He Poutama

Te Aka Matua o te Ture | Law Commission

Pūrongo Rangahau | Study Paper 24 (SP24)

21 Mahuru | September 2023

He Poutama is a study paper by Te Aka Matua o te Ture | Law Commission. The paper aims to provide frameworks for the interaction between tikanga Māori and common law and statute.  Members of Bell Gully’s Te Paewhiti Ture are working with the Māori Law Review to publish a series of articles on He Poutama addressing some of the detail of the Commission’s paper. This is the first article. Go here for the second article and here for the third and final article.

By members of Te Paewhiti Ture, Bell Gully: Rachael Brown, Dr Laura Hardcastle, Rhianna Morar (Ngāti Porou, Tapuika, Gujarat), Nikorima Nuttall (Raukawa ki Te Kaokaoroa o Pātetere) and Brontë Tuffery (Ngāti Toa Rangatira)

Download He Poutama (5.56 MB)

Hei tīmatanga - Introduction

In this first of three articles, we consider Part One of He Poutama, which seeks to promote understanding of tikanga from a mātauranga Māori perspective.  In summarising Part One, we:

(a) consider how mātauranga Māori (Māori knowledge systems) and pūrākau (traditional forms of Māori narrative that recount creation) underpin understandings of tikanga, including as it applies in a legal context;

(b) provide an overview of the core tikanga concepts identified by the Commission, drawing on explanations by mātauranga experts; and

(c) discuss the Commission’s guidance for tikanga engagement, as illustrated by its six hypothetical case studies.

Kōrerorero - Discussion

Te Wharenui | the Meeting House (Chapter 2 of He Poutama)

The Commission opens its substantive discussion by considering the centrality of mātauranga Māori and pūrākau (Māori creation narratives), including their role as sources of tikanga.  Following the Commission’s approach, we use the marae as a starting point for conceptualising tikanga, with a particular focus on the marae ātea and wharenui as structures to explain relationships within a Māori world view.^[1]

Te Poutuaroro: Māori knowledge systems

Drawing on expert guidance, the Commission notes that it is important for those not knowledgeable about tikanga to locate it within Māori knowledge systems and the Māori world view.^[2] Those knowledge systems can be divided into mātauranga Māori (knowledge broadly shared by all Māori) and mātauranga ā-iwi (knowledge shared by an iwi based on their own experiences and whakapapa), while tikanga similarly comprises tikanga Māori (core beliefs, values, and principles broadly shared by all Māori) and tikanga ā-iwi (tikanga shared by an iwi).^[3]

Te Poutokomanawa: Māori creation and existence

He Poutama recognises that tikanga and other key ideas are expressed through pūrākau.  Although aspects of these pūrākau may vary among iwi and hapū, the core elements tend to be constant.^[4] Key pūrākau (and the tikanga concepts they address) identified by the Commission are:

• Te Kore, Te Pō, and Te Ao Mārama:  The separation of Ranginui and Papatūānuku by Tāne to free himself and their other children (who are all atua of various domains within the natural world) illustrates a number of tikanga concepts.^[5]  The responsibility of each atua for their respective domain reflects whakapapa (in this context, genealogical connection) and kaitiakitanga (to care for and protect), while whanaungatanga (kinship) connects them all.  The separation was a violation of their mana (spiritually sanctioned authority) and tapu (sacred or opposite of profane), such that this act demanded utu (action undertaken for reciprocity) to restore ea (balance or state of equilibrium).^[6]
• Ngā kete mātauranga:  Following his parents’ separation, Tāne went on a journey in search of knowledge and secured ngā kete mātauranga – three baskets of knowledge (named kete uruuru-matua, kete uruuru-rangi or tipua, kete uruuru-tau or tawhito) – and two stones (Hukātai and Rehutai).^[7] This pūrākau illustrates the significance of the wharenui.  Te kete uruuru-matua, containing all the knowledge relating to good, lies within te poutuarongo (located in the centre of the rear wall), te kete uruuru-rangi, holding knowledge of rituals and associated practices, is located at the door, and te kete uruuru-tau, containing malevolent elements, is kept within te poutokomanawa (standing in the centre of the wharenui).^[8]
• Hineahuone, Hinetītama, Hinenuitepō:  Following his parents’ separation and acquisition of ngā kete mātauranga, Tāne created Hineahuone, the first woman, who he then married and had a daughter with, named Hinetītama.^[9] To continue human procreation, Tāne took Hinetītama as his wife.  Hinetītama often questioned Tāne about who her father was, and his response was for her to look to the walls of the wharenui.  It was then revealed that Tāne was in fact her father as well as her husband.^[10] It was at this point that she fled to Rarohenga (gateway to the underworld) and took the name Hinenuitepō.^[11] This pūrākau illustrates the significance of the wharenui as a vessel for knowledge.
• Māui:  Several of the Māui pūrākau illustrate the importance of proper process (kawa) and of ritual prayers (karakia).^[12]  For example, the failure of Māui to secure immortality for humankind by entering the vagina of Hinenuitepō to retrieve her heart is said to be linked to a mistake made by his father when reciting the sacred tohi rite (a karakia made at birth).^[13]

Te Poutuarongo: explaining the significance of the wharenui and marae ātea

Having considered the pūrākau, the Commission goes on to describe the various features of the wharenui and marae ātea, and explain how the structural and physical architecture of these two structures express tikanga.  These features can be categorised as follows:

• Ātea, an open area in front of the wharenui: the ātea is a three-dimensional space, reaching from the ground to the heavens.  In that respect, it connects the physical wharenui with a sense of wairua and spirituality.  Therefore, acts or procedures that occur on the ātea affect a spiritual space (such as kawa relating to pōwhiri).^[14]
• Exterior front-facing features – kōruru, maihi, amo, and raparapa: the kōruru, maihi, amo and raparapa are features that reflect the position of the wharenui as a revered ancestor and the close connection between the living and the dead in the Māori world view.  These features of the wharenui are said to resemble a person with outstretched arms, with kōruru being the face, maihi the arms, amo the feet and raparapa the fingers.^[15]
• Porch, window, and doorway features – mahau, matapihi, tatau, whakawe and pare: To enter the wharenui from the front, a person who moves on to the wharenui veranda will enter the mahau: the porch space beneath the matapihi (window) of the house.  This space embodies the relationship with those who have passed on and at some marae, tūpāpaku may lie there in state during the tangihanga.  The tatau (door) to the wharenui is the passageway of the living.^[16] The tatau is surrounded by carved pou (known as whakawe) and above them is the pare (the doorway lintel).
• Interior structural features – tāhuhu, heke, pou and poupou: Once a person has entered the wharenui, a line of central pou will be visible, each joined to the ridge poll called the tāhuhu.  From the outside, the tāhuhu is commonly carved with two figures representing Ranginui and Papatūānuku.  Within the wharenui, the tāhuhu is adorned with repetitive koru designs that disappear out of the back end of the wharenui.  The heke or rafters land on poupou, each representing key ancestors.^[17] The design of the wharenui suggests that those within it are accountable to their ancestors and responsible for ensuring that the practice and performance of mātauranga are correct.^[18]
• Wall panel designs – tukutuku: Tukutuku panels are a traditional feature of wharenui interior walls, but may not be present in all wharenui.  The location of the tukutuku within the wharenui provides links both to atua and to the ancestors.  By way of example, tukutuku that stand vertically and positioned between the poupou symbolically ascend from the ground towards celestial realms, representing a connection with ancestors and other realities.^[19]

Tikanga as a system of norms (Chapter 3 of He Poutama)

Having considered the significance of the wharenui, He Poutama goes on to introduce core tikanga concepts.^[20] In doing so, it emphasises that tikanga is a coherent and integrated system of norms, “not a mere “grab bag” of principles or values”.^[21] In the table below, we set out the key concepts identified by the Commission, how they may be described,^[22] and how they relate to each other.

In concluding this section, the Commission returns to the centrality of whakapapa as it relates to the concepts discussed in this chapter.^[58] Although tikanga has the capacity to evolve and adapt, whakapapa provides a means of ensuring that such concepts are not unduly strained beyond their meaning.^[59] For example, in most cases, the proper ordering of things would require that kāwai tūpuna connections (line of descent, lineage) are acknowledged, that relationships to people, place and the world are nurtured, and that historical engagement processes are followed.^[60]

A guide for engaging with tikanga (Chapter 4 of He Poutama)

The Commission’s proposed guide for engaging with tikanga in a legal context

In Chapter Four, the Commission proposes a guide for engaging with tikanga, illustrated by six hypothetical case studies.^[61] This guide is intended to be applied in factual contexts where tikanga concepts may apply or interact (while noting that in many situations it will also be necessary to seek guidance from tikanga experts, rather than merely relying on the Commission’s approach).^[62] Specifically, the Commission identifies three steps, being:^[63]

(a) Step One: Identify tikanga as it relates to the factual situation, including the associated responsibilities and relevant tikanga processes and procedures.  Where tikanga is engaged at an iwi, hapū or whānau level, the user should also identify how this tikanga is expressed by those iwi, hapū or whānau.

(b) Step Two: Identify relevant kōrero tuku iho and related mātauranga, including, for example, whakataukī, whakatauākī (proverbs), waiata (song) and mōteatea (a chant or lament), to build understanding of the tikanga engaged and its application within the specific context.  Where the relevant kōrero tuku iho (oral traditions) and related mātauranga are engaged at an iwi, hapū, or whānau level, the user should also identify how these kōrero tuku iho and related mātauranga are expressed by those iwi, hapū or whānau.

(c) Step Three: Identify other similar situations, including whether any similar situations have occurred within that specific iwi, hapū or whānau.  If it is difficult to identify similar situations at an iwi, hapū or whānau level, the user should consider similar situations in other iwi of the same waka, before identifying similar situations in any iwi, hapū or whānau.

The table below shows how the Commission’s stepped approach applies to each of the case studies.

Application of the guide to six hypothetical case studies

Ngā kupu whakatepe - Conclusion

The above case studies therefore illustrate how the Commission’s guide may be applied to capture a range of tikanga concepts engaged in different areas of law, as well as the complex interactions between those tikanga concepts.

In summarising part one, this article has considered how tikanga should be understood from a mātauranga Māori perspective.  In particular, we have considered how mātauranga Māori and pūrākau inform understandings of tikanga and provided a brief overview of the meaning and application of the core tikanga concepts identified by the Commission.  Finally, we have discussed the Commission’s guidance for engaging with tikanga in a legal context, as it is applied in the six hypothetical case studies developed by the Commission.

In our second article, considering part two of He Poutama, we will go on to address the interactions between tikanga and state law (legislation and common law), and the developments in the law since 1840.

Ngā kupu āpiti - Notes

[1] In the introductory note, the Commission notes that this chapter is guided by explanations from Te Whare Wānanga o Awanuiārangi pūkenga (experts), Professors Wiremu Doherty, Tā Hirini Moko Mead and Tā Pou Temara (Awanuiārangi pūkenga).  Their work is published in Appendix One – Te Whare Wānanga o Awanuiārangi pūkenga.

[2] At [2.9]-[2.12].

[3] As described by the Awanuiārangi pūkenga in Appendix One as cited at [2.10]-[2.11].

[4] At [2.17]-[2.18].

[5] At [2.21]-[2.24].

[6] At [2.23].

[7] At [2.27].

[8] At [2.28].

[9] At [2.30]-[2.31].

[10] At [2.31].

[11] At [2.31]-[2.32].

[12] At [2.33].

[13] At [2.34].

[14] At [2.43].

[15] At [2.45].

[16] At [2.46].

[17] At [2.47].

[18] At [2.48].

[19] At [2.49].

[20] The selection of these concepts was guided by a central set of concepts identified by Professors Wiremu Doherty, Tā Hirini Moko Mead, and Tā Pou Temara of Te Whare Wānanga o Awanuiārangi, as well as a review of expert tikanga evidence from the Waitangi Tribunal and court proceedings undertaken by Natalie Coates and Horiana Irwin-Easthope.

[21] At [3.1] and [3.10].

[22] The Commission bases its description on legal scholarship and expert tikanga evidence given in Waitangi Tribunal and court proceedings.

[23] At [3.23]-[3.24].

[24] Moe Milne Statement of evidence, #A62 at [131], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.4].

[25] Tipene O’Regan Statement of evidence, #B9 at [4]–[5], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.29].

[26] Ani Mikaere Statement of evidence, #A17 at [45], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.5].

[27] At [3.30] citing Hirini Moko Mead Brief of evidence, 25 February 1998 at [22], in Te Runganui o te Upoko o Te Ika Association (Inc) & Ors v The Treaty of Waitangi Fisheries Commission & Others CP 122/95.

[28] At [3.36].

[29] At [3.42].

[30] Tamati Waaka Statement of evidence, 4 January 2017 at [69]–[81], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.57].

[31] Hirini Moko Mead and Pou Temara Agreed statement of facts filed pursuant to s 9 of the Evidence Act 2006, 31 January 2020 at [98]–[99], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.61].

[32] At [3.52]-[3.53].

[33] Hemana Eruera Manuera Statement of evidence, 29 March 2019 at [46], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.328].

[34] Wiremu Doherty, Hirini Moko Mead and Pou Temara “Tikanga” (paper presented to Te Aka Matua o te Ture | Law Commission, Te Whare Wānanga o Awanuiārangi, 2023) at [3.24].

[35] At [3.60]-[3.62].

[36] At [3.63]-[3.64].

[37] Jacinta Arianna Ruru and Mihiata Rose Pirini Joint affirmation, 14 September 2020 at [81]–[82], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.275].

[38] Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 31; see also Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand and Māori Law (UBC Press, Vancouver, 2016) at 75.

[39] Hirini Moko Mead Tikanga Māori: Living by Māori Values (Revised ed, Huia Publishers, Wellington, 2016) at 35–36.

[40] Leonie Pihama Statement of evidence, #A19 at [13]–[14], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.156].

[41] At [3.73]-[3.74].

[42] At [3.78].  See Joan Metge In and Out of Touch: Whakamaa in Cross-Cultural Context (Victoria University Press, Wellington, 1986) at 68–69.

[43] Te Riaki Amoamo Affidavit, 25 January 2022 at [14], as cited in Re Edwards (Te Whakatōhea No 2) [2021] NZHC 1025, [2022] 2 NZLR 772.

[44] At [3.95]-[3.105].

[45] Kura Paul-Burke Statement of evidence, 22 December 2016 at [3.3], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.329].

[46] Hemana Eruera Manuera Statement of evidence, 29 March 2019 at [54], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.347].

[47] At [3.116].

[48] Moe Milne Statement of evidence, #A62 at [122], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [4.256].

[49] At [3.121].

[50] At [3.122].

[51] Khylee Quince s 27 report, 18 September 2018 at [9], as cited in Coates and Irwin-Easthope “Beneath the herbs and plants”, Appendix 2 at [2.58].

[52] At [3.133].

[53] At [3.135].

[54] At [3.136]- [3.137].

[55] At [3.139]-[3.140].

[56] At [3.141].

[57] At [3.143].

[58] At [3.148].

[59] At [3.150].

[60] At [3.149].

[61] The Commission has acknowledged that the guide and case studies were developed in consultation with pūkenga from Te Whare Wānanga o Awanuiārangi.  See at [4.11].

[62] At [4.11].

[63] The guide is set out in full at page 102 of He Poutama.

[64] At [4.23].

[65] At [4.24].

[66] At [4.15]-[4.19].

[67] At [4.20]-[4.22].

[68] At [4.50]-[4.51].

[69] At [4.52]-[4.53].

[70] At [4.44].

[71] At [4.44].

[72] At [4.34].-[4.42].

[73] At [4.36]-[4.37].

[74] At [4.50]-[4.51].

[75] At [4.52]-[4.53].

[76] At [4.62].

[77] At [4.62].

[78] At [4.54]-[4.67].

[79] At [4.61].

[80] At [4.68].

[81] At [4.69]-[4.70].

[82] At [4.80].

[83] At [4.82].

[84] At [4.71]-[4.79].

[85] At [4.72]-[4.73].

[86] At [4.88].

[87] At [4.89]-[4.90].

[88] At [4.104].

[89] At [4.105].

[90] At [4.91]-[4.102].

[91] At [4.103].

[92] At [4.113]-[4.115].

[93] At [4.116]-[4.118].

[94] At [4.131(a)].

[95] At [4.131(b)].

[96] At [4.119]-p4.129].

[97] At [4.130].

[98] At [4.137].

[99] At [4.138].

Author: Rhianna Morar

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