Māori law to 1840
At the time of the Treaty of Waitangi’s signing, Māori lived according to a complex system of customary laws. These were based in concepts such as:
- mana (status, either inherited or acquired)
- tapu (sacred prohibition)
- rahui (a form of tapu restricting access to certain food sources)
- utu (repayment for another’s actions, whether hostile or friendly)
- muru (a form of utu, usually a ritual seizure of personal property as compensation for an offence).
A rigorous discussion known as a whakawā preceded a muru (a formal act of redress). The party who had the muru performed on them accepted the consequences and took no further action. Taranaki leader Peter Buck (Te Rangi Hīroa) described taking part in a muru:
‘Our leaders made fiery speeches accusing the local tribe of guilt in sexual matters, punctuating their remarks with libidinous songs. The village chiefs admitted their fault and then proceeded to lay various articles before us in payment, such as jade ornaments, bolts of print cloth and money in pound notes… We then rubbed noses with our hosts, engaged in amicable conversation, partook of a feast provided for us, and returned [home].’
Acknowledging Māori law
In 1839 Lord Normanby of the British Colonial Office instructed Captain William Hobson to seek the approval of Māori chiefs to surrender sovereignty of their territory. In return the chiefs were promised benefits that included ‘British protection and laws administered by British judges’.
The colonial officials who first attempted to introduce British law to Māori recognised that they needed to take account of existing Māori laws. James Stephen, the Colonial Office advisor who drafted Lord Normanby’s instructions, believed that British authority in New Zealand should be exercised through ‘native laws and customs’, and in 1842 Britain’s secretary of state for the colonies, Lord Stanley, advocated a justice system that included Māori customs such as tapu.
Laws incorporating Māori customs
Some laws attempted to take account of customary practice:
- The Native Exemption Ordinance 1844 and the Resident Magistrates' Act 1867 allowed Māori convicted of theft to pay the victim a sum of money in compensation – a form of muru.
- The Resident Magistrates Courts Ordinance 1846 required legal disputes involving only Māori to be heard by a resident magistrate assisted by two Māori chiefs. The chiefs would generally decide the verdict.
- Section 71 of the New Zealand Constitution Act 1852 set apart districts where Māori laws and customs would be observed. However, this section of the act was never implemented.
Tohunga Suppression Act 1907
The colonial administrators who proposed incorporating Māori traditional law and custom into New Zealand’s early legislation regarded this as a temporary measure. They assumed that Māori would become assimilated into settler society, and that everyone in the new country would then be subject to a body of laws that no longer took account of Māori customary law.
The laws named above were all eventually repealed or replaced by others that dealt alike with Māori and non-Māori. Some later laws actually banned traditional Māori customs. The Tohunga Suppression Act 1907 made it an offence to practise as a tohunga. In practice, however, this law was seldom enforced.