesser people living at Whakarapa ). 244 The Papatupu Committee awarded shares to those claiming under Heremia on the basis of their having lived harmoniously together with Te Reinga s descendants for several generations and having married into the line. 245 In the Waireia Land Court Hearing in 1913, a distinction was made between those who held tuturu entitlement to land through tupuna links, and those who held land by virtue of aroha benevolence exercised by those exercising mana rangatira. 246 The Waireia hearing shows a clear distinction between tuturu title as being linked to senior ancestry and permanence on the land, ie. mana rangatira, and aroha title, which is that of long term occupants without ancestral links to the land. In my view, this shows the consolidation of the application of the principles espoused by Te Tai and the other rangatira in the earlier Hokianga Papatupu hearings, into work-horse principles that could be easily articulated and applied to the factual evidence presented to the Native Land Court in later hearings. The process shows the development of tikanga into clearer principles by the Native Land Court, these being honed in hearings that included many of the same claimants for several other Blocks within the broader Hokianga area. While the judges of the Native Land Court may have had a sound appreciation of matters on the 244 Ibid at Ibid Waireia Hearings, supra note 175.

155 155 land at the time of decision-making, they still lacked the ongoing commitment to people on the land that typified the rangatira stance in the Papatupu hearings. (iv) Conclusion The above examples demonstrate that while authority remained linked to senior whakapapa on the land, the principle of whanaungatanga invested it with obligations owed to other members of the group. Ohaki served to bond the community together by laying out the tikanga operating on the land in a public forum. That tikanga included recitation of existing whakapapa links to the land, articulation of the various entitlements of people living on the land, the articulation of any potential difficulties that might arise, advice on how to resolve them, and the appointment of the successor to the role of mana rangatira. In this way senior lineage was publicly notified and reinforced, and the responsibilities of members of the group set out for all to hear. The authority of the dying words spoken by the rangatira had strong prescriptive force and were generally adhered to because he represented the combined mana of the group. To disobey them would have dissipated the group s cohesion and threatened its survival. (d) The Principle of Utu Sanctions and Reprisals for Wrongs against Kin While the principles of atawhai and aroha imposed duties on rangatira to look after the welfare of kinfolk by granting entitlements to land, the principle of utu looked toward rectifying wrongs that had been committed against members of the group. In essence utu was a seeking of payment to assuage the mana deficit incurred by the victim and his or her relations, for violations of their whakapapa. (i) Categories of Offences Closeness of kinship meant that an individual s behaviour was perceived as belonging to the whole group. This made the group vulnerable for the actions of its members. Breaches of tikanga identifiable in the Papatupu Hearings can be placed into three broad

156 156 categories. They are breach of rahui, theft of property belonging to a group or individual, and causing the death of a relative. a. Breach of Rahui Rahui is discussed in this Section under the principle of Tapu. It may be generally described as the establishment of an exclusive right of territorial ownership, including use and possession of resources within an area. These areas were off limits to those who were not members of the group and whose whakapapa links and whanaungatanga relationships were not strong enough to gain leniency from the group responsible for setting the rahui. Breaches of rahui were a common cause of dispute between groups who, although closely related, viewed themselves as distinct as far as resource use was concerned. Ngakuru Pene speaks of the retribution sought by Whaiputuputu for such a breach: 247 some time during the year a rahui was placed on the sea, paua, whapuku and other kai moana [sea-food]. During the days that the moana was tapu with that rahui, a different hapu, [Ngati Awa of Waimamaku] came to fish for whapuku off Kawerua. Whaiputuputu built a raupo waka, paddled out and killed the people who were fishing. According to Pene, This is Maori law, if his rahui is placed and is overthrown by another rangatira, a fight arises for trampling on the law of another rangatira. 248 While the setting of rahui was the action of a single rangatira, enforcing it was an activity usually carried out by the rangatira and other members of the group. It is unlikely in this instance, that Whaiputuputu would have been able to enforce the rahui on his own. A further example provided by Pene of groups having to defend rahui they had established over the sea occurred when the uri of Tuwhenuaroa, who lived at Haupawhenua, a pa near Ahipara, established a rahui over the sea, which included the fish, kutai and other sea food. Members of Ngati Awa, Ngati Miru and Ngaitamatea 247 N Pene, supra note 220 at Ibid at 152.

157 157 breached the rahui by entering into the territory that had been set aside by Ngati Tuwhenuaroa and collecting shellfish. The people from Haupawhenua pa went down to challenge those collecting kutai and fish and, according to Pene, Ngati Awa, Ngati Miru and Ngaitamatea fell. 249 It is not clear from this information whether those who were gathering sea food were chastised verbally, beaten, or killed. All three, were acceptable options. The existence of close whanaungatanga links may have led to greater lenience being shown to the offenders. A third example provided by Pene, is that of Whiwhero, who, while fleeing from an unsuccessful attempt at killing his inlaws at Whangape, was killed for breaching a rahui set over the sea. b. Theft Theft of property was another common reason for seeking reprisal against a group. The taking, by Te Kari, of a whale beached at Muriwhenua that had been claimed as belonging to Nuku, led to Te Kari s people being wiped out by Te Kaka, who was a close relative of Nuku. 250 The taking of a tui by Te Apanui after visiting his Ngapuhi relations at Mangawhai led to fighting between the two groups. 251 During the Waireia Hearings, Karora Kahuitara, tells an interesting story about the taking of fern root by Te Hue and his people, which led to a fight with Whanaumai, and the death of Te Marino, wife of Pakurakura. Pakurakura was the son of Tarutaru, the eponymous ancestor of Te Rarawa. Tarutaru gathered a war party and captured Te Hue. He put stakes in the ground and burnt him until his flesh was rubbed to the bone. This event led to the renaming of the group Whanaumai to Paturahurahu (beaten fern root) Ibid at Ibid at Ibid at K Kahuitara, Waireia Hearings, supra note 175 at 124.

158 158 c. Causing the Death of a Relative The untimely death of a close relative was always a cause for seeking utu from another group. Responsibility for one s actions extended to unforeseen consequences. For example, when Waipoua, the daughter of Te Pahi, a Ngapuhi rangatira, married a pakeha seaman, he decided to take her on a voyage into the territory of Ngati Porou. The reason for the voyage was to return Tawaputa, who came from Ngati Porou, back to his own people. During the voyage, Waipoua felt seasick. Her husband set her ashore and left her amongst Ngaiterangi hapu, who killed her. Ngapuhi raised a taua (war party), against Ngaiterangi for her murder. They also raised a taua against the people of Tawaputa, as he was the principal reason for the voyage. 253 An unusual example of the application of the principle of utu for the death of a close relation is related in connection with Te Reinga, the founding ancestor for the Whakarapa and Waihou areas of north Hokianga. According to Re Te Tai, his affection for his sister was so strong that he would not release her to be buried when she died. Instead he carried her around on his back even though she was rotting and despite the pleas of his children. The action of carrying her on his back was in direct breach of tikanga which prevented a rangatira from carrying anything on his back. According to Re Te Tai it took the death of a close relative, Te Huaki-o-te-rangi, to appease his grief. The incident is interesting. Many battles were fought as the result of close relatives being killed by members of other groups, who might also be distant relatives. Battles in reprisal were, therefore, commonplace. The killing or besting of others in such circumstances was highly prized and a means by which the victors were able to reinstate and enhance the mana diminished by the initial wrong. However the practice of killing a relative of senior lineage to provide company for the dead is less well documented and provides a unique insight into the psyche of the precontact Maori. I have included the Maori text, in which Re Te Tai describes the 253 N Pene, supra note 220 at 137.

159 159 circumstances surrounding Rakeiti s death, and how it gave rise to the name Te Reinga kotikoti kaki : 254 Ko tenei ingoa, ko Te Reinga Kotikoti Kaki, i timata mai i a Te Reinga. Ka mate te tuahine, a Rakeiti, ka pikaukaua e Te Reinga. Ahakoa tono nga tamariki kia tanumia, kore rawa. Ka tiingia nga tamariki e te whakatuarea ki to ratou matua, e pikau ana i a Rakeiti, me te tangi. Ka tikina e nga tamariki a Te Huakioterangi, ka patua ki Pukekowhai. Ka mate nga tangata, a, ko nga morehu ka whati. No kona ka kore atu nga tangata o tena pa o Pukekowhai. Ka mate a Niwa me Te Reinga, ka penatia ano. Tae noa mai ki te matenga o Te Whitu, ka tikina, ka patua, ka mate ko Te Uki. E kore oku tupuna e tanumia noatia iho, kia mate raano he tangata, ka kawea ki te wahi tapu. Ko te take tena, o tenei ingoa o nga uri o Te Reinga kotikoti kaki. English Translation This name, Te Reinga the neck chopper, began with Te Reinga. When his sister, Rakeiti died, Te Reinga carried her around on his back. Although the children begged him to bury her, he would not. The children were overcome with sorrow and were crying for their parent carrying Rakeiti on his back. The children fetched Te Huakioterangi and beat him at Pukekowhai. People died, and the remnants dispersed. From that time the people of Pukekowhai pa deserted it. When Niwa and Te Reinga died they did the same. Right to the death of Te Whitu, they fetched, beat and killed Te Uki. My tupuna did not be satisfied with just burying the dead, they killed a person, then conveyed to the wahi tapu. That is the origin of the name of the descendants of Te Reinga Kotikoti Kaki. The practice of killing in order to assuage one s anger at losing a relative through natural causes is difficult to rationalise, as other than an emotional outburst born of grief. However, as it is acknowledged as having been a customary practice in the area, it must be taken as forming part of the Maori custom law for the region at the time. A possible explanation may also be that the death was untimely, and attributed to the actions of another person against whom utu was later sought. This remains supposition however, as the above evidence clearly sees it in terms of mana of the deceased. 254 R Te Tai in Karanga Hokianga, supra note 172 at 125.

160 160 Maori were a warrior people living in a society where physical prowess was both important and necessary for survival. Strong kinship bonds amongst whanau members meant that if an individual was wronged, the wrong was shared by the entire whanau. Likewise, wrongdoing by an individual was not seen as his alone, the blame was also shared by the offender s entire whanau. Marriages between senior whakapapa lines did not always strengthen kinship relations between groups. In his evidence before the Okuratope Block Papatupu committee, Hirimai Piripo relates how Whakarongo, the sister of Auha and Whakaaria of Ngaitawake, another group who trace their ancestry from Rahiri, married Kaihu, a rangatira of Ngatimiru and went to live with him and his people at Waitangi. Her two brothers decided to visit her. During the visit a dispute arose between husband and wife concerning the size of the kumara she had served her brothers. Kaihu instructed his wife to given them smaller kumara. This was an affront to their mana. The brothers left, intending to return later to avenge the insult. They conveyed the cause of their affront to Kauteawha, another rangatira from the area and close relation, and asked for his assistance: 255 Ka puta atu te kupu a Auha me Whakaaria e hiahia ana maua kia tangohia nga whenua katoa o te Waimate hei utu mo to raua oronoatangai iho io raua taokete i Waitangi. Ka puta mai te kupu a Kauteawha me mate ranei te tangata? Ka utua e Auha kaore me pei atu kia haere ora nga tangata kia mate ko te whenua anake English Translation Auha and Whakaaria said, both of us want to seize all the land at Waimate in payment for the ill treatment of them by their in-laws in Waitangi. Kauteawha asked, right to the point of killing? Auha replied, no, push the people out so only the whenua will suffer. On their way home, before they reached Pakinga Pa, they received word that Whakarongo had been killed by her husband s people. Hirimai paraphrases the response 255 H Piripo, Okuratope Block Papatupu Committee Hearings, Kaikohe, 15 December, 1902, 77.

161 161 of Auha 256 Ka kiia tonu tia e Auha i tena ra me mate he tangata me mate te whenua. (Auha said then, men must die, and the land will die too.) Under the leadership of Auha, Whakaria and Kauteawha, the people of Ngati Miru and Wahineiti were attacked at their pa at Pahangahanga, Taumatatungutu, Okuratupe and Whakataha. Kaihu was killed, and others fled to Waimamaku on the west coast and north to Mangonui. Later Whakataha, an inland pa, was also taken. After that: 257 Ka riro tuturu tenei whenua a Okuratope mete Waimate i raro i te mana o Auha raua ko Whakaaria mai o reira tae noa ki tenei wahi ko etahi wahi he mea hoko eo raua uri kite pakeha. English Translation This whenua, Okuratope and Waimate was taken permanently under the mana of both Auha and Whakaaria, from that time to this time some places were traded by their descendants to the pakeha. In the Okuratope Papatupu hearing, Wi Titore gave evidence that Rangitutakipu and Naana, who were third cousins of Auha and Whakaaria, acted as his tianara or generals. The relationship between the cousins is stated as being that of tuakana and teina. 258 In making the distinction, Titore is acknowledging the seniority of the whakapapa line of Auha and Whakaaria as it relates to direct descent from Rahiri, and the mana accorded to their warrior strength and leadership. In the taking of territory, land associations appear to be less important than warrior ability. (ii) Liability Settled by Physical Combat Seeking Utu According to Pene 259 battles against one s relations were more vicious than those fought against non-relations. He describes a battle at Waihounuiarua at Panguru as a battle between whanaunga and explains its implications: H Piripo, ibid at Ibid at W Titore, OkuratopeHearing, supra note 255 at N Pene in Nga Pakanga, supra note 220 at 222.

162 162 Ka haere mai te taua a Ngapuhi ki Waihounuiarua, erangi ko tenei whawhai he riri whanaunga. Erangi ko te whakatauki a te Maori o te riri whanaunga, koia tena ko te riri kino a te Maori. Kia poto rano tetahi taa ki te mate, katahi ano ka mutu te whawhai a te riri whanaunga. E kore e pena te riri whakauruuru te tangata. Ki te mea tetahi rangatira kia mutu te whawhai, kua whakaarahia mai te patu mo te maungarongo e tetahi rangatira. Kua kite atu tetahi rangatira i te tohu o te maungarongo, kua hapainga mai e tona hoa. Mehemea e pai ana ia ki te maungarongo a tona hoa, hoi ano kua whakaarahia atu tana patu. Kua mau te rongo kua mutu te wewero. He tohu to tena whawhai a te Maori. Ko te whawhai whanaunga, hore ona tohu. Me mate katoa ranei tetahi taha me oma ranei me mutu te whawhai kia puta ai he morehu tangata. English Translation The war party of Ngapuhi came to Waihounuiarua, but this battle was a combat amongst relatives. But according to the Maori proverb, this is the worst battle of the Maori. They fight until they are nearly all killed, before they stop. A battle whakauruuru tangata is not like that. If a rangatira was to say to stop fighting, a patu is raised by a rangatira to offer peace. A rangatira sees the sign of the peacemaking, his mate raises too. If he is in favour of the peacemaking of his mate, he too will raise his patu. Peace has been made, the spearing stops. That is the sign of the fight of the Maori. There are no signs for the battle amongst relatives. Until the whole side dies, or runs away, the fighting must stop so that there are survivors. Rangatira often called on whanaunga from other groups for assistance in battle against groups who had wronged them. Pene states that Ngapuhi and Ngati Whatua were constantly feuding with each other. He says that Ngati Whatua were extremely brave people as they had no other groups to back them, whereas Ngapuhi had lots of support to call upon because of their very extensive whakapapa network. 261 Pene identifies two types of warfare engaged in by Maori seeking utu. They are distinguished according to their purpose and conduct as Pakanga Rangatira and Pakanga Aware. According to Pene, the former is legitimate warfare conducted according to established rules, making it part of Maori custom law, whereas the latter are barbaric practices carried out in breach of the protocols relating to rangatira conduct. 260 Ibid at Ibid at 201.

163 163 a. Pakanga Rangatira Pakanga rangatira were battles fought with the intention of there being minimal loss to either side. Although individuals could be killed, the main aim was to recoup the mana lost as the result of an offence being committed, by entering into physical combat. In order to minimise losses between groups, rangatira sometimes arranged a set time, date and place for battles to take place. Pene relates how bad feeling had arisen between Te Rarawa on the one hand and Ngati Wairoa, Ngati Kuri and Te Aupouri on the other. The battle was the culmination of a series of incidents beginning with the taking of kumara, the death of various relations, and breaches of rahui. According to Pene, Poroa, who was the leader of Te Rarawa, asked Te Houhou to settle the matter by battle. He agreed. They arranged the day and Poroa brought his entire people from Hokianga in order that they might die together. The group numbered about Many people were killed but eventually the warriors led by Te Houhou were overcome. Poroa made peace to ensure that there would be some survivors. He drew a line on the beach and none of his people crossed it. The line divided the territory of Te Wharo One Roa a Tohe, the north to the three northern groups, the south to Te Rarawa, in the battle referred to by Pene as Te One I Haea. 262 A similar story is told by Re Te Tai and Heremia Te Wake in the Hokianga Papatupu Hearings. They refer to it, however, as Te Oneroa, being a reference to the beach on which the battle was fought rather than the dividing line that ended it. 263 A further battle between Te Ikanui and Te Painga is also portrayed as being by consent between the two rangatira because Te Painga s people had killed some of Ikanui s relatives. However following that battle Te Ikanui removed his people permanently from the Whangape area and moved them to Muriwhenua. The descendants of these people are now known as Te Aupouri Ibid at R Te Tai in Karanga Hokianga, supra note 172 at N Pene in Nga Pakanga, supra note 220 at 128.

164 164 Yet another example of a pre-arranged battle occured between Hongi Hika and Poroa at Whangatauatia in Ahipara. When Hongi arrived Poroa said to him that the battle would be carried out on the beach and Hika agreed. So they lined the fighting teams up and fought. Ngapuhi was defeated and Poroa emerged in front of his taua where he raised his hand. His people stopped fighting and peace was made. 265 The above are all examples of battles that were staged by rangatira to settle accumulated grievances between groups. The object was to win the battle while also ensuring that there were survivors. Once peace was made that was the end of the dispute and the loser accepted the loss and any consequences. i. The Role of the Peacemaker Peacemaking was an important part of the process of inter-group disputes and gracious winners were well regarded and remembered. When Ngapuhi attacked Puketi Pa and were defeated, the victorious rangatira, Ngarowiwi and Tutangiora emerged and made peace. They released the survivors of the defeated group, who numbered around 30. At a later battle resulting from a dispute over the taking of a whale by members of Ngarowiwi and Tutangiora s group, Ngapuhi instructed their warriors that if Tutangiora fell he was not to be desecrated but was to be covered with a cloak. Furthermore, should Ngarowiwi speak, his words were to be honoured. By the time Ngarowiwi and his warriors got near the battle Tutangiora had already fallen. Ngarowiwi raised his hand and called Stop killing the people. Ngapuhi stopped immediately and covered Tutangiora with a cloak. 266 Poroa was one of Te Rarawa s great leaders. His practice of drawing a line on the beach to delineate new territorial boundaries, employed in the battle with Te Houhou of Te Aupouri, was first used when he was still a youth whose genital hair had not grown very 265 Ibid at Ibid at

165 165 long. 267 A taua (war party) of Ngapuhi paddled to the Waihou river and landed at Te Papa in Hokianga. The people from the pa of Pureirei and Rangikaruru went to meet them at Otupahero. Poroa was amongst them and felled a warrior named Miha. Ngapuhi fled back to their waka but the tide was out and they were stranded on the beach. Poroa was one of the first pursuers to arrive there. He felt aroha for Ngapuhi, so lacerated the earth in the mangroves to stop his people crossing over to kill Ngapuhi. According to Pene, this was his first peacemaking. Poroa grew into a rangatira of renown. He later accompanied Hongi Hika to the Coromandel to seek utu for the death of Te Koperu, who had been killed while visiting relatives. On the way they fought with Waikato, Hongi leading his men and Poroa his. Poroa later made peace with the rangatira Potatau, leaving his son Katorimu and 28 guns with him in order that he too, might seek revenge. Potatau gave him 30 men. On the way back he and Hika met Pomare and Moetara, two other fighting rangatira of renown from the Hokianga who were on their way to do battle with Waikato. Poroa advised Pomare to go back as peace had been made and informed him of the terms. Pomare s response was, Who do you think you are? You are rangatira for yourself and I am the rangatira for my own ope (group). He and Moetara carried on but Hongi returned. Pomare was caught and killed by Waikato. 268 According to Pene, demonstrating superior physical prowess was the prime object of parekura (battles) in Ngapuhi, rather than totally extinguishing the mana of the opposing group. Pakanga Rangatira were arranged between rangatira. Warnings would be sent ahead that a taua (war party) was approaching, in order to provide time to clear the Pa. Rangatira would gather their strongest warriors and fight in lines with the leader dictating the battle plan and when it was to cease. Once the rangatira on one side fell, the battle was stopped by the other rangatira raising his hand. Once peace was made that was the end of that set of raruraru, or troubles, and the groups withdrew. 267 Ibid at Ibid at 208.

166 166 Part of being gracious in victory was the ability to return captives alive. When Ngapuhi fought with Te Arawa at Mokoia in the early 1800s, 200 prisoners were taken at Mokoia. Papahia asked Hongi Hika for the pononga, or captives to be handed into his care. Papahia then returned them to Mokoia and peace was made between Te Arawa and Te Rarawa. 269 Those who had been captured in battle lived, but they did so with diminished mana. b. Patu Aware These were battles where the protocols of pakanga rangatira were not adhered to, or where insincere gestures of friendship were made and then betrayed. There are several instances of both these happening in pakanga involving rangatira from the Tai Tokerau region. Hongi Hika is described by Pene as an angry person who did not like saving people. 270 Hika s penchant for killing is illustrated by Pene s story, describing events that took place in 1823, when Hongi and Poroa went to Ngati Maru in Hauraki to clear the death of Te Koperu. Ngati Maru lived in the Coromandel area. When they reached there Hika informed the rangatira of Ngati Maru that they had come to make peace. Ngati Maru agreed and presented a mere (club) and cloak to seal the peacemaking. Hongi and Poroa departed with their respective groups. They travelled to Waiheke, where Hongi left Poroa and returned with his group of warriors to kill Ngati Maru in order to avenge the death of Te Koperu. When he informed Poroa, Poroa s response is reported to have been: E Hongi, yours is not a rangatira cause. 271 Te Rauparaha is also considered to be a deceitful rangatira for requesting others to do his killing for him, and to bear the consequences. According to Pene, when Tira Kakahi and Te Paeoterangi, who were rangatira from Ngapuhi, went to look for their relations in the southern part of the north island, Te Rauparaha heard that they had reached Tuhourangi 269 Ibid at Ibid at Ibid at 35.

167 167 region in the middle of the island. He asked Hape, a rangatira from that region, to kill them, and his wishes were fulfilled. In response Ngapuhi brought 1200 men to seek reprisal and the battle of Mokoia was fought in which many lives were lost. 272 According to Pene Te Rauparaha also sought assistance from Ngapuhi against Ngati Kahungunu. People went under him from Te Roroa, Ngati Hao, Ngati Toro and Te Popoto. They fought with Ngati Kahungunu and peace was made by Te Rauparaha. They cooked kai and Ngapuhi gave their guns to the rangatira of Ngati Kahungunu. They received cloaks in payment. When they sat down to eat, Ngapuhi interspersed themselves with their hosts. Te Rauparaha gave the signal and each person struck the person sitting next to him. Pene notes this as being part of Te Rauparaha s custom. 273 The implication here is that although Te Rauparaha was respected and feared for his warrior ability, he lacked the honour that marked the leadership of rangatira like Poroa. Patu aware were not restricted to events outside Ngapuhi or under the leadership of strangers. Patu aware also occurred within Ngapuhi. Groups would pretend to come in friendship, or that a taua wahine was being sent, and once inside the pa they would set about killing. 274 Brother-in-laws would sometimes invite their inlaws to a feast in order to kill them. Whiwhero from Ngapuhi married Te Waiarimonga. He made a feast and invited his inlaws, including Te Reinga, intending to slaughter them. His wife warned them and they came prepared to fight. Whiwhero fled with the survivors to Tokerau, where he was later killed for breaching a rahui Ibid at Ibid at Ibid at Ibid at 167.

168 168 c. Cannibalism Custom Law Eating Practices The practice of Cannibalism was part of the customary practice of conducting warfare. When rangatira fell in battle their bodies were divided up and shared amongst the victors, each of whom ate a portion. 276 This act of desecration signified that the mana of the individual and his or her people was permanently extinguished. The group s mana dissapated and survivors would seek refuge with relatives in other groups. Cannibalism was a ritual that openly notified the passing of the mana of a rangatira to the victors. Its enactment symbolised the restoration of the mana that had been adversely affected by the initial wrongdoing. When Pakurakura, Te Tungutu, Kahi and others sought utu for the killing of Te Ripo by Ngati Whatua, they desecrated the dead who were lying on platforms before the battle took place. 277 Although there are several references to this incident in the Papatupu Hearings for Hokianga, none of them makes it clear whether they used the bodies to fuel the fire needed to heat their hangi stones, or whether the bodies were placed inside the hangi and then eaten. Either way, the action was intended to diminish the mana of the people they were entering into battle with. If they could not get inside a pa, or overcome its occupants because they were too strong, those seeking utu would eat their dead instead. So when Ngapuhi could not overcome Pukekowhai because the people were uri tuwhangai, or (need translation) they disinterred tupapaku from the wahi tapu and those that had not disintegrated were washed and eaten. This action settled the payment due for the people that had been killed by the residents of Pukekowhai. 278 However, often the bodies of rangatira were allowed to remain intact as a sign of respect for the mana of the person, or were returned intact to their relations after the ceremony of desecration, for burial. 276 Ibid at Ibid at 50, Ibid at 99.

169 169 (e) Conclusion The Papatupu Hearings of the early 1900s portray Maori society in the Tai Tokerau region as consisting of small groups of whanau clustered around one or several shared leaders, who lived together and identified themselves as members of the same hapu. Each group occupied a distinct territory, within which various whanau possessed their own areas. The principle of Whanaungatanga ameliorated the harshness that may have been caused had Whakapapa alone determined the way relationships were governed in Maori society. Authority was shared between the elders of the group, and those with senior lineage. The role of mana rangatira included the right to exercise authority over others on the land in the allocating and divesting of land resources. It was constrained, however, by the principle of Aroha which imposed a duty to Atawhai or show kindness towards one s kinfolk. Tuku of land and resources was the main means of demonstrating this. Some resources were shared amongst families, others were held as family resources administered by senior members of the family, for family purposes. The principle of utu balanced aroha in that it sought payment for wrongs committed against members of the group. Disputes with other groups were generally resolved with the support of warriors from related hapu. Warfare had its own set of rules and protocols. Peacemaking was an important part of resolving inter-hapu disputes. The evidence of Pene as an early scribe from the Hokianga area is vital in helping our understanding of these processes. Overall, the purpose of Whanaungatanga as a principle was to acknowledge and preserve the family relationships within the group and to maximise its social, economic and political opportunities.

170 170 The Native Land Court records are valuable in that much of the same evidence is referred to, although in far lesser detail, and many of the claimants have already made claims before the Papatupu Committee for other Blocks of land. These records do not provide evidence of such a detailed nature as to people s relationships on the land in the past, or concerns for the future. The Court is intent on the job of settling matters for the present, and historical information is important in that it will help achieve that goal. Its approach therefore, is outcome-oriented and pragmatic as shown by the distinction drawn between aroha title and tuturu title these being short-hand references to the whakapapa and whanaungatanga linkages held by individuals to lands that are discussed in far more detail in the Papatupu Hearings. A notable difference between the two fora is that in the Native Land Court, great rangatira of immense mana like Re Te Tai, Herewini Te Toko and others became ordinary supplicants for the court s justice.

171 MANA (a) Introduction As a general term Mana refers to the authority and power possessed by a person, group, or thing. The belief that mana originated from the atua meant that it was viewed as an inherent part of the wairua, or spiritual component, of all things. The whakapapa structure that guided Maori thinking, provided an ordered process and a conduit by which mana passed to successive generations through kinship. The concept of Whanaungatanga highlighted the importance of kinship, and the responsibilities owed to one s kin. These two ordering concepts combined with the substantive concept of mana to produce a unified, coherent world that became active when infused with mana. When mana is used in conjunction with other Maori terms as a jural principle, it focuses attention on the authority that is inherent in the process, concept or thing to which it is being attached, and makes it active, substantive, and real. The result is power, strength and motion. The term wairua refers to the source of all authority being derived from an ultimate source that is spiritual rather than temporal. With the addition of mana, Wairua becomes an active spiritual force that permeates and motivates action in things. Atua refers to the various gods known to Maori who are viewed as the source of all authority with the addition of mana, atua becomes the active will, derived from the personality of the specific atua recognised by Maori. The term tangata refers to humans, either singly or as a group. When mana is added, mana tangata refers to the authority that is held and exercised by humans in accordance with birth lineage and life achievements. The term tupuna refers to ancestors. Mana tupuna is the accumulated authority that flows from one s ancestry, which, as an active principle gives rise to land entitlements. Mana whenua, refers to two distinct things, the authority and generating power that is inherent in the land as Papatuanuku, and human territorial authority as it operates on the land.

172 172 As an active principle, mana waxed and waned. In human society, according to Te Rangi Hiroa, mana was not a mysterious, indefinable quality flowing from supernatural sources; it was basically the result of successive and successful human achievements. 279 However, as Marsden 280 points out, the two important aspects of mana, authority and power, are essentially different. The first is described by him as lawful permission delegated by the gods to their human agents. Thus, mana is authority that is drawn from an external source. The second aspect is power to act. Mana is the ability to actually do something physical as the result of using one s authority in a legitimate way. Te Rangi Hiroa s statement reflects only the second, power, aspect of mana. He emphasises successful actions as the physical expression of mana, without taking account of whether or not those actions were legitimated by authority. Thus mana is equated only with successful outcomes, irrespective of any ethical and moral considerations. In practice, however, mana was closely circumscribed by the principles of whakapapa and whanaungatanga. Those who held and exercised mana within a group were expected to act in accordance with the ethics of both principles if their actions were to be accepted as tika, or right and good, ie., in accordance with tikanga Maori, or Maori custom law. Brute force on its own was not tika, or a legitmate use of power, as Poroa s reported rejection of Hongi Hika s and Te Rauparaha s actions in slaughtering opponents after peace was made demonstrates, irrespective of how successful the latter were at it. 281 In terms of the Papatupu and early Native Land Court evidence, discussions about mana centre upon the people living on the land, their relationships to each other, and to their territory. Mana Wairua and Mana Atua are not dealt with in this part of my study as they are not directly mentioned in the Hearings, even though they must have informed the thinking of the speakers. 279 Hiroa, supra note 74 at Marsden, supra note 57 at N Pene, supra note 220.

173 173 In this part of my study I will examine the practical application of the principles of mana tangata, mana tupuna and mana whenua. My discussion of mana tangata will set out the relative mana of the individuals identified in the Hearings, in terms of the authority and power accorded to different status/roles of individual members within a group. Mana tupuna will look at the two aspects of personal mana attaching to lineage, and mana tupuna as a basis for land claim entitlements. Mana whenua will look at the use of mana in establishing and maintaining group territoriality, and the internal regulation of resource entitlements within and between groups. (b) Mana Tangata Mana of Individuals on the Land The clearest indications that we get of the distribution of mana amongst the various individuals identifiable as a stable whanau group are the ohaki of the rangatira when addressing their iwi before death. Re Te Tai relates the content of both his father s and uncle s ohaki in the Waihou/Whakarapa Papatupu Hearings, as well as that of his relation Tiapakeke, who belongs to his parents generation. 282 In Te Tai s ohaki, everyone within the group is acknowledged by the dying rangatira as possessing a degree of mana, which entitled them to a rightful place on the land and some form of tenure. 283 The relative strengths of the relationships on the land are set out, and the message to Re as his father s successor, and to all the others present, is that the mana of each whanau member on the land must be respected in order to maintain the cohesion of the group. While Re clearly has authority as the person with senior whakapapa on the land, he is cautioned on how he ought to use his power to further the wellbeing of the people who are soon to become his responsibility. 282 R Te Tai in Karanga Hokianga, supra note 172 at I use the term tenure to refer to a form of right or entitlement to land held by an individual, having been bestowed by an external authority, and which is accepted as legitimate by other members of the group.

174 174 (i) Introduction Whakapapa, Status and Individual Mana There are two principal ways of describing mana, other than by its derivation and use as an activating force. They are according to whether the mana possessed is inherent, or earned. The broad whakapapa concept of existence in which everything conceivable was linked, provided the structure whereby mana was viewed as permeating all things, including people. However, individuals did not possess the same degree of mana. Those with senior lineage were attributed greater mana than other members of the group. Unchecked, this could have led to a rigid and inflexible hierarchy of authority vested only in senior lines and produced tyranny. However it was held in check by the fact that mana was also ascribed to an individual as a consequence of aging, and actions that were considered successful by one s kin. Warrior ability, gardening ability and peacemaking ability, provide examples of ascribed mana in the west coast Papatupu Hearings. Defeat in battle also affected one s status in society and captives could be stripped of their mana and treated as tonotono (servants), by their captors. (ii) Rangatira The status of rangatira was principally whakapapa based, and reserved to those who held senior lines. The administrative role of rangatira was often shared amongst members of the same family as is found with Te Tai, Te Hira and their mother, Ngakahuwhero in the Waihou/Whakarapa Hearing. Although the main evidence for this is put forward by Re Te Tai, who is the grandson of Ngakahuwhero, it was accepted as tika by the other rangatira who gave evidence and upheld by the adjudicating Committee, all of whom were also local rangatira well versed in tikanga Maori. The role of rangatira was based around active leadership of a group of people on the land. That group consisted of close relatives of several generations, those they had married and brought into the group, distant relatives who may hold stronger whakapapa links to lands

175 175 in other areas, and pononga taken captive in warfare. A group would often take the name of the leader of a particular generation, especially if it was someone who had acquired wide renown for their warrior ability. Hence Ngati Rahiri, Ngati Te Reinga, Ngati Maui, Ngati Rongomai, gave recognition to groups in the Hokianga who were clustered around strong leaders in earlier generations. A good leader displayed the characteristics of aggression necessary for the group to gain territory, the defensive skills required to protect the resources the group already held, as well as the compassion and care required to ensure his or her people were well cared for on the land. The outstanding personage from the Hokianga Hearings, and the material recorded by Pene in Nga Pakanga o Ngapuhi, who demonstrates all these qualities is Poroa, who was both a ferocious warrior who killed in battle at a young age, and a peacemaker whose word, once given, was accepted as binding by his relatives and opponents alike. He not only moved his people from the Hokianga and relocated them in the Ahipara region, sometime in the 1700s, but also drew the line across Te Wharo One Roa a Tohe after the battle with Te Aupouri, which ended the fighting and permanently established the boundary between the two group territories of Te Rarawa and Te Aupouri. 284 By way of contrast, Pene portrays Hongi Hika and Te Rauparaha as demonstrating leadership through warrior ability, but as lacking the qualities of honesty, care and compassion for people that would have made their warfare pakanga rangatira instead of slaughter. 285 a. Mana Rangatira As far as resource relationships were concerned, the rangatira was the individual who held the greatest administrative authority within a group s territory. The evidence from the Hokianga region portrays the extent of the authority a rangatira held over others 284 H Te Wake in Karanga Hokianga, supra note 172 at 11; R Te Tai, ibid at This division set the boundaries of the tribal territories owned by Te Aupouri and Te Rarawa that were upheld by the Maori Land Court in the Investigation of title for Te Wharo Oneroa A Tohe (90 Mile Beach), in NMB 1957, The boundaries are acknowledged to this day. 285 N Pene, supra note 220 at 35.

176 176 actions as being extensive. In both the east coast and west coast Hearings the term mana rangatira is used by claimants to describe the authority of rangatira in land matters. His or her job was to see that the tikanga on the land was upheld. In carrying out the role of mana rangatira the word of a rangatira, once given, was his bond and the measure of his mana. Others relied on it and acted on it as being authoritative. In the Waireia Land Court Hearings, reference is made to the degree of management and control exercised by rangatira. Aperahama Pukeroa says that although he does not know who had control of Waireia during the time of Papahia and Te Tai: 286 But at a later time, Wiremu Tana was to control the affairs of Waireia, and Te Tai was to manage and control the affairs of Waihou. The authority exercised by the rangatira included determining the allocation and disposition of land and resources of the area to those under his or her authority. It also included making decisions concerning the general welfare and activities of the people within the group. Thus, when Poroa decided to leave Hokianga and travel north to seek utu against the people of Ahipara, he gathered all his people and took them with him. The reason given was that he feared that treachery would occur if he left them behind without warrior protection, in the Hokianga. 287 Women with senior whakapapa lines were also rangatira accorded great mana. Within the Hokianga region women appear to have been as influential as men in exercising administrative roles and looking after people on the land. Women are often stated as founding ancestors. Kohinemataroa, the cousin of Rahiri, crossed the Hokianga harbour and claimed the area in north Hokianga for her descendants. 288 Taimihitata, 289 who was the sister of Te Reinga, held lands and authority within the Hokianga area. Ngakahuwhero, 290 exercised authority over both people and lands within the region. In 286 A Pukeroa, Waireia Hearing, supra note 175 at H Te Wake in Karanga Hokianga, supra note 172 at R Te Tai, ibid at Ibid at Ibid at 88, 91, 97, 98, 100,106.

177 177 the Waireia Block, the founding ancestor, Moetonga, and the modern ancestor Ihengaiti, were both female. Although these women are generations apart, and located in adjacent Blocks of land, they all possessed senior whakapapa lineage and exercised authority within the area during their lifetimes. An insight into the important role that women played in securing the whakapapa lineage to the land is given by Re Te Tai, 291 when describing the events of his father s birth. Ngakahuwhero, Re Te Tai s grandmother, married Muriwhenua who was a rangatira from Ngati Manawa. When she was ready to give birth to her first child, Muriwhenua took her north so that she could be with the elders at Whangape. The rangatira present at the birth represented a gathering of senior Ngapuhi whakapapa lines from the central Tai Tokerau area. Tungutu, Pakurakura and Kahi, the children of Tarutaru and Ruapounamu were present, as well as Muriwhenua s relations, Pou, Te Whitu, Kingi and Te Haruru. After the birth, they remained until the umbilical cord had withered and fallen off. Once the iriiri ceremony of dedication had been conducted for the child, speeches were made to Ngakahuwhero by her elders. Poroa asked her to bring his nephew back to the mountains of Waihou, Whakarapa and Motuti. Kahi said he did not want his grandson left at Whangape or Herekino either, as it was a bad place. Te Whitu agreed. The elders made a tuku of Waihou, Whakarapa and Motuti to Ngakahuwhero for Te Tai. Kahi is recorded as having made the tuku and the others as having agreed. Muriwhenua s relations were embarrassed by the size of the tuku made. In response, Te Whitu made a tuku of Te Hiahia to Ngakahuwhero for Te Tai. What was the nature of the tuku made? It would have been a gift of broad territorial authority over the areas currently held under the mana rangatira of those making the tuku. It would also have been in the nature of an invitation to take up a leadership role in the areas named, including a moral obligation to continue the family strength on the land and to take responsibility for others living there. The unspoken assurance that backed the combined words of the rangatira was that their gift would be supported by physical force, if necessary. 291 R Te Tai, ibid at 79.

178 178 Ngakahuwhero returned to Whirinaki, on the south side of the harbour, with Muriwhenua and Te Tai. She later moved across the Hokianga Harbour to Waihou, bringing others from Whirinaki to keep her company. The mana that Ngakahuwhero accepted for her son was later shared by him with his brother Te Hira. When Te Tai was an old man and giving his ohaki, he reminded, Re Te Tai to look after the people his mother had taken from Whirinaki to keep her company and also to look after his sisters. 292 Mana and responsibility for others seemed to go hand in hand, so that as one grew so did the other. The retention of mana invested by the group in its rangatira depended on how well it was deployed to improve the wellbeing of the group, and the availability of optional living arrangements in other places. Close kinship between groups meant that people frequently shifted from place to place for varying periods of time, to be with relatives. Not all Poroa s people left the Hokianga region when he went to Ahipara, some remained and merged into related groups. Others returned after the battle at Oneroa. Rangatira status appears to have been gender neutral, and comprised several roles that were often shared among members of a family. Although modern acknowledgement of rangatira status links group leadership roles to males, this is probably due to the importance of the warrior role in protecting the group. On the land however, these Hearings show that women s authority was just as strong, and sometimes even stronger, than that of men. A more accurate role division may have been along the lines of women holding the land, while men protected it. (iii) Tohunga There is little information provided about Tohunga in the Papatupu and Land Court Hearings. Brief mention is made by Heremia Te Wake in the Waihou/Whakarapa Hearings of Te Huakioterangi being subjected to black magic by Rapanga, and utu being 292 R Te Tai, ibid at 105.

179 179 sought by his relatives for his death. 293 In the Waireia Hearings, Wiremu Rikihana states that witchcraft was suspected to have been used against his sister by Hau and Tana Hui, and that his father wanted to shoot them but was dissuaded from doing so. 294 The Papatupu Hearings took place at the beginning of the 20 th Century, less than 10 years before the passing of the Tohunga Suppression Act At this time the practices of the Tohunga would still have been in evidence, and the role of tohunga as conductor of rituals for the group, still in use. Tohunga were often senior members of the resident group. Mention is made by Re Te Tai, of his uncle, Te Hira, having fifty people to look after his needs, and being too tapu to work on the land. 295 This inability to work with the land is at odds with Te Tai s own actions as the older sibling and rangatira, of being actively engaged in working on the land with his people. According to Hinerangi Rapihana, 296 the restriction on Te Hira would have been because he had been dedicated to spiritual matters and wananga learning in other words, he was a tohunga. Therefore, physical association with ordinary things would have infected them with his mana and tapu and made them dangerous to other people. For this reason he would not have engaged in manual labour. Why were such matters not given fuller coverage in these Hearings? Possibly because spiritual matters were considered in house, and not directly relevant to the division of land and change of land tenure system that was taking place at the time. There are other possible reasons. Christianity had taken firm hold in the area and had supplanted many of the old belief systems, including those associated with the role and power of the tohunga. Furthermore, these Hearings heralded the advent of a new system in which the tohunga had no role to play and the authority of the rangatira would become seriously undermined. The recognition of individual shares in land by the Native Land Court, replaced the administrative authority of the rangatira and the spiritual sanctions of the tohunga, with judicial and legislative recognition of an individual s place on the land. 293 H Te Wake, ibid at W Rikihana, Waireia Hearing, supra note 175 at R Te Tai in Karanga Hokianga, supra note 172 at Interview with Hinerangi Rapihana at Kaitaia on 6 February, 2005.

180 180 Another reason why tohunga are not mentioned is that there was growing concern throughout Aotearoa/New Zealand in the late 1800s and early 1900s as to the influence that was being asserted by tohunga within various Maori communities. Although tohungaism was not yet a banned practice, the mana of the tohunga appears to have diminished to the extent that the institution was now widely regarded as a fraudulent pretense at being able to heal illness. As a consequence, section 16 (5) of the Maori Councils Act 1900 gave Maori Councils powers "for regulating the proceedings of tohungas, and the punishment by fine of those (whether European or Maori) who practise upon the superstition or credulity of any Maori in connection with the treatment of any disease." This diminution of mana meant that the institution as a whole became subject to suspicion and may be why Maori avoided any mention of the term in the Papatupu hearings, even though practices associated with tohungaism undoubtedly continued within the community. (iv) Kaumatua/Kuia Respect for whakapapa connections meant that ancestry was important in Maori society. Amongst the living, the idea of respect for senior generations meant that the elders of a community had great value and were treated with respect. In practice, respect for one s elders provided an inter-generational balance to strict adherence to authority derived from senior lineage alone. Elders supported the younger generation leaders. Before his death, Te Tai asked Tawio to return to the area hoki mai hei matua mo a taua tamariki na return as parent for our children here. 297 Young rangatira generally conferred with and deferred to elders of the group, including distant relatives of lower status. Such relationships were marked by great affection, as is demonstrated by the relationship between Re Te Tai and Tiapakeke. 297 R Te Tai in Karanga Hokianga, supra note 172 at 109.

181 181 The status derived from senior whakapapa, when combined with generational seniority, produced a strong role for kuia, or female elders, in managing relationships on the land. Not only did they hold areas of land under their own authority as members of the rangatira line, but they were also able to control the behaviour of others within the group, including being able to forestall the imposition of sanctions for offensive behaviour. In this respect, senior women were able to fulfil the protective role of extending atawhai to others within the group, by protecting them from physical harm. So for example, when Kaumatua, an elderly relative from Whirinaki, ran off with a servant of Kaihu named Pehapeha, they hid in the Whirinaki forest for three days because Kaumatua believed members of Ngati Tuapango would pursue and kill him. He then crossed over to Orongotea where Ngakahuwhero was staying and asked her for refuge. She made tuku of a garden area in order that he could support himself and his new wife. While tending his garden he was accused of trespassing on the garden of his neighbour, Pou. He was pursued by Pou, who wanted to kill him. He again sought Ngakahuwhero s protection. She intervened and sent him to live at another place, at Raumati. While there he accused members of Ngati Manawa of stealing his pigs. Ngati Manawa threatened to kill him for the accusation. Ngakahuwhero once again intervened and ordered them to leave his things alone. She then sent for Haaiti, another of her relations and asked him to look after Kaumatua. Haaiti agreed and Kaumatua and his wife were taken to Pongipongi headland where his task became to light signal fires for the waka at sea. 298 Without the exercise of her authority, Kaumatua would probably have been killed for any one of his three offences. Likewise, when Ngakahuwhero s sons, Te Tai and Te Hira got into a serious quarrel with their elders at Whangape over land issues, she reminded them of their obligations as rangatira towards others, with the words: Ibid at Ibid at 97.

182 182 E koro ma, kia atawhai ki o korua tuakana, ki o korua maatua E koro ma, me waiho tenei whenua, mo o korua maatua, tuakana, teina hoki. Meake o korua maatua hoki, i tena mahi. Me hoki tatou ki Waihou, ki Whakarapa. English Translation Children, atawhai your tuakana, your maatua Children, leave this land for your maatua, tuakana, and teina. This work is for your maatua. Let us return to Waihou, to Whakarapa. The children and their mother shifted back to their lands at Waihou. Although it is likely that Muriwhenua accompanied the children and their mother, he is not mentioned in discussions because it was Ngakahuwhero s authority that was greater on the land in the Waihou/Whakarapa area. It was usual for senior women to take their relatives when they went to live in other areas. Ngakahuwhero was accompanied by her relations when she left Whirinaki and moved across the Hokianga river to Waihou. Later, when her grand-daughter, Tuha, married Puriri against her father s wishes was banished to Whangapatiki, she also took others with her as company. While at Whangapatiki, she held the mana for that land. Puriri accompanied her and lived there under her authority. Re Te Tai worked with Tuha and Puriri on her gardens. After she died Puriri continued working there by himself. When he was near death he gave his ohaki, which Re Te Tai relates as follows: 300 E koro, ko au te kai tahu ahi a o matua ki runga ki Whangapatiki, i o tupuna, tae noa mai ki o matua. Ko tenei ka mate nei au, me hoki koe to kainga noho ai, ki Whangapatiki, ki te Hiahia. English Translation Child, I am the fire lighter of your father on Whangapatiki, right from your tupuna down to your father. Now that I am nearly dying, you return to your place to stay at Whangapatiki, at Te Hiahia. 300 Ibid at 88.

183 183 On the authority of these words, Re Te Tai returned to Whangapatiki and began working on the gardens. The related interchange is interesting as it shows that although Re Te Tai was the senior person on the land after Te Tai s death, he took his authority to return to the land from the words of Puriri, as his elder, even though Puriri had no authority on the land. (v) Warriors Warriors were highly prized in Maori society, as they were the primary means of protecting the group and its resources from outside aggression. Warrior status was achieved by demonstrating prowess in combat. The battles recorded by Pene in Nga Pakanga o Ngapuhi show that the prowess of individual warriors quickly became widely known, and could deter others from making incursions into a group s territory. Ironically, warrior strength in one group also encouraged individuals from other groups to seek out opportunities to prove their superiority. Alliances amongst strong warrior rangatira maximised the likelihood of a successful outcome when engaging in pakanga with other groups. Close kinship between groups also meant that alliances could change in successive pakanga. The Hokianga Hearings highlight the fearsome warrior ability of several rangatira including Te Reinga, Poroa, Houtaewa, Moetara and Hongi Hika; the Waireia Hearings highlight Tarutaru as a huge monster emerging from a pit, striking terror in his opponents. 301 On the east coast, the Okuratope and Matawaia Hearings highlight Auha, Whakaaria and Kauteawha, as outstanding warriors. Nga Pakanga o Ngapuhi reinforces the Hearings evidence and gives details of the pakanga led by these individuals and others, within Tai Tokerau and other areas. Women sometimes accompanied men into battle and fought alongside them. Te Ruawai went with Te Rarawa to Waimimiha, under the leadership of Poroa. She acquitted herself well, killing a man in hand to hand combat before being killed herself. 302 Ruapounamu, 301 W Rikihana, Waireia Hearings, supra note 175at H Te Wake in Karanga Hokianga, supra note 172 at 10.

184 184 the wife of Tarutaru, is also described as a warrior in the Waireia Hearings. 303 However, the written records depict men as being responsible for most of the fighting. Women were often the cause of pakanga. Koo, the sister of Te Kaka, who was a rangatira of Te Aupouri, was killed for accusing the servants of Kaha from Te Rarawa of stealing her kumara, sparking a series of reprisals before peace was made. 304 Women with senior whakapapa lines were also killed as a way of diminishing the mana of another group. When members of Ngati Whatua kidnapped and killed Te Ripo at Maunganui Bluff, Tungutu, Pakurakura and others crossed the Kaipara harbour to seek utu, sparking the battle which bestowed the name Te Rarawa or the people of extreme, on their descendants. 305 When Te Koiuru s cloak was worn by another woman, her husband, Papahia, arranged a taua to seek utu for the trespass to her mana from those who had worn her clothing. 306 Not every action precipitated a violent response. Given that self-sufficient groups were relatively small, alliances and support from others was needed for success to be a realistic expectation. Few groups appear to have been large enough to be totally independent in battle. For this reason, groups often waited until a number of grievances had occurred before combining to seek utu. Poroa s decision to attack Te Aupouri at Ahipara was the culmination of several grievances built up over a period of time, including the death of his father, Te Pa. The decision by the children of Tarutaru, to attack Ngati Whatua after the death of Te Ripo was the culmination of several deaths resulting from Ngati Whatua raids into the Hokianga/Whangape region. When a group went into battle it remained under the leadership of its rangatira and could withdraw at any stage. The advantage that Ngapuhi had over other groups was the large 303 H Paaka, Waireia Hearings, supra note 219 at R Te Tai in Karanga Hokianga, supra note 172 at Ibid at Ibid at 85.

185 185 number of kin groups they could call upon for support. Hence the name Ngapuhi kohao rau or Ngapuhi of many holes. (vi) Gardeners For people living at subsistence level, the possession of natural food resources was paramount to survival. The production of food for the group through cultivating land and sea resources was also important. Individuals who grew big gardens, were successful at fishing, trapping and hunting, were attributed mana for their success in these ahu whenua or gardening activities. In the Hokianga region, gardening was a major activity in which women seem to have taken the responsible role, although men were also involved. The rules and practices surrounding the cultivation of gardens are not directly referred to in the Papatupu and Land Court Hearings. The only indication given of the severity of rules relating to gardening, is that of Pou pursuing Kaumatua to kill him for trespassing on Pou s garden, 307 and Irihau of Ngati Manawa being stabbed in the leg with a spear by the son of Te Tihi of Ngati Korokoro, for boasting about his crop of riiwai that he had just eaten. 308 The only elucidation on the reason for this action is Heremia te Wake s statement that riiwai were very tapu at the time. The application of tapu to "riiwai" is an example of the extension of existing thinking concerning tikanga to cover new crops that were introduced after colonisation. The restrictive nature of the rules and practices associated with the principle of "tapu" is discussed in detail in the next part of this Section. That riiwai were subject to the same protocols of behaviour as applied to the growing of kumara would mean that every stage of their development was subject to restrictions associated with preparing the ground, planting, weeding, harvesting and storage. In addition, use of the term "tapu" could also allude to the importance of the crop in an economic sense, and the high value placed on it throughout the wider community. Boasting about eating something of such high value offended against community values which highlighted sharing and was likely to have 307 Ibid at Ibid at 11.

186 186 been construed as an assertion of mana, in an economic sense, over that of the group being visited. Senior women within a group exercised authority over their own food producing resources. Kohinemataroa established kumara gardens when she first entered on to the land in North Hokianga. Taimihitata had extensive gardens at Ahimoho, Papakuwhenua, Whakarapa, Te Raekaikoa and Kiwitangiao. Some of these were hers alone while others were communal gardens shared by the community as a whole. 309 According to Re Te Tai, Te Reinga also made a tuku of land to the uri of Taimihitata and Rakeiti and set aside a communal garden for them at Whakarapa. 310 Ngakahuwhero had several large gardens, which she worked on with her followers at several places in North Hokianga. 311 Gardening areas appear to have been passed from generation to generation, with the main root of title linking back to the original founding ancestors. Senior lineage does not seem to have prohibited participation in the manual labour. Te Tai often worked alongside his mother, uncles and servants in the gardens despite his seniority, and this did not diminish his mana, rather it appears to have enhanced it. Although Te Hira did not engage in manual labour to the extent of Te Tai, he also appears to have held the same degree of authority on the land and amongst the people. In the east coast Hearings, gardening is not a feature of the claims, instead most derive from raupatu or take tupuna. (vii) Pononga The status of pononga was imposed on pakanga survivors whose mana had been diminished through loss, or who had been taken captive. In the Hearings, pononga are referred to only as part of the backdrop against which activities concerning other members of the group, occur. According to Hinerangi Rapihana, 312 the role of pononga was that of a tonotono, or servant, who did whatever the person who had captured them 309 H Karaka, ibid at R Te Tai, ibid at Ibid at Interview with Hinerangi Rapihana at Kaitaia on 6 February 2005.

187 187 demanded. Although pononga could become absorbed into the victorious group over time, she says that they rarely married into the group, as with Kaumatua and Pehapeha, nor were they treated as equals. To take a pononga as a spouse was to whakataurekareka or reduce one s own mana in the eyes of the group. Generally, pononga lived out their lives as servants of their captors, although there are several instances of rangatira adding pononga to their existing wives. This reasoning explains why the descendants of Te Puata and Te Kemara, in the Native Land Court Hearings for Opito in 1898, 313 claimed that their tupuna was not a slave wife who had been captured as part of the raupatu of the area, but a rangatira who had maintained her whakapapa strength and entitlements on the land through strategic marriage. (viii) Conclusion There is no specific gender distinction in the status or roles accorded to men and women in the Papatupu and Land Court writings. Mana appears to be gender neutral as far as it applies to authority on the land, and men and women work alongside each other. Men were dominant in the role of protecting land and people from invasion by other groups, and, therefore more men acquired mana from being strong warriors. Women could also derive mana from taking part in battles, as the participation of Te Ruakuru at the battle of Oneroa in Ahipara, illustrates. There is no evidence to suggest that Te Ruakuru's example is a single instance. There is also evidence that men and women combined to garden and fish, irrespective of status. Whakapapa lineage is the main determiner of inherent mana, and physical ability its main enhancer. Mana determined ranking within the group hierarchy. Group formation was flexible and changed as fortunes waxed and waned and people died, married, were born, and moved about following their extensive whakapapa connections. In theory, the group can be seen as an alliance of individual mana, or an amalgam of the mana essential to maintain group 313 Supra note 230.

188 188 security, survival and welfare at a given time. In practice, mana was evidenced by the individual talents and skills exhibited by its members in activities associated with foodgathering, travel, warfare and looking after one s kin. In this sense, a group s mana was the sum total of its individuals achievements at any given time, as exercised in accordance with the principles of whakapapa and whanaungatanga.

189 189 (c) Mana Tupuna (i) Introduction Mana Tupuna had a dual aspect. First, it emphasised whakapapa descent from specific ancestors. Within Ngapuhi, everyone can trace descent from Rahiri, and is entitled to share his personal mana as a great leader. Shared identity provided a common basis from which other matters requiring group cohesion, such as pakanga, could also be approached in a unified fashion. Second, as a principle of land tenure, mana tupuna was a recognised source of localised property entitlements. The Papatupu Hearings involved claims to land within specific Blocks, where ancestral entitlements and authority were still recognised according to tikanga Maori. In order to be successful in claiming an interest in the land, claimants had to provide evidence of an ancestral claim to a known piece of land, which was still in existence, and to which no better claim existed from another. (ii) Hokianga Hearings In the Hokianga Hearings, Heremia Te Wake challenged the claims put forward by Te Hira Mataika to having ancestral links to land at Whakarapa and Waihou: 314 Ko te keehi a Te Hira Mataika i raro i aana tupuna i whakatu nei mo Otupahero, me Te Papa, e whakahe ana au. Ko Uenuku ma, kei Whangape nga wahi e tika ana ratou. Ko Ngono ma, kei Matangawhi nga wahi e tika ana ratou. Ko Tangaroa Tupo, e tika ana ki te wahapu o Hokianga, i te wa i a ia. Kaore i tika ki te whenua nei. Ko Tupoto, ko Miruiti, kaore i tika ki tenei whenua, kei tera taha o Hokianga, ahu atu ki roto nga wahi e tika ana raua. I noho ano ia a Tupoto ki Matawera, engari kua pua ke tana wahi, ehara ia i te noho tuturu. Kaore rawa i whai take a Tupoto ki tenei whenua. English Translation 314 H Te Wake in Karanga Hokianga, supra note 172 at 25.

190 190 Te Hira Mataika s claims to Otupahero and Te Papa under several tupuna are not tika Uenuku belongs at Whangape, Ngono and others should be at Matangawhi where their tika are. Tangaroa Tupo had tika at the mouth of the Hokianga during his time but none to this whenua. Tupoto and Miruiti have no tika to this whenua, on the other side of the Hokianga and inland is their tika. Tupoto stayed at Matawera but he was not a tuturu [permanent] resident. Tupoto had no tika to this whenua. The term tika means in accordance with tikanga Maori, or the Maori custom law principle of mana tupuna. For a claim to be tika would require the ancestral connection to be established in a prior generation and carried on by the descendants of the original ancestor, without there being a stronger, competing claim. In this korero, the ancestors set up are not challenged as being incorrect, they are challenged because they do not link to the Block under claim. The Papatupu Committee rejected the claim of Te Hira Mataika, stating that they were well aware that his causes were not tika because the ancestors claimed under, Uenuku, Kumara and Ngono, had all fled on to the Block from somewhere else. On their arrival they had lived under the authority of their son-in-law, Kahi, who was a descendant of Te Reinga. 315 Therefore, the descendants of Kahi had a stronger ancestral claim, based on long term, permanent authority being exercised on the land. Although Te Hira Mataika could still ask to be included because his ancestors had occupied the land, he could not claim the land as of right because the authority on the land was neither his, nor his ancestors. (iii) Waireia Native Land Court Hearings 1913 In the Waireia Hearing, Herewini Te Toko is acknowledged by the Court as the main claimant for the areas of Te Peke and Pupuwai. His claim for Te Peke relies on two female ancestors, Ihengaiti who is 5 generations past, and Moetonga, 13 generations past, whom Herewini sets up as the original root of title. His ancestors for Pupuwai are both male. They are Ngono who is 4 generations past, and Tangaroa Tupo who is Decision of Papatupu Committee, ibid at137.

191 191 generations past and who is the original root of title. In his evidence, Herewini gives his age as being over 70 years old. 316 This would place Ngono s lifetime as being in the 1700s and Moetonga and Tupo as being in the 1500s or 1600s. 317 Pupuwai is the only land over which Ngono had rights. I do not know of any other land. Pupuwai did not form part of Moetonga s estate. The whole of the land extending from the Wairoa Block to the Coast, belonged to Tangaroa Tupo. Te Peke belonged to Moetonga. It was in the time of Tarutaru, Ihengaiti and Ngono, that these lands were divided, that is, the Block before the Court. I deny the statement made, that Maruwhenua gave Pupuwai to Ngono. Each of these ancestors and their respective descendants after them occupied the several places of land, down to the present day. Herewini identified three territorial divisions as having been made in the territory under claim. The first division was made by Tangaroa Tupo and Moetonga and is very early in the genealogical time frame. The modern ancestors, Tarutaru, Ihengaiti and Ngono, also established new boundaries. These had held for the past four generations. Later Herewini says that the boundary line dividing Te Peke and Waireia has been altered by him and Hare Papahia, as the main descendants for that area. 318 Herewini identifies Tarutaru as the modern ancestor for Waireia, and Pakurakura and his mother Ruapounamu as the modern ancestors for Waihou. 319 Ihengaiti, Ngono and Tarutaru are contemporaries, which places them as living in the 1700s. He also says that Re Te Tai s party and Rawiri Pukeroa s party should be confined to Waihou, because their ancestors, Maruwhenua, Tarutaru and Ruapounamu had no entitlements to Pupuwai, 320 based on ancestral connection or occupation. 316 H Te Toko, Waireia Hearings, Ibid at Ibid at Ibid. 320 Ibid.

192 192 Herewini s evidence is accepted by the Court as tika. His evidence shows that the mana rangatira of Re Te Tai, acknowledged as being the main claimant for the adjoining blocks of Waihou and Whakarapa, did not extend into the Waireia area, where he is one of the minor claimants. The inference from the size of the Blocks claimed and the localised nature of claims, is that whanau groups occupying the land were not very large and that there was a lot of movement between the various groups on the west coast. Later on Herewini Te Toko says that Waireia, Te Peke, Wairoa and Matihetihe, formerly belonged to Moetonga. Tangaroa Tupo and Moetonga fixed the boundary between them. The boundary had since been altered at several places, which he names. 321 He says the boundary line between Te Peke and Wairoa is an ancestral one laid down by Ihengaiti and an ancestor for Wairoa Block. 322 He identifies the Blocks under Tangaroa Tupo as being Ngatuakaa and Kahakaharoa. 323 The detail in the evidence provided by Herewini Te Toko shows that he is intimately acquainted with the area to which he is making claim. The Court said there was overwhelming evidence that the tupuna set up by Herewini Te Toko were correct, and confirmed the ancestor for Te Peke as being Ihengaiti and for Pupuwai as being Ngono. The Court also agreed that it was clear that Ngono s rights for Pupuwai were derived from Tangaroa Tupo and not from Moetonga. 324 Ngakuru Pene had also set up a claim to Waireia under the ancestors, Ngarowiwi, Papa, Te Paenga and Koangi 325 and the later ancestors of Maraewhiti and Taoi who were descendants of Moetonga, 326 and whom he claimed had established rahui on the land Ibid at Ibid. 323 Ibid at Ibid at N Pene, Waireia Hearing, ibid at Ibid. 327 Ibid at161.

193 193 Te Peke and Waireia were at one time, one block, but divided afterwards, by the descendants of Moetonga. That is why I set up different ancestors for each. Pupuwai is part of Waireia. Huna married Tangiawa, a descendant of Moetonga. Tangiawa is a daughter of Ihengaiti. 328 The Court restricted his entitlements to the adjoining, Wairoa Block. Although his parents had lived on Waireia, they had done so under the authority of Rikihana, while his grandfather, Te Rua, had lived in the area under the mana of Whakarongouru. 329 Furthermore, because other claimants who descended from Ngarowiwi, Papa, Paenga and Koangi had chosen Ihengaiti as the proper ancestor for Te Peke, and placed their claim under that of Herewini Te Toko, the Court felt unable to recognise Pene s individual claim. 330 Herewini and Atama s claims have been recognised by both claimants, thus evidencing sufficient testimony of the strength of their case, and, it is a significant fact, that not one claimant, or counter claimant, has admitted the rights of Ngarowiwi to a share of Te Peke, or any other part of the block before the Court. As to the other ancestors set up for Waireia, namely, Maraewhiti and Taoi, we are of the opinion that in their day, they had undoubted rights, but with the exception of the descendants of Maraewhiti s daughter, Tangiata, those rights have become extinct. The Court dismissed Pene s individual claim based on the ancestors Maraewhiti and Taio, 331 because it had become mataotao (cold), the descendants having permanently left the land. His parents entitlements were weaker than that of other claimants to the area and he was therefore, subsumed under Herewini Te Toko s claim. The Court was of the view that Pene s ancestral claims under Maraewhiti and Taio would be stronger to the adjoining block of Wairoa. 328 Ibid at Decision of the Court, ibid at Ibid. Pene was, nevertheless, considered to be a learned man within Te Rarawa, and the knowledge collated in the manuscript Nga Pakanga is accepted as reliable information by other members of the group. 331 Re Te Tai had also raised this ancestral connection in the Waihou/Whakarapa Hearings, but had chosen Ihengaiti as a more modern ancestor for the Waireia Hearings instead. See evidence of Re Te Tai in Karanga Hokianga, supra note 172 at 87.

194 194 (iv) East Coast Papatupu and Native Land Court Hearings Widespread raupatu on the east coast, meant that there was a lot of dispute as to the correct founding ancestors for particular areas. Groups of Ngapuhi from the central Tai Tokerau region had overrun the coastal groups and re-populated large sections of the east coast. In the Hearings, descendants of the original inhabitants asserted their ancestors as being the source of good entitlement to lands based on mana tupuna, while descendants of the raupatu rangatira claimed that the mana of the prior ancestral line had been reduced in status from mana rangatira to pononga. In Rawhiti, this was further complicated by Te Kemara marrying Te Puaatea, a Ngare Raumati woman, moving to Moturoa Island at Rawhiti to live and have children with her, before moving back to his former people on the mainland. 332 In the Mangonui, Te Tii, Waimahe Papatupu Hearings, 333 the Committee was faced with claims of successive raupatu having taken place. The reports are confused and piecemeal in their recording of facts, with some of the original occupants having remained on the land. The Papatupu Committee resolved competing claims by the practical expedient of awarding both parties shares in the land. In this way the existing and ongoing relationships between the people on the land were protected for the future. The Okuratupe/Waimate 334 Papatupu Hearings are very clear that Auha and Whakaaria are the ancestral source of title, by virtue of a raupatu against Ngati Miru and Wahineiti who were the prior occupants of the Waitangi area. Auha is the grandfather of Hongi Hika who lived in the early 1800s. This dates the raupatu as being somewhere in the 1700s. The people had been successfully driven from the land and the mana of the descendants of Auha and Whakaaria were firmly established as the new occupants of the area. From this cause a new root of title based on mana tupuna had emerged and consolidated itself on the land. 332 TW Hakuene, Opito Hearing, supra note 186 at Te Tii, Mangonui, Waimahe Hearings, supra note Okuratope/Waimate Hearings, supra note 255.

195 195 (v) Conclusion Ancestral lineage could be claimed from either an older root of title, as in the Whakarapa and Waihou Hearings, or more modern ancestors who had divided the land in later generations, as in the Waireia Hearings. However, there had to be a proper root of ancestral title from which a good claim could be made. Occupation on its own was not sufficient, unless a tuku had been made by the incumbent rangatira. On the east coast, confusion arises as to which of two competing roots of entitlement is to prevail in situations where a raupatu has occurred but the prior occupants had not been completely driven from the land or subdued. Given the process of change that was taking place, the Papatupu Committees and the Native Land Court both resolved the issue by looking at occupation as proving prima facie entitlement, and then take tupuna as determining the correct allocation of shares amongst the applicants. This process was facilitated by encouraging claimants to hold hui to decide the proper allocation of shares amongst themselves before a hearing. Any arrangements made could then be supervised and implemented by the Committee/Court.

196 196 (d) Mana Whenua Mana and Territory (i) Introduction There is no mention of mana whenua as a single principle of Maori land tenure in the Papatupu Hearings for the west or east coast areas. The terms te mana o te moana (the mana of the sea) 335 and te mana o te whenua katoa (the mana of the entire land) 336, te mana o Ngati Korokoro (the mana of the group known as Ngati Korokoro) 337 and te mana o Te Tai raua ko Te Hira (the mana of Te Tai and Te Hira) 338 are used to associate mana with both people and resources. The relationship of authority linking people and resources is generally described as mana rangatira to denote the active authority operating within the territory, and mana tupuna to denote the ancestral source of that authority. As a principle of Maori custom law, mana whenua is a useful modern innovation because it combines the notions of the land having its own mauri and mana with the political power associated with group territoriality. In this way the concepts of mana atua, mana wairua and mana tangata are merged with that of whenua as an active, life generating source. In this part of my study I will set out what appears to have been the accepted means of acquiring and maintaining land entitlements within Tai Tokerau. This will cover the activities of Huaina Whenua (naming), Tuku Whenua (granting land to others) and Raupatu Whenua. I will also look at the evidence provided by kaumatua as to how group territories were maintained by rangatira setting boundaries between groups, and maintained by Ringa Kaha (strong arm). 335 H Te Wake in Karanga Hokianga, supra note 172 at Ibid at Ibid at R Te Tai, ibid at 60.

197 197 (ii) Huaina Whenua Naming the Land The acquisition of territory over which no prior claim existed was publicly notified through the process of naming various places on the land, and then subduing the land by overlaying it with one s personal mana, by either establishing gardens, or regularising the use of its resources. Authority derived from the personal status and mana of the original claimant being recognised and continued by his or her descendants. There is no information which points to pononga (servants) being able to acquire unoccupied territory on their own behalf, although they often accompanied others who did so. But those with strong senior whakapapa lines from within an established group could acquire territorial rights in this way. Re Te Tai relates 339 how the neice of Rahiri, Kohinemateroa, walked over the land at Waihou and Whakarapa, naming various places. Before this, according to Re, the land was unoccupied. It is unlikely that no-one had ever crossed the land before, so lack of occupation probably relates to two things: first, that no other group had previously laid claim to the area, and second, that acts signifying the taking of possession of unoccupied territorial possession were performed by Kohinemataroa. Re recounts an initial journey made on her own and then a subsequent journey accompanied by her son, Rongomai. The recitation sets out in detail the places where Kohinemateroa stopped and the activities she engaged in at each place. The areas included Waireia, Waihou, Oruaanui and Patiki. The combined actions of walking the land, interacting with it and naming places, established her mana on the land. This mana was reinforced when she returned with her people to work the land, growing extensive kumara gardens at Waihou and Whakarapa. Her mana rangatira passed to her son, and her mana tupuna to all her descendants. Kohinemateroa was a member of Ngati Rahiri who lived at Te Kakaho on the south side of the Hokianga river. Waihou, Whakarapa, Motuti, and Whangapatiki were all hers according to Re Te Tai. While she was working at these places she lived at Waihou and 339 Ibid at

198 198 Whakarapa. She did not live permanently on the land in North Hokianga but only came to garden and then returned to Kakaho in South Hokianga. Her children also grew up at Te Kakaho. Her mana on the land passed to her descendants and they took over her work when she died. Ngati Rongomai and Ngati Maui 340 worked the land after she died. No other group challenged their presence in the area or their work there. When Kohinemataroa s grandson, Matauturangi, married the daughter of Maui, members of Ngati Maui came on to the land as well. Kotete and Matauturangi later moved permanently to the Waihou and Whakarapa side of the Hokianga, consolidating their claim with permanent occupation and extending their territory to Motuti and Whangapatiki. Another story which details walking over territory and naming various places as the basis of territorial authority is that of the rangatira Tohe traversing Te Wharo One Roa A Tohe, (Ninety Mile Beach) which was related by kaumatua in the Muriwhenua Ninety Mile Beach claim before the Waitangi Tribunal in Tohe was accompanied by his pononga, Ariki. As they walked along the beach, he named various places, some of which are still current today. That process of naming was the basis of the modern claim of Te Aupouri and Te Rarawa to "ownership" of the beach in terms of their still holding the mana of the region in The claim was successful in the Maori Land Court but was lost on a point of law in the High Court. 342 The Court of Appeal upheld the decision of the High Court. The legal impediments preventing Maori having their customary title recognised under New Zealand law were effectively over-ruled by the Court of Appeal in the 2003 case of Ngati-Apa v AG Ibid at Oral evidence of Ross Gregory, Muriwhenua Hearing, February Brief reference is also made to this journey by Urlich-Cloher, supra note 170 at Wharo One Roa A Tohe (90 Mile Beach) Investigation of Title, 15/11/57. NMB 1957, , Chief Judge Morison. 343 Ngati Apa v AG [2003] 3 NZLR 643. This avenue opened by this case was narrowed considerably by the Foreshore and Seabed Act 2004, whose draconian provisions prevent all but minimal Maori entitlements to the foreshore being recognised under New Zealand law.

199 199 Both stories indicate that physical contact with unclaimed territory by walking over it, interacting with the different places and naming were accepted ways of establishing one s mana over particular territory. The rationale behind these practices was that, everything possessed a degree of mana. When human mana came into contact with that of the land the result was never neutral. The outcome depended on the degree of mana held by the human. Rangatira had immense mana, drawn partly from whakapapa and reinforced by that which their followers attributed to them. The meeting of mana with mana produced a spiritual connection which formed the basis of a potential Maori property relationship. The idea of what takes place is closer to layering than to a merging of the two distinct forms of mana. Human mana was superimposed over the mana of the land and reinforced with every interaction. Once contact had been established, the authority to which it gave rise remained on the land and was passed from generation to generation by whakapapa. In the process of subduing the land, naming served as notification to others that possession had been established. A claim based on mana could be further reinforced by an accompanying claim based on the Tapu attaching to rangatira. Once the tapu of a rangatira had been linked to resources through naming, those resources became infused with his or her tapu. When rangatira died and their bones were permanently placed within the earth this consolidated the claim. In this way the concepts of tapu and mana were used as jural principles for the establishment of territorial rights amongst Maori. (iii) Tuku Whenua Granting of land entitlements to others The principle of tuku whenua recognised the authority of those who exercised mana rangatira to grant land entitlements to individuals within the group s territory, or, to another rangatira when the group left its territory.

200 200 a. Temporary tuku when leaving territory Sometimes rangatira made tuku of their entire territory to another rangatira on leaving the area. When Poroa left Hokianga to travel north to Ahipara to seek battle with Te Aupouri, he took all his people with him. Rangatira from other groups, including Ngapuhi and Ngati Manawa also went to support his cause. According to Heremia Te Wake, on leaving the land Te Rarawa made a tuku to Te Tihi, Mauwhena, and the rangatira of Ngapuhi who remained behind. Te Wake is uncertain which of the departing Te Rarawa rangatira made the tuku. 344 Re Te Tai says that when Moetara of Ngati Korokoro heard that Poroa and others were going north he crossed over to Waihou and tried to stop Kahi and his people from leaving. According to Re, before setting out, Papahia, a Te Rarawa rangatira, said to Moetara: 345 Hei konei, e kara, hei Hokianga. Ki te ngaro ake au i tenei haere ka haere nei, tikina mai to kainga, nohoia. Ki te puta taku ihu ki te ao, ka hoki mai au ki rungi i te whenua nei. English Translation Remain here, old man, at Hokianga. If I have gone too long on this journey of mine, bring your home and stay. If my nose emerges to the world, I will return to this whenua. This can be viewed either as a temporary surrender of Papahia s authority until the time of his return, or a permanent gifting conditional on his death. He did not die and members of the iwi later returned and were welcomed back by Moetara who removed his people from the areas that they reclaimed. In other evidence it is stated that Ngati Korokoro filled the land after Poroa took his people to Ahipara, and when he later sent word to Te Tihi to leave, Te Tihi refused. 346 According to Heremia Te Wake, different related groups all lived together in harmony at 344 H Te Wake in Karanga Hokianga, supra note 172 at R Te Tai, ibid at Ibid at 78.

201 201 Mataraua Pa, but when the land was left vacant, new immigrants from Ngati Korokoro spread out and took over the area. 347 It is unclear what the time period was but it would have been in the late 1700s or early 1800s, because Hongi Hika, ( ) later killed Te Tihi in battle at Mataraua pa. Either way, several of the rangatira state that at the time, members affiliated to a number of different groups lived together without dispute within the Hokianga region, sharing resources. Wiremu Rikihana details the return of the warriors to lands they had previously occupied after Poroa s successful campaign in the north. According to Rikihana, when Whakarongouru of Ngati Manawa, returned to Orongotea, it was densely populated with Ngati Korokoro. When it was discovered that he was living on the land, Moetara sent for him to cross to Pakanae on the south side of the harbour. After an exchange of greetings he was welcomed with the words: Friend, you are returning to your own soil and to your own land. Those in present occupation must leave it. 348 After that Whakarongouru s Ngati Manawa people returned to their former homes. This evidence points to Moetara having established temporary, conditional authority on the land, in the absence of the other rangatira, which he partially withdrew when they returned. As a permanent tuku of authority over land and territory, as for example when new territory was acquired by Te Rarawa to the beach area once held by Te Aupouri, it was defective in that there appear to have been no boundaries laid out to demarcate the area within which new authority was to operate, as was the customary practice. Furthermore although Ngati Korokoro moved on to the land, the conditional nature also caused problems in that those who returned expected to resume their former positions and authority on the land and expected those who had recently taken possession to withdraw. Whatever strength it possessed as a tuku, was completely nullified when Moetara later shifted all his people from the north to the south side of the Hokianga, following lengthy disputes over resources. At the time of his withdrawal, Moetara crossed to Waihou and met with the rangatira from north Hokianga. At this time he laid down the customary 347 H Te Wake, ibid at W Rikihana, Waireia Hearings, supra note 175 at 36.

202 202 boundary, so that Ngati Manawa and Te Rarawa had the authority on the northern side and Ngati Korokoro the southern side of the Hokianga. 349 I te wa i a Whakarongouru ma e noho huihui ana i Kawehitiki, ka whakawhiti ka mea a Moetara; E Tamara ma, hei konei kua mau te rongo. Kei a koutou te tikanga o tenei taha. Kei au te tikanga o tera taha. Ko te tino whakamutunga rawatanga tenei o ena iwi ki tenei whenua, a Te Pouka, a Ngati Korokoro, a, tae noa ki nga uri, i runga i te kupu a Moetara. Ka hoki mai, ka waatea Te Tuauru, kua kore hoki te mana o Ngati Korokoro. English Translation At the time Whakarongouru and others were all living together at Kawehitiki, Moetara crossed over with Ngati Manawa and said: Men, from this peace has been made. You control the tikanga of this side. I will have the tikanga of that side. This was the real absolute ending of that iwi to this whenua, of Te Pouka, Ngati Korokoro right down to the uri, on the word of Moetara. He returned (to the south side), Te Tuauru had been cleared of the mana of Ngati Korokoro that was no more. The use of Moetara s authority to remove any claim by his people to the area, and his ability to declare the boundaries between the groups, permanently settled the disputes between the two sides. Those of his people who chose to remain on the north side came under the mana of the rangatira on that side. In Land Court Hearings in the late 1800s and early 1900s, attempts to undermine the mana rangatira of Re Te Tai by claiming entitlements under Moetara, were exposed by his son, Hapakuku Moetara, who stated that he was not entitled to those lands because the words of his tupuna were binding. 350 The boundaries set by Moetara, remain in place today as the ongoing symbol of his enduring mana rangatira and ability to bind his people with his word. 349 H Te Wake in Karanga Hokianga, supra note 172 at 18-19; R Te Tai, ibid at R Te Tai, ibid at 120.

203 203 b. Tuku Whenua Within Settled Territorial Boundaries i. Granting of Tuku Title 351 The principle of tuku whenua (gifting the land), was employed by those who possessed mana rangatira as a means of granting entitlements of land to others. A tuku generally followed a request from the grantee to the person with mana rangatira, or could be instigated by the person with mana rangatira in performance of his or her duty to atawhai others, when for example, disputes between family members made living together, difficult. As a direct descendent of Rahiri and Te Reinga, Ngakahuwhero drew her authority on the land from senior whakapapa lineage combined with her status as an elder. During her lifetime Ngakahuwhero made several tuku to individuals who wanted land to make gardens, build houses, or work on the trees in the area. She made a tuku of the trees at Kaitara to Taku when he asked, 352 and to Riha when she asked. 353 These tuku were made with the agreement of both her sons. She also instructed them to "hokoa (barter) the land at Whanganamu, in order to buy tobacco for her pipe. 354 It is not clear whether the sons agreement was a prerequisite to the exercise of her power of tuku and hoko whenua. Attempts were sometimes made to flout Ngakahuwhero s authority. When she refused to tuku land at Kaitara to Wirepa he tried to enter into trade with the Bishop for the land 351 The term title is used in the English legal sense of a recognised claim to land that is upheld by the community, the breach of which could attract a penalty. 352 K Puhirere in Karanga Hokianga, supra note 172 at R Te Tai, ibid at Ibid. This use of hokoa probably refers to the granting of cutting rights or trading in cut timber rather than to a sale of land, particularly as the next sentence reads I tukua ki konei, i a tatou e noho nei (it was released to here, where we reside, and there is no indication of the transaction being out of the ordinary. The use of hoko as meaning entering into trade or barter as opposed to Pakeha notions of sale is discussed by Mutu, supra note 22, in Cultural Misunderstanding or Deliberate Mistranslation? a paper which draws on her evidence to the Waitangi Tribunal in the Muriwhenua Claim in 1992.

204 204 without her authority. Te Tai and Te Hira, thwarted the transaction. 355 In the pre-contact period this type of bartering would not have been available to members of the group. Although the principle of whanaungatanga acted as a guideline for exercising tuku, there was an autocratic aspect to it. No ritual was required to formalise tuku, the word of the rangatira was sufficient, and once spoken, was upheld within the group. However, the ability to permanently alienate land outside one s group, without the approval of the other members, was a new circumstance that had not previously been faced by those exercising mana rangatira. Once tuku of land were backed by legal sanctions, rangatira tuku to Pakeha could be construed as absolute sales, which permanently dispossessed the people and significantly reduced the group s estate in land. The Papatupu information shows that the same land was sometimes the subject of successive tuku. Ngakahuwhero made a tuku of one side of Papakuwhenua to Pouhoko, and the other side to Tiapakeke. A further tuku was made to Pou, and when he died, that land was granted by tuku, to Tiapakeke. Te Ihi was the current resident. 356 This indicates that tuku was personal to the grantee for the duration of his or her life and then returned to the group territory for reallocation. There are instances of the children continuing to live on the land after the death of their parent, as in the case of Tiapakeke. However, in his ohaki he asks Re Te Tai to be generous to his children, and implores his son, Heremia Te Wake, to respect the mana of Re Te Tai because if he does not and Re speaks, then that s that. This, again indicates that the grant was personal to the grantee and could be withdrawn once the recipient had died. Later on when Hotene is pushed off the land by Pere Te Tai, following an argument with Heremia Te Wake, Hotene approaches Re Te Tai for land and is granted the land that was occupied by Te Hira before his death. 357 The responsibility of mana rangatira to atawhai others, was also apparent in the way Ngakahuwhero dealt with her relations. When Taku asked for permission to work the 355 Ibid at Ibid at Ibid at 115.

205 205 trees at Kaitara, Ngakahuwhero agreed and told him that once he had finished with the trees he could have the land. On that authority, Taku brought his people from Te Whanauwhero and Te Hikutu to work the trees and then cultivated food on land once held by Whatia as gardens. No one objected. 358 Likewise, when Tiapakeke fought with Pireke, whom he accused of committing adultery with his wife, and ordered him from the land, Te Tai, relocated Pireke and his family on to another area of land at Motuti. 359 Generally those with mana rangatira consulted other members of the group whom they felt would be affected by their decisions, before making tuku of areas of land. The opportunities to do this were often provided at hui (gatherings) held for other reasons, including tangi and marriages, where land matters were always discussed. However, this was not always the case, and throughout the Papatupu Hearings the term no one objected frequently appears after a tuku has been made. This seems to indicate that an onus lay on those who would be detrimentally affected, to raise objections with the person who exercised mana rangatira. If they did not, then the tuku was accepted according to its terms by other members of the group. ii. Tuku made to Individuals for Whanau and for the Community Tuku could be made either to named individuals for use by their immediate extended whanau, or set aside for use by the community as a whole. The purpose was made known at the time the tuku was made. Tuku to the community enabled several whanau living within the area to share a resource and was in accordance with the principles of aroha and atawhai ki te tangata. However, the work still remained under the guidance of senior members of the whanau. Despite the absence of the term "tuku", in evidence for the 358 Ibid at Ibid at

206 206 Waireia Block Hearing which was heard in English, Wiremu Rikihana spoke of two cultivations being used in common, while others were owned by individuals: 360 Ngakopa and Taipari were two cultivations used in common by these people. They also cultivated part of Poroua Kekeno, Puketapu, one part of which is a pa on a hill. Te Rangituhituhi is a cultivation owned by Wiremu Tana. Haowahine also belonged to Wiremu Tana, so also did Rakau Taurirua. Hauhauparaoa was owned in common by Rikihana, Ngawaka and Tana. Waipa also belonged to Wiremu Tana. The people mentioned are senior members of the families that were named in the Whakarapa and Waihou papatupu hearings as exercising mana within the area. When the various tuku had been made, and by whom, is not set out by Rikihana. They could be old tuku dating from the time of Moetonga, or modern tuku, 5 generations old, as Tarutaru and Ihengaiti are modern tupuna set up as operating mana rangatira within the area. The entitlements are inherited ones, having been passed down through several generations. A similar distinction is made by Re Te Tai in the earlier Papatupu hearing for the Waihou/Whakarapa area. After laying out the ancestral boundaries set by Te Reinga he says: 361 Ko tena whenua na Te Reinga i tuku tuturu mo nga uri o Rakeiti, o Taimihitata. Ka waiho a Whakarapa hei whenua kai huihui ma nga uri o Te Reinga, o Taimihitata, o Rakeiti. Ko tera taha o te awa o Whakarapa i a Te Pekatahi ma, ara, i nga uri o Te Kuri. Mai i reira, tae noa mai ki oku matua, ko te korero tena. English Translation Te Reinga permanently granted that whenua for the uri of Rakeiti, of Taimihitata. Whakarapa was left as a communal whenua for food for the descendants of Te Reinga, of Taimihitata, of Rakeiti. 360 W Rikihana, Waireia Hearings, supra note 175 at R Te Tai in Karanga Hokianga, supra note 172 at 90.

207 207 The other side of the river of Whakarapa, Te Pekatahi and others had, that is, the uri of Te Kuri. From that time down to my matua, that was the talk. The portion of land set aside, permanently, as a communal resource for the descendants of Te Reinga and his sisters descendents was still in existence at the time of Re Te Tai. Thus, it had held for 10 generations. c. Tuku Personal to the Grantee and their Uri Tuku were generally personal to the grantee for their lifetime or until they moved away, after which time the land reverted to the territory presided over by the rangatira and could be re-allocated. Wiremu Paiha, giving evidence in the Waireia Hearings, says that the rangatira, Te Toko, made tuku of land solely to Paiha s grandmother. An adjoining piece called Ngamahanga was given by Te Toko to Hera Waiti, who died without children. The land was now in the hands of Piripi, the grandson of Te Toko. 362 Paiha was not a member of the senior line to this land. Although personal, tuku were often long term in that they were made with the understanding that members of his or her whanau could continue on the land after the grantee died, unless told to leave. Rangatira and their whanau also had their own, exclusive, land entitlements on which their whanau lived. In the Waireia Hearing, Herewini Te Toko stated that his modern ancestor for Te Peke was Ihengaiti, who had derived her entitlements through her mother, Te Wehenga. Ihengaiti had rat snares at Porokowhai, near the stream and at Paipaimai. According to Herewini the rats snares belonged exclusively to Ihengaiti, and also to her children but were no longer in use. She also had cultivations, which passed to Tangiawa, 362 W Paiha, Waireia Hearings, supra note 175 at 113.

208 208 Te Hoe, Te Pua, Koukou, and then down to Koangi and Kiriwehi, the children of Te Hoe, and then down to Herewini and his tuakana. 363 Through another ancestor, Ngono, Herewini had inherited other cultivations: 364 Work at Meakapekape, Kumengatau and Karemoa came down to me, but I have not used them for a long time. Te Ahipikari ended in my father s time. Rotokahu is sown in grass by Rikihana s son. It has not been used as a cultivation since Rikihana left it in Mataewerohia is a cultivation used by Heta Rawiri at the present. Harakeke Whakakopa near my kainga, belongs to me. Matangawhi is used by myself and others. I cut up the land at this place into allotments. Herewini s father, Te Toko, was the person whom the other claimants and the Court accepted as possessing mana rangatira on the land. Herewini had inherited this status. However, his personal entitlements on the land were specifically set out in the same way as that of other occupants, indicating that his mana rangatira role of administering the tikanga on the land, was separate from his own holdings on the land. This supports the idea that mana rangatira, although exercised by an individual, was a territorial power belonging to the group. Communal holdings were also considered as being separate from individual, whanau holdings. Group ownership of marine resources was held in the same way as communal land resources. In the Waireia Hearings, Heremia Te Wake states: 365 What was regarded as the greatest importance in the old days were the fisheries. The fishery at Pohaturoa, at Te Karaka Point belonged to Ngati Manawa. The water at this place is deep. It was owing to the fact that Hinerangi, the ancestress of Ngati Manawa, was born at Te Karaka, that gave her descendants the right to possess this fishery. Rangihimamao was killed at Pohaturoa when fishing. When I was a child I saw the posts used for the nets. The fish caught from this place were strung up at Te Karaka to dry. This work at Te 363 H Te Toko, ibid at Ibid at H Te Wake, ibid at 67.

209 209 Karaka lasted from the time of Hinerangi, until the present day, and therefore, constitutes part of our occupation to Waireia. Thus the claim is that the fishery was a resource to which all the descendants of Hinerangi were entitled by virtue of mana tupuna. Those descendants were members of the group known as Ngati Manawa. According to Heremia Te Wake, this was a territorial resource held by the hapu. However, Re Te Tai says in his evidence, that Taaoi and Maraewhiti had placed a rahui over the resources, and that when Hinerangi s husband, Rangihimamao, who was from Ngati Whatua, went to fish at Pohaturoa, he was killed for breaching the rahui. 366 So entitlement did not mean that anyone related to the group could use the resource when they chose. Once restrictions had been set down everyone was subject to the same punishment unless the rangatira decreed otherwise. In this case, being an in-law acting on the authority of a wife who was a distant relative of the rahui setters, did not produce any special privileges for the husband. That he was from Ngati Whatua, who conducted regular raids into the Hokianga region, would not have helped either. d. Duration of Tuku Most tuku appear to have been made without a set duration being specified at the outset. Although they were made to an individual, if his or her children remained on the land then the term continued. In theory, these tuku could go on forever. However, in reality, tuku lasted until the recipient no longer needed the land, someone else had a greater need, or they were told to leave. In this case, another whanau would move on to the land and share its resources. Where there were existing occupants, the addition of new occupants was usually by agreement with the resident family. The complexity of multiple tuku could result in several different whanau living in close proximity in one area. While Ngakahuwhero was living at Otupahero she held authority 366 R Te Tai in Karanga Hokianga, supra note 172 at 86.

210 210 on the land. According to Re Te Tai, a tuku of land at Otupahero had been made to Kaimanu, daughter of Ngono, by Te Tungutu, Pakurakura, Kahi and Ruapounamu, because Kaimanu had married Kahi. 367 Kahi was Ngakahuwhero s father and Ruapounamu was her grandmother. Herewini Te Toko, the main claimant for the adjoining, Waireia Block, says that it was an earlier ancestor, Maruwhenua, who made a tuku of land in Waihou, near Otupawhero, to his son-in-law, Ngono. 368 The circumstances of the tuku are not set out, but both Re and Herewini agree that a tuku took place and that Ngono lived permanently within the area. At some stage a battle took place, and Te Ngawha, of Ngati Te Reinga, was killed. He was eaten and his bones hung to dry on a rock in the area. As a consequence, the land became tapu, or off limits to human habitation. According to Re Te Tai, Ruapounamu asked Ngono whether the land where Ngawha was killed could be given to Ngawha s descendants. He agreed. During the time Ngakahuwhero held authority on the land, Takahoorea, a Ngapuhi rangatira, asked whether he could clear the tapu on the land. Ngakahuwhero agreed. In consequence, Takahoorea came with his root crops, planted them and then ate them. These actions cleared the tapu and made the land available to others. 369 Thereafter, the descendants of Ngono and Ngawha lived together on the land without dispute. 210 e. Types of Title Held There are two types of land entitlement identified in the Papatupu and Native Land court Hearings. They are tuturu entitlement and entitlement by aroha. i. Tuturu Entitlement This was the strongest type of entitlement. It was derived from an ancestor who had settled on the land and whose mana over land and people had been passed to successive 367 R Te Tai, ibid at H Te Toko, Waireia Hearings, supra note 175 at R Te Tai in Karanga Hokianga, supra note 172 at 91.

211 211 generations of the founding family who were held to possess senior lineage. Of those who possessed tuturu entitlement, mana rangatira passed to selected individuals in successive generations. These people acted as kai whakahaere o te tikanga o te whenua (administrators of the tikanga operating on the land). All other descendants obtained tuturu entitlement by whakapapa descent from the same ancestral line and living permanently on the land. Underlying tuturu entitlement is mana tupuna, or ancestral claim, that has remained connected to the land over several generations. In the Waireia Hearings there was conflict amongst the claimants as to who were the correct ancestors set up as the root of entitlement for the Block. The original ancestors were Moetonga and Tangaroa Tupo, but claimants said that the Block had since been split into three, and set up three different modern ancestors as the source of tuturu entitlement for different parts of the block. The Court held that the evidence was overwhelmingly in support of the tupuna set up by Herewini Te Toko, and confirmed the ancestors for the area as being Ihengaiti for Te Peke, Ngono for Pupuwai and Tarutaru for Waireia. 370 In the Waihou/Whakarapa Hearings the correct root of tuturu entitlement was accepted by the Committee as being the ancestor, Te Reinga. Because Re Te Tai traced direct descent to Te Reinga, and his ancestors had maintained occupation and strength on the land, his claim (and those who claimed under him) was viewed as being tuturu. In the Waireia area, Herewini Te Toko held the strongest entitlements to the area by virtue of mana tupuna. Therefore his title was tuturu. Hori Harimana, a nephew of Herewini Te Toko says, We, and the children of Te Toko all worked together in common with the mana of Te Toko, who was our head. Ihapera and Heni and Mereana, his nieces all lived with him. 371 They have tuturu title too. In Waihou, Re Te Tai is identified as the holder of mana rangatira on the land, and his whanau possess tuturu entitlements on the land. 370 Decision of Court, Waireia Hearings, supra note 175 at H Harimana, ibid at 117.

212 212 On the east coast it is harder to trace a single ancestral line. Claims of tuturu entitlement are consistent with those made on the west coast, but are challenged by claims that Auha and Whakaaria established an entirely new line of claim through raupatu title. However, the 7 generations of descent from Toko, (nephew of Auha and Whakaaria), who is put forward by Aperahama Parangi as his ancestor for Tako, 372 does not seem to have changed raupatu entitlement into tuturu entitlement. ii. Aroha Title Within a group kai whakahaere described the administrative role of allocating the group s resources amongst its members, while mana rangatira described the authority possessed by the rangatira who fulfilled that role. His or her principal duty in the role of kai whakahaere, was to look after the people and ensure that the group s territory and resources were kept intact. In order to achieve this the rangatira set territorial boundaries with neighbouring groups and established rahui over resources, which reserved those resources for the exclusive use of the group. Internally, those with mana rangatira were also responsible for allocating resources to different individuals for their whanau. Even though rangatira were often teina, or junior, in generational terms, they still had the authority to make dispositions of land to their maatua, or elders, when necessary. Aroha entitlement to an area of land arose when distant relatives with stronger links to others areas moved on to the land, raupatu survivors were taken in, or when a group moved its territory and individuals chose to remain behind. Essentially aroha title relied on the generosity of those who held tuturu title on the land, allowing others to live peacefully amongst them. Tuku could be made for assistance rendered by an outsider in war, such as that claimed by Taniere Rangipaoa from Tuu to his ancestor Takarepa, 373 to merely tolerating the presence of relatives and in-laws who were visiting and then set up residence. 372 A Parangi, Te Tii, Mangonui, Waimahe Hearings, supra note 181 at T Rangipaoa in Karanga Hokianga, supra note 172 at 37.

213 213 Aroha entitlement did not develop into tuturu entitlement over time. If passed to descendants it was only good for as long as occupation was maintained. Marriage into the main lineage at a later date, as with Heremia Te Wake s claim for Waihou, did not seem to alter the nature of the entitlement. It remained attached to the original derivation by aroha. Often, a rangatira would bring others on to the land as companions to help work the land. These people would remain until the rangatira died and then either return to their home, or continue living on the land. In the Waireia Hearings, Wiremu Rikihana recounted how the parents of Reone Wikitera, a claimant for land at Waireia, had been brought on to the land from Omanu by Tamaho. Tamaho was a rangatira from further north, around the Whangape area. He stayed briefly in Waireia and when he left the land Wikitera went with him. 374 Rikihana also includes in his list of claimants, people who contributed towards the costs of survey and investigation. He says they are put in out of aroha. 375 These people would be distant relatives who helped work the land. When Te Tai was dying, he asked Re Te Tai to remember the people that had no place, who he and his mother, Ngakahuwhero had brought from Whirinaki to help work the land, and without whom Te Tai would not have been held in as high esteem as a rangatira. 376 Both Te Tai and Te Hira, in their ohaki, reminded Re Te Tai that he must look after the iwi mokai or humble people on the land. Te Hira is quoted as saying: 377 Kia atawhai ki nga iwi, kia tika te whakahaere i te whenua. Ta te rarangatira whenua ki a ia, ta te mokai whenua ki a ia. English Translation 374 W Rikihana, Waireia Hearings, supra note 175 at Ibid at R Te Tai in Karanga Hokianga, supra note 172 at Ibid at 102.

214 214 Kia atawhai [Be kind] to the iwi, ensure that the whenua is administered in a proper manner. The rangatira to his/her whenua and the iwi mokai to his/hers. Every member of the group had a place and position on the land. The job of the person exercising mana rangatira was to ensure that that place remained secure for as long as it was needed. In the Waireia Hearings, the ancestors under whom Te Hira Mataika claimed the entire Block were Waihoenga, who although born on the land had left and died at Takahue, and Ngono, who was a tuturu titleholder. Mataika possessed no cultivations belonging to himself or his elders, and had little knowledge of the occupation of the people through whom he claimed ancestral entitlement. Although he had taken part in timber cutting it was under the control of Wi Tana Papahia, Hone Papahia, Te Tai and Tangaroa, all of whom had placed themselves under the claim of Herewini Te Toko. The Court held that: 378 Altogether the evidences of occupation by this claimant, are very slender indeed, unless we take into consideration his residence on that portion of Waihou, which, by admission of all parties, originally formed a part of the old Waireia territory controlled by Moetonga. The court awarded him shares on the basis of aroha which was defined as: 379 a) ancestral right but no occupation b) occupation but no ancestral right The Court was also lenient with the claim of Peita Wharetohunga who lived at Whakarapa, and who claimed under the ancestor Moetonga: Decision of Court, Waireia Hearings, supra note 175 at Ibid at Ibid at 65.

215 215 This person s occupation is not very strong, and it is very doubtful if he, or any of his people has ever occupied the land in the true sense of the word. His claim is based on settlement and work on Te Karaka, which was formerly a part of Waireia, but so far as his evidence goes, he has never exercised any rights of ownership over Waireia, apart from timber felling. He was also awarded shares in aroha by the Court. The reduction of tikanga to these two claims to entitlement to land enabled the Court to recognise the customary principles of whakapapa and whanaungatanga as it was still operating at the time of the 1913 hearings. "Ancestral right" was premised on the principle of mana rangatira having been retained in the whakapapa lineage that continued to be upheld by the people on the land. "Occupation" took note of those who actually lived on the land, irrespective of kinship links or relative position in the group hierarchy. By including members of the senior family who had left the land, and those who were in residence on the land, under the title of "aroha", the Court expanded the entitlements of claimants beyond those recognised by the Papatupu committees and those who exercised mana rangatira. This inclusive approach, while dealing with the present situation in a seemingly equitable manner, paved the way for "outsiders" and those whose interests had become "cold" to continue to hold interests that they would not have retained under a system operated under the personal administration of mana rangatira. Herewini Te Toko talked about his whanau s occupation and the people that they had invited onto the land: 381 My brother died in 1860 and I have continued the occupation ever since. Before my brother s death, some of our young relatives joined us on the land, at our invitation, and they cultivated with us. They were Rapata Paiha, Wi Paiha and Eruera Paiha. They occupied for a time and then returned to Pupuwai and Te Ruaki. With regard to these Paiha, I wish to state that we invited them as our relatives, and not that they had any rights of their own. 381 H Te Toko, Waireia Hearings, ibid at 98.

216 216 Today, the cultivations in use are in the neighbourhood of Pukawa. These cultivations belong to Rapata Paiha and he has a house there. Another cultivation belongs to my son Piripi. Another is owned by Heta Rawiri, and also a house, which at present belongs to me. When Heta Rawiri wanted to build a house afterwards, it was erected. He first of all asked my permission and I consented to a location. My relative, Ruka Te Huru, now dead, fixed the position for the house, which was thereupon built. This is at Pukawa. The house has been erected about six years, and Heta lived there until last year, when he left it. He also gave up the cultivation. Although the house and lands are in my possession Heta still cultivates there, but he lives at Mataewerohia, on Pupuwai. These Hearings were the beginning of a process that usurped the mana once held by rangatira and reduced rangatira to ordinary occupants on the land. The mana of the rangatira, as espoused by Herewini Te Toko and the other claimants, once shares had been established, would have to give way to that of the Land Court in adjudicating rights on the land. Therefore, the distinction between those who held tuturu entitlements and those who held aroha entitlements would be of no consequence once shares had been allocated. Those living on the land remained in residence for as long as they wished and then either sold their shares, or had their shares sold by other owners without their consent. But they could no longer be dispossessed on the word of the rangatira. That would have to occur via the mechanisms set up for alienation under the Native Land Court. 382 f. Residence/Occupation as Proof of Title Most of the claimants relied on some degree of occupation to support their claims of entitlement to shares in the land. Many set out the cultivations of their ancestors within a Block as proof of their ongoing occupation and residence. In the west coast Hearings, cultivations were generally held by whanau with senior whakapapa lines. According to Wiremu Rikihana, Wiremu Tana owned Rangituhituhi, Haowahine and Rakau Taurirua 382 The mechanisms by which land alienation took place after the passing of the Native Land Act in 1862 is not the subject of this thesis and a detailed discussion will not be undertaken. The area is covered in depth by DV Williams, in Te Kooti Tango Whenua, supra note 38.

217 217 and Waipa; Hauhauparaoa was owned in common by Rikihana, Ngawaka and Tana; and two other cultivations were used in common. Although Ngawaka and Tamaho left the land they did not abandon it, returning frequently to live upon it. 383 He says that he lived for a time at Rotokakahu, inside Pupuwai, near Te Mataa, and then returned to Waireia for a time, before moving to Kaihu in 1879 where he has since lived. He never entirely abandoned the area, however, and frequently returned to the places where he had formerly lived. According to Rikihana, the clearing of land in order to establish a land claim, was now a way of claiming ownership by those without a tuturu claim, who were relying on occupation alone. 384 The practice of claimants clearing land as a way of establishing occupation before the Native Land Court, is also mentioned in the evidence of Re Te Tai in the Waihou/Whakarapa Hearings. 385 Himiona Kamira speaks about the main kainga of Te Kotuku at Te Peke and says he and his daughters worked there. He sets out other cultivations and kainga belonging to the same people. The old ancestral cultivations at Te Peke were worked upon by the uri, Rewi and Atama Paparangi and others. 386 Another cultivation was Karemoa, on Pupuwai. Atama, Huriana and their mother worked there. Tarawa-ngarara was another cultivation that belonged to these persons. Matangawhi was a kainga and cultivation. Pupuwai was another kainga belonging to them. Hori Harimana was Herewini s nephew. His claim was by ancestry and permanent occupation: 387 Both Ngono and Wairoro descended from Moetonga. Punehu, where I live, is in this block. I lived at Te Mataa. I also lived at Ngatutu alongside Te Karaka Block. I worked there. I cultivated at Ngamehaua. I planted at Ngatutu for a long time with my elder brother, and my mother. I also worked at Matamata and Te Peke, the latter being an important cultivation made by 383 W Rikihana, Waireia Hearings, supra note 175 at W Rikihana, ibid at R Te Tai in Karanga Hokianga, supra note 172 at H Kamira, Waireia Hearings, supra note 175 at H Harimana, ibid at 116.

218 218 my mother. This was in my youth. My mother worked at Hauauru, a place just within the Hauauru Block. By way of contrast, occupation and residence is not as strong a factor in the east coast area claims, where the main claim of entitlement is via raupatu. Traditional cultivations do not seem to have been as well established as on the west coast, largely because the land had only recently been seized and the old occupants either driven off the land, or subdued. Even in Takou, where, according to the evidence of Aperama Parangi, 10 generations had elapsed since Toko had taken control of the area, ancestral gardens were not raised in support of the claim for the area. g. Challenges to Mana Rangatira The Advent of New Opportunities for Trade Timber Cutting at Hokianga and Waireia The west coast papatupu and Native Land Court Hearings contain a number of references to timber cutting and timber cutting rights. The area was very heavily forested and colonisation had brought with it new opportunities for trade. This shifted the Maori economy from subsistence level reliance on natural resources, agriculture and sharing, to a trade economy based on barter and money. Wikitera Ngaruhe recalls the first cutting of trees that took place in the Hokianga: 388 My parents took part in the first cutting of timber off Ngamehaua. The principals were Tamaho and Wiremu Tana. The sale was to Captain McDonald. The second cutting was at Ngamonoa. Te Kaitutae at the same time cut timber at Whitikia. To float the timber out, canals were cut by the people engaged in the work. There was no question of royalty in those days. The timber was paid for by purchasers. Mr John Webster senior, and Mr Manning were the purchasers on the occasion I refer to. The payment was in sugar and biscuits. 388 W Ngaruhe, Waireia Hearings, supra note 175 at 131.

219 219 Although the Native Land Court had accepted that the clearing of land, followed by occupation, with the authority of the person exercising mana rangatira, could give rise to an entitlement based on aroha, it would not extend this rationale to the clearing of land by felling of trees. It held that these could not be relied on as the basis of land rights in the same way as clearing land for occupation. 389 There is no law of ancient Maori Custom respecting timber cutting of the nature carried out on this block. This is quite a modern innovation introduced by the requirements of Europeans, and the quantity covered, greatly depended upon the law of supply and demand. Hence, we reject such workings as giving rights similar to those mahinga, and clearings carried out for the express purpose of improving the land, in order to obtain the means of sustenance. We have no doubt that very many persons, who themselves had no shadow of claim to it, took part in the timber cutting contracts through their relationship to persons having a good right to the land. The distinction drawn here is based on the reasons for clearing the land. The Court saw the clearing of land for use by one's own family members, with consent by the person who administered the mana rangatira, as being in accordance with tikanga. But commercial exploitation of resources for purely economic returns without any other attachment to land was not within tikanga as the Court perceived it to be. This acted as a constraint on entitlements granted by the court under the guise of "occupation" and "aroha" to claimants who came before it. In the 1800s, rangatira were still attempting to extend their mana to include control over the new activities. In many cases, rangatira controlled who had access to tree cutting, and in most cases the income from tree cutting was passed to rangatira for dispersement to those he considered to be entitled. According to Wiremu Rikihana, timber cutting had been prohibitted in Waireia, although Hori Harimana had later been given permission to cut timber by Hare Papahia, who was the kai whakahaere on the land Decision of Court, ibid at W Rikihana, ibid at 48.

220 220 Herewini Te Toko also says that for a period of time the old authority held on the land and was adapted to the changing circumstances of economic trade and money: 391 The children of Tupakihi cut timber on Te Peke, namely, Ngawati and Himiona. They worked with my permission which they asked for. They cut white pine. Rewi and Atama, also Tupakihi came to me and asked my permission to cut kauri at Te Peke. I agreed but asked them to set aside the royalties. The timber was sold and the royalties were divided between us. There was another cutting of kauri at Ngaha. The persons who took part in this were my son Piripi, Rapata Paiha, Heta Rawiri and others. I received the royalties for this. Ngawati and others cut puriri at Pukawa. They cut it on their own responsibility. I was absent from the district at the time. They had a right to cut timber through their descent from Ihengaiti. This shows that mana rangatira and tuturu rights were still being observed by Maori in the mid to late1800s, even though technology had opened up new commercial avenues for exploitation in the area. However, concern was mounting that these new influences and opportunities were leading those who had entered into timber cutting contracts to actively undermine the authority of the rangatira. In the Waihou/Whakarapa Hearings held in 1904, Re Te Tai speaks of the usurpation of his mana rangatira by Heremia Te Wake and other junior lines on the land. The attempt at bypassing rangatira authority is evident in Wirepa s attempt to pass land to Bishop Pompallier, in direct contravention of Ngakahuwhero s authority. The transaction was stalled when Te Tai and Te Hira interrupted Wirepa asking the Bishop for payment. According to Re Te Tai, his father confronted Wirepa with the words I pa ano koe ki toku kainga i mea ai koe, maau e hoko? Do you have any connection to my home that enables you to barter it? In earlier times this would have given rise to an act of utu in reciprocation for such an affront to Ngakahuwhero s mana. Wirepa would probably have 391 H Te Toko, ibid at

221 221 been banished from the land. However, according to Re, Wirepa simply laughed and no exchange took place. 392 Another example provided by Re Te Tai, concerns encroachment on to his own lands in Whakarapa, which had been abandoned temporarily following the death of his daughter. Although his children later returned and cleared and planted the land, one of Heremia Te Wake s relations, Tuku, had moved on to the land. Re Te Tai wrote to Heremia Te Wake, Hotene, Kanara, Te Ihi, Pauro Te Rangaihi, Peita and Pakihi, and relates the following interchange: 393 He mea aku naku; E Tamara ma, meinga atu ta koutou tamaiti kia hoki ki Whakarapa. Waiho nga mahinga a aku tamariki. Kaore i whakahokia mai. Muri iho ka ui au ki a Hotene; Pehea ta koutou whakahoki mai mo taku reta. Ka mea mai Hotene; E kore e whakarongo ki to reta. I mua, ko koe te rangatira, i naianei he rangatira katoa nga tangata. Ka rongo au ki a Hotene, i kii a Tuku kia ahu mai ia ki konei, i au nei, mo taua whenua ra ano, a, na Heremia i mea kia kaua Tuku e haere mai, kei kore mana ratou ki runga i te whenua nei. Ka korero au ki aku tamariki ki to raua whakaaro. Ka mea mai a Hoori, e kore ia e pai ki te raruraru, kei te haere mai te kooti mo tenei whenua, kei reira kitea ai te mea tika, me te mea he. Ka okioki au ki te kupu a Hoori. Hoi, i naianei kei te aroaro o te komiti tenei whenua, a, maana e titiro te aahuatanga. English Translation I said, Men, tell your son to return to Whakarapa, leave my children s gardens. There was no reply. Later, I asked Hotene, What was your reply to my letter? and he replied, They will not listen to your letter. Before, you were the rangatira, but now all the people are rangatira. I heard from Hotene, that Tuku wanted to come here by me, for that same whenua, but it was Heremia who said for him not to come, lest they had no mana on this whenua. I told my children of their idea. Hoori said that he did not want to cause trouble, that a Court was being arranged for this whenua and it will be decided then who is right and who is wrong. I rested with the words of Hoori. Now this whenua is before the Committee and he will see what transpires. This was a signal that times were changing and that the strict regime of authority based on whakapapa lineage was being openly challenged by those who were junior members 392 R Te Tai in Karanga Hokianga, supra note 172 at Ibid at 89.

222 222 of the group under the old system. As the rangatira, Re Te Tai expected the new Land Court process to provide protection for his authority on the land. He was no longer able to call upon the old sanctions of utu to settle matters according to tikanga Maori. Further undermining of his mana rangatira followed, after Heremia called a hui in which he asked for the ancestral gardens to be cleared from Whakarapa and the request was refused by Re Te Tai. The account of the subsequent events are as follows. 394 Ano ka whakaaro a Heremia, e kore aana hiahia e rite i a matou nei, katahi ka huihui e ia nga tangata o Whakarapa, o Motuti. Ka uru atu ki reira a Wi Mutu, oti noa ake ena hui a ratou. Ko a ratou whakatakoto, kia mutu ratou te whakarongo ki a matou ko a aku teina. Mehemea ki te haere tonu ratou i raro i a matou, e kore ratou e pa ki te whenua nei, engari me hanga tikanga ratou, ara, me para ratou i Motuti, i whakarapa, i Te Hiahia, hei mana mo ratou. Ko te tangata e oti te para, ka ruia ki te karaihe, ka taiapatia ki the waea, mona tonu iho taua wahi, a, ko aua korero a ratou, he mae haina ki te pukapuka. Whai hoki me mutu te homai i nga paru ki au o a ratou rakau e mahi ai i runga i tenei whenua. Ko enei korero na Wi Mutu i korero ki au. Ki ki atu au; E pena ana oti a ratou tikanga? I muri iho, i te peinga mai o Wi Mutu i Otupawhero e Hohepa Te Tai, ka tae mai ki au, ka mea; E hoa, kua peia au e Hohepa. Hoi, e pehea ana koe ki te kainga o Te Hira, i Te Papa nei, hei kainga moku? Ka mea atu au; E pai ana. Ka tae mai ki Te Papa, ka para. Ka mea atu au; Hei Toungarangara mutu ai to para, hei nohoanga mo o hipi. Muri iho ka timata te para o Te Kaitutae i te whenua nei, he mea whakanoho tena ki tena wahi, tena ki tena wahi, para ai. No kona ka kii mai Hotene ki au; E koro, e pehea ana koe? Kua tino takahi te iwi nei i a koutou ko o teina. Ka mea atu au; Kia manawanui. Ka mea mai Hotene; Mehemea koia tena, a, e kore au e manawanui. Me hoki mai ia ki Waihou, raua ko Pauro. Ka mea atu au; Kaore, kia u atu korua ki roto o Whakarapa. Muri iho ka hoki mai ano a Hotene ki au. E hia hokinga mai, me taku kupu atu, kia manawanui. E tatari tonu ana au i tetahi ture pai. I kino katoa a Timoti raua ko Te Kirihini mo tena take. Kii mai ana raua ki au; Tena ra to manawanui e au, tahuna ki te ahi tena whenua. Hoiano taku kupu atu, e, E tika ana, na to matou manawanui ko aku teina i tae mai ai tenei whenua ki roto i enei ra. Katahi ka whakahaua e Heremia aana tamariki ki te tua i nga rakau o Kaitara. Ko aua rakau, he toenga i a Taku. Kaore au i whai kupu. Me te mahinga o nga totara o te taha ki roto o Waipapa, i mahia katoatia e ratou, i runga i to ratou whakatakoto, i korerotia ake ra e au, me nga kauri toenga o Motuti, me nga totara toenga o Whakarapa, kaore au i 394 R Te Tai, ibid at 115.

223 223 kiikii atu, ko te take kua rongo ake au i ta ratou tikanga. I muri i ta Heremia mahinga i nga rakau toenga o Kaitara, ka tonoa atu e au a Hohepa Te Tai ki reira, mahi rakau ai. Katahi ka mahia e Hohepa raua ko Pakihi, engari i riri a Puriri ki a Heremia, ratou ko nga tamariki, i kii atu; Ehara koe i te tangata tika ki te mahi i ena rakau, engari me i ko Re Te Tai maa, ka tika. Ko ratou nga tangata tika hei mahi i nga toenga rakau o tenei whenua, me nga uri o Taku, he toenga hoki ena rakau i a Taku. Na Puriri tonu enei korero i korero ki au. I haere mai Puriri kia whakatakotongia atu e au he tikanga kia whakawa raua ko Heremia. Ka mea atu au; E kore au e kaha ki te whaikorero atu mo to raua raruraru, kia tae ra ano tenei whenua ki te kooti, katahi ano au ka whakautu i nga whakatuma a ia tangata, a ia tangata. Ko tenei, mahia atu tau tikanga e koe, kei waho he whakararuraru moku. English Translation Heremia knew that his requests would be denied by us, so he gathered the people of Whakarapa, of Motuti. Wi Mutu entered into those gatherings there until they ended. They laid down that they were to stop listening to us and my teina. If they were still to come under us, they would never have access to this whenua, but they would create their own tikanga, that is, for them to clear Motuti, Whakarapa and Te Hiahia to achieve mana. The person who does the clearing, sows the grass seed, erects wire fences, can have that area. All these discussions of theirs were recorded in a book. Following which, they were to stop giving me the payment for the trees they were to work on this whenua. These statements were told to me by Wi Mutu. I said, Is that how their tikanga goes? After, when Wi Mutu was pushed out from Otupawhero by Hohepa Te Tai, he came to me and said, Friend, I have been pushed out by Hohepa, so what do you think of the home of Te Hira at Te Papa for me? I said, It is all right. He came to Te Papa and did some clearing. I said to him, You finish clearing at Toungangara for a place for your sheep. Then Hotene said to me, E koro, how are you? These people are really trampling on you and your teina to which I said, Be patient. Hotene said, If that is the case I cannot be patient. He and Pauro wanted to go back to Waihou. I said, No, you stay firm in Whakarapa. Later, Hotene again returned to me, several times he did this, but I still told him to be patient. I am still waiting for a good law. Both Timoti and Te Kirinihi disliked that take. They both said to me, There is your patience, burn that whenua. My words to him were, it is right, it was through my patience and that of my teina that the whenua has got through to this day. Then Heremia ordered his children to cut down the trees of Kaitara. Those trees were leftovers from Taku. I did not have any words. And the working of the totara on the side inside Waipapa, they worked it all, according to what they had laid down (at their hui) which I mentioned before, and the leftover kauri of Motuti, and the leftover totara of

224 224 Whakarapa. I did not say a word, as I had already heard of their tikanga. After Heremia had worked the leftover trees of Kaitara, I sent Hohepa Te Tai there to work the trees. So Hohepa and Pakihi both worked, but Puriri was angry at Heremia and them and their children, and said, you are not the rightful person to work those trees, but had it been Re Te Tai and others, that would have been all right. They are the rightful people to work the leftover trees on this whenua, and the descendants of Taku, as those are leftover trees of Taku. Puriri actually told me all this. He came to get me to lay down a tikanga for him and Heremia to discuss. I said, I have no authority to speak about their trouble, until this whenua is taken to Court, that is the only time I will be able to answer the challenges of each person. This, you work out your tikanga, so that I have no cause to make trouble. This attempt at overthrowing the authority of the person with mana rangatira and replacing it with a new tikanga on the land, would not have been possible under the regime that operated on the land before European contact. It would have led to battle. The fact that individuals were being actively encouraged to raise their own mana on the land, and that no money was to be paid to the rangatira, whose role had been to disburse funds to members of the community, marks the emergence of an individualistic money oriented regime being established in competition to the old one. However, when Wi Mutu is pushed off the land he relies on the old system of tuku whenua to provide him with somewhere to live. This places the rangatira in a dilemma as to how to best protect his authority. Although encouraged to take action to show his superiority by burning (clearing) the land, it is not his preferred option. He also refuses to lay down a tikanga in challenge to Heremia. Instead he waits patiently for the Court process, which he believes will uphold his claim. Later on, Re set up an Elders Committee to look after the trees on the land, because so much work was being done to diminish their numbers: 395 Ka kii atu au ki a Wi Tana raua ko Hohepa Te Tai; Ko taku hiahia, kia whakatungia he komiti mo nga rakau o te whenua nei, me kore e toe etahi o aua rakau, ahakoa e kore a Heremia ma e whakarongo. Ka meinga atu e au ki aku hoa, me karanga nga tangata o Whakarapa kia whakatu 395 Ibid at 123.

225 225 ai i tetahi o ratou hei tiamana, me kore e waimarie. He rapu tikanga tena naaku kia toe ai nga rakau o te whenua nei. Ka whakaae aku hoa. Nokona, ka whakatungia he komiti. Ko nga kaumatua katoa o waihou, me o Whakarapa, nga tangata o taua komiti nei, ko Heremia te tiamana, ko au te hekeretari. I te whakahaerenga o tena take, ka nui te pai, ka kore hoki te tangata e haere pokanoa ki te mahi i aua rakau. Kei au, kei a Wiremu Tana, kei a Hohepa Te Tai, nga kupu hei whakatau i nga tikanga o taua take, i taua wa. English Translation I then said to Wi Tana and Hohepa Te Tai, I want to establish a committee for the trees of this whenua, so as there will be some trees left, even though Heremia and others will not listen. I said to my supporters to call the people of Whakarapa to elect one of them as chairman, and hope they are lucky. I was looking for a tikanga to ensure that some trees would be left on this whenua. My supporters agreed and we established a committee there and then. All the elders of Waihou and Whakarapa were the people of that committee, Heremia being the chairperson, I was secretary. On the conducting of that take, it was very good, no one came to pokanoa [without authority] work those trees. At that time, Wiremu Tana, Hohepa Te Tai and I were the ones who made decisions on the tikanga of that take. When people began to cut trees without approaching the committee first, and concern was expressed that Heremia was not fulfilling his role as chairman. Re Te Tai disbanded the committee. Meanwhile, concern for the trees was also being felt by other rangatira in the area. Re says that Te Rapihana, Te Kirihini, Hone Tana, Naru Ngawaka, Aperahama Te Pukewa and Herewini Te Toko came to set a rahui of the koroi of Whakarapa, so that no more would be chopped down before judgment by the Native Land Court had been made as to entitlements on the land. 396 He roa e mana ana tena rahui a matou mo nga rakau o te whenua katoa nei, timata mai i Matangawhi, tae noa mai ki Matamata. Ko Hone Tana raua ko Te Herewini nga kai-tiaki i nga koroi. Ko matou, ko aku teina nga kia tiaki i o waihou nei. Ko matou ano ko aku teina, me o matou tuakana, i tae ake nei, me Te Herewini nga kai-tiaki i o Whakarapa. Ko Koroweo te kai- 396 Ibid.

226 226 tiaki i o Motuti. Ko matou ano ko aku teina, te kaitiaki i o W.aipapa, ahu atu ki Te Hiahia. He roa e mana ana tena take, ka haere a Te Rima ki te mahi i nga koroi o Te Hiahia. Ka rongo au, ka tonoa te tiamana o te kaunihera kia haere, ki te paahi i raro i ta matou whakatakoto. Ka tae mai a Hemi Kaurera raua ko Tamaho Rawiri, tiamana kaunihera. I haere mai a Hemi i runga i te mana iho o nga tupuna. I haere mai hoki i runga i te ture, te haere mai a te tiamana. I te ata, ka haere raua ki Whakarapa. Tae atu ka whakahaerea ko te mana maori e Hemi, ara, ka tono atu kia whakamutua te raruraru. I oti kia kaua e mahia aua rakau i ta ratou korerotanga. Ka hoki mai rarua. I muri i tena, ka pai ano te takoto o ta maou rahui. English Translation The mana of this rahui was in place for a long time, for the trees on this whole whenua, beginning at Matangawhi, right through to Matamata. Both Hone Tana and Te Herewini were the kai tiaki of the white pine. We and our teina were the kai tiaki of Waihou. Koroweo was the kai tiaki of Motuti. It was us again and our teina and tuakana who came here, who were the kai tiaki of Waipapa and towards Te Hiahia. The take was in force for a long time before Te Rima went to work the white pine of Te Hiahia. I heard that the chairperson of the Council was requested to go to stop them under what we had laid down. Hemi Kaurera and Tamaho Rawiri, chairperson of the council, came. Hemi came on the mana of the ancestors, as well as under the law as chairperson. In the morning they both went to Whakarapa. On arriving, it was conducted along the lines of mana Maori by Hemi, that is, he requested the troubles to cease. It was settled in their talks that those trees were not to be worked any more. Then they returned. After that the rahui continued in force. The combined mana of the rangatira prevailed in the end, owing to the backing and legal force of the chairperson of the District Maori Land Council, and the insurgents were brought under control. h. Conclusion The ability to grant tuku of lands and resources was the hallmark of mana rangatira. There were two, or perhaps three types of entitlement identifiable in the Tai Tokerau region. They were tuturu entitlement, which was based on senior ancestral connections and occupation; aroha entitlement, grants of land made to outsiders and distant relatives for specific reasons, which reverted to the group s territorial domain when they expired,

227 227 and raupatu entitlement, when the mana of one group had been wiped from the land and replaced with that of another group. Occupation was an essential component of all three claims to title, but did not override ancestry to the land or mana rangatira as a sound root of entitlement. With the advent of new opportunities for exploiting resources after colonisation, the existing hierarchy within groups of Maori began to disintegrate. The authority of the Court and its sanctions took over the role previously occupied by the rangatira and heralded the coming of a new era in which egalitarianism would challenge the established hierarchies within Maori society.

228 228 (iv) Raupatu as a Means of Acquiring Territory a. Introduction Raupatu was another means of acquiring territory from existing occupants. The term raupatu is defined in the Dictionary of the Maori Language, 397 as a verb to mean conquer, overcome and as a noun to mean conquest. In the Papatupu Hearings, raupatu produced a situation in which, unless all the prior inhabitants had been annihilated or evicted, or had taken on the identity of the new group, two competing sources of claim to territory were put before the Hearing Committees, mana raupatu and mana tupuna. In this study, I use the term raupatu to mean a process whereby the existing mana on the land is extinguished and a new mana source is established within a territory. The process is characterised by: i. a complete severence of the existing mana rangatira from the land; ii. the establishment of a new senior whakapapa line on the land; iii. the exercise of mana rangatira authority on the land; and iv. examples of tuku being successfully made by the person exercising mana rangatira to others. While acts of aggression against groups who were the settled occupants of a territory were quite common in order to satisfy the utu requirements for inter-group offending, instances where these acts served to totally sever the mana of a rangatira and his people from the land are rare on the west coast. The main example from this region, is the battle for the territory of Te Wharo One Roa a Tohe which occurred in the 1700s, in which Poroa and his people extinguished the authority of Te Aupouri and became the new authority for the southern portion of the beach, settling permanently in the area and living at Whangatauatia Pa in Ahipara. 397 H Williams, Dictionary of the Maori Language, 7 th Edition, GP Publications, Wellington, 1971, 330.

229 229 More often, defeating the other side in battle would be sufficient to assuage bad feelings between groups and to restore mana that had been diminished by a wrongdoing. The survivors would return to their territory and would carry on as normal, minus one or two members who had been killed or taken as pononga by the other side. The raids carried out by Hongi Hika within the Hokianga region and elsewhere come within this category. In the east coast and middle island Papatupu Hearings a number of applicants based their claims to land on raupatu having been successfully carried out by their ancestors. This information provides valuable evidence of the competition between entitlements based on mana tupuna and raupatu. In this part of my study I will examine two instances where the claim to land entitlements is based on raupatu. Both state the initial cause of the raupatu to have been the killing of a woman by her husband s people, who were distant relations, for which utu was sought by her whanau and their supporters. In neither case does whanaungatanga appear to have prevented extreme actions being taken against the perpetrators of the killing and their group. The first example is taken from the Okuratope, Waimate Hearings held in 1902, 398 for the areas of Waitangi and Kerikeri and inland toward Waipapa, and the Mangonui, Te Tii, Waimahe Block Hearings in 1904, 399 for the coastal area stretching from Kerikeri northward to Mangonui. The second example is taken from the Matawaia Block Hearings, also held in 1904, 400 for entitlement to lands in the central Tai Tokerau region around Ohaewai. b. Okuratupe, Waimate Papatupu Hearings 1902 On the east coast a number of claimants based their entitlement to land on the raupatu of Waimate by Auha and Whakaaria. Auha and Whakaaria were from Ngaitawake, which is referred to by speakers throughout the hearing as a hapu of Ngapuhi. In Ngapuhi 398 Okuratope Hearings, supra note Te Tii, Mangonui, Waimahe Hearings, supra note Matawaia Papatupu Block Committee Hearings, MB 31, 363.

230 230 whakapapa, they are two generations before Hongi Hika, which locates their activities as being somewhere in the early to mid 1700s. According to Hiramai Piripo, Auha and Whakaaria s sister, Whakarongo, married Kaihu and moved to Waitangi to live with him and his people, Te Whanauiti. Later, the brothers decided to visit her. During their visit they were insulted by the behaviour of their brother-in-law s people in serving them small kumara while eating larger kumara themselves. The brothers decided that some form of reprisal was necessary to assuage the insult they had suffered. According to Hiramai Piripo, when Auha left he dug his paddle into the soil and then sniffed it, commenting that it was no wonder that the kumara were so big when the soil smelt so sweet. After this the feeling of the inlaws toward Whakarongo worsened. Auha and Whakaaria sought assistance from their relation, Kauteawha, who asked the extent of the reprisal sought. Auha is reported to have said me pei atu kia haere ora nga tangata kia mate kote whenua anake, 401 push the people out so they remain alive and only the land will suffer. However, on hearing that his sister had been killed by her husband s people, his words are reported to have changed to me mate he tangata me mate te whenua, men must die and the land will die too. 402 In the ensuing battle the rangatira, Kaihu, was killed and the survivors of Ngati Miru and Wahineiti were driven off their land, escaping to Waimamaku in the west and Mangonui in the north. According to Piripo, Auha and Whakaaria took the mana rangatira, and Auha made tuku to those who assisted him in the raupatu. 403 The Okuratope Block, Waimate North Hearing, demonstrates the difficulty of claiming raupatu as a root of title, in the absence of specific tupuna who remained on the land. There is a dispute between Hiramai Piripo who is claiming directly from Auha and Whakaaria as his ancestors for the raupatu, and Wi Titore, spokesperson for Te Nana Whataparaoa, who claimed via raupatu under his ancestors Rangititakipu and Te Naana. According to Titore the four rangatira are closely related and all participated in the 401 H Piripo, Okuratope Block, supra note 255 at Ibid. 403 Ibid at 80.

231 231 raupatu of the area with equal authority. 404 When questioned in detail about the history of the block, however, Titore s lack of an intimate knowledge of the land was apparent, 405 even though his supporters were able to set out boundaries for the area claimed. 406 According to Titore: 407 Ka oti te takiwa ki raro te roherohe e raatou ka huri ake a e Rangitutakipu me te Naana me etahi hoki kahore ahau e maatau e rongo ana ahau no Ngaitawake ka karopotia e raatou a Okuratope ka kiia tena whenua i reira no Ngatikuta raaua ko Ngaitawake timata tonu atu te nohoia o tena whenua e enei hapu mate noa tenei kuia a Kuta i whakatarea ki kona, a, koiwi noa katahi ano ka kuhua ki te ana. Ka timata te noho a tae noa ki a raatou tamariki mahue noa ia ratou tena whenua engari ehara i te mea whakarere mate atu etahi o raaua uri ki Otuihi. English Translation When the boundaries of the area were done by them, te Rangitutaki, Te Naana and others I do not know, just hear they are from Ngaitawake, encircled Okuratope and it is said that land there belongs to Ngatikuta and Ngaitawake, and occupation took place right away by these hapu right until the death of this kuia, Kuta, who was placed on a platform until the flesh disintegrated leaving just the bones which they hid in the cave. They lived there then, right to the time their children until they left that whenua but did not leave for good, some of their uri died at Otuihu. In this evidence there is confusion as to what took place and who participated. This makes tracing the new ancestral line on the land difficult. Auha, Whakaaria, Kaingaroa, Hotete and Hika all stayed at Okuratope Pa at some time, which lent strength to the claim of the mana rangatira belonging to their line of ancestry. The burial of the ancestors spoken of by Titore and Paora Te Nana, in the land, also provide evidence of a link being established between the people they named as ancestors and the land. 404 W Titore, Okuratope Hearings, supra note 255 at H Piripo, ibid at TN Whatapaoro, ibid at 9, W Titore, ibid at 9.

232 232 In the Okuratope Hearings, Hiramai Piripo says that all the land of Waimate is subject to a single conquest, that of Auha and Whakaaria, as utu for Whakarongo s death by Ngatimiru and Wahineiti. 408 His detailed knowledge of events on the land is greater than Titore s. According to Piripo, following the raupatu of Pahangahanga, the people at Okuratope fled. Following that Whakataha was taken at Waitangi. From that time, Okuratope and Waimate were taken permanently under the authority of both Auha and Whakaaria. Some places were sold by the descendants of Auha and Whakaaria to Pakeha, after the battle. The rest of the land was divided, Matatawha to Te Rangitutakipu and te Naana of Ngati Kuta. That tuku had continued to the time of the Hearings. When it was completed, a further tuku of Takanini and te Kauri was made to Whao of Ngaitawake and his people. 409 The Committee 410 resolved these claims to separate lines of authority having been established on the land by the practical expedient of upholding Hirimai Piripo s claim based on conquest by both Auha and Whakaaria of Ngatimiru and Wahineiti, and also upholding that of Nana Whataparaoa based on conquest by both Rangitutakipu and Te Naana of Ngatimiru. A further claim by Taniora Te Korohunga, of conquest by Tawakehaunga of Ngati Pou was not upheld because there was no evidence to support this particular conquest having taken place. The Committee allocated 55 acres of Okuratope to Hiramai Piripo and those claiming under him, and 15 acres to Te Nana Paora on whose behalf Titore had spoken. All three claimants, including Te Korohunga, were granted shares in the burial ground of Hoanga, because their ancestors were buried there. c. Te Tii, Mangonui, Waimahe Blocks 1902 According to Hiramai Piripo this was a continuation of the Waimate raupatu. In this recounting it is Kauteawha who suggested that the people occupying Waimate be killed 408 H Piripo, ibid at Ibid at Decision of Court, ibid at 109.

233 233 and Auha who said it was better to let them live and take the land instead. According to Piripo, at that time Ngapuhi hapu extended from Kaikohe to Waipu. A hui was called of Ngati Whakaeke, Ngati Tautari, Ngai Tawake and Te Mounga, at Kaikohe, and they all agreed to fight Wahineiti. They systematically moved across the land clearing the people off it. 411 Following the battle the land was divided by Auha and Whakaaria amongst the supporting hapu. 412 The defeated hapu went to Hokianga and to Mataka, Te Tii and Mangonui. According to Piripo, three years later, Auha and Whakaaria decided to attack the surviving Ngati Miru and Wahineiti. They sought the assistance of Kauteawha, of Ngati Rahiri who was resident in the Bay of Islands. Auha, Whakaaria and their nephew, Toko, went by land and Kauteawha went by sea. They built a Pa, Te Waha o te Riri, at Mangonui, from which Ngati Miru and Wahineiti were defeated. The words of Kauteawha, spoken at Waha o te Riri, are reported as, Ka ea to korua whangainga ki te kumara piha me te matenga hoki o to korua tuahine o Whakarongo, or your being fed with small kumara and the death of your sister is now cleared. 413 The import of this was that, in his view, the utu for both wrongs had been compensated. i. Tuku by Auha According to Piripo, Auha s response was Ko tenei e Tamara e Kauteawha ko koe ano i kauhoe mai i te moana kia koe ano te mana o te moana me nga takiwa katoa o Mataka. 414 or Kauteawha, because you alone came by sea to you alone I grant the mana of the sea and all the region of Mataka. Kauteawha agreed, and according to Piripo ka riro te mana o te moana o Mangonui ahu atu ki Mataka ia Kauteawha me tona iwi me Ngati Rahiri. 415 the mana of the ocean of Mangonui out to Mataka was taken by Kauteawha and his people of Ngati Rahiri. Piripo says that Auha and Whakaaria then made tuku of 411 H Piripo, Te Tii, Mangonui, Waimahe Hearings, supra note 181 at Ibid at Ibid at Ibid. 415 Ibid.

234 234 all the lands at Waha o te Riri and Mangonui to Toko, who later made tuku to the ancestors that Piripo raised in his korero. Aperahama Parangi also claimed land entitlements via raupatu to the area of Takou. According to Parangi, Auha and Whakaaria made tuku of the area of Takou to Toko, which was disputed by Auha s son, Hotete. 416 Competition arose between the two for authority over the area. Symbols of rahui established by Toko to signify the establishment of his mana over the area were removed and replaced by those of Hotete. Toko then dug a ditch to indicate the boundary of his territory. Matters between the two deteriorated until the situation was resolved by trial by combat in which two sides of 70 warriors fought each other. Hotete s group were overwhelmed and he conceded the land to Toko. 417 A second claim to entitlement of land was made by Parangi under mana tupuna, beginning from Toko, who was 7 generations past. 418 This was an alternative claim, and a weaker claim, the true root of title being raupatu consolidated by residence on the land. An interesting comparison is provided here in that it took more than 7 generations on the land to produce mana tupuna status derived from raupatu, while in the Hokianga Hearings 10 generations on the land was sufficient for mana tupuna status to have become the principal claim. Somewhere in between, the root of entitlement undergoes a transformation. In the claim for Te Tii, Mangonui and Waimahe Blocks, Hone Rameka and Hare Napia, claimed under mana tupuna from the ancestor Turou who predated the raupatu of Auha and Whakaaria, and whose ancestors had remained living on the land up until the time of the Hearings. According to Rameka, the land at Te Tii was not subject to the raupatu of Auha and Whakaaria and the people on the land were descended from Turou of Wahineiti, 419 Te Hikutu and Ngati Rehia A Parangi, ibid at H Piripo, ibid at A Parangi, ibid at H Rameka, ibid at 27 and Ibid at 34.

235 235 The debate about the extent of the raupatu was intense. The physical existence of members of the old regime on the land gave credence to Rameka s claims, while the technical argument raised by Piripo of a new mana being exerted over the entire area also held merit. The Committee was divided, 3 members supporting Piripo and 3 supporting Napia. The Chairman voted he keehi tika in each case, thus upholding both the claim based on raupatu and that based on mana tupuna. 421 In both cases current occupation seems to have provided the Committee with a way of resolving the deeper conflict between the two sources of entitlement. That it was shares in land, rather than specific interests, that the Committee was awarding, made compromise easier, as people were able to remain in occupation of the land on which they were living. Thus, once again the ongoing relationships on the land, in terms of both whakapapa and whanaungatanga principles, were protected. d. Matawaia No. 1 Block At the Hearing for Matawaia No. 1 Block, held at Ohaewai, Perepe Komene, who lived at Ngawha, claimed entitlement to the whole block as a descendant of Whaingaroa. He said that Matawaia and Ohaewai had once belonged to Ngati Pou and Te Roroa. They had lost the land through raupatu to Whaingaroa, Kaitara and Matahaia, following the killing of Whakapu, wife of Kopiri, by Kakanui of Ngati Pou. After the raupatu Whaingaroa and his people, Ngati Rehauata, lived at Matawaia and worked on the land under Whaingaroa s mana. 422 Ngati Pou were defeated at Pikoi and the survivors were taken from the land to live in other areas. 423 After the raupatu, the land was divided by Matahaia, Kaitara and Whaingaroa. Kaitara remained at Ahuahu, Matahaia at Ohaewai, and Whaingaroa at Matawaia. 424 Pepere sets out the pa that were taken in the raupatu and the boundaries, as follows: Decision, Te Tii, Mangonui, Waimahe Hearings, supra note 181 at K Perepe, Matawaia Hearings, supra note 400 at Ibid at Ibid. 425 Ibid at 6-7.

236 236 E mohio ana au ki nga pa o nga Tipou i tenei patuna e 9, 1 Maungaturoto, 2 Kauauarau, 3 Porutu, 4 Takaporuru, 5 Patikotiko, 6 Piriwai, kati ano nga mea e mahara ana au. Rohe o te raupatu Timata mai i Rakautapa, kahaere mai i te raina a Mita Henare i te Manowhenua Onewaha, pakohatu, ka heke kite wai o Pekekaka tika tonu mai ki Taiamai, ka tika ki Wairere tika tonu ki wharetaua, ka huri mai i reira, tika mai ki Pahangahanga, Waitohi, ka ahu kite Ahuahu Puke te Waimimiti, Oruariwharo, ka huri kite Ngawha. Tahakino, haere i roto o te wai ka tutuki ki Rakautapa. Ae koia tena ko te rohe kia Whaingaroa toenga o te wahi kua hokoa kite pakeha! English Translation I know there were 9 pa of nga Tipou in this killing. Maungaturoto, Kauauarau, Porutu, Takaporuru, Patikotiko, Piriwai are the only ones I remember. Boundaries of the raupatu Beginning at Rakautapa, come towards the line of Mita Henare at Manowhenua Onewaha, Pakohatu, down to the waters of Pekekaka, straight to Taiamai, to Wairere, straight to Wharetaua, turn from there to Pahangahanga, Waitohi, go in the direction of Ahuahu, Puke and Waimimiti, Oruariwharo, and turn to Ngawha, Tahakino, go through the water and end up in Rakautapa. Yes, that is the area of Whaingaroa, remnants of the place that has been sold to the pakeha! Hirini Taui of Ngati Rangi was another claimant who claimed to know all the tikanga of the land. He says there were three separate killings by members of Ngati Pou that precipitated the raupatu against them. This is consistent with the practice on the west coast of waiting until several take had arisen before seeking reprisal for accumulated offences. Taui names the rangatira whose people combined to carry out the raupatu as being Kaitara, Matahaia, Tapua and Whaingaroa. The pa fought were Urutapu, Takaporurutu, Piriwai, Ruapango and some others that he cannot remember. After the raupatu Matahaia and the others returned to Ruahonga and the remaining Ngati Pou retired to Maungaturoto. Some Ngati Rangi women living at Maungaturoto Pa were sent to Matahaia and Kaitara to admit defeat and to ask them to leave the land. Matahaia s response is reported as being, Ko ahau i toa, ko koe i mate, ko koe e haere, I won, you

237 237 lost, you leave. 426 Then Te Whiti went to Maungaturoto and Pakae made tuku of his garden to Whiti, and te Maunga also made a tuku of his garden at Papehanga to Whiti. 427 According to Taui, they did this because they knew Whiti would be obligated to give a gift for the land they were releasing. Whiti led the way to just before Okaihau, where Ngati Pou split. Kouie and his people went to Whangaroa. Te Maunga and Pakaa and Tukarawa went to Otuaone. Whiti remained at Otuaone. After that the land remained tapu. 428 It is unclear in this account whether Whiti is a member of the raupatu group, who was sent to provide Ngati Pou safe passage from the land, or whether he was a member of Ngati Pou. The tuku of the gardens to him, indicates that he was a member of the raupatu group, but his concern for the welfare of Ngati Pou in leading them from the land indicates either that he had very close whakapapa links to Ngati Pou, or that the rangatira bought their safety with the tuku of land. Taui sets out the divisions of territory following the raupatu as follows: 429 No te taima ka hoki mai a Whiti ki konei, tae mai, ka tahi ka wehewehea te whenua ko te taha hauraro ia Kaitara, na Matahaia, na Whaingaroa me etahi atu i wehewehe. 3. Nga pakarutanga. Ko te wehenga kia Matahaia me ona iwi i raro ia ia. Timata i Matamatapouri e ahu ana kite hau raro, haere i te wai o Pekekaka, Waitaiki, ka huri ki te hau auru. Ka haere i roto o te awa o Waitaiki. Ka eke i te taha hauraro o Rarahi te Waimimiti, a whiti ite Waitukurae, Turapakuri, ka huri ki te tonga. Ka haere ite raina ate Aara, te Kohatu ate Hauaa, Paremata, ka huri kite marangai, Ngakiriparauri, Tekupukupu, Te Ngawha, Mangatoai, ka huri ano ki te hau raro, Taimimiti, ka eke ki uta ka huri kite marangai. Te mata ote whenua, Tauaki, Titiraukawa, Kauae Whapuku, Te rere a Pauau, Tupapa Wherere, Pekekaakaa, ka tuhono ki Matamatapouri. Tena wahi i wehea kia Whaingaroa me ona hapu i raro i a ia. 426 H Taui, Matawaia Hearings, ibid at Ibid. 428 Ibid at Ibid at 24.

238 238 English Translation From the time Whiti returned there, the whenua was divided, the northern to Kaitara, Matahaia, Whaingaroa and other divisions. The divisions. The division to Matahaia and his iwi under him began at Matamatapouri and faced towards the north, along the waters of Pekekaka, Waitaiki, then turn to the west. Go through the river of Waitaiki, climb to the northern side of Rarahi te Waimimiti, cross to Waitukurae, Turapakuri, then turn south. Go along the line of Te Aara, the rock of Hauaa, Paremata, turn to the east, Ngakiriparauri, Tekupukupu, Te Ngawha, Mangatoai, turn again to the north, Taimimiti, go ashore and turn to the east. The surface of the whenua Tauaki, Titiraukawa, Kauae Whapuku, the waterfall of Pauau, Tupapa Wherere, Pekekaakaa, then join up at Matamatapouri. That area was divided out to Matahaia and his iwi under him. The boundaries set out by Taui for Matahaia and those under him are very clear. He also sets out the area that was divided out to Whaingaroa and his people in the south. 430 He also states that the descendants of Te Reinganui have entitlements based on take tupuna in the Oromahoe area facing Te Tii, as that land belonged to Ngati Tehina. 431 The raupatu of Matahaia takes place during the lifetime of Moetonga, who is the ancestor for Waireia on the west coast. According to Taui, she was the wife of Te Uira, who was an uri of Te Reinganui. 432 That would place this raupatu in the 1600s or earlier. e. Conclusion Occupation is important with raupatu claims, in order to establish that it was not just a battle against people but that the land was subdued as well. Complications arose when existing members of a group were left in occupation and married into the new occupants, as to which was the correct source of title. In the east coast Hearings there is a contest between those claiming mana tupuna entitlements from ancestors that predated the raupatu and those claiming via raupatu. In these circumstances, as with Korohunga s claim to Hoanga wahi tapu, the establishment of wahi tapu reinforced the link of the 430 Ibid at Ibid. 432 Ibid.

239 239 newcomers and their descendants to the land. The wahi tapu is a mark of their permanent occupation, the implication being that only people with a legitimate claim to the land would be willing and entitled to lie there in death. In situations like this, the complexity of two groups living together under two different regimes which produced competing claims was resolved by reliance on current occupation as a source of entitlement. The allocation of shares rather than definite interests in land also made it easier for Papatupu Committees to reconcile competing claims. (v) Setting Boundaries Between Group Territories Territorial boundaries were set for two reasons. The first, was to ensure peaceful coexistence after a series of disputes over resources, as with Ngati Korokoro and Ngati Manawa in the Hokianga region. The second, occurred after a raupatu when the successful rangatira, having extinguished the prior mana to the land, re-distributed the land to other rangatira and set the boundaries between the various groups. Once boundaries were settled the new rangatira was responsible for organising and maintaining the tikanga on the land. During the Papatupu Hearings each claimant set out the boundaries laid down by the tupuna from whom they were claiming land entitlements. There was an expectation by the Hearing Committee that those who asserted mana rangatira status would have an intimate knowledge of the land, including its history and ancestral boundaries. Those who did not know the boundaries were not held to be as credible as those who did know them. Ancestral claims to land covered broader areas than the Blocks being adjudicated by the Papatupu and Native Land Court in the 1900s. In the Whakarapa/Waihou Hearings, Heremia Te Wake claimed that the areas of Herewini Te Toko s proper ancestral entitlements under mana tupuna extended over into the area of Waireia; Wiremu

240 240 Rikihana s toward Waihou and Matamata Blocks; Herepete Rapihana s toward Ngarongotea, Kahakaharoa, and Wairoa Blocks; and Taniere Rangipaoa s toward Ngunguru Block. 433 However, even though they may have possessed stronger claims elsewhere, the Papatupu Committee found that they also held entitlements to the lands within the Waihou/Whakarapa area, based on mana tupuna. In the Whakarapa/Waihou Hearings, Re Te Tai states that Ngati Moetonga and Ngati Te Reinga were constantly disputing territorial boundaries. To settle the disputes, a boundary was laid down which still existed at the time of the 1904 Hearing. I include an English translation of Re Te Tai s recitation of the causes of the battle and the boundary set down in order to illustrate its detailed parameters, and the depth of knowledge of land held by one who exercised mana rangatira. 434 Na Ngati Te Reinga te whawhai tuatahi. He whawhai ki a Ngati Moetonga mo nga rohe o te whenua nei. E kawe mai ana Ngati Moetonga i te rohe ki te awa o Waihou nei, ara, ki te tou o Moetonga, i te wahapu o Te Kohe. E kawe ana Ngati Te Reinga i te rohe ki Ngaha. Ka waiho hei tautohe ki waenganui i a raua. I roto i tena tautohe ka noho huihui raua. Katahi ka whakatakotongia tetahi pakaru i waenganui i a raua kia wehe te taha ki a Ngati Moetonga, kia wehe ki a Ngati Te Reinga. Te otinga iho o tena tautohe ka unuhia mai te rohe i Ngaha, ka unuhia hoki to Ngati Moetonga i te awa o Waihou nei. Ka whakatuturutia e enei iwi e rua, hei Whanganamu te rohe. Ka mutu tonu tena raruraru i roto i te wa i a Matauturangi ma, tae noa mai ki nga nga ra i a Kahi, i a Poroa, ka pokaiaketia e ratou he tikanga. I te otinga o tena rohe, kaore i puta tena rohe, mai ano i a Matauturangi, i a Te Reinga, i a Te Kuri, i a Niwa, i a Te Ruapounamu, i a Kahi, i a Papahia, i a Ngakahuwhero, i a Te Tai raua ko Te Hira, tae noa mai ki au nei. Kaore tena rohe i whakararua e etahi atu iwi, ki taku rongo ki oku matua, ki a Muriwhenua hoki. Ko Te Tungutu, ko Kahi, ko Pakurakura nga mea i raruraru mo taua rohe i muri iho nei. Ko oku tupuna nei i hiahia kia nukuhia taua rohe ki Waireia. Kei te awa o Motukaraka te rohe a Ngati Te Reinga mo te taha ki te marangai o te whenua nei. Ka haere i roto i taua awa tae noa ki te wehenga o Pukekohe, me Te Tapuwae. Ka haere i roto i te awa o Pukekohe ka tae ki Kohatuhapai, ka marere ki te wai o Manganuiowae. Ka heare i roto i taua wai ka ahu ki waho Hoehoea, Otangaroa. Ka haere i roto i Otangaroa awa, te taha ki tua o Panguru. Ka marere ki te awa o Waihou, o Wharerimu hoki, ka eke ki Maungapohatu oneone. Ka 433 H Te Wake in Karanga Hokianga, supra note 172 at R Te Tai, ibid at 64.

241 241 haere, ka tae ki Maungapohatu kohatu, Te Puaorei, Tarawa, Kukupa, Te Pare, ka eke ki Tauwhare. Ka heke Te Rau o Te Aute, Rangionoono, ka whiti i runga o te awa o Waiheke, ka kake Raukawa, Te Koropiha, Omonoa, ka haere i roto i Omonoa awa, Okaraua. Ka tae ki tetahi kowhatu ko Whanganamu te ingoa. Ka haere i te tahataha nei Matariki, Wekoweko, ka whiti i Waihou awa, Kowhatuhapai, Toungarangara, te waha o Te Marangai, ka whiti i te awa o Motuti, Motukauri, Otongatonga, Te Kurukuru, ka whiti i te awa o Whangapatiki, Pongipongi, Puhikaiata, Kaitara, Waiohaoa, Te Pane o Haiti, Te Hoanga, Oruangongoro, Purakau, Te Kahikatoa, Matawera, ka tuhono. Ko te rohe tena. Ko tenei te whenua no Ngati Te Reinga tuturu, no nga uri o Te Reinga. Kei a Tupoto te raruraru o tena whenua i mua, o te taha ki roto, i raruraru i a Tupoto raua ko Matauturangi. He uri ngatahi hoki raua no Kaharau. Te Rohe a Tupoto I te rongonga o Tupoto i tena raina ka rahuitia e ia a Puhikaiata, ka poua e ia te rohe ki reira. Ka waiho tena he pakanga ma raua. Ka kake i Puhikaiata, ka eke ki runga ki te io nui o Pongipongi te rohe a Tupoto. Ka pakaru i waenganui o ta tera rohe Te Kaiwhakapaepae, Te Umukiwi, Ahikiwi, Herepahore, Pukewharariki, ka marere ki te kuinga o Pukekohe. Kaore i oti tena tautohe i te wa i a raua e ora ana. No te wa i a Te Reinga, me Kairewa, uri o Tupoto, ka oti tena tautohe. Ka whakahokia mai te rohe i te awa o Motukaraka ki Oruangongoro. Ka whakahokia atu hoki te rohe i Puhikaiata ki Oruangongoro, ka mau te rongo o tena raruraru. Timata i Oruangongoro, ka eke ki Toetoe, Puteehua, Te Kaiwhakapaepae. No kona ka haere i runga i te raina a Tupoto. Ka haua tetahi rakau i kona ka whakakanohitia. I te wa i a Te Reinga raua ko Kairewa ka huaina taua wahi ko Te Rakauwhakakanohi, tae noa mai ki naianei. Ka wehe te taha ki roto ki a Ngati Kairewa, ara, ki Ngaitupoto. Tera atu ano ia nga tangata, i a ratou tera wahi. Ko te rohe nui tena mai i a Kairewa raua ko Te Reinga, tae noa mai ki naianei, koia na ano te rohe. English Translation The first dispute belonged to Ngati Te Reinga. It was a dispute with Ngati Moetonga for this whenua. Ngati Moetonga was extending their rohe to the river of Waihou, that is, to the seat of Moetonga, at the bay of Te Kohe. Ngati Te Reinga was extending their rohe to Ngaha, which left that as a dispute between them. They stayed together in their quarrel. A split was laid down between the two of them, to separate the side to Ngati Moetonga and the side to Ngati Te Reinga. The ending of the quarrel, the rohe of Ngaha was lifted and so was Ngati Moetonga s rohe to the river of Waihou lifted. It was settled by these two iwi, for Whanganamu to be the rohe. So that ended that trouble at the time of Matauturangi and others, right down to the days of Kahi and

242 242 Poroa, they have assembled their tikanga. At the completion of that rohe, it remained the same right from Matauturangi, Te Reinga, Te Kuri, Niwa, Te Ruapounamu, Kahi, Papahia, Ngakahuwhero, Te Tai and Te Hira, right down to myself. That rohe was not disturbed by any other iwi, according to what I heard from my matua, and Muriwhenua too. Te Tungutu, Kahi, Pakurakura were the ones who were in trouble for that rohe later on. My tupuna wanted to shift that rohe to Waireia. The rohe of Ngati Te Reinga is at the river of Motukaraka, for the eastern side of this whenua. Go through that river until the separation of Pukekohe and Te Tapuwae. Go in the river of Pukekohe until Kohatuhapai is reached, and descend to the waters of Mananuiowae. Go through those waters towards outer Hoehaea, Otangaroa. Go in the Otangaroa river, the side beyond Panguru. Descend to the river of Waihou, Wharerimu also, and embark on Maungapohatu beach. Proceed, until Maungapohatu rock is reached, Te Puaorei, Tarawa, Kukupa, Te Pare, and embark to Tauwhare. Go down Te Rau o te Aute. Rangionoono, cross the river of Waiheke, climb Raukawa, Te Koropiha, Omonoa, go in the Omonoa river, Okaraua. Reach a rock by the name of Whanganamu. Go to the sides of Matariki, Wekoweko, cross the Waihou river, Kowhatuhapai, Toungarangara, the mouth of Te Marangai, cross the river of Motuti, Motukauri, Otongatonga, Te Kurukuru, cross the river of Whangapatiki, Pongipongi, Puhikaiata, Kaitara, Waiohaoa, Te Pane o Haiti, Te Hoanga, Oruangorongoro, Purakau, Te Kahikatoa, Matawere and join up. That is the rohe. This whenua belongs to Ngati Te Reinga tuturu, to the uri of Te Reinga. Tupoto was the cause of the trouble on that whenua before, concerning the inner side, trouble between both Tupoto and Matauturangi. They are both uri of Kaharau. When Tupoto heard that line, he put a rahui on Puhikaiata and staked the rohe there which left that as a pakanga for them. Climb Puhikaiata, embark on the big ridge of Pongipongi, the rohe of Tupoto. And split in the middle of the other rohe Te Kaiwhakapaepae, Te Umukiwi, Ahikiwi, Herapahore, Pukewharariki, and descend to the source of Pukekohe. That quarrel was never over during the time they were alive. At the time of Te Reinga and Kairewa, uri of Tupoto, that quarrel was finished. The rohe at the river of Motukaraka at Oruangongoro embark on Toetoe, Puteehua, Te Kaiwhakapaepae. From there, proceed along the line of Tupoto. A tree was chopped and carved into a face. At the time of both Te Reinga and Kairewa, that place was named Te Rakauwhakakanohi, right down to this day. The inner side was separated to Ngati Kairewa, namely Ngaitupoto. There were other people who had that other place. That is the big rohe from the time of both Kairewa and Te Reinga, right down to this day, those are still the rohe Re Te Tai in Karanga Hokianga, supra note 172 at 65.

243 243 The ancestral boundary between Waireia and Waihou is set out by Wiremu Rikihana, one of the main claimants for both blocks: 436 Commencing at Te Kohe, Matariki, Whanganamu, Pohaturoa, Ngaio, rounding Te Karaka Point, Tokangararara, Te Raupo, Te Awa, Tawiri, Ngamotu, Roherohe, Punehu, Te Teke-a-Moetonga, Hauauru, Te Horo, then to Ngaha stream, Te Pikitanga, Te Haneanea, Te Au-o-te-moana, Papataraire, Te Ihumango, Paparata, Tauwhare, Te Takanga, Te Rau-o-te-Aute, Rangiaroaro, Whitikia, thence to te Kohe, the point of commencement. The portion of land on the Waihou side of this belonged to Te Reinga. Moetonga and Te Reinga are not of the same generation. I cannot say what ancestor accompanied Moetonga in laying down this boundary, I do not know what ancestor owned the land on the western side, in the time of Moetonga. The kaumatua say there was an ancestral boundary for Matihetihe. Pako and Paremata stated that, that land (Matihetihe) was cut off for the Raraku and Kaingakore. I do not know what ancestor owned the land on the east side of that boundary, that is, between Matihetihe and Te Peke. The ancestors set up for Wairoa were Ngarowiwi, More and Marunui. All these persons are descendants of both Moetonga and Tangaroa Tupo. The land which I have described belonged to Moetonga, but I never heard that the land westwards of it, to the coast belonged to Moetonga. I do not know whether it was from Tangaroa Tupo, or from Moetonga that Ngarowiwi inherited his rights. 437 Hami Wi Mutu lays down the following boundary for Moetonga s ancestral rohe for Waireia: 438 Commencing at Tokotoko-o-Moetonga thence to Teke-a-Moetonga, thence to Heneanea, thence generally northwards to the ridge of a range, thence turning eastward towards Tauwhare, thence to Rau-o-te-Aute, thence following the Whitikia swamp to its mouth, thence following the Kohe stream to the Tou-o-Moetonga, thence following the edge of the river to Ikapirau, Pohaturoa, thence following Te Karaka Point, following the edge to Awa Tawiri, Ngamotu, crossing to the 436 W Rikihana, Waireia Hearings, supra note 175 at Ibid at H Wi Mutu, ibid at 74.

244 244 commencement. This is the description of the boundary laid down by Moetonga for Waireia. Tangaroa Tupo and others, contemporary with Moetonga, owned the land west of this. A similar line is laid down by Hunia Paaka, who lives in Waihou. Although the order of the recitation is different, it includes the same places. 439 Himiora Kamira who lived at Wairoa and was claiming for Te Peke and Pupuwai areas, laid down the boundary between Wairoa and Te Peke: 440 More and Te Kotuku laid down the boundary between Wairoa and Te Peke. More owned the land on the Wairoa side of that boundary. The boundary between Te Peke and Waireia was laid down by Te Kotuku on one side (for Te Peke), and Maraewhiti and Taoi for the Waireia side. I can describe the boundary. Beginning at the Ngaha stream then west to Te Pikinga, then ascend to Haneanea, then north to Waipa, then by Waihouru stream, then in a straight line to Tapataparuru, then round the Raukau Tanerua stream, then ascend to Ihumango, then north east ascending to Tauwhare, then north to Pukekotihe, thence south-west to Puketotara, thence west following the summit of a ridge to Ratawharara, Pukewharariki, still following the range to Poare, then south to Porokowhai, Papamaii, Puketutu, Waikapu, Otauira, Te Kahu. Then to the boundary of Te Ohu, Papamangemange, then in a straight line to Pukemaire, then Karemoa, then to the boundary of Te Ruaki, follow the boundary of that line to Pupuwai stream, then along the shores of that stream east to Waiparera, then follow the boundary to Waiparera to Te Mataa, to Rotokahi, Matangawhi, Patikipapa, then to the boundary of Hauauru, along that boundary to the Ngaha stream, and the point of commencement. A feature of boundary setting is that it is done by encircling the area, following known natural features such as rivers, rocks and hills and naming the various places. In both the Whakarapa/Waihou Hearings and the Waireia Land Court hearing, changes in boundaries are said to have occurred in successive generations in order to settle disputed areas and to reflect changes in group composition as people, moved, married, gave birth and died. Many of the claimants for the Waireia Block in 1913 are the same as for the Waihou/Whakarapa Block, which was settled nine years earlier in While the 439 H Paaka, ibid at H Kamira, ibid at

245 245 evidence appears to be more tailored in the Waireia hearing, concerning less detail regarding the recitation of historical events and disputes over territory, the method of setting boundaries is the same as that used in the earlier Papatupu hearing for Waihou and Whakarapa. On the west coast the recitation of ancestral boundaries distinguished those with tuturu claims from those with weaker claims. The stronger claimants know the original boundaries set by the rangatira in earlier generations, and can trace their whakapapa associations to land down to the present generation. Those with weaker claims have only limited ancestral links to specific areas of land that their whanau has occupied by virtue of a tuku from the senior line in the past. For this reason, Heremia Te Wake s lineage is described as he huruhuru i runga i nga wae o Te Tihi, hairs on the legs of Te Tihi by Re Te Tai. 441 Tiapakeke s, (fathter of Heremia), lack of whakapapa associations on the land are related by Pauro Te Rangaihi, who also describes his own connections as being he uaua anake only veins [not a main line]. 442 On the east coast boundaries are more tenuous, the area having been colonised and recolonised by different groups of Ngapuhi through raupatu. In these circumstances, occupation took on great importance as an indicator of entitlement to any given area, as claims by way of ancestry were contested by those claiming the same area under mana tupuna. (vi) Retaining Territory Ringa Kaha The importance of ringa kaha, or the ability to hold territory against an aggressor was mirrored by the great deal of mana ascribed to warriors within a group. In Nga Pakanga o Ngapuhi, Pene sets out major battles that were engaged in by various factions of Ngapuhi. Several parekura are also described by Re Te Tai in his evidence. 443 These are mainly small skirmishes in which one or two people were killed. Rarely, however, did these disputes escalate into full-scale challenges 441 R Te Tai in Karanga Hokianga, supra note 172 at P Te Rangaihi, ibid at R Te Tai, ibid at

246 246 for territory. Neither did every defence of territory require a full-scale battle. Negotiation and capitulation were always options, as evidenced by Moetara s withdrawal from the north Hokianga region. In the Waihou/Whakarapa Hearings, several claimants speak about the encroachment of Ngati Korokoro on to the land when Poroa took his people north to Ahipara. Although Re Te Tai spoke of a conditional tuku being made by Papahia to Moetara, on the return of Te Rarawa many years later, the warriors went back to the lands they had previously occupied. According to Wiremu Rikihana, Whakarongouru of Ngati Manawa returned to Orongotea, which was densely populated with Ngati Korokoro. When it was discovered that he was living on the land, Moetara, the rangatira of Ngati Korokoro, sent for him to cross to Pakanae. After an exchange of greetings, Whakarongouru is reported to have been welcomed with the words: Haere mai e kara, ka tae mai ano koe te tangata, i te whenua 444 (Welcome back old man, you have returned, the man on the land). In the Waireia Hearings, nine years later, this interchange is described by Rikihana as, Friend you are returning to your own soil, and to your own land. Those in present occupation must leave it. Moetara instructed his people to leave the area and Whakarongouru s people from Ngati Manawa then returned to their former homes. 445 The situation was different however, when Te Tihi, another Ngati Korokoro leader, refused to leave the land and was killed by Hongi Hika at Mataraua Pa. The land was declared tapu by Ngati Korokoro and abandoned. When Moetara later referred to the death of Te Tihi as establishing a legitimate basis for Ngati Korokoro to claim the land, Muriwhenua of Ngati Manawa is reported to have replied, who told your tupuna to come and die on my land. 446 The trouble that began with verbal insults being traded then developed into a symbolic struggle for authority, manifested by the setting up and destruction of rahui and boundary markers signifying the mana of the two rangatira. Matters steadily deteriorated until Moetara tricked Te Hikutu into plundering the ship of Clendon in 1833, and then used it as justification for attacking Ngati Manawa. A battle was fought at Motukauri at which several people were killed. Moetara ended 444 W Rikihana, ibid at Ibid at R Te Tai, ibid at

247 247 the fighting by firing his gun and he and Muriwhenua hongi d and cried over each other. Muriwhenua instructed Ngati Korokoro to hurry and gather their dead because Ngaitupoto, the iwi to whom Ngakahuwhero belonged, would soon be pursuing them. After this, Whatia and the other brothers of Ngakahuwhero from Ngaitupoto moved on to the land to protect their sister and their nephews from harm. Fighting continued, until three years later when Moetara crossed to see Papahia and returned the land to Ngakahuwhero, Papahia, Te Tai and Te Hira. 447 In this example, the treachery of Moetara and the insults of Muriwhenua led to a battle which dissolved into an emotional display of affection between warriors after the battle. The mutual respect and affection can be explained in terms of their close whakapapa links and their obligations of whanaungatanga. Neither rangatira desired major killing amongst their people, although neither seems to have stepped back from the opportunity to prove their prowess by engaging in physical combat. The desire to extend one s territory into that of a neighbour was often the cause of pakanga. In the generations before Te Reinga, there had been continual fighting on the land in Hokianga. According to Re Te Tai, during the time of Te Reinga and his cousin Ngawha, Te Wairua of Ngapuhi, (the father of Auha and Whakaria) came to challenge Te Reinga for possession of the land. In the ensuing battle Paraparatahi was killed by Te Wairua. Te Wairua then returned inland to Taiamai. When he got to Waima he sent for Ngati Hurihanga to come and assist him to defeat Te Reinga. Ngati Te Reinga waited for their arrival at Takapuna. The group included Niwa, Te Kuri, Te Ngawha, More and Te Huakioterangi. Te Wairua was killed in the ensuing battle. Later, a battle was fought in which Tanemitirangi was killed to settle the score and that ended the matter. 448 Sometimes when groups combined to take on those holding mana whenua, members of the attacking party were caught and taken prisoner. That would signify an end of the fighting and peace would be made by the rangatira. The prisoners would then be released and allowed to return to their own group. An example of this is given in the Hokianga Hearings regarding a 447 R Te Tai, ibid at Ibid at 70.

248 248 battle, which began over resources, but then escalated into a contest to establish who possessed the predominant mana rangatira out of Ngati Te Reinga and Ngapuhi. The initial facts are straightforward. The rangatira, Ngatamawahine, who held the tikanga of Rotokaakahi and Te Awaroa areas toward Whangape, had established a rahui over the whenua and sea. Another rangatira, Te Puaha, was disappointed that he could not eat the seafood and called on Papau of Ngapuhi to kill Ngatamawahine so that the land would be left vacant for him. In the ensuing battle Papau was defeated. He was conveyed by waka, dying from his injuries, back to Hokianga. On the way his blood mixed with the waters of the sea and Tokowha and other rangatira from Ngapuhi, placed a rahui on the sea. The rationale here is that the blood of the rangatira, Papau, had mingled with that of the sea, infecting it with his mana and tapu. Therefore the area had been made temporarily unfit for humans. Ngati Te Reinga and Ngaitupoto, who held the mana over that area of the sea, heard, and sought revenge for this attempted usurpation of their authority. Tungutu was a member of the group who fought and defeated Ngapuhi in the ensuing battle. Several of the Ngapuhi leaders were taken captive, including Tokowha, who was later released. Tokowha remained aggrieved at having been captured. Years later, when Te Tungutu was an old man, he was carried on a litter into battle to encourage his warriors. Tokowha was fighting on the other side. Having being defeated yet again, Tokowha was making his farewell speech before being killed. Tungutu asked his people to carry him to the front line, where he uttered his words and jumped forward to hongi Tokowha. That act saved Tokowha s life and peace was finally made between the two groups. 449 No kona ka kii a Te Tungutu: E te whaanau, mauria atu au hei whakahau riri ma koutou. Ka kauhoatia a Te Tungutu. Titiro ana Tokowha kua mate ia, katahi ka karanga: Haere mai e Panguru,haere mai e Papata, haere mai e Te Reinga. Me tana karanga ano e: E Tamara ma, ee, kia ora au. Ka tata atu ka meatia kia tukua ki raro a Te Tungutu. Ka kii a Te Tungutu: E te whanau, nukuhia, kia piri, kei roa te kawenta i te riringa. Ka kii a Te Tungutu kia tukua ia ki raro. Ka tatu a te Tungutu ki raro, me tana toko. Ka puta tana kupu: Whiitii, whiitii, tataa, tataa. Ka peke a Te Tungutu ka u te ihu ki a Tokowha, ka 449 Ibid at

249 249 whakarorangia. Ka hoki mai a Tokowha, ka mutu te ngakau o Te Puaha, tae noa mai ki a Papau. Ka houhia ki te rongo e Te Tungutu. English Translation Then Tungutu said, Whanau, take me (as an excuse) to cause battle for you. So Te Tungutu was carried on a litter. Tokowha saw that he was beaten, so he called Welcome Panguru, welcome Papata, welcome Te Reinga, and he called again Men let me live. As they neared, they were told to let Te Tungutu down. Te Tungutu said whanau shift closer together so the burden cannot be seen so easily. Te Tungutu said to let him down, and when he was let down, with his walking stick, he uttered these words, Whiitii, whiitii, tataa, tataa. Tungutu jumped forward and pressed noses with Tokowha, and he was saved. Tokowha came back, the yearning for Te Puaha ceased, right down to Papau. Peace was made by Te Tungutu. This interchange highlights the personal aspect of mana being used to atawhai enemies by preserving life, as opposed to the administrative role associated with land administration, or the general warrior aim of diminishing mana. The action of Tungutu is one of benevolence and recognition shown by one warrior toward another of equal status. It also demonstrates the authority of the warrior rangatira. In performing this action at a time when Tokowha was ready to be despatched, Tungutu acknowledged him as an equal and gave him back his mana, thus clearing any past grievances and permanently ending the matter. (e) Conclusion Mana was an important substantive constituent of all things, which waxed and waned over time. The mana of individuals within a group, Mana Tangata, was ascribed first to lineage and then to behaviour that protected and strengthened the group s image and welfare. Mana Tupuna attached to ancestors and was a legitimate basis for claiming land entitlements within a group s territory. Mana Whenua, although a modern term, can be aptly applied to the traditional relationship between people and their lands. Unoccupied land could be acquired by establishing one s mana on the land and reinforcing it with occupation. Once acquired in this way, the disposition of entitlements within the group became the job of those who exercised mana rangatira. In the Papatupu Hearings for Waihou/Whakarapa this traditional mana was

250 250 challenged by junior members of the group, when trade opportunities shifted Maori society from subsistence level agriculture to a trade economy. Raupatu was another means of acquiring territory by diminishing the mana of the existing group and replacing it with that of a new senior lineage on the land. In practice, raupatu were rarely ever complete annihilations of a group, as members of the original group often remained in occupation under the mana of the new rangatira. Although different views have been expressed about whether boundaries existed between hapu and iwi in other areas of Aotearoa/New Zealand (see Durie's views supra at pages 41-42), the evidence provided in the Papatupu Hearings clearly establishes that the setting of boundaries was important for several reasons. In areas where disputes over territory had arisen between neighbouring groups it demarcated resources. It was also important in the extension of mana once a raupatu had taken place. Boundaries assisted with the retention of territory, but competition for resources meant that groups had to be ever mindful of encroachment on to their territory. Over time boundaries were adjusted by rangatira to reflect changes in group composition, strength and resource needs. The use of mana within Maori society was not a haphazard drive for individual power. It was a means of upholding the principles of whakapapa and whanaungatanga and creating an ordered society based around kinship, obligation and land.

251 TAPU (a) Introduction According to Maori epistemology, all qualities and states of existence derived from the wairua via the atua. Tapu highlights descent from the wairua as providing a divine quality that is inherent in all things. As such it is a natural quality attaching to a person, place or thing. It is often likened to the idea of sacredness in a religious sense. The idea of inherent sacredness reinforced the value associated with individual identity. In a society where sharing between members of a whanau was the norm, inherent tapu allowed people to recognise individuality and the privacy and exclusiveness necessary to protect it. From birth to death, every aspect of life was accompanied by some form of tapu, personal or external, violation of which could lead to serious consequences for the violator. These consequences were of both a spiritual nature, based on the belief systems of Maori spirituality, and temporal. Tapu was used to isolate things considered important and of value to members of a group, by treating them as possessions. The items to which tapu attached could be viewed either as an individual, whanau, or group possession. The difference between the two is a matter of degree rather than numbers. The principle of whanaungatanga ordering generally extended, I to mean me and my whanau, and mine to mean mine and my whanau s. In a jural sense, tapu was a substantive concept, which, together with mana, was employed to flesh out the relationships that were structured according to a whakapapa and whanaungatanga framework of thinking. The ideas associated with the concept of tapu are privacy, exclusiveness and that all things have inherent value in the wider scheme of things. Used as a jural principle of Maori custom law tapu gave rise to protected relationships and controlled behaviour through recognition and acknowledgement of varying degrees of restrictedness.

252 252 In this part of my study I will examine the way tapu was used as the basis of Maori property 450 relationships. The term property is very broadly applied here to cover a series of important relationships between people and things, which were upheld by a group, and the breach of which could attract serious penalties, including death. There are three types of protected relationships identifiable in the Papatupu Hearings; They are personal relationships of a private nature, between individuals and the objects with which they came into close contact; information that was considered important and of great value to the group but restricted to certain people, and restrictions placed upon natural resources within the group territory, in order to exclude outsiders. (b) Tapu and the Formation of Property Relationships (i) Extending Personal Tapu to other Things Tapu and Mana Tangata All members of Maori society possessed tapu as part of their inherent makeup. The extension of this personal tapu to external things could make those objects belongings, and as such, off limits to others. Not everything a person touched became theirs. Not every person could extend sufficient tapu to external objects so that they became dangerous to others. The degree of personal tapu attributed to an individual was directly related to the seniority of their whakapapa lineage, and to the mana attributed to the role they occupied within the group. Rangatira and Tohunga were attributed greater tapu than others within the group during their lifetimes and were, in some cases, treated as untouchables. Tapu and mana mirrored each other, in that the greater the mana of a person, the greater his or her tapu and vice versa. This use of tapu as the authority aspect of mana, in the formation of human property relationships, is distinguisable from other uses of tapu, such as rituals enacted to seek abundance in gardening and other activities. These latter were 450 I use the term property to refer to a relationship between a person or persons and an object, that is recognised by others within a group, and the interference of which is likely to attract some form of penalty to the person(s) interfering and their whanau.

253 253 spiritual processes aimed at invoking the good will of the atua, in order to encourage success. The former were practical measures for allocating resources and reinforcing them with spiritual and physical sanctions. a. Extension of Tapu to the Personal Belongings of Rangatira Those with senior lineage were sometimes considered so tapu that anything they touched became infected with their tapu and dangerous to others. The consequences of this affected every interaction that these people had with others. Several examples of this are given in the Papatupu Hearings: Re Te Tai related how a woman wore clothing belonging to Te Koiuru, a woman of senior lineage who was the wife of Papahia, a Hokianga rangatira: 451 Ka kakahuria te kakahu o te wahine a Papahia, o Te Koiuru, i roto i era ra, he mea tapu tena mea. Ka haere te rongo kua he te wahine a Papahia. Ka ngakautia e Papahia kia tikina, kia patua te iwi ra, mo te kakahutanga o te kakahu o tana wahine. Ka panga tana ngakau ki a Manga raua ko Te Tahua. Ka haere mai te ope a Manga raua ko Te Tahua, ka tae ki Whangape, ka pupuhi atu i tenei taha o te awa, ka pupuhi mai tera i tera taha. Ka tu a Manga raua ko Te Tahua, ka mate. Ko te Kiripapa kaore i mate. English Translation A person wore the garment [probably a cloak] of the wife of Papahia, of Te Koiuru, and in those days the wearing of another s garment was tapu [prohibited]. Papahia heard that his wife had done wrong. He wanted to punish those people for wearing the clothing of his wife. He conveyed his wishes to Manga and Tahua. The ope of those two men came to Whangape and started shooting from this side of the river, and the other side was returning the shots from their side. Manga and Tahua were killed but not Kiripapa. Tapu provided spiritual protection to the possessor, in this case Te Koiuru. It was commensurate with her mana as having been born of senior lineage. The personal tapu of 451 R Te Tai in Karanga Hokianga, supra note 172 at 85.

254 254 those with strong whakapapa was so intense that it transferred to whoever or whatever they touched. Their personal garments were considered tapu and were only to be handled by selected relatives and servants. Those who wore the garments of such a tapu person placed themselves in jeopardy. Not only were they considered to be spiritually endangered by coming into contact with the personal tapu of a rangatira, but it also brought temporal retribution as well, as evidenced by the battle fought over the wearing of Te Koiuru s cloak. Clear details of the cause and outcome of the offence are not clearly stated in the information given in the Papatupu hearing, and the relationship between the protangonists is also not clear. Given the location, it is likely that they are closely related to each other. If such a relationship existed, then the principles of whakapapa and whanaungatanga would come into play once blood was let and local rangatira would intercede to settle the matter. Although couched in the words of tapu, the punishment meted out to those who violated personal tapu by an unwarranted touching of a rangatira s person, or possessions, can also be seen as a device for protecting one s personal integrity from violation, and as a means of signifying ownership of personal effects. Te Tai and Te Hira are the two main rangatira in the Whakarapa/Waihou region in the late 1800s. Of the two, Te Hira is reputed to have been the more compassionate. When Te Hira was giving his ohaki he asked for his book and presented it to Re Te Tai, as his successor, with the words: 452 Ko te rua tena o aku taonga mou. Ma tena pukapuka koe e whakatangata. Kei roto katoa o tupuna. Ko nga whenua katoa e tika ana, i o tupuna, kei roto. He tapu taua pukapuka i tena wa. Ka mahue iho tona mana ki au. Engari, kua nui ke aana korero ki au i mau atu. Kua kite hoki ia, kaore a Te Tai e mea ana i au, hei tangata, ko Pere ke tana e pai ana, hei tangata. I muri tata i ena korero aana, ka mate. English Translation 452 Ibid at 102.

255 255 This is my second taonga for you. Let that book make a man of you, all your tupuna are in that book. All the whenua have been put right by your tupuna who are in there. That book was very tapu at that time. He left his mana to me. But he had said many other things before that. He [Te Hira] could see then that Te Tai was not in favour of making a man of me, his preference was Pere. Just after those words of his, he died. The Book contained important whakapapa information about the tikanga on the land. Te Hira was both a rangatira and tohunga. He was passing his personal possession over, permanently, and publicly, to Re in order that he be better able to fulfil his role as rangatira. In Maori terms it was a tuku from one rangatira to another. A parallel in English legal terms is donatis mortis causa, where the donation of a gift is made when death is imminent, and in fact, occurs. However, in this instance the term tapu relates to the importance and nature of the contents of the book being presented to Re Te Tai. It contained details of whakapapa and whenua, two of the most prized possessions of Maori society. That information was not only extremely valuable it was also restricted knowledge, symbolic of the rangatira class. The information would assist Re Te Tai in the role he was to assume after Te Hira died, as rangatira responsible for organising the tikanga on the land. Hence the words of Te Hira that it would enable him to make a man of himself. When Re Te Tai says that the mana of the book was transferred to him he is referring to the increased power he would gain through using the knowledge contained in the book. b. Extension of Tapu to Things Touched by a Tohunga While most of the evidence in the Hokianga Hearings clearly demonstrates that rangatira and others shared all tasks relating to the wellbeing of the group, including gardening, Re Te Tai recalls how the intense tapu of Te Hira prevented him from participating in manual labour: 453 E rima tekau pea nga tangata o Te Hira i te wa e ora ana ia. Ko ratou ki te mahi kai. Ko nga mahinga a tena tangata a Te Hira, e tino nunui. Whai hoki he tangata atawhai ia ki te tangata. Ka 453 Ibid at 107.

256 256 mutu ka mahi huihui ano ratou ki Te Totara, ara, a Muriwhenua ma. Ko Te Tai anake te mea e mahi ana. Ko Te Hira kaore i mahi, hoiano, ana kai mahi kai, ko ana tangata a aamii haere na. Kei tana tapu i pena ai. Kei tana rangatiratanga tetahi take i noho tahaki ai ia. English Translation There were about 50 people whom Te Hira had during the time he was alive. They grew the food/tended the gardens. His gardens were very big, because he was an atawhai person to people. They also all worked together at Te Totara, that is, Muriwhenua and others did. Te Tai was the only one who worked. Te Hira did not work, all his workers were people who gathered kai. The reason for that was that he was so tapu and that his rangatiratanga standing caused him to stay on the side. The implication here is that Te Hira was so tapu that he dare not touch the garden lest the whole area become infected with his personal tapu and therefore off-limits to everyone else. This indicates that Te Hira had taken on the role of Tohunga, or spiritual guardian for the people, which, together with his senior lineage would have made his personal tapu extremely great. By way of comparison, Te Tai, who was the elder brother, as the administrator of the land, generally worked alongside his people in the gardens and was known to be a very hard worker. A modern example of maintaining the sanctity of the person of the rangatira is related by Hinerangi Rapihana 454, who, as a young girl in the 1920s, held the bowl of water from which her grandaunt, Marama Moetara, washed, when she visited Pukepoto, near Kaitaia. According to Hinerangi, her grandaunt was a tohunga from Te Wai o Te Marama, in South Hokianga. It was Hinerangi s job, as a junior relative, to attend her grandaunt when she was outside her own territory by acting as her tonotono or servant. Once they returned home to Hokianga, her grandaunt would eat with her relatives and attend to her own needs. When I asked whether this made Hinerangi a pononga, or servant, she replied that as a close relation, her role was defined by kinship and carried out as a privilege in accordance with family affection and pride, it was not that of a person without dignity and honour, as being a pononga would indicate. 454 Interview with Hinerangi Rapihana at Kaitaia on 6 th February 2005.

257 257 c. Tapu and Individually owned Food Resources Gardening was an important activity in the Hokianga region and several heads of families had large gardens, which were the personal property of their whanau. Heremia Te Wake related how Irihau, who was a member of Ngati Manawa, came to Waihou from Oruaanui and said to Te Tihi of Ngati Korokoro: Kua kainga taku riwai, I have eaten my potato crop. 455 According to Heremia a crop of potatoes was he mea tapu hoki very tapu in those times and were not spoken about openly or bragged about. In response to this statement, Urekuri, the son of Te Tihi, speared Irihau in the thigh. Te Tihi defended Urekuri s action. Irihau returned to his own people, and the event was relayed to them and to his Ngapuhi relations, adding further strain to a relationship between the groups that was becoming increasingly hostile. In this instance tapu is used to signify the importance of the root crops grown by Maori in pre-european times to ensure their economic welfare. Whether riwai refers to potatoes or is used generically to represent all root crops is not clear. If it does mean potatoes, then this incident occurred post-contact and indicates an extension of the value attributed to kumara and taro to an introduced root crop. It is an example of incorporation and indigenisation of the new into the old. The statement indicates that the crop belonged to an individual, Irihau, and his whanau, rather than to the community as a whole. In this sense, Irihau has exclusive possession of his riwai and is entitled to eat them without sharing. The implication here is that he has done just that. However, the response to Irihau s words from Urekuri and Te Tihi, shows that bragging about one s good fortune was not well tolerated in pre-european Maori society. Although there was no obligation on the owner to share, people who ate their food without sharing were held morally culpable for selfishness and bragging could produce 455 H Te Wake in Karanga Hokianga, supra note 172 at 11.

258 258 serious consequences for the perpetrator, which others felt were well deserved. In this instance Te Tihi, as rangatira, did not intervene to chastise or punish his son, thus being seen to have upheld his son s actions. In each example above, tapu conveys an association between an individual and an object/s that is recognised within Maori society as belonging exclusively to that person/s. They are Irihau s potatoes and he has eaten them; the clothing belongs exclusively to Te Koiuru and is not to be interfered with by others; the book and the information it contains is Te Hira s and he is passing it to Re Te Tai for his sole use. That there are punishments, both spiritual and temporal for those who breach the relationship between person and object is evidence that privacy of possessions and exclusivity existed in pre- European Maori society. d. Birth and Death of a Rangatira Extention of personal tapu also occurred at the place where a rangatira was born. The idea was that the mana of the person by virtue of their lineage was so great that their tapu passed into the land. According to Re Te Tai, Te Reinga s place of birth, was considered tapu by his descendants: 456 Ka whanau a Te Reinga. Ko Te Totara tona kawa, i whanau ia ki reira. No reira mai ano, i tapu ai, a, tae noa mai ki naianei, engari kua oti te whakanoa i naianei e nga pirihi, he totara taana kawa. Ka tupu a Te Reinga, ka riro i a ia te mana o te whenua katoa nei, kaore he tangata i tae ki runga i tenei whenua. English Translation 456 R Te Tai, ibid at 74. According to Cleve Barlow, the leaves of the Totara were used by Te Reinga in the performance of rituals as part of his rangatira duties. Personal communication, at Kaikohe, 9 May 2005.

259 259 Te Reinga was born. The Totara was his kawa, he was born there. It was tapu from that time right to this day, but it has been made whakanoa now by the priests, a totara is his kawa. When Te Reinga grew up he took the mana of the entire whenua, no other person came on to this whenua. There are eight generations between Te Reinga and Re Te Tai. During that time the tapu of that land had endured, making the place that he was born off limits to other members of the group. Because Te Reinga is the main ancestor for this land, the mana and tapu of the group was focused where he was born, by later generations. This also ties in with the principle of mauri, as it focuses the spiritual lifeforce of the group in a particular area. This part of the group domain was respected and protected by all its members, preventing common usage. It would remain under the administrative control of those who held mana rangatira and upheld by ensuring it remained vacant. According to Re Te Tai, the tapu had only recently been lifted, making the area freely available for use by members of the group. Why, and by whom is not stated. Given the strong Christian influence within the area, it would have been by a christian priest, possibly accompanied by a tohunga, as a symbolic gesture signifying that the former mana was now lifted and the tapu cleared from the area. In the Waireia Hearings, Ngakuru Pene speaks of the tapu that attached to the place where the whenua, or afterbirth, of a rangatira child is buried, and the consequences of inadvertent trespass: 457 The navel cords of Whaiakau and Takakuru were buried at the foot of a karaka tree. In consequence of this the tree was made tapu and named Te Pihepihe. This tree grew at Te Peke. Sometime subsequent to this, the Ngapuhi attacked my ancestors at Wairoa and Te Peke. Manguungu and Te Parewa led the Ngapuhi. Te Paenga at that time was living in his pa at Te Piriwai, which is at Te Peke. It is near Waikapu. The karaka tree I have mentioned was in sight of the pa, and Te Paenga saw invaders gather the fruit from it. He desired his sons Raraku and Whakaririka to attack these persons. They crept 457 N Pene, Waireia Hearings, supra note 175 at 156.

260 260 forward, and when near enough, charged. Manguungu and Tarewa were in the tree. They were captured and killed In this instance the state, or condition of tapu, had been imposed on the karaka tree, restricting access to its fruit. The tree would not have been climbed by local children, or its fruit eaten. Children would have been told at an early age that the tree was tapu and off limits. They and may or may not have been told the reason. Tapu could also be extended to land where an important ancestor was killed. The rationale in this case is that the blood and lifeforce of the person had become linked by a traumatic event, to that of the land. The joining produced a state of tapu in which the emotions of the people and those of the land had become fused. The idea that the land also suffers is present in Auha s words that both land and people shall die, 458 reputedly uttered before he and Whakaaria subjected the Waitangi area to raupatu. Heremia Te Wake also explains that when Hongi of Ngapuhi and his taua attacked Mataraua Pa and killed the Ngati Korokoro rangatira, Te Tihi: 459 Ka mate nei a Te Tihi, ka mahue tenei whenua, kaore he tangata, ka tapu hoki When Te Tihi was killed, the whenua was left with no people on it and was tapu Pire Teira, a member of Ngati Korokoro and Ngaitupoto, who was a claimaint in the Waihou/Whakarapa Hearings, elaborates further on the incidents surrounding the death of Te Tihi. 460 I a Te Angaora, ka timata mai te mana, me te whakatu rahui ki nga tahataha naka, ka mate atu ia. Ka riro i a Te Haunui te mana. Ka mate a Te Haunui, ka riro i a Te Anga te mana. Ka mate a Te Anga, ka riro te mana i a Te Tihi. Ka mate a Te Tihi ki Mataraua pa, me tana iwi katoa, ka takoto tapu te whenua nei, a, ka riro i a Mauwhena te mana, me te kai whakahaere i te tapu o te whenua nei. No te matenga o Te Tihi, ka waatea te whenua nei. Ko nga morehu i ora i te patunga atu i 458 H Piripo, Okuratope Hearings, supra note H Te Wake in Karanga Hokianga, supra note 172 at P Teira, ibid at 58.

261 261 Mataraua pa, i noho ki Nukupure, ki Wairoa, ki Ngarongotea i timata mai te tapu i Matamata, Waihou, Whakarapa, a, i mutu mai te tapu i Matawera. I te wa i mate ai a Te Tihi, i Pakanae a Mauwhena e noho ana. I runga i ena mana katoa ki runga i tenei whenua, me te mana hoki o tena whakatapunga, kaore rawa he tangata i tae mai ki te whakakorikori, mo runga i te korenga atu o te iwi e kiia nei, ko Te Rarawa. Hoiano taku e maatau ana, ko te tunkunga mai o te whenua nei e Te Rarawa ki a Ngati Korokoro. English Translation From Te Angaroa the mana started, and the establishment of protected areas to those sides and then he died. Te Haunui took the mana. When Te Haunui died, the mana was taken by Te Anga. When Te Anga died, the mana was taken by Te Tihi. When Te Tihi died at Mataraua pa, and all his people, the land lay in a tapu state, and Mauwhena took the mana and the conducting of the tapu of this land. From the death of Te Tihi this whenua was cleared. The tapu began at Matamata, Waihou, Whakarapa and the tapu finished at Matawera. At the time Te Tihi died, Mauwhena was staying at Pakanae. On all those mana on this whenua and the mana too of that place being made tapu, not one person came to disturb it in the absence of the people called Te Rarawa. In this korero the mana of Te Tihi and Ngati Korokoro is only three generations old. When Te Tihi is killed the events are so traumatic that the survivors leave the area vacant, but not abandoned. On leaving, a tapu state remains under which no other people are permitted on the land. This state of restriction is enforced by the other Ngati Korokoro rangatira, Mauwhena and Moetara. The clearing of the tapu on the land is related by Teira: 461 I te wa e tapu ana te whenua nei, ka kitea mai te ahi ko kaa ki roto o Whakarapa. Katahi ka tikina mai, ka tirohia. Kei te taenga mai, ka kitea ko Wharetohunga. Ka riri a Mauwhena ka puta te kupu; Na wai koe i teka mau, e rere wawe mai te whenua nei, ma te ware? Muri iho, i te mea he uri a Wharetohunga no Tupoto, ka waiho e Mauwhena kia noho i te whenua nei. Ka hoki a Mauwhena. Muri iho ka eke a Ngati Korokoro ki runga i taua whenua. Ka whakanoiaina hoki te tapu toto. Ka mahi ki Matamata, ki Waihou, ki Whakarapa. Ka noho tuturu ano a Ngati Korokoro ki taua kainga, whenua hoki. I muri iho i taua parekura, ko te ateatanga tena o te tapu e kiia ra he tapu toto no Te Tihi. Koia tena ka eke na Ngati Korokoro ki runga i taua whenua. 461 P Teira, ibid at 59.

262 262 English Translation At the time that this land was tapu, a fire was seen burning inside Whakarapa. So they went to look. When they got here, it was seen to be Wharetohunga. Mauwhena became angry, he uttered these words, Who is it that urged you to fly so soon, for a person of low social position? Later, as Wharetohunga was a descendant of Tupoto, Mauwhena let him stay on this whenua. Mauwhena went back. Later Ngati Korokoro came on that whenua. The tapu blood was made noa. They worked at Matamata, at Waihou, at Whakarapa. Ngati Korokoro stayed permanently at that place, that whenua. After that massacre, that was the clearing of that tapu that is being quoted tapu blood of Te Tihi. That is why Ngati Korokoro came on to that whenua. There is a conflict in the evidence relating to the presence of Ngati Korokoro on the land. Heremia Te Wake says Ngati Korokoro came on to the land because Te Rarawa left to go to Ahipara and took everyone with them, leaving the land empty. Pire Teira says that a tuku of the land was made to his ancestors when Te Rarawa left the land to go north. Re Te Tai speaks of a conditional tuku being made, so that if Papahia and others were killed in battle then the land was to pass to Moetara of Ngati Korokoro. 462 They did return however, and according to Re Te Tai, Muriwhenua responded to Moetara s land claims based on Te Tihi s death, with na wai koe i mea atu, kia haere mai ki runga i toku whenua, mate ai? ( who told you to come on to my land and die )? 463 Other areas were set aside as tapu because rangatira were killed there. Te Hira Mataika of Waihou stated that Te Rauparaha was killed at Kowhatuhapai following which, no reira ka rohea taua wahi hei tapu ( therefore that place was set aside as tapu ). 464 Te Papa was set aside as tapu because of the death of Te Ngawha there. 465 Later this land was cleared of its tapu and a tuku was made to the descendants of Ngawha by Re Te Tai s grandmother, Ngakahuwhero R Te Tai, ibid at Ibid at H Mataika, ibid at Ibid. 466 R Te Tai, ibid at 91.

263 263 In all these instances it is the joining of the blood of the rangatira with the land that is significant. His or her mana and tapu have become linked to the land at that place. Often relatives of the deceased would approach those who carried out the role of mana rangatira and ask if they could have the land in order to maintain an ancestral link to their relation. If they were made tuku of that area, they would become part of the community. If they later left the land it would revert back to the control of those with mana rangatira. Even when death was by natural means, as a sign of respect for the passing of a great personage, and in recognition of his or her mana, a tapu state would be placed on resources for a short period of time. According to Re Te Tai, when his father, Te Tai died, a 3 year tapu was placed on the sea: 467 Kaore he iwi i ngaro i tona matenga, me nga rangatira katoa poto mai. Ka kawea ia ki Pureirei i tona tanumanga. I tana matenga ka tapu te awa o Waihou. Ka whakanoa ia hoki te tapu o te awa nei e Rawiri, e Te Waharoa, e Hori. English Translation There was not one iwi who did not attend his death. All the rangatira came. He was conveyed to Pureirei to be buried. When he died the river of Waihou was made tapu. The tapu of the river was cleared by Rawiri, Te Waharoa and Hori. Re Te Tai says that Te Huakioterangi died at Whirinaki. When he was conveyed to the wahi tapu it was as with Te Reinga. He was laid to rest at Te Totara: 468 Ka tapu te moana o Whirinaki. Kaore i mohiotia he aha te take, i te mea, e mohio ana te iwi kei nga maunga ke ra a Te Huakioterangi e takoto ana, kaore, kei Te Totara ke nei e takoto ana. No 467 Ibid at 102 and Ibid at 119.

264 264 tana hahunga ka tikina mai, me Maui hoki, ka hahua atu i Rahirahi, ka maua ki Whirinaki. Kei reira e takoto ana. English Translation The sea of Whirinaki was made tapu. I do not know why, because the iwi knew that Te Huakioterangi was lying in the mountains and not at Te Totara. When he was exhumed he was brought back, and Maui as well, was exhumed from Rahirahi and brought to Whirinaki. They rest there. This indicates that tapu was usually placed on an area near where the body lay at rest. In this case it appears to have been purposely placed elsewhere, for reasons unknown to Re. The above examples illustrate a sequence of events in which tapu originates from a human source and then infuses another object, or land, to produce a state of tapu on the affected object/land. This state, or condition is acknowledged and reinforced by the rangatira in his role as mana rangatira and accepted by other members of the group. It can be nullified by the actions of those with the requisite mana. Once this is done the resource, or affected object, returns to its prior common un-tapu state of existence. (ii) Tapu associated with Wahi Tapu or Burial Grounds Mana Tupuna In all the Papatupu Hearings, tapu was associated first and foremost with the burial places of ancestors. The details of where the bones of ancestors were interred, who the specific ancestors were and who was responsible for conveying the bones to those places was important knowledge which in itself was considered tapu. In this sense tapu refers to restricted information of great value, held by certain rangatira, but not available to members of the group generally. In the eyes of the Papatupu Committee members hearing claims, as well as amongst the claimants themselves, lack of knowledge of burial places significantly undermined an applicant s case. Sometimes there was a debate between claimants as to where particular ancestors were lying, and to which families particular burial grounds belonged.

265 265 Re Te Tai recited a comprehensive list of the old wahi tapu and the various ancestors who were buried in each one. I include it to show the precision with which rangatira knew the associations between their ancestors and the territorities they occupied. The recitation illustrates several aspects of tapu. First, the personal connection between the group and its land strengthened over time as more bones were laid to rest inside the territory they occupied. This gave authority to the principle of mana tupuna. It also shows that tapu were imposed by other rangatira as a mark of respect for the passing of significant members of the group. 469 Ko Pukepoto taku wahi tapu tuturu. Ko Kohinemataroa te tupapaku tuatahi i takoto i reira. No kona ka rere tona wairua ki Te Reinga, koia Te Reinga maunga, me Te Reinga tangata. Muri iho ka takoto ko Matauturangi ki reira. Muri iho ko Te Reinga ka takoto ano ki reira, i mate ia ki taua pa i Pananawe. Ka mate a Te Reinga ka korero nuitia, kia rongo te iwi e kawea ana ko Otaia a Te Reinga takoto ai. No te waenganui po, ka mauria a Te Reinga, ka whakapungia he kakahu ki tana takotoranga, kia meinga ai kei reira ano a Te Reinga e takoto ana. Ka ahua te mau, ki Pukepoto. Ka hoki mai ano te kai-kawe na, ka kauhoatia ko nga kakahu ra, kia kite mai ai te iwi, koia tenei ko Te Reinga. Katahi ka kauhoatia ki Otaia, mahue atu ke reira, ka hoki mai nga tangata. Kei te whakaaro pena te tangata, e, kei Otaia a Te Reinga e takoto ana. Te take i penatia ai, he mea kei whakakinoa te tinana o Te Reinga, e aana hoa riri. Ko Rakeiti, no mua atu i a Te Reinga i mate ai, a, i takoto ia ki Mataraua, ite wa i kai mataa ana, he mea hanga ki te atamira. Ka nui nga tupapaku i takoto ki Mataraua, i muri i a Rakeiti. I kite au i nga kurupopo o te atamira o Rakeiti, na toku matua i tohu ki au. No te hahunga, ka kawea ki Pukepoto. Ka mate Taimihitata ki Whakarapa, ka takoto ki Pukewharariki, me etahi atu o Ngati Te Reinga, o Te Rarawa, i takoto ki Pukewharariki. Ko Houmea he wahi tapu no Ngati Te Reinga, no Te Rarawa, i te wa i a ratou e noho ana i Whakarapa. No Ngati Te Reinga, no Ngati Te Ao, no Te Rarawa, nga wahi tapu katoa i Whakarapa. Ko Taimihitata te tupapaku i hahua mai i Pukewharariki ki Pukepoto, kia takoto huihui ai ratou ko nga tungane. Ko Manihi, i takoto ki Pukewharariki, me Te Hauauru, me Te Whitu. No muri nei pea ka takoto o Heremia tupapaku, ara, aana e korero nei. Engari noku tuturu ena wahi tapu, no mua iho, no te wa mai ano i nga tupuna. Ko Nahareta Parikarauna, noku tuturu, no Te Uriaranui. Ko nga tamariki a Manawa i takoto tuatahi ki tena wahi tapu. No muri nei ka kawea a Wharetohunga ki reira. Ko 469 Ibid at 117.

266 266 Putawhakarere, te ingoa o tena wahi i mua, ko te rori tonu hoki tena ki te kainga o Te Hira. No te waihotanga na hei wahi tapu, ka mahue tena rori. Ko Hotene te kai tiaki o tena wahi tapu. Ko Te Ruapounamu, ko Te Kuri, nga tupapaku mutunga ki Pukepoto. He mataku te tapu mutu ai te kawe tupapaku ki reira. Katoa tena maunga, Te Uriaranui anake, ena wahi tapu. Ko Papanui he wahi tapu no Ngati Te Reinga, me Te Matapihi, me Te Koropiha, me Otaia. I takoto ki kona nga rangatira katoa o Te Rarawa, e Te Waaka, e Nopera, me etahi atu, ka hahua atu ki raro. Ko Whanganamu, he wahi tapu ano no Ngati Te Reinga. Ko Ngarangi i takoto ki reira. I tapu katoa te moana nei i tana takotoranga ki reira, i Oruangongoro te mutunga mai o te tapu. No tana tangohanga atu ka whakaterea ki Te Raupo, katahi ano ka noa te moana nei. I tana tarenga ki reira, ka tapu tera moana. No te maunga ki roto o Waihou ka noa taua moana. Ko Motukauri, he wahi tapu noku. Ko Te Huakioterangi i takoto tuatahi ki reira. Muri iho ka hahua ki Te Awapuru, i tahaki mai o Te Huaa. Na Te Huakioterangi i whakapani nga iwi katoa nei, koia i penatia ai tana takoto. Muri iho, ka tangohia ki Te Pukepoto, ka tuturu tona takoto ki kona, tae noa ki naianei. Ko Opapango he wahi tapu no etahi o nga uri o Tangirau. Ko Te Ao, uri kotiro a Te Huakioterangi, i takoto noki ki reira. Ko Whangapatiki, he wahi tapu no Haaiti, me tana kotiro i takoto ano ki kona, me Ture, i takoto ki reira. I takoto noki Kaumatua, me aana tamariki ki taua wahi tapu o Haaiti na. Na toku whaea i tango a Haaiti ma, me era tupapaku i Te Pane o Haaiti, me o Opapango. Ka poto mai, ka whakatakotoria ki Whangapatiki. Ko a Puriri i tango ai ko aana matua, me aana teina. Muri iho ka mauria aua koiwi i Whangapatiki, ka kohia ki tetahi puta, he puriri i Ohapehape, koia a Puriri. Muri iho ka maua mai i reira ki Waihou, ki Whakarapa, me Te Ruakooiwi, ka riro katoa mai, i Matawerea, tona wahi tapu. Ka riro mai aua koiwi, ka mahia e au nga rakau o Ohapehape. E mataku ana hoki te tangata ki te mahi, i te tapu. Kotahi rakau i mahia e au i runga i taua wahi tapu, he mea naaku kia noa ai. Hoiano aku wahi tapu e mohio ana au o reira, o Whangapatiki. No te wa i hoko whenua ai te pakeha hei manuiua, ka whakaaro toku matua kei hokoa hoki aua koiwi nei, koia i mauria mai ai ki konei. Me i kaua tena take, e kore e maua mai, ka waiho tonu atu i reira takoto ai. Me nga tupapaku o enei wahi, na Te Tai i mea kia whakarapopototia mai, ki te aroaro o nga tangata, i runga ano i taua take. Me o Whakarapa tupapaku i maua katoa iho ki raro nei takoto ai i runga i te wehi, kei waiho he manuiua. English Translation Pukepoto is my permanent wahi tapu. Kohinemataroa is the first tupapaku who lay there. From there her wairua flew straight to Te Reinga, hence Te Reinga mountain and Te Reinga the person. Later, Matauturangi lay there. Later, Te Reinga lay there, he died at Pananawe Pa. When Te

267 267 Reinga died, there was much talk so as everyone could hear that he was being conveyed to Otaia to lie. In the middle of the night, Te Reinga was taken away and clothes were stuffed in the place where he had lain to make out he was still there. They made straight for Pukepoto. The carriers came back, and the bundle of clothes were carried on a litter so as the people could see that this was Te Reinga. They carried the litter to Otaia, left it there and the people came back. Everyone thought that Te Reinga was lying at Otaia. The reason that was done was so the body of Te Reinga would not been interfered with by his enemies. Rakeiti died before Te Reinga, she lay at Mataraua at the time and was placed on a platform for the birds and insects to clean. There were many tupapaku who lay at Mataraua after Rakeiti. I saw the rotten timber of the platform of Rakeiti, my matua pointed it out to me. From the hahunga she was conveyed to Pukepoto. Taimihitata died at Whakarapa, she lay at Pukewharariki, and some others of Ngati Te Reinga, of Te Rarawa lay at Pukewharariki. Houmea is a wahi tapu belonging to Ngati Te Reinga, and Te Rarawa, during the time they were staying at Whakarapa. All the wahi tapu at Whakarapa, belong to Ngati Te Reinga, to Ngati Te Ao and Te Rarawa. Taimihitata was the tupapaku who was unearthed at Pukewharariki at Pukepoto, so they could all lie together with their tungane. Manihi, Te Hauauru and Te Whitu lay at Pukewharariki. It was later perhaps that the tupapaku of Heremia, according to his talk, lay there. But these were my permanent wahi tapu, from before, from the time of nga tupuna. Nahareta burial ground is mine permanently, belonging to Te Uriaranui. The children of Manawa lay at the wahi tapu first. It was after that Wharetohunga was conveyed there. Putawhakaerere was the name of that place before, as that was the very road to the house of Te Hira. When it was left as a wahi tapu, that road was abandoned. Hotene was the kai tiaki of that wahi tapu. Te Ruapounamu and Te Kuri were the last tupapaku to lie at Pukepoto. Being afraid of the tapu was the reason they stopped conveying tupapaku to there. The whole of that mountain right around to the side of Whakarapa, belonged to Ngati Te Reinga, Te Rarawa and Te Uriaranui alone. Papanui was a wahi tapu belonging to Ngati Te Reinga and Te Matapihi, and Te Koropiha and Otaia. Poroa, Moetara and Papahia lay there. Just recently, all the rangatira of Te Rarawa, Te Waaka, Nopera and some others went and disinterred them. Whanganamu was a wahi tapu too which belonged to Ngati Te Reinga. Ngarangi lay there. The whole sea was declared tapu when he lay there, up to and including Oruangongoro. When he was taken away he was hung up at Te Raupo, which made the moana noa. When he was hung there, that moana was tapu and when they took him to Waihou the moana became noa.

268 268 Motukauri is a wahi tapu of mine. Te Huakioterangi lay there first. Later he was disinterred at Te Awapuru, at the side of Te Huaa. His death made all that iwi orphans, that is why he was laid like that. After that, he was taken to Te Puketoro, where he was permanently laid, right down to this day. Opapango is a wahi tapu belonging to Timunga, to the side on top of Te Pane o Haaiti, a wahi tapu belonging to some of nga uri of Tangirau. Te Ao, female descendant of Te Huakioterangi, lay there also. Whangapatiki was a wahi tapu being to Haaiti and his daughter and Ture both lay there. Kaumatua and his children lay there too at that wahi tapu of Haaiti. My mother took Haaiti and other tupapaku from Te Pane o Haaiti and Opapango. When they were all done they were laid at Whangapatiki. Puriri took his maatua and his teina. Later the bones were taken to Whangapatiki and put into a hole, a puriri at Ohapehape, hence Puriri the name. After that they were brought from Matawera wahi tapu to Waihou, to Whakarapa, and Te Ruakooiwi. When the bones were brought over, I worked the trees of Ohapehape. People were frightened to work there as it was so tapu. I worked on one tree on that wahi tapu so it could be made noa. Those are the only wahi tapu I know of there, of Whangapatiki. At the time that the Pakeha was buying the whenua for manure, my matua was afraid that those bones would be sold too, that is why he brought them here. If it was not for that reason they would not have been brought over and would have left them lying there. And the tupapaku of these places, Te Tai said to assemble them in front of the people on that same basis. The tupapaku from Whakarapa were all brought down here to lie in the fear that they would be left there as manure. Re Te Tai is from Ngati Manawa. According to Re, Heremia Te Wake s tupuna came on to the land with Te Tihi, as hairs on his legs, or relatives of Te Tihi. 470 Included in this group is Te Matangi, from whom Heremia is claiming land rights. By way of contrast, in terms of tikanga, the local knowledge contained in this recitation alone, singles out Re Te Tai as the person possessing mana tupuna. 470 R Te Tai, ibid at 118.

269 269 (iii) Tapu as an Administrative Device for Regulating Resource Relationships a. Authority to Impose tapu States on Resources Mana Rangatira A person with the requisite mana of rangatira or tohunga status could declare something tapu, thereby taking it out of common usage and placing it under the control of specific individuals or groups. This process enabled resources to become the property of a group, or of specific individuals and whanau within the group. There are numerous examples of resources being set aside in this manner via the mechanism of establishing rahui. In each case the rangatira relied on the institution of tapu, backed by mana, to reserve the resources of an area for the exclusive use of his people. This was done either by agreement with other rangatira to settle disputes over territory and resources, or unilaterally, by erecting pou or posts, as territorial markers signifying ownership. These actions were not merely an assertion of mana, backed with the threat of physical force, they were a systematic use of established procedures for allocating resources using the institutions of mana and tapu to signify ownership claims via the establishment of rahui, or areas reserved exclusively for group or whanau use. Outsiders who trespassed on these resources were subjected to both spiritual and physical penalties. Spiritual penalties were a powerful deterrent in pre-contact Maori society, where a strong, uncontested, belief system existed. Physical penalties imposed by members of the group, are easier to understand as a universal response to incursions on one s territoriality. The fact that retribution could be shared by the entire whanau and was intergenerational, made the sanctions extremely broad and far reaching. i. Trees According to Heremia Te Wake, the karaka trees were an important taonga, in the Hokianga area. When all the white pine had been felled and people were looking to fell Puriri, he sealed off the trees by placing a boundary around them and notified others of

270 270 his action at a hui, so that no one would break the ture or law that he had established. That closed the area and no more work was done on those trees. 471 In this evidence, the term tapu is not used by Heremia, even though his actions are consistent with the establishment of tapu over a resource. His authority is assumed by the compliance of others with his words. Re Te Tai, however, challenges this authority, stating that Heremia s tupuna are not tuturu to the area. Thus, he accuses Heremia of asserting mana in territory where others held greater claims. 472 ii. Huke Roi Tapu was also attached to huke roi, or fern root, to reserve it for the exclusive use and exploitation of members of the group. Re Te Tai says tena ano etahi mea e tapu ana i a ratou kupu, ko a ratou huke roi, that was something else that was made tapu by their words, their huke roi. 473 This is in the context of a wider discussion about which rangatira could establish rahui, and the binding force of their word on other members of the group: 474 Hei a rahui e a ratou kupu, ena wahi katoa. Timata mai i a Te Reinga, tae noa mai ki oku matua nei e tapu tonu ana aua wahi. Ma Te Tai raua ko Te Hira e mea kia keria aua roi, ka keria. Whai hoki, ki ta raua korero, kaore tetahi tangata i pokanoa te ko i nga roi o nga wahi e korero ake nei au. English Translation A rahui was established over all those places by their word. From Te Reinga down to my parents those places remained tapu. If Te Tai and Te Hira said to dig those fernroot they were dug. Following that, according to their word, no person would trample the words attaching to the fernroot of those places I speak about. 471 H Te Wake, ibid at See discussion of Mana, earlier in this Section, particularly under the headings of (b) Mana Tangata and (c) Mana Tupuna and (d) iii. g. Challenges to Mana Rangatira. 473 R Te Tai in Karanga Hokianga, supra note 172 at Ibid.

271 271 He describes the different mahinga kai, the individuals to whom they belong and the communal cultivations that were shared by everyone: 475 Ko etahi o a ratou kai he roi. Kei Whangapatiki tena huke roi, ahu atu ki te taha ki Ohapehape. E kore e keria noatia ena roi, e tapu ana hoki i a ratou kupu. E kore e toua nga rahurahu. English Translation Some of their food was roi. The roi excavations were at Whangapatiki and towards the side of Ohapehape. They would not just dig up the roi, it was made tapu by their word. The bracken would not be set on fire. The rahui that were set in Waihou, Whakarapa, Motuti and Whangapatiki were of very long duration, and held over successive generations: 476 ko nga rahui ano a o raua tupuna, a o raua maatua, kua mate atu ra. He mea rahui ki aa raua kupu, nga roi o Whangapatiki, tapu katoa i a raua, me Otupahero, me o Pokopoko, me o Oruaanui, i tapu katoa i a raua, me nga manu o Whakarapa, e kore e pokanoa te tangata ki te pupuhi. English Translation these were the same rahui as their tupuna, and of their maatua, who have long since died. The rahui was placed on the strength of their word, the rootcrops of Whangapatiki were all made tapu by them, and Otupahero, Pokopoko and Oruaanui were all made tapu by them, and the birds of Whakarapa, which no one would dare to shoot without authority. iii. Areas of sea Areas of the sea were made tapu, so that others would know that those areas were part of a group s territory and to warn against the taking of resources. According to Re Te Tai, 475 Ibid at Ibid at 97.

272 272 the area of the sea that Te Reinga had set aside was made tapu by him, but outside of that area others were free to lay claim: 477 Ko Ngati Rangitinia e noho ana ki Poporete i taua wa. I tena wa e rahui ana nga mea o te moana, o te whenua nei i a Taaoi raua ko Maraewhiti. Ko tenei taha e tapu ana i a Te Reinga. Ka hiakai a Hinerangi tuarua ki te mohimohi, ka tono ki te tane kia haere mai ki konei, mea ririwai ai, he mea ika. Ka hoe mai a Rangihimamao raua ko to raua pononga, ka noho ki Pohaturoa. I to raua taenga mai, kei Punehu a Taaoi raua ko Maraewhiti e noho ana i tena wa. Ka kitea te paoa o te ahi ka haere mai a Taaoi ma. Kei runga i te puke na ka kite i te waka e maanu ana, ka heke iho. Tae iho e noho ana a Rangihimamao i te taha o te moana nei, katahi ka patua hei utu mo nga mohimohi o Pohaturoa. I te kitenga mai o te pononga ra, ka huti i te punga o tana waka, e hoe ana. Kaore au i rongo i arumia te waka o te pononga ra. English Translation Rangitinia was staying at Poporete at that time. At that time the things of this sea and this whenua were under rahui of Taaoi and Maraewhiti. This side was made tapu by Te Reinga. Hinerangi the second was hungry for mohimohi, she sent her man to come here, to set poles for netting. Rangihimamao and his pononga rowed over and stayed at Pohaturoa. When they got there, Taaoi and Maraewhiti were staying at Punehu at that time. The smoke from their fire was seen and Taaoi and others came. From the top of the hill they saw a waka floating, so they descended and saw Rangihimamao sitting by the sea. He was killed to pay for the mohimohi of Pohaturoa eaten by Hinerangi. When the pononga saw that, he pulled in the anchor of the waka and began rowing. I did not hear that the waka of the pononga was chased. Each group seems to have been responsible for enforcing its own rahui. b. Rahui and Territoriality Tapu and Mana working together Rahui were a principal means used by rangatira as a means of establishing claims to resources, and of settling any resultant disputes. 477 Ibid at 86.

273 273 Re Te Tai relates how the aggravation between Ngati Manawa and Ngati Korokoro escalated in the late 1700s and early 1800s, as increasing numbers of Ngati Korokoro moved from South Hokianga on to the land in North Hokianga. At that time Muriwhenua was an important rangatira of status from Ngati Manawa and Moetara was the principal rangatira of Ngati Korokoro. Muriwhenua established a rahui on the river of Matamata in order to precipitate a dispute with Moetara. Moetara rowed over to Motukauri and Te Tongatonga and dug a ditch to mark the area and set down a barrier between the two groups. Muriwhenua sent his people to fill it in. Moetara dug another ditch and Muriwhenua filled it in once more. This test of relative mana happened twice without physical combat. Later on, Moetara s son was making a waka out of the trees of Te Huaa, which was part of the disputed area. Muriwhenua sent people to break the waka. He then put a rahui on the trees and the whenua as well, in order to prevent Ngati Korokoro from working the trees. 478 Ko te ingoa o tena rahui, ko Nga Puhoro o Muriwhenua, he kauri. Ko tena rahui, he paahi i a Ngati Korokoro, kia kaua e mahi i nga rakau. No kona ka tapu nga mea o tena whenua, e kore te tangata e tae ki te mahi i tetahi mahi. English Translation The name of that rahui was Nga Puhoro o Muriwhenua, a kauri tree. That rahui was to prevent Ngati Korokoro from using the trees. From that time the things on that whenua were tapu, no person would go there to do any work. That the principles of mana and tapu acted in concert to produce rahui, is clearly made out in the Hokianga hearings by all the speakers. Re Te Tai says: 479 I te wa e ora ana a Te Tai, ko ia te kai-rahui i nga kukupa o te whenua nei, ko raua tahi ko Te Hira, i te wa e ora ana ia. Ko Wi Tana te kai-rahui i nga manu o te whenua nei i te wa i a matou nei, ara, ko nga wahi e kitea ana, e whai mana ana, ka rahuitia, mate noa. Te tamaiti a Wi Tana, i tahuri ki te moana, ko Te Whareoneone. I tahuri ki waho ake o Toungarangara nei. Ka rahuitia te wahi i 478 R Te Tai, ibid at Ibid at125.

274 274 tahuri ai tana tamaiti, ka whakatapua, mai ano i roto o te awa o Waihou, puta noa mai ki te wahi i tahuri ai tana tamaiti, me konei katoa i tapu. He roa e tapu ana ka whakanoangia ano e maaua. Ko tena ahua o matou, i timata mai ano i nga tupuna ra ano. English Translation At the time that Te Tai was alive, he was the kai rahui of the pigeons of this whenua, the both of them, he and Te Hira at the time he was still alive. Wi Tana was the kai rahui of the birds of this whenua during our time, that is, the places where it was seen that there were manu, it was rahuitia until he died. The son of Wi Tana, Te Whareoneone, overturned at sea. He was overturned outside of Toungarangara. A rahui was placed on the place where his son overturned, then whakatapua right from inside the river of Waihou, right to the place where he overturned, and all of here was tapu. It was tapu for a long time before it was made whakanoa by the two of us. That way of ours started right from our tupuna. In this korero, Re is speaking about two different applications of tapu and rahui. In the first application concerning pigeons, tapu is used as the basis for claiming ownership of resources of high economic value, by the group. He identifies his father and uncle as being responsible for delineating entitlement to the birds of the area during their time. When they died that role passed to Wi Tana, and not to Re Te Tai as part of his own rangatira role. This exemplifies the sharing of responsibility on the land between those who held senior whakapapa lines and mana tupuna on the land. In the second, tapu is recognition of the spiritual contamination of a resource owing to the death of an important relative at sea. A rahui is imposed in order to give the resource time to reestablish its equilibrium. That Re Te Tai and Wi Tana set the rahui jointly and that it was imposed for a long time, indicates that Wi Tana s status and lineage is equal to that of Re Te Tai on the land. In the Waireia Hearings, Heremia Te Wake relates another use of rahui as being to set boundaries between different group territories. He says that a boundary between Waihou and Waireia was recently established by Wiremu Tana and Te Tai, which gave rise to a a dispute arose over trees in the following generation: A Pukeroa, Waireia Hearings, supra note 175 at 147.

275 275 These were the kaumaatua of these days. Included on the side of Te Tai were Orikena. I heard of timber quarrels at Raukawa. The elders on one side were Wi Tana, Tamaho, Rikihana and Winiata, and, on the other were Te Hira, Te Tai and Te Orikena. The trouble arose out of the place where the timber was, being a wahi tapu. It is on Waireia. The timber was felled and squared by Te Tai and Te Hira and others. When the other party heard of it, they interfered. This took place in the time of Papahia. The work went on, in spite of objections. Papahia and his party went away, and Papahia composed a lament to commemorate the occasion. The advent of new opportunities to commericially exploit resources after colonisation, stretched the application of traditional mechanisms of controlling the rate and volume of interference with those resources beyond their earlier boundaries. In this dispute the elders are set out on one side as all being from Te Rarawa, while the other side is Ngati Manawa. However, the two groups are very closely related and the Waireia area where the dispute took place was occupied by both groups. Te Tai, Te Hira and Papahia are all men of rank in terms of Whakapapa. That the matter is settled by the composition of a song recording Papahia's disapproval rather than by physical combat, is in accordance with their social status and rank. c. Tapu following Raupatu In the Papatupu Hearings for the Te Tii, Mangonui, Waimahe area, Aperahama Parangi relates how the a tuku of Takou was made by Auha and Whakaaria to their nephew Toko, after they had engaged in a successful raupatu of the the prior occupants, Rangitane and Ngati Pou. Hotete, who was the son of Auha, disputed the tuku to his relation and a competition ensued for dominance over the area. 481 Hiramai Piripo relates that when Toko established a rahui, Hotete took it down and erected his own symbol. Toko, in turn dismantled it and replaced it with a shark. Hotete took it down and replaced it with his own shark. Toko then dug a ditch to signify the line across which interference would not 481 A Parangi, Te Tii Mangonui Waimahe Hearings, supra note 181 at 51.

276 276 be tolerated. Matters worsened until they settled it finally by trial by combat. Toko gained supremacy and Hotete conceded the territory and returned inland to his own area. d. Wahi Tapu as a Source of Land Entitlement In deciding on whose entitlements to the areas of Waihou and Whakarapa were tika, the Papatupu Committee confirmed that the wahi tapu in the Waihou area belonged to Te Reinga and Te Reinga s descendants only. Heremia Te Wake s ancestors were more recent immigrants who had been granted tuku under the mana rangatira of the descendants of Te Reinga. The Committee held that Te Wake s ancestors did not possess mana rangatira in this particular area, although his ancestors had been buried alongside those of te Reinga s line. Ancestral connections to specific areas were probably the most important evidence that an individual could raise in claiming land entitlements within a rohe. This made knowledge of wahi tapu vital. In the Waireia Hearings Herewini Te Toko, son of Te Toko, was established as the main claimant by the other claimants and the Land Court. He relied heavily on knowledge of wahi tapu in his evidence: 482 My father, Te Toko was a man possessing mana. After his marriage he still retained a leadership, and had the control of proceedings. It was when he married Kiriwehi that he came to Te Peke. He was not a descendant of Ihengaiti, but he was a descendant of Ngono. Ihengaiti was born at Te Peke and died there. She is buried at Otangihia. Tangiawa was born at Te Peke and reared there. She died at Te Peke and is buried at Otangihia. Te Hoe was born and reared at Te Peke, and is buried at Otangihia. Koangi was born at Wairoa and reared there. When she married Te Toko she lived at Te Peke. The kainga of Hoe and his children was at Okahu in Wairoa, close to Te Peke boundary. Herewini possessed senior whakapapa on his father s side, but that line was not directly linked to the area he was currently claiming. The korero indicates that when he moved to 482 H Te Toko, Waireia Hearings, supra note 175 at 99.

277 277 Te Peke, his father came under the mana of his mother, Kiriwehe. Kiriwehe had strong whakapapa links to Te Peke, which were derived by direct descent from Ihengaiti, the modern ancestor for the area, and which linked further to Moetonga, the originating ancestor. Independently, Herewini Te Toko claimed another area of Waireia, Pupuwai, through his father s ancestor, Ngono. Rangatira were rarely interred where others might easily find them. Their remains were concealed in places where they could not be easily located and desecrated by their enemies in an attempt to diminish the mana of the group. The precise location was kept secret by making the general area tapu. In this way the opportunity for accidental discovery was also lessened considerably. In establishing land entitlements, knowing the location and contents of wahi tapu demonstrated a durable link to the land that had been maintained and strengthened over time. This idea is encapsulated in the principle of ahi kaa or keeping the home fires burning. In measuring ahi kaa, time is viewed in terms of human life spans, as generational. In this way of determining time, the terms tuakana and teina refer to older and younger generations, as much as to senior and junior whakapapa lineage. Over time, as more and more relations were returned to the land, the claim of their descendants strengthened. It entitled one to a share in the resources held by the ancestors, and a say in how those resources were to be deployed. It also placed a responsibility on descendants to protect the ancestral remains and the places where those remains were held. The principal instrument for achieving this was by invoking the institution of tapu and placing rahui over areas. Wahi tapu evidence does not feature very strongly in areas that have been taken by raupatu because they have not had time to build up an ancestry inside the land. Sometimes the remains of ancestors were carried from other places to lay in the new

278 278 territory that a group was settling. In the Matawaia No. 1 Block hearing, Komene Perepe says that: 483 Ko tenei hapu o N. Tikiriahi tino hapu whai mana ki tenei whenua ki Matawaia i raro i te mana raupatu. I te wa e noho ana a te Aitu ma i te Araroa ka mate a ratou nei tupapaku, ka takoto ki te Araroa. Ko te tangata 1 i takoto ki taua wahi ko Tama, tae noa mai kia te Paetoka, kei reira e takoto ana, tae mai ki etahi onga tamariki a Eru Waikerepuru kei reira e takoto ana. I te taima ka tukua a Kapurahoru kite riihi ka kii a Kohumaru me Eru Waikerepuru me etahi atu, kia tangohia mai nga tupapaku ote Rere, katahi kohikohia kia kotahi takotoranga ka tahi ka tangohia ka keria he poka, ki taua wahi kite Araroa tuahu rawa kite kohatu e takoto na i tenei taima. Kei taua wahi kei te Araroa. English Translation This hapu of N. Tikirahi was the true hapu with mana on this land of Matawaia under the mana of conquest. At the time Aitu and others were at Araroa if anyone died they lay at Araroa. The first man who laid there was Tama, Paetoka also lies there, right down to some of the children of Eru Waikerepuru, they lie there as well. At the time Kapurahoru was allowed to lease Kohumaru, Eru Waikerepuru and others said to bring the bodies from Te Rere. They gathered them together in one place, then they brought them, dug a hole at Araroa and marked it with a stone. It rests there to this time, at Araroa. Transplanting one s tupuna was one means of consolidating entitlements to the land. However, the main challenge to newly established mana tupuna, came from the older line that remained on the land after the raupatu had taken place. Because the objective of the land hearings process was to translate title into freehold land tenure, the hierarchy of entitlement between those claiming raupatu, and those claiming 483 H Taui, Matawaia Hearings, supra note 400 at 27.

279 279 through mana tupuna was not fully explored, and current occupation was given stronger recognition than it might otherwise have had, if tikanga had been fully enforced. In the Okuratope Block, Waimate North Hearings, wahi tapu claims were also of recent origin and reliance was primarily on extinguishment of the prior mana under raupatu, rather than consolidation through ongoing ancestry in the whenua. The Papatupu Committee questions the absence of ancestral burials of those who claim raupatu of the area. There are disputes over who lies in the burial ground at Hoanga. Auha and Whakaaria, who were responsible for the raupatu, both went back to lie with their ancestors at Wharepaepae, their principal wahi tapu in another area. During cross examination, a challenge is made by Taniora Te Korohunga, 484 who claims that Auha and Whakaaria lived at Okuratope under the mana of their wives, Pehirangi and Aniwa, two sisters who were the daughters of Tawakehaunga, the local rangatira from Ngati Pou who had carried out a raupatu on the land. This claim, if upheld, would make Auha and Whakaaria the in-laws of Whitirua and others under whom Korohunga is claiming and would have strengthened his own entitlements. The Committee found that there was no battle by Tawakehaunga for Okuratope as stated by Taniora Te Korohunga. 485 e. Removal of Tapu Just as tapu could only be imposed by someone with the requisite mana to do so, it had to be removed in the same way. Although karakia generally accompanied the lifting of tapu, these hearings focus on the actions of rangatira and the force of their pronouncements. There are only oblique references to the words they used to lift tapu. Re Te Tai tells how the tuakana were all sent for to come and work on the trees of the wahi tapu at Te Koropiha and Raupo T Te Korohunga, ibid at Ibid at R Te Tai in Karanga Hokianga, supra note 172 at 103.

280 280 Ka timata te mahi i nga rakau o Te Koropiha, me Raupo, ka tono atu i nga tuakana kia haere katoa mai ki te mahi i nga rakau o to ratou wahi tapu. Ko te taha ki tua tenei wahi ka mahia nei. Ka mea tera hunga, e kore ratou e tae mai ki te mahi, he wahi tapu hoki no o ratou tupuna. No kona ka mahia e Te Tai ma, me to raua nei hapu. Ka oti te mahi, ka hokoa ki te pakeha. He torutoru nga rakau i riro, he whakanoa kau ano i taua wahi tapu na. English Translation When they began to work the trees at Te Koropiha and Raupo, they sent for their tuakana to all come to work the trees of their wahi tapu. The side beyond this place was worked. Those people said they would not come to work as it was a wahi tapu of their tupuna. From then, Te Tai and others of that hapu, worked the trees. On completion of the work, it was sold to the pakeha. Just a few trees were sold just to free the wahi tapu. The lifting of tapu in this instance was done by people in order to free the land for common usage, so that they could take advantage of the commercial opportunities that were now available. It is reinforced by Re Te Tai when he describes working the trees of Ohapehape after the bones of his ancestors were removed from the areas of Whakarapa, Waihou and Ruakooiwi: 487 Ka riro mai aua koiwi, ka mahia e au nga rakau o Ohapehape. E mataku ana hoki te tangata ki te mahi, i te tapu. Kotahi rakau i mahia e au i runga i taua wahi tapu, he mea naaku kia noa ai. English Translation When the bones were brought over, I worked the trees of Ohapehape. People were frightened of course to work, it was so tapu. I worked on one tree on that wahi tapu so it could be made noa. While the practice of placing and lifting tapu was fluid enough to allocate the use of resources and accommodate new post-colonial commercial opportunities, even in the late 1800s, when christianity had taken a strong hold in the Hokianga, it still took the actions of a rangatira to signify to others that the land was free from tapu and could be worked on without spiritual harm accruing to oneself or one s family. 487 Ibid at 118.

281 281 The importance of ritual in the lifting of tapu was also highlighted in the Waireia hearings. When referring to the abandonment of land after Te Tihi s death, Wikitera Reone Ngaruhe says: 488 I know of abandonment of land by the people from Whakarapa, to the coast, and that it was then occupied by Ngati Korokoro. I heard of lands being made tapu through the death of Te Tihi. Wharetohunga may have removed the tapu but in so far as it refers to the coast lands, it was Moetara, a chief of Ngati Korokoro who removed the tapu. This provides affirmation that a rangatira was required to officially lift tapu. An ordinary person working the land was not sufficient. This is backed up by Heremia Te Wake s evidence in the same hearing that the group s mana remained on the land after the death of their rangatira: 489 All the people left Waihou and Whakarapa after the fighting, and not one of them remained behind. I think the whole of the land, as far as the Coast was unoccupied because the mana belonged to Te Tihi. Once again, the inference is that only a person of mana could negate the tapu imposed after the death of a rangatira, and that actions alone would not suffice. The duality of mana and tapu as two principles acting in unison is a feature of tikanga Maori in both laying and removing tapu. Working together, mana can be described as the active, positive aspect of tapu which gives tapu its force, while tapu is the latent, passive aspect of mana which gives it its authority. (c) Conclusion The above examples show that there are two ways that tapu operated within Maori society. The first was as an extension of the personal tapu that everyone possessed. One 488 WR Ngaruhe, Waireia Hearings, supra note 175 at H Te Wake, ibid at 68.

282 282 could extend this tapu to personal possessions so that to say that something was tapu was to say that it was owned in the sense that it was mine, or more accurately ours. The second way that tapu was used is as an extension of the first idea but with a more overt reliance on mana for effectiveness of implementation. Using words, ritual and symbolic actions, a rangatira or tohunga with the requisite mana, could impose a state of tapu on other things. In this way they could regulate relationships between members of the group and the resources available to different individuals for their whanau. In other words, they could formulate property relationships. The ability to tuku and the ability to impose states of tapu, were the foundation on which mana rangatira relied. Together, they enabled rangatira to carry out their main administrative role of ensuring that the tikanga on the land was maintained. Traditional applications of imposing and removing tapu were broad enough to accommodate the new commercial opportunities offered by timber trading. In this area Tapu was removed to allow exploitation of trees and to free up commercial trading.

283 283 WAHANGA TUAWHA SECTION D TWO MODERN CASE STUDIES NGAWHA GEOTHERMAL HEARINGS AND NGAWHA PRISON HEARINGS 2002

284 284 Location Map 3 NGAWHA GEOTHERMAL CLAIM Source: Waitangi Tribunal, Ngawha Geothermal Resource Report, 1993, x. 1. INTRODUCTION AND BACKGROUND In this Section of my thesis I examine Maori evidence presented in two major hearings concerning Ngawha Springs, an area located within the central Tai Tokerau region, and the protection provided in these hearings to Maori interests under New Zealand law. 490 Ngawha Springs is an area that was traditionally used as a crossing place for Maori 490 See Location Map 3, above.