Should the Resource Management Act be reformed to provide a stronger direction in recognising the importance of Maori law in resource consent decision-making? University of Otago professor of law Jacinta Ruru says that, when pitted against other components such as business, Maori law fast becomes just a nice-to-have value.
Earlier this year, I had an opportunity to contribute to the New Zealand Planning Institute Conference. Based on that keynote address, I called for a new enhanced foundation for understanding holistically the rules of caring for and using land, air and water. The prospect upon us is to collectively consider how the Resource Management Act 1991 (RMA) could be further enhanced in practice to provide for tikanga Maori / Maori law. Local authorities need to be ready to embrace this prospect.
Components of Maori law are already embedded within the RMA. Decision-makers, planners and lawyers already require an understanding of what, for example, kaitiakitanga, taonga and wahi tapu mean.
But have we as a country really engaged deeply with tangata whenua to understand how these concepts sit at the heart of a Maori legal system? What does it mean to supplant key concepts from one legal system and place them in another legal system? What further opportunities are afforded to us as a country to know better the first legal system of these lands: Maori law?
The change towards broadly recognising Maori law in our state legal system is already in full swing. Statutes such as the RMA are evidence of this. Local governments will know this in practice through the generation of district and regional planning documents.
Significantly, the Supreme Court, in 2012, held that tikanga Maori is also part of the common law. In that non-RMA related case, the court had to consider which law had dominance to determine where a Maori man be buried: Maori law or the common law.
The Court stated: “Claims based on whakapapa [genealogy] and tikanga observed by the hapu [subtribe] of the deceased are entitled to great weight in New Zealand law and may well prevail in a particular case”, and “Maori custom according to tikanga is therefore part of the values of the New Zealand common law”.
This highest level judicial recognition ought to be one of the catalysts for the nation to catch up to this acceptance of the functional role of tikanga Maori in contemporary Aotearoa New Zealand.
To me, knowing our first laws – tikanga Maori – must become a foundational part of the education and practice of all those in professions who spend their careers making decisions for the use of our land, air and water. Tikanga Maori is relevant for the planners, surveyors, scientists, decision-makers and lawyers.
One way to advance a more holistic consideration of the law of Aotearoa New Zealand is to depict it as a three-dimensional overlapping operation. Justice Joe Williams, in particular, has provided a powerful framework for us to do just this.
In many acclaimed addresses, his framework highlights that our law consists of: Kupe’s law, Cook’s law and Aotearoa New Zealand law. (See his address at the International Indigenous Research Conference 2016 bit.ly/2o3k1tl and his article Lex Aotearoa: An Heroic Attempt to Map the Maori Dimension in Modern New Zealand Law  Waikato Law Review 1.)
The lands and waters of Aotearoa hold stories, traditions and laws that regulate human behaviour. These laws have sources and practices in:
• Whanaungatanga (extended family, relationships, responsibilities; whakapapa (genealogy) the glue holding the Maori world together; centrality of kinship);
• Mana (authority, control, influence, prestige, power leading to leadership);
• Tapu (sacred, respect (complementary opposite: noa) different roles e.g. social (keeping safe) political (leadership, ceremony) and spiritual (wairua / life force);
• Utu: reciprocity / obligation;
• Kaitiakitanga / manakitanga: (stewardship, guardianship to care for one’s own).
With the arrival of the Europeans and the bringing with them of a long deep history of law from England, a natural collision occurred with the first laws of the country. At the frontline of this collision has been:
• the legal relevance of Te Tiriti o Waitangi / Treaty of Waitangi;
• the applicability of the common law doctrine of native title; and
• the creation of Maori freehold land.
” Tikanga Maori must become a foundational part of the education and practice of all those in professions who spend their careers making decisions for the use of our land, air and water.”
Aotearoa New Zealand’s law
After long multiple decades of tangata whenua fighting for justice, initial breakthroughs came in the 1970s with emerging national recognition of the Treaty of Waitangi as our founding constitutional document.
Fast forward to now where every day decision-makers around the country are dealing with all sorts of issues of evidence of this Treaty partnership. Aotearoa New Zealand law today is very much cognisant of the Treaty. An inherent component of this recognition must be a respectful consideration of the laws of both Treaty partners.
Encouraging the uncovering of the state’s smothering of our nation’s first laws – Maori law (or in Justice William’s words, Kupe’s law) is one of our greatest opportunities to add another contribution in our collective endeavours, including at the local authority level, to find the best solutions to enable the wellbeing of our entire nation into the future.
While the RMA contains important footholds for Maori law (including acknowledgements of kaitiakitanga, wahi tapu and taonga), experience shows that when pitted against other components in the RMA, such as business, Maori law falls fast to a simple nice-to-have value.
My research into RMA court decisions within the context of cases concerning water clearly demonstrates that tangata whenua nearly always consistently lose in the courts when arguing the importance of kaitiakitanga. (J Ruru, “Indigenous Restitution in Settling Water Claims: The Developing Cultural and Commercial Redress Options in Aotearoa New Zealand” (2013) 22(2) Pacific Rim Law & Policy Journal [311-352).
Should the RMA be reformed to provide a stronger direction to recognising the importance of Maori law in resource consent decision-making?
Since the enactment of the RMA in 1991, the legal landscape has changed dramatically with Treaty settlements (such as cooperative management of the Waikato River and agency as ancestors of Te Urewera and the Whanganui River) and policy advancements (such as the National Policy Statement for Freshwater’s recognition of Te Mana o te Wai).
The RMA needs to catch up to more holistically acknowledge and support the intent of tangata whenua to know and care for lands and waters. It is timely to engage with tangata whenua to consider the possibilities (and pitfalls) for reforming the RMA with tikanga Maori as a central guiding force.
For instance, tikanga Maori is currently absent (although not specifically excluded) in the purpose section of section 5. One suggestion to advance further consideration could be to amend section 5 as follows. The proposed amendments are in red:
Section 5 Purpose
(1) The purpose of this Act is to promote the sustainable management of natural and physical resources.
(2) In this Act, sustainable management means managing the care, use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well-being and for their health and safety while –
(a) sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of fgenerations; and
(b)recognising and respecting the kawa, tikanga, and kaitiakitanga of the marae, whanau, hapu and iwi of natural and physical resources (excluding minerals); and
(c) safeguarding the life-supporting capacity of air, water, soil and ecosystems; and
(d) avoiding, remedying or mitigating any adverse effects of activities on the environment.
Whatever the precise amendments, there ought to be an opportunity to entwine into our country’s understanding of sustainable management recognition of the important role Maori law can have in further enabling us as a country to care for and use natural resources. (See J Ruru, “Listening to Papatuanuku: a call to reform water law” (2018) Journal of the Royal Society of New Zealand DOI: 10.1080/03036758.2018.1442358.)
Just as in any legal system, including within the Maori legal system, inherent clashes will still be evident surrounding tensions between immediate use and development versus future conservation and protection. Such concerns exist for all peoples including tangata whenua.
By explicitly adding in a respectful consideration of tangata whenua knowledge and insights into the decision-making of “the law relating to the use of land, air and water” (Resource Management Act 1991), we will catch up with the holistic reality of laws already evident in the lands and waters of Aotearoa New Zealand.
• Jacinta Ruru is professor of law, University of Otago and co-director of Nga Pae o te Maramatanga New Zealand’s Maori Centre of Research Excellence. firstname.lastname@example.org
This article was first published in the June 2018 issue of NZ Local Government Magazine.