Ministry of Justice, New Zealand

7.1 Introduction

Guardianship is defined in section 2 of the Guardianship Act 1968 as meaning "the custody of the child... and the right of control over the upbringing of the child", including education and religion. Custody is defined as "the right to possession and care of a child". Where custody has been given to one parent, the other parent may apply to the Family Court for access so that she or he is able to spend time with the child.20

The task of seeking to explain Maori concepts of guardianship, custody and access is, inevitably, a complex one. These concepts are creations of Western law and as such have been born from a particular philosophical base. The Maori philosophical base is quite different. It would be surprising, therefore, if it were possible to identify Maori concepts of law that correlate readily with guardianship, custody and access. As Metge has pointed out:21

A related problem is the temptation to define Maori concepts with reference to Pakeha ones, in other words, simply to explain Maori concepts in terms of what they are not. This results in shallow explanations of Maori concepts that fail to source them in their own unique philosophical underpinnings. An example might be the assertion that Maori concepts of land tenure did not include the notion of individual ownership: rather that land was considered to be held by the collective, in trust for present and future generations. While there is nothing incorrect in such a statement, focusing merely on the individual-collective contrast that a comparison with Western land law invites results in the omission of a vast amount of material about the true significance of land: the role of Papatuanuku as a spiritual being, as ancestress, as the ultimate nurturer of her human descendants; the dual meaning of the term 'whenua' (meaning both land, and afterbirth) and the significance of returning the whenua to the whenua after a child is born to the hapu; the profound importance of land to the question of hapu identity; and so on.

In order to try and avoid such difficulties, this literature review begins with a brief summary of a Maori world view, beginning with Maori cosmogony. The point of doing this is to accord the philosophical base of Maori law primacy of position in the discussion that follows. It will become clear that any Maori concepts that are relevant to this topic do not exist merely as somewhat insubstantial counterpoints to Western legal concepts. Rather, they are drawn from and firmly rooted in their own unique philosophical base. Next, the paper will consider the story of Maui-tikitiki-a-Taranga, from which will emerge a number of significant principles concerning the roles and responsibilities of whanau, hapu and iwi22 members with respect to the rearing and education of children. The following section examines each of these principles in greater depth. It is not to be expected that any of the beliefs and practices explored here will necessarily correlate neatly with the concepts of guardianship, custody or access. The paper will then turn to the issue of how Western ideas and law have impacted on Maori philosophies, and question the extent to which those philosophies are relevant in contemporary Maori society. Finally, the degree of recognition accorded Maori concepts by the current law concerning guardianship, custody and access will be discussed.

7.2 A Maori World View23

The essential starting point for looking at Maori law is Maori cosmogony, the Maori view of how the world began. Maori cosmogony was a blueprint for Maori life, setting down innumerable precedents by which Maori communities were guided in the regulation of their day-to-day existence.

The Maori creation story begins with Te Kore, a period that lasted for an unimaginable length of time, one, which has been translated as "the void"24 or "the nothing".25 However, it is much more, having been described as:26

Out of Te Kore was born Te Po, which lasted for another unimaginable period of time. It too can be likened to the time in the womb,27 Marsden describing it as the realm of becoming.28 It was within Te Po that the parents of Maori, Papatuanuku (earth mother) and Ranginui (sky father) were conceived and developed.

This first couple conceived many children and held them between their closely-entwined bodies. Te Po continued to envelope them. Light, as Buck notes, "awaited the revolt of the brood".29 And revolt they did, as they came to resent their cramped existence and to long for their independence. After much discussion, the children decided that their parents must be separated. It is said to be Tane, one of the younger children, who eventually succeeded in forcing his parents apart, thereby letting in the light. In some versions, the appearance of the children out of Te Po and into Te Ao Marama (the world of light - the realm of being, according to Marsden)30 is likened to their being born. It is said that the pain experienced by Papatuanuku as her children move within her and try to break out is similar to the pain experienced during labour.

Following the separation of their parents, war broke out amongst the children. Tawhirimatea (god of the elements), who had opposed the separation from the beginning, raged against the others with violent winds and storms. All but Tumatauenga (god of war) fled before Tawhirimatea, and friction existed amongst those who had formerly been in agreement.31

A number of themes emerge from the story of creation. The first is the theme of balance: the beginning of the world hinges on the presence of both male and female elements, and the female reproductive functions are of central importance. The story teaches us that children inevitably grow beyond their parents' world, and even that they are capable of pushing their parents apart. We see that it is only through collective decision-making that the children arrive at a conclusion as to what to do about their predicament, and we find that it is possible for a teina, a younger sibling, to achieve leadership status should they have the required qualities. We are also shown that it is normal to have elements of disagreement and friction, perhaps even that dissent is an essential part of decision-making and of progress -but that the collective good must ultimately prevail.

The supernatural children of Papatuanuku and Ranginui wanted to create human life. Tane once again took the lead but found that mating with the supernatural females present in the world at that time simply created more supernatural beings.32 Eventually, he sought the advice of his mother, who advised him to go to her pubic region, Kurawaka. Papatuanuku told Tane to create a woman-shape from the red earth at Kurawaka, the only place where the human element could be found. Tane shaped the woman and breathed life into her. Her name was Hine-ahu-one. Together, they produced the first human child, a girl, named Hine-titama.33 All Maori descend from this union.

We learn from these stories that Maori trace their descent from these supernatural beings, and that all Maori are connected to one another, to past and the future generations, and to the world around them through whakapapa (genealogy). Whakapapa is central to Maori life. It is whakapapa that ensures the interconnectedness of all living things, therefore creating the imperative to maintain a state of balance at all times. The preservation of balance -between people and the gods, people and the environment, the generations, women and men, and the internal balance (spiritual, physical, emotional) of every person -is of paramount importance. 

The concept of whanaungatanga (the root word of which is whanau, meaning kin group and also to be born) is similarly crucial to Maori existence. It embodies the nature of the Maori person's relationships to other members of their whanau, hapu and iwi; to other Maori; and to the world around them. It entails a complex web of responsibilities and obligations. Concepts such as utu, which demand reciprocity in all things, ensure that the wealth of a community is constantly being distributed according to need and binds the members of the community to one another in a never-ending cycle of benefit and obligation.34

Closely related to the importance of whakapapa and whanaungatanga is the ethic of collectivism. This does not diminish the value of the individual, but adds to her or his significance, each person representing a link in the chain of life. The concept of what some have called intrinsic tapu35 is crucial to understanding how whakapapa and whanaungatanga enhance the value of the individual:36

Another essential characteristic of the Maori world view is the relationship of the people to the land. Papatuanuku is revered as the founding ancestress, the mother of all Maori, to whose womb all are returned upon death. The particular land on which an iwi dwells is a fundamental part of how that iwi relates to the world around it. Iwi members identify themselves with reference to particular geographical features such as mountains, lakes and rivers. Iwi histories are replete with references to the special relationship they have with their particular area of land. Battles have been fought over it, their dead have been buried in it and the living celebrate it as an enduring symbol of their identity.

These are some of the fundamental tenets underlying Maori law. While it has been noted that there is no single term in Maori that translates into "law", the closest equivalent may be "tikanga":37

Traditionally, the law was taught through oral transmission: songs of all kinds, proverbs, genealogy and storytelling were the means by which vital information was passed on. Children were taught from a very early age that there was a right way of doing things (tika) and a wrong way (he). To transgress tikanga was to court disaster, not simply because you could be detected by others in the community and punished, but because you were breaching spiritually sanctioned rules, precedents that had been set down by ancestors. Therefore, your actions would inevitably create an imbalance within the community that would endure until the principle of utu operated to ensure the restoration of balance.

One of the stories from which lessons can be drawn about the content and operation of Maori law is that of Maui-tikitiki-a-Taranga.

7.3 Maui-tikitiki-a-Taranga38

Maui-tikitiki-a-Taranga is known as a demi-god, one who was born some generations after the initial fusion between celestial and earthly elements, and a man who was gifted with supernatural powers. His mother was Taranga, who dwelt in the earthly world by night and in Paerau, one of the strata of the underworld, by day. His father, Makea-tutara, dwelt permanently at Paerau.39

Maui was born prematurely, a child of his mother's old age. Thinking the child to be stillborn, Taranga cut off her topknot, wrapped her baby in it and set him adrift on the sea. Why she did not see to it that the baby underwent the usual ceremonies in such situations to ensure that its spirit was laid to rest rather than remaining as a possible source of future trouble for the living, is not clear. What is clear, though, is that her choice of protective covering for her baby was significant in some way. The head is a highly tapu part of the body, and the hair taken from the head similarly so.40

The healing powers of the sea and the spiritual powers of his mother's hair ensured Maui's survival. He was rescued from the sea by an ancestor, Tama-nui-ki-te-rangi, who nursed him to good health and reared him. The Maori terms for the raising of a child who has been born to another person is "whangai" (meaning literally, to feed or nourish) or "atawhai" (meaning to show kindness to or foster). Tama-nui-ki-te-rangi schooled the boy in waiata, haka and whakapapa,41 and told him his true parentage. When Maui grew to adulthood, he sought out and reunited himself with his birth parents and his brothers:42

Maui told her how she had wrapped him in the topknot of her hair when he was born and cast him into the sea. He was found on shore by his great tipuna Tama-nui-ki-te-rangi, who reared him... Maui told her that when he was in her womb, he had heard her say the names of his older brothers and proceeded to recite them to prove that this was so. When his mother heard this she cried out, "You dear little child, you are indeed my last born, the son of my old age, therefore, I now tell you your name shall be Maui-tikitiki-a-Taranga".

Maui was also determined to meet his father, to whom his mother went at first light each morning. He tricked his mother into oversleeping, by blocking up the gaps in the house so that the light would not enter. When she awoke late and rushed to join her husband at Paerau, Maui followed her, changing his form to that of a kereru (pigeon). His father accepted him and performed a tohi rite43 over his son, but a mistake in the recitation meant that Maui would fail in his later attempt to achieve immortality.

Maui was bold, resourceful and quick. As are many youngest-born, he was also very precocious and indulged, particularly by his kuia (grandmother figures) to whom he turned for assistance and advice. They recognised him as a special child, and treated him accordingly.

He is said to have tricked his ancestress, Mahuika, into giving him all of her fire children. Each of the first nine she gave him he doused in water, simply to see how far he could push her. There is also another version, however, which states that it was by accident that he dropped the first of the fire children into a river, the effects of which were so entrancing that he simply could not resist repeating his actions.44 Upon returning for the tenth time to request the tenth and final fire child, however, he found that he had pushed his kuia too far, for she threw it to the ground and called upon Whaitiri, the goddess of lightning, to send down burning coals. Maui nearly perished in the fire that resulted and was saved only by Tawhirimatea who responded to his cries for help by sending a flood. Fire was very nearly lost to the world as a result of Maui's actions, but Mahuika took pity on her human descendants and threw her final few sparks into the kaikomako, puatea, mahoe, patete and totara trees so that they would be able to continue to obtain fire from them.

Maui also developed a special relationship with another powerful kuia, Muriranga-whenua. She was old and blind, and depended upon her relatives to bring her food each day. Over time, the two developed a close bond, he bearing food to her each day and she nurturing him with her wisdom. When she considered her mokopuna45 to be ready, she gave him her enchanted jawbone, which she had been preparing for him over a long period.46 With the jawbone, Maui made the club with which he subdued the sun in order to create longer days and shorter nights. It was also from the jawbone that he fashioned the fish-hook with which he fished up Te Ika a Maui, the North Island of Aotearoa. 

However, there are limits to what the precocious mokopuna can do, and it is often the kuia who have the task of prescribing those limits. Maui's boldest challenge was his attempt to gain immortality for humankind. To achieve this, he had to reverse the birth process by entering Hine-nui-te-po through her vagina, proceeding up through her birth canal and into her womb. He was then to work his way through her body, and emerge through her mouth. His attempt failed, however, when Hine-nui-te-po crushed him. Kahukiwa and Grace give a powerful account of Maui's audacious attempt to obtain the unobtainable, in the form of a narrative from Hine-nui-te-po as she awaits his attempt:47

These stories tell us a great deal about the role of kuia as repositories of knowledge, and the conditions under which they are prepared to share their wisdom. Mahuika, Muriranga-whenua and Hine-nui-te-po all possess vast amounts of knowledge and supernatural powers. They recognise Maui as a special person, one to whom they are prepared to gift some of their knowledge and power in order that long-term benefits might be gained for their human descendants.

Embedded in the stories about Maui's life are a number of principles that "[u]nderlie... the Maori pattern of child-raising".48 Each of these principles will be identified and examined in the context of the Maui stories: in the next section, they will be examined with reference to a broader range of experiences.

The first principle concerns the significance of whakapapa and how that enhances the value of the child:49

Maui is important not just because he is a child with special qualities. Each of the adults involved in his upbringing and education know who he is in terms of how he fits into the whanau, hapu and iwi. Tama-nui-ki-te-rangi is aware of Maui's identity and understands that it is part of his responsibility to ensure that Maui knows his whakapapa. Taranga and Makea-tutara both embrace Maui once they know who he is and accept him back into the fold of the whanau. The kuia who share their knowledge and powers with Maui also know full well that he is their mokopuna and this dictates the way in which they relate to him. 

The second principle deals with the issue of to whom the child "belongs" and the significance of so belonging:50

At all stages of his life, no matter who has assumed principal responsibility for his care, there is no question that Maui belongs. The various tupuna who spend time with Maui know that he belongs to them. It is also accepted that he has a right to rekindle his connection with his birth parents and brothers, thereby confirming and strengthening his whakapapa by social interaction. 

The third principle teases out what this means in terms of the rights and responsibilities of adults within the whanau:51

Maui is cared for by Tama-nui-ki-te-rangi as an infant. When he is old enough to make his own choices he returns to his birth mother and brothers. As he grows older, he spends increasing amounts of time with kuia such as Muriranga-whenua in order to be appropriately trained for the life tasks that lie ahead of him. It is clear that he has a range of adults who are responsible for seeing that he gets the care that he requires. It is also apparent that as his needs change, the principal adult in charge of his care may change. It is quite likely that Tamanuiterangi was the only person with the special capabilities necessary to nurse an ailing child back to health. Once he had reared Maui to a certain age and equipped him with the necessary knowledge as to his whakapapa, Maui's needs changed. At that point he was driven to receive acknowledgement of his identity from his birth parents, and he needed to strengthen the bonds of whanaungatanga by being with his mother and brothers. As he grew older and it became apparent that he had special gifts, kuia such as Muriranga-whenua became important as only they were able to equip him with the knowledge and power that would enable him to perform the necessary tasks to improve the lives of all their human descendants.

The final principle refers to the rights and responsibilities of the child:52

Maui's right to care is acknowledged by the adults around him throughout his life, as is his right to know and give substance to his identity. But he also has responsibilities: in order to receive the knowledge and jawbone of Muriranga-whenua, he must feed her and spend time with her until she considers him to be properly prepared for the challenges ahead. Ultimately, while he is an indulged child who is gifted much, he pays a heavy price. As become apparent, the duties he owes his human descendants are onerous: in the end, he is merely the conduit through which Mahuika, Muriranga-whenua and Hine-nui-te-po pass their gifts on to the generations to follow.

Continued

Footnotes

20 Section 15(2).

21 Metge, J. Commentary on Judge Durie's Custom Law (unpublished paper for the Law Commission, 1996) 3; cited in Law Commission Maori Custom and Values in New Zealand Law (Wellington, Study Paper 9, 2001) 29.

22 The whanau was the smallest social unit, numbering up to thirty people and consisting of two or three generations living as a unit within their hapu-based community. The hapu was made up of many related whanau, and could number several hundred. All those within the hapu descended from a common ancestor. The hapu was the most important social, political and economic unit. The largest political unit was the iwi, which consisted of many related hapu. Once again, all iwi members descended from an eponymous ancestor. Iwi would only come together for important meetings and for such matters as warfare.

23 This section relies heavily on Mikaere, A. "Racism: Alive and Kicking in the Colony - an examination of racism and colonisation in Aotearoa/New Zealand" (Faculty of Law Seminar Series on Racism, University of British Columbia, January 2001) 3-5.

24 Buck, P. The Coming of the Maori (1958) 434.

25 Buck (1958) 434; See also Kahukiwa, R. & Grace, P. Wahine Toa (1984) 16.

26 Marsden, M. "God, Man and Universe" in King, M. Te Ao Hurihuri: Aspects of Maoritanga (1992) 134.

27 Kahukiwa & Grace (1984) 16.

28 Marsden (1992) 135.

29 Buck (1958) 435.

30 Marsden (1992) 135.

31 Ministry of Justice He Hinatore ki te Ao Maori: A glimpse into the Maori world (2001) 13.

32 Buck (1958) 450.

33 Kahukiwa & Grace (1984) 28.

34 Walker, R. Ka Whawhai Tonu Matou: Struggle Without End (1990) 69; He Hinatore 70.

35 Henare, M. "Nga Tikanga me nga Ritenga o Te Ao Maori" in Report of the Commission on Social Policy (1988) Vol III 5, at 19.

36 Mikaere, A. "The Balance Destroyed: The Consequences for Maori Women of the Colonisation of Tikanga Maori" (1995) 21.

37 Williams, J. "He Aha Te Tikanga Maori", paper presented at Mai i te Ata Hapara Conference, Te Wananga o Raukawa, Otaki 11-13 August 2000) 1-2.

38 This section draws extensively from Mikaere (1995) 15-20. 

39 Ministry of Justice (2001) 20; Kahukiwa & Grace (1984) 40, 72.

40 Kahukiwa & Grace (1984) 40.

41 Biggs, B., Hohepa, P. & Mead, H. Selected Readings in Maori (1967) 12-13.

42 Ministry of Justice (2001) 21-22.

43 A tohi rite was performed over children, dedicating them to particular lines of ancestors.

44 Brailsford, B. Song of Waitaha: The Histories of a Nation (1994) 111-112.

45 Grandchild, or descendant.

46 Ministry of Justice (2001) 23-25.

47 Kahukiwa & Grace (1984) 58.

48 Metge, J. New Growth from Old: the Whanau in the Modern World (1995) 140.

49 Metge (1995) 140.

50 Metge (1995) 140.

51 Metge (1995) 140.

52 Metge (1995) 141.