Ngarewarewa Tata imagines a legal system governed by the law of whakapapa.

Hei tīmatanga – Introduction

A person enters the world already belonging. Through whakapapa, every person is both descendant and ancestor in formation; a continuation of those who came before and a foundation for those yet to come. It is a living order in which identity is inseparable from obligation and belonging carries responsibilities across generations. It provides the moral and legal architecture through which the living remain accountable to the dead, and the present remain responsible to those as yet unborn. The pito, returned to the whenua, locates a person within that continuum; in death, the tuupaapaku returns and restores a relationship that precedes the colonial state. This is the first law.

Kōrerorero – Discussion

The first law

To understand the legal framework of Aotearoa, one encounters a fundamental divergence between two conceptions of law: the law of the land, which has historically asserted dominion over territory and a law for the land, which recognises the inherent interrelationship between people and the world from which they emerge. Moana Jackson characterised the settler legal order, the law of the land, as a ‘half law’ because it has severed human beings from the genealogical and spiritual relationships that give their existence meaning. It replaces those relationships with a narrower focus on the individual, particularly the individual as an owner and rights-holder.^[1] By contrast, whakapapa constitutes a ‘full law’; the foundational papa upon which Maaori legality is constructed.^[2] It is not only a genealogy of descent, but a living paataka maatauranga – a storehouse of knowledge through which relationships, responsibilities and obligations are ordered across generations.^[3]

The difference between these two legal traditions begins with a simple question: where does legal status come from? The Crown’s legal order grants legal personality through the formal mechanisms of the state, most notably birth registration. Whakapapa, however, recognises a status that precedes the state and exists independently of it.^[4] A person enters the world already connected to an ancestral lineage where they are not only a descendant, but a living continuation and re-creation.^[5] Within this framework, an individual is never an isolated legal actor. They are obligated, consciously or unconsciously, through whakapapa to nurture, protect and replenish the paataka.^[6]

The first jurisdictional act is the return of the whenua. Its dual meaning of whenua as both placenta and land anchors a person physically and spiritually within a particular place. It establishes a relationship of belonging that is reciprocal rather than possessive.^[7] This is the foundation of a law for the land: a legal order in which people are not masters of the whenua, but participants within an enduring relationship of responsibility and care.^[8]

Takamore v Clarke

The jurisprudential tension between whakapapa and the common law was brought before the Supreme Court in Takamore v Clarke. The case concerned the burial of James Takamore, a Tuuhoe man.  His death gave rise to a dispute between his partner who wished for him to be buried in Christchurch, and his whaanau who sought his return to whenua in accordance with tikanga.^[9] Although presented as a question of burial preference, the case ultimately required the Court to confront a more difficult question: whether authority over the dead arises from the legal power of an individual, or from the relationships within which that person has always existed.

The whaanau claim was grounded in whakapapa. The significance of Takamore’s ancestral connection was not something created by death, nor something dependent upon judicial recognition. It was a relationship that preceded both. The burial of his pito in the Bay of Plenty  region marked that connection, locating him within a particular whenua and establishing the obligations that flowed from that relationship. The whaanau put the significance of the pito plainly: because it was buried in the North Island, they could not “stretch it to the South Island”.^[10]

Within tikanga, the pito functions as a sign of continuity. It identifies the relationship between person and whenua and provides the foundation upon which obligations of return are understood. The burial of the tuupaapaku is therefore the completion of a relationship already established at birth. The body returns to the land with which they are genealogically connected. This maintains the continuity between ancestors, descendants and place.^[11]

The Supreme Court approached the dispute through the common law framework of the executrix rule. That rule locates authority in the person listed as executrix on the deceased’s will. It reflects a legal tradition concerned with the orderly management of obligations after death.^[12] Yet its underlying assumption is significant: authority to determine burial is something which must be conferred upon an individual. The whaanau’s argument proceeded from a different premise: authority was not created by death. Rather, it arose from the enduring obligations established through whakapapa.

This distinction shaped the Court’s treatment of tikanga. The majority recognised tikanga as relevant to the exercise of the executrix’s decision-making power, but did not accept it as an independent source of jurisdiction.^[13] Tikanga was therefore admitted into the reasoning of the Court without being permitted to determine the legal relationship at stake. Under state law, the pito could evidence connection, but it could not create authority. Whakapapa could explain obligation, but it could not displace the executrix’s power.

The difficulty exposed by Takamore is one of conflicting legal jurisdiction. A relationship understood within tikanga as constitutive of authority was received by the common law as a factor to be weighed. The Court recognised the existence of the relationship while preserving a legal framework in which the relationship itself could not govern the outcome.

Takamore exposes the tension between law as an individual entitlement and law as a collective obligation. The executrix rule dictates who may decide burial matters; whakapapa locates that decision within relationships and responsibilities that precede the state. They represent different conceptions of where law begins.

From Ellis v R to Smith v Fonterra

The jurisprudence emerging from Ellis v R and Smith v Fonterra suggests Aotearoa’s law is beginning to move beyond interests confined to the individual and the present. In Ellis, the Supreme Court accepted that the consequences of a person's reputation and mana may extend beyond death. It recognised the pursuit of justice could continue where it concerned interests held by a wider collective.^[14] If mana survives death through whakapapa, then state law cannot treat a person’s legal relationship with their whaanau and whenua as extinguished by death.

Smith v Fonterra represents a further development. The Supreme Court recognised that the right to bring a claim need not depend on individualised harm, but may arise from a relationship of responsibility towards the natural world.^[15] The case accepts that legal interest may be grounded in connection: that a person may bring a claim because of the relationship they maintain with the natural world. Read alongside tikanga, this reflects a shift towards a jurisprudence in which whakapapa is not just descriptive, but carries legal significance in determining rights, relationships and obligations within state law.

This exposes the unresolved tension in Takamore. If state law recognises interests that continue beyond death and legal relationships with the natural world, the burial of a whaanau member should not be understood solely through the authority of an individual executor. The relationship between the deceased, his whaanau and whenua is precisely the kind of enduring connection that this emerging jurisprudence makes legally visible.

The proposition, therefore, is not whether Maaori legal concepts can be accommodated within the existing framework of the common law. The deeper question is whether the common law is prepared to recognise that some legal obligations exist prior to, and independently of, state recognition; that the state may recognise legal relationships, but does not necessarily create them.

The law yet to come

Imagine a court where whakapapa is not evidence of a relationship, but a source of law. Authority would no longer be the starting point. The court would instead ask what obligations arise from the relationships that whakapapa establishes.

The implications extend beyond burial rights. They reflect a form of relational jurisdiction already exercised on the marae, where whakapapa locates people within networks of obligation rather than as isolated legal subjects. If whakapapa confers jurisdiction, law cannot confine itself to disputes between competing individuals. It must account for the relationships that precede them and the generations that follow them. A court would consider not only whether a right has been infringed, but whether the obligations connecting people, whenua and future generations have been upheld. The object of law would shift from allocating competing interests to preserving the relationships that make those interests intelligible in the first place.

That shift would alter the meaning of harm. Harm would not begin only where an individual can demonstrate loss. It could lie in the fracture of a relationship, the abandonment of an inherited obligation or the degradation of the conditions upon which another generation depends. The destruction of a river, the alienation of tuupuna land or the exhaustion of natural resources would carry significance beyond ownership or individual injury.

The legal community would also cease to be confined to the living. Whakapapa places the dead within the present and the unborn within the obligations of the living. The dead need not possess rights for their relationships to retain legal force. The unborn need not yet exist to become subjects of obligation. A court grounded in whakapapa could treat time as part of the legal relationship.

This would change the bounds of a judicial decision. Its legitimacy could not rest solely on resolving the dispute before the court. It would also depend on what the decision preserves, what it permits to be lost and what it leaves for those who come after. Law would become accountable not only to the present claimant, but to the continuity of the relationships that connect generations.

This is not the incorporation of tikanga into the common law. It is more unsettling than that. It asks the common law to surrender its assumption that the individual is the primary unit from which legal obligation flows. Rights would no longer stand before responsibility. The state would no longer mark the beginning of legal obligation, but one point within a much older order.

Indeed, under the law of whakapapa, the state does not create an obligation. It inherits a legal order that existed before it.

Ngā kupu āpiti – Notes

[1] Abhinav Singh “Burial as Law: Tikanga Maaori and the Semiotic Limits of Legal Recognition in Aotearoa New   Zealand” (2026) 39 Int J Semiot Law 761, at 761-762.

[2] At 762.

[3] At 762.

[4] At 765 and 770.

[5] At 693 and 765.

[6] At 762.

[7] Joseph Williams “He Pukenga Wai” (lecture delivered at the Resource Management Law Association’s Annual Salmon Lecture, September 2019) at 7-8.

[8] Singh, above n 1, at 761.

[9] At 761.

[10] Burial defies court order" The New Zealand Herald (online ed, Auckland, 21 August 2007); Takamore v Clarke  [2012] NZSC 116,  2 NZLR 733; Singh, above n 8, at 762.

[11] Singh, above n 1, at 762 and 770.

[12] At 762–763.

[13] Takamore v Clarke, above n 10, at [164] per Tipping, McGrath, and Blanchard JJ.

[14] Ellis v R (Continuance) [2022] NZSC 114 at [22].

[15] Smith v Fonterra Co-operative Group Ltd [2024] NZSC 5 at 188.

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