People, Power, and Law

A New Zealand History

Alexander Gillespie, Claire Breen

• Publisher: Hart Publishing
• Year: 2022
• ISBN:
  9781509931620
• Edition: 1
• Topic: Law
• Subtopic: Comparative Law
• Index: Law

This book offers a unique insight into the key legal and social issues at play in New Zealand today. Tackling the most pressing issues, it tracks the evolution of these societal problems from 1840 to the present day. Issues explored include: illegal drugs; racism; the position of women; the position of Maori and free speech and censorship. Through these issues, the authors track New Zealand's evolution to one of the most famously liberal and tolerant societies in the world.

1

Tikanga Māori and English Law

I.INTRODUCTION

The aim of this chapter is to demonstrate that both Māori and British had developed their own complex systems of laws before the two peoples made contact. Whilst both systems sought to provide a basis for social, economic and political organisation, the premises for such organisational features varied, as did the bases for the exercise of power.

The exploration of the interrelationship between people, power, and law in New Zealand begins with traditional Māori society and its rules and customs, from matters of social organisation through to management of conflict resolution and peace.

This chapter then considers the long-established values and laws that the British brought with them, including, inter alia, property law, freedom of movement, freedom of speech, freedom of assembly, the regulation of workers, migrants and women, welfare, health and morality. Finally, the new state’s mechanisms of control – from the courts to the police to the prison system – are also examined.

II.TRADITIONAL MĀORI SOCIETY: AN OVERVIEW

Māori appear to have intentionally migrated from Polynesia, between 800 and 1300, in a handful of canoes.¹ According to Māori oral history, Hine-te-aparangi, the wife of Kupe, first spotted a cloud (He Ao) over the land, thereby providing one of the names – Aotearoa – for these islands.² The first groups seem to have expanded quickly and occupied most of the country in different phases. After following food sources and sources of pounamu (greenstone) in the first few hundred years, Māori became more settled and established by the sixteenth century.

A.Tikanga Māori

In terms of social mechanisms, Māori developed an enduring cultural system, rich in practices and processes that were fluid and full of nuances. Māori customary law has been described as ‘the values, standards, principles or norms to which the Māori community generally subscribed for the determination of appropriate conduct’.³ At the heart of the system was (and continues to be) tikanga, or the customs, practices and protocols that informed the Māori way of life. Generally understood, it is the traditional and correct way of doing things. Tikanga emphasises the responsibility owed by the individual to the collective. The focus on responsibility emphasises correct practice, as drawn from the notions of mutuality and reciprocity, both generally and in relation to the manner in which wrong-doing was to be addressed.⁴ Tikanga is comprised of concepts and principles, such as aroha, whanaungatanga, mana, utu, kaitiakitanga, tapu, noa, wairua and mana tūpuna.⁵ Such understandings and practice represent a body of flexible principles or guidelines that enable harmonious living between Māori, as well as with the natural environment.⁶

B.Social Organisation

Increasing populations brought with them webs of relationships between both places and people, which in turn generated connections and obligations through different family groupings. The largest social grouping was the waka, which was a loose confederation of tribes based around ancestral canoes. This was followed by the more coherent tribal groups, represented as iwi. In turn, iwi were made up of hapū, which were medium-sized groups of 200–300 people. The smallest units were whānau, or extended families. Before the mid-nineteenth century, there were about 50 politically autonomous, territorially discrete tribes.⁷

Reflecting Māori cosmology,⁸ Māori ‘men and women were essential parts in the collective whole, both formed part of the whakapapa that linked Māori people back to the beginning of the world’.⁹ In particular, ‘[f]emale strength formed part of the core of Māori existence, and was sourced in the power of female sexual and reproductive functions’.¹⁰ Both men (tāne) and women (wāhine) were recognised as possessing inherent tapu but the role of women as whare tangata (the house of humanity)¹¹ made them particularly important, for they were vital to the survival of the whānau, hapū and iwi.¹²

Descent from common ancestors was a means of determining kinship and status (superior and inferior), and Māori were divided, broadly, between a number of different social groupings. These were rangatira (chiefs), tūtūā or ware (commoners), and taurekareka (slaves). Slavery (if understood as ownership and the power of life and death over another) was part of the traditional pattern. However, the trend for slavery from the 1820s was one of large scale manumission, while incidents of cannibalism were also in rapid decline.¹³ Tohunga, experts from artisans to shamans, were also sometimes included as a separate grouping.

Rangatira status was determined by birth, with the first-born child of the most senior family in an iwi being a chief (ariki), or it could be determined by ‘great deeds’.¹⁴ In terms of gender, although patrilineal primogeniture was acknowledged, in some iwi, some women enjoyed a higher status than in others,¹⁵ and not all women could be regarded as inferior to all men.¹⁶ This conception of women reflected the view that whakapapa and a person’s place in the whānau, in addition to considerations of tapu and noa,¹⁷ rather than gender, were the basis for determining a person’s value and role.¹⁸ Communal living and the absence of a distinction between public and private domains also enabled ‘women to perform a wide range of roles, including leadership roles’.¹⁹

Both women and men could be of senior status or rank. Women could hold chiefly status on their own account, or through their connections to their husband or other male relatives.²⁰ Although the historical evidence suggests that it was mainly men who carried out these roles,²¹ chiefly women could participate – if not lead – in war, as well as peace processes.²² For example, Te Paea (Tiāho), the daughter of Pōtatau Te Wherowhero, was a member of a female peace mission to Ngāti Kahungunu during the Musket Wars.²³ Te Rangitopeora (Topeora), who was a niece of Te Rauparaha, was a gifted composer, as well as a notable tribal leader of Ngāti Toa who participated in battle.²⁴

Historical sources show that Māori children were not only well-treated in traditional Māori society, they ‘were more likely to have been indulged’.²⁵ This indulgence reflected the spiritual and cultural basis of Māori childrearing practices as:

The fundamental principle for raising children was the underlying belief that children were favoured as gifts from the atua (spiritual beings), from the tipuna (ancestors) and preceded those unborn, which meant that they were tapu (under special rules and restrictions). Any negativity expressed to them was breaking the tapu by offending the atua and the tipuna gone before. Because of their intrinsic relationship to these spiritual worlds, the children inherited their mana (power, prestige). They were treated with loving care (aroha) and indulgence. Punitive discipline in whatever degree, as a method of socializing children, was an anathema to the tipuna.²⁶

Childrearing was a shared responsibility of the whole community, especially as the people in one village (kainga) would have been closely related.²⁷ In terms of education, the pursuit and transmission of knowledge was a sacred enterprise and confined to whare wānanga (house of learning) as all knowledge was regarded as emanating from the gods, who embedded it in the natural world to be discovered by humans.²⁸

In pre-colonial Māori society, pre-marital sex was accepted among young Māori, and Māori men had sexual access to female slaves.²⁹ Reproduction was a celebrated and protected process, and ensuring the next generation was a priority in Māori culture. There are some accounts of abortion being practised prior to colonisation but such historical accounts are somewhat unclear, as abortion was not linguistically separate from miscarriage.³⁰

The view that male or female homosexuality ‘as constructed in European terms’ existed in pre-colonial New Zealand was initially challenged³¹ but it is now generally accepted that same-sex relationships existed in traditional Māori society and that it was ‘in fact more readily accepted than today’.³² Such relationships were not recognised as marriages but the individuals were regarded as takatāpui (homosexuals) who probably lived in the same village and worked and travelled together. Traditional Māori society recognised and incorporated women who acted like men (tangata whaka-tāne) and men who acted like women (tangata whaka-wāhine) without stigma.³³

C.The Resolution of Wrong-doing and Conflict

Māori processes for addressing wrong-doing were complex and were underpinned by the Māori worldview and its societal structures. As the New Zealand Law Commission came to explain:

In traditional Māori society, the individual was important as a member of a collective. The individual identity was defined through that in...

Table of contents

• Cover
• Dedication
• Title Page
• Foreword
• Preface
• Acknowledgements
• Contents
• 1. Tikanga Māori and English Law
• 2. The Arrival of the Europeans
• 3. Forging a New Land
• 4. The New Zealand Wars Ngā Pakanga o Aotearoa
• 5. God’s Own Country
• 6. The First World War
• 7. After the First World War
• 8. From Depression to Radical Change
• 9. The Second World War
• 10. After the Second World War
• 11. The Golden Years
• 12. A Time of Protest
• 13. Turbulent Times
• 14. A Country of Change
• 15. Setting a Steady Course
• 16. The Beginning of the Twenty-First Century
• 17. The Calm before the Storm
• 18. Unprecedented Challenges
• Conclusion
• Index
• Copyright Page