This paper is about values and ethics in Maori research.
Background to 1994 paper on custom law
In 1994 I assembled some notes on Maori custom law based on readings and experience as a Judge of the Maori Land Court for 20 years and as chair of the Waitangi Tribunal for 14. The intention was to better the understanding of Maori values and law in historical research and judicial decisions. It was not a scholastic work but arose this way.
Conflicting Assumptions on Maori society
Submissions to the Waitangi Tribunal from Maori and academics, and decisions of the courts, the Maori Land Court included, showed conflicting assumptions on the nature of Maori society. There were different approaches amongst Tribunal members as well.
Perception of Maori agendas in history
In addition some histories assessed Maori from a western standpoint only, as though Maori were cardboard figures with blank minds awaiting intelligence. Many modern histories made real attempts to get inside the Maori value system but even so there was some tendency to see history in terms of the colonisers precepts and to assess change in terms of the colonisers agenda. There was no adequate reference to the agenda that Maori already had or to the depth of the ancestral opinions that influenced Maori thinking. Even setting aside any modern cultural renaissance, in assessing change small reference was made to the extent to which Maori values survived, or of the extent to which these values had continued to influence Maori action at different points in time. The dynamics of cultural inter-action were subsumed by an assumption of a stronger and weaker society with an inevitable osmotic pull. In brief Maori were often judged in European contexts and not on terms of their own. It seemed a better balance could be sought.
Distortion of custom in litigation
In the meantime, more cases than formerly, with Maori issues at heart, were before the general courts, from resource management to family protection or fish allocation. There was a risk that the litigants constructions of Maori society to advance their cases would become embalmed in judicial precedent, leaving a distorted view. This might influence in turn, scholastic studies, Maori and public opinion, and public officers in policy formulation and administration. Judicial decisions, last century and this, may have had these impacts, not least the decisions of the Maori Land Court.
Part of the problem even today, is that the judges, through no fault of their own, are being called upon to assess the mores of a society still largely foreign to them. This leaves scope for those who would profit from the situation with dubious but compellingly presented evidence to pull the wool over the judges eyes.1 The number of statutes with Maori words now falling for judicial interpretation, compounds the problem. Iwi, manawhenua, takiwa and kaitiakitanga are examples.
Objectives of the 1994 paper
For my part it seemed important that the Maori Land Court and Waitangi Tribunal should try to get it right, and the sooner the better as decisions and reports come out continually. Acxcordingly the custom law paper was put together, in three weeks over a summer holiday. Scholastic imperfections might be obvious from something done so quickly. However its purpose was no more than to start a more considered debate within the Tribunal and Maori Land Court, and by sending it out to a selected group, to attract Maori and academic comment. The Waitangi Tribunal in particular has an inquisitorial and research function that enables and indeed requires it to undertake broad inquiries.
The paper went to Judge Fote Trolue, the first and only Kanak judge of New Caledonia trained in both French and Kanak law. On the outer islands of his country Kanaka custom is still the predominant law and applies in both village and court proceedings. Judge Trolue was to address Tribunal members at Rotorua along with certain leaders of Te Arawa.
The paper served its purpose. While it has been taken no further towards publication standards, it shifted the Tribunals internal debate beyond assertion. It taught that while there are different views, and there is no perfect answer, we can at least do better than assumptions or advocacy provides. It showed too, the room for more scholarly research.
The dynamics of custom and change
From the discussions, and from subsequent evidence and arguments before the Tribunal, several lessons became apparent. The first is so obvious as to need stating - that society changes. The norms and standards that constitute the custom of a society change with it, and Maori society and custom are no exception. There have been considerable changes since European contact. In brief it is necessary to set aside a popular opinion that custom is static, or at least the custom of native peoples, or that native custom ceases to exist when the people abandon grass skirts or no longer travel in dug out logs. Western custom is no different. Customary practice is still a good source of law, especially in the rapidly changing field of commerce. It is still appropriate to consider what good merchants do today and to establish the current mercantile custom.
A static view of custom in the courts
The static view of custom has not assisted Maori in litigation. In the Tainui case it was thought Maori had an interest in coal because there was evidence that they used it, but they did not have an interest in hydro dams, in the Ikawhenua case. With respect the question was really whether they possessed the land where the coal is or the river where the dams are, but the point here is that the static view took away the devolpment right.
Custom and iwi authorities
There is compelling evidence that custom did not constrain Maori adaptation and development either. On the contrary it left much room for enterprise, and still does. Consider for example current Maori desires to establish iwi authorities, as in response to official devolution strategies. These exercise corporate functions of a kind not previously known and substantially change the traditional focus on hapu autonomy.
However they are not invalidated by arguments that while there may once have been inter-hapu discussions or runanga, a regular iwi runanga exercising corporate functions had no true counterpart in custom. If a current Maori need is met and popular demand is satisfied, that is a source of validity in itself. Modern iwi authorities, even if barely recognizable in old custom, can still be part of the custom of today.
However the converse applies. An iwi authority may not be able to claim support simply on an argument that it is in fact the legitimate successor to an ancient institution. Reference to antiquity may help the case but a question still remains of whether it is effective and satisfies todays community. There is some parallel in the current Monarchy - Republic debate. Recourse to custom and tradition may be persuasive but not determinative.
The need to look to the value system
This is not to say that Maori live in a society where anything goes. Maori society, probably like most others, is conservative with regard to its fundamental values. The point is that it has been receptive to change while maintaining conformity with its basic beliefs. Archival records evidence how Maori searched for ancestral opinions to establish what was right, often challenging officials to heed Maori precedent to maintain that which the translators called a proper line of action.
Lawyers should understand this. The common law of England began from recording local customs and practices seen as common to all England. It was in effect, a compilation of the values of that society as shown in practice. It has developed to a situation today where cases are won or lost according to whether one can establish a precedent for a particular course of conduct. Accordingly for Maori or Pakeha, antiquity may give a measure of validity. For both societies recourse to precedence provides evidence of stability.
However in following precedent, ancestral or legal, custom may not just be maintained but changed. In selecting what to recall and applying the principles to new situations we may discard that which has become unpalatable, outmoded or inconvenient. Judges, applying precedent to different situations, may establish a new principle and yet will say that the opinion has always been in the law but has been discovered only now. Similarly, Maori will refer to what the old people said to consider what to do on matters beyond the old peoples experience. The important thing about this process is that it makes neither the law nor custom moribund, but dynamic.
The point is that in resorting to the past to determine a future course of action in new situations one must look for the principle involved. More particularly one must seek the underlying value for it is the values that establish the enduring cultural norms of a society.
Tikanga and value cf rules
Here Maori custom has been known to step ahead of an English law that became largely codified as rules. Rules can be inflexible while principles require a search for the true justice of a case. There is a modern tendency to see Maori custom in terms of rigid rules, and there were rules for matters like karakia and the word perfect transmission of songs and stories. However Maori were generally successful in keeping their values to the fore.
To illustrate the point, adultery was once a punishable crime in English law. Despite some depiction of sexual freedom amongst Polynesians, Maori adulterers were liable to punishment too. Nonetheless in A Show of Justice, Alan Ward writes of a Maori case where a wife committed adultery. Neither the wife nor the lover was punished however but the husband, for not giving the wife the attention she required.
For the English there was an inflexible rule. For Maori there was a value, about maintaining family integrity, or possibly avoiding a war; but Maori considered the whole circumstances to reach a decision that was honed to the facts of the case.
That is not an isolated example. Early manuscripts evidence a pragmatism in Maori decision making. Decisions appearing inconsistent at first may be rationalised by reference to the facts and the underlying values involved.
Thus the word for custom is tikanga, which does not denote a static set of rules. Williamss dictionary gives tikanga as a derivative of tika - that which is fair, true or just, or a proper line of action as some translators have put it.
Recognition of core values
The value system has been described in terms of criteria like whanaungatanga, the primacy of kinship bonds, manaakitanga, caring for others, rangatiratanga, the attributes of rangatira, or utu, the maintenance of harmony and balance. Whatever the criteria might be, writers of different disciplines and places have seen the importance of value concepts in Maori culture. It is sufficient to mention Cleve Barlow a psychologist from Auckland University, Jim Ritchie a psychologist from Waikato University, John Paterson a philosopher from Massey and Dame Joan Metge, a social anthropologist formerly stationed at Victoria. 2 Patterson considers not only the key values, but the virtue ethics of Maori society. He compares the behavioural rules of western law with the Maori ideal of emulating the characteristics of renowned forbears.
The Europeanisation of Maori matters
From this there are lessons to learn. It is important to measure Maori society in its own terms. The Maori Land Court did not do this in my view, and even today the practice of that Court still sticks. Charged with effecting tenure reform to make Maori land a commercial commodity comprehensible in English law, it did not measure Maori society by Maori criteria. It relied upon the outer facts without reference to internal beliefs, related those facts to English law, and introduced foreign concepts of social structure and boundaries. This is still done to establish property rights in western law terms, without reference to corresponding social obligations that mark the Polynesian way, the mobility of Maori hapu, or the complex genealogical patterns. The Maori Appellate Court decision on Ngai Tahu boundaries may serve as an example of how the Europeanisation of Maori matters still occurs.
The importance of seeing Maori custom in
its own terms
There is no need to gild the lily, or to paint Maori in Western terms in order to make them fit. For example if Maori did not see themselves as owning land in the western sense, it does not follow that they owned nothing at English law if possession is what they had. There is no need to reinterpret Maori custom and invent a system of property rights in order to claim rights of property at English law. Conversly if Maori did not understand land sales in western terms it does not follow that they lacked comprehension, as has been assumed, for what they understood was a complex land system of their own. It was sustained by both pragmatic practice and profound philosophy.
The Maori law of relationships
An examination of custom informs Maori historical action in other ways. On the evidence many Maori went out of their way to incorporate Europeans into tribes or gave freely of their land for settlement. This does not mean they sold the land. In Maori thinking the land cannot leave its ancestral source but by placing Europeans on the tribal land, the Europeans were obliged to acknowledge the hapu that gave, and to support it. They were simply following their custom of giving liberally in order to create lasting obligations and to enhance their own mana.
This points to that which was essential to the Maori way, that life depended on mana, generosity and the relationships between all things, the relationship between people and gods, between people and everything in the universe from land to life forms, and between different groups of peoples. The essential difference between Maori and Europeans on the settlement of New Zealand was that one sought ownership and centralised control, the other sought local control and relationships. Each was simply acting according to their own customs.
Researchers must set aside the distortions of past judicial precedent and its present-day effect. They must come to a better understanding of Maori society if they are to measure past conflict and conduct in cultural context. To understand that society they must look inside its thought concepts, philosophy and underlying values and avoid interpretations from an outward appearance. They must consider the social structure not just in terms of how it looks, but with regard for the likely reasons for it. It will be important to consider the poetry, songs, legends, proverbs, idiom and forms of speech-making.
Values as ideals
Remember too that values may represent ideals. Much research evidence to the Waitangi Tribunal has sought to measure Maori opinion by copious accounts of Maori conduct, as recorded by European observers. This is a common error of judgment. In any society there are people who are base and people who act variously but the record of conduct does not negate the existence of a higher ideal. In Exploring Maori Values John Patterson observes that Christian society is not measured by what Christians do but by that to which they aspire. Similarly one does not determine New Zealand values from the behaviour recorded by the courts.
In the Muriwhenua report the Waitangi Tribunal attempted to step inside the Maori world to assess Maori thought, expectations and conduct in the context of the alienation of Maori land. It struck the Tribunal then how little history is written with a proper understanding of Maori beliefs. Too often a history purporting to be a history of New Zealand is really just a history of the Pakeha people in it.
The Tribunal felt strongly that the dynamics of cultural interaction could not be determined by the values or assumptions of one culture only. A proper assessment of the facts required the experience of several disciplines, in psychology and social anthropology for example.
The value of oral tradition
Here a further observation is due. Archival material contains so much from a European perspective that it is likely to distort research. There is a weight of compiled prejudice to overcome and the power of the written word to entrench error makes criticism of the oral tradition seem small. Nor is oral tradition understood. While it is susceptible to manufacture its worth is in the essential messages it imparts.
The extent of cultural survival
I think too that that the extent to which Maori changed, as a result of European influence, is too much assumed. Sometimes the inference is that today we are all the same. Taking a static view of indigenous cultures, though not of their own, the logical conclusion of some writers is that Maori ceased to be Maori when their structures were dismantled, their traditional dress discarded, their language not regularly spoken and new tools and technology adopted.
An honest inquiry should at least consider the scale of the belief system that existed and the extent to which it has remained. I go back to my point that societies change in the context of their values and beliefs. If that is true it is questionable whether change was in European terms. Thus, did Christianity represent a major ideological shift or did it add to, rather than replace, generally compatible Maori ideas? Was change more in the outer forms of style? Still today the Maori churches operate in a distinctively Maori way. Maori recite Christian karakia in distinctively Maori situations. So even also in land. Judges of the Maori Land Court know that Maori still think as Maori in land administration despite the strictures of the imposed title system.
Maori incorporation of European beliefs
Then there is a reverse situation that the researcher must beware. Some Maori have adopted the opinions of the early European writers. This includes and may apply especially to Maori academics. This, and the voluminous, archival record expressing the Pakeha view, makes the truth yet harder to ascertain. The current constructs of hapu acting collectively as national states and exercising mana whenua or dominion over defined territories may owe more to European influence than we may care to admit. While significant rangatira had influence from time to time over widely dispersed hapu, it is arguable that their control depended upon their personal mana and not on political land boundaries. Their mana could come and go and arguably, their influence was over people rather than land. Again, I am not suggesting there was no sense of unity amongst the people of descent groups, but that the nature of the unity must be seen in Maori terms. It is one thing to equate this unity with dominion at English law, but quite another to reconstruct Maori society to make it fit.
It then becomes important that the researcher should not to be captured by current ideologies that manicure a perception of the past to suit a current purpose. While political and tribal leaders may validly recall the past to support a policy, and leaders do this in any society, the academic researcher must take a more dispassionate view.
Criticism of Pakeha contribution is not
I add then I cannot join with those who criticise Pakeha writers on the basis of race alone, especially when there is evidence before the Tribunal that Maori too are not immune from error. One may criticise the opinion without attacking the person. One may challenge a persons credibility as well, through lack of qualifications or honesty of purpose, but that is not the same as an attack based on race.
Here, a considerable Pakeha contribution must be acknowledged. Valid criticisms can be made of opinions of early judges, writers and ethnologists who have left an enduring mark, but not all of these are Pakeha. Some views of Te Rangihiroa may be questioned for example, despite his outstanding scholarship, and Maori who write tribal historys rarely escape allegations of bias. More recently we have seen some outstanding research and argument from people like Eric Schwimmer, Raymond Firth, Andrew Sharp and Ron Crocombe. Some of the best material on which the Tribunal has relied has come from Pakeha like them. Some writers, like Dame Joan Metge have been adopted or incorporated into a local Maori group and Maori have honored others in other ways.
There are those too who are familiar with Maori matters from childhood experiences. Alan Ward, for example, was raised in a remote, Maori district out of Gisborne. His book, A Show of Justice, first published in 1974, opened not with the usual background of events in England that led to colonisation. It began with a chapter on the custom of the people already here, that the reader might understand more fully the cultural conflicts involved. It is a chapter that has stood the test of time.
Collaboration required of traditional and
The need for expert evidence is apparent in reading the record of Maori cases in the courts - the Whanganui River case 1958 for example. Evidence from Maori steeped in their own law did not get the litigants far. They talked of spiritual matters that the Court dismissed as metapysical. What was needed was an expert witness to interpret the meaning of the evidence in European terms rather than have the Court interpret that evidence itself. Traditional and academic evidence are not in conflict. They in fact depend on each other.
Traditional focus on local autonomy
This takes me back to where I began. If one looks to the nature of the traditional hapu, one might discern a society where power was most regularly at the basic level of the community that functioned every day. Everything above is viewable as a confederation for a purpose, from fishing to war. Arguably, a combined effort did not depend upon some over-riding organ of state. One must look to the various ways that people aligned for aggression or defence and at different times. The personal magnetism of outstanding rangatira in rallying people for some common expedition is especially relevant.
If that is so, two important values are discernible. One is that in Maori society power ascends upwards from the people below as compared with western society where power is from the top down, from a sovereign body above to the people below. On this view Maori society is not to be seen as an embryo still to develop the organs of state, but is one that is antithetical to centralist control.
Traditonal value of combining
The other important value is that communities will collectivise or unite if required, rallying behind a respected leader, or out of obligation to kin or past allies.
The need for balancing the two
In now managing the interface between Maori and European societies, the issue for Maori may not be simply which way is right but how to find the balance. There is support for tribal management through iwi authorities. This provides a united approach to treating with the outside world and an economy in combining resources. However there is also support for the traditional value of empowering communities. This encourages local initiatives. Finding the balance calls for a value judgment, and if practicable, communities should make such judgments themselves. The two approaches may be reconciled however in a central structure that is truly sensitive to the needs and autonomy of the local communities.
The matter need not depend on assertions as to the true nature of customary society. The question is bigger than which is the tribe - the hapu or the iwi? It is really about management today, whether to take a bottom up or top down approach or whether one can take advantage of both. In the interim it does not help to slant research to one view. It does not assist to bend or hide facts to support current thinking, or if, in other respects, researchers are captured by the ideology most in vogue.
The need for sound scholarship
To conclude this section, there are and always will be different views of Maori society. There is no one perfect way of looking at it, but if writers are to understand the past, and the present, the attempt must be made to be better informed of Maori society than some writers before. Good scholarship provides protection against accusations of radicalism, invention, bias or even heresy. A full and honest inquiry of all relevant matters is that which most insures against unfair criticism.
A number of ethical issues have been passed on to me by Waitangi Tribunal researchers. The foregoing may shed some light on them, but otherswise the issues are listed for discussion without further comment. Tribunal researchers operate independently of the Tribunal. Tribunal members may describe the research required or may refer to particular issues and source materials that they would like to see covered. However the members must observe protocols not to influence a researchers conclusions. The researchers are also appointed through the Department for Courts and not by the Tribunal.
(1) One issue raised by claimants contends that only Maori should write on Maori matters. I have already expressed a view on this but it must be open for further discussion.
(2) Another arises from a view, sometimes expressed, that the opinions or recollections of kaumatua should not be subject to cross-examination or other challenge.
(3) There is then this situation. Claimant groups who have commissioned researchers have sometimes required researchers to remove material unhelpful to the claimants case or amend their conclusions, sometimes as a condition to being paid. Are there terms that researchers should negotiate with claimant groups beforehand?
(4) Can a researcher commissioned by a tribal group publish the results of that research and even although the information is from public sources? What if the information relied as well, or exclusively, on private, oral opinions from within the tribe? Can a researcher who is not commissioned by a tribal group but who relies on information from tribal members, publish material without prior permission from them? What if the condition to publication is that certain conclusions be changed? Should the terms for giving information be settled beforehand?
(5) Should evidence to the Waitangi Tribunal be publicly available? If it should be generally available, should parts be protected from use, like information on sacred sites, medicines, karakia to influence people or natural phenomena, or fishing grounds? Many submissions now have warnings on quoting from or otherwise using the material, sometimes even by the Tribunal itself. The Tribunal is able to restrict the publication and availability of material, but blanket restrictions give the appearance of secrecy and undermines public confidence in the Tribunals process. Tribunal restrictions on evidence has been the subject of adverse media comment.
The issue is not whether the information is already a matter of public record. Tribunal witnesses are reluctant to have their words made publicly available when the information came to them from their elders, and even although the information is publicly available elsewhere. They maintain that their elders restricted the persons to whom they passed on oral traditions, and in those cases the receivers should do the same and should not permit of any general broadcast. The trust reposed in them is seen to be sacred.
(6) How far can researchers go with adverse comments on living people without prior consultation with them? In illustration a researcher may feel the need to comment on the motives of living persons who sold land?
(7) How widely should one consult with tribal persons? There are sometimes complaints that the researcher consulted with only one side of the tribe. There are also complaints from researchers of instructions not to consult with certain persons, or to consult only those approved by the claimant group. Some groups prefer a Pakeha researcher to describe a tribal history to avoid a Maori bias to one view.
(8) If researchers rely entirely on public sources, the Maori Land Court records for example, are they still obliged to consult tribal members? These may wish to challenge the accuracy of those records and the opinions expressed?
(9) Should scholars rely on given translations of Maori material or consult with local people for a better contextual interpretation? If the material is not translated should scholars use local interpreters?
Tribunal members have different views on some of these questions and would welcome a wider discussion.
A Code of Ethics?
Some questions suggest the need for settled protocols, that these should be discussed with tribal groups or informants before work begins, and that the standard protocols may need to be amended in light of that which is agreed. A code of ethics may help but that can cause other problems. For example in the Delgamukw case in the Supreme Court of British Columbia, the Court considered the nature of an Indian society for the purposes of an aboriginal title claim.3 It rejected a large amount of anthropological evidence on the ground, amongst others, that the anthropologists were bound by a code of ethics that was too weighted to maintaining a current Indian view. I add that the Court was also critical of historians who, in its opinion, were captured by their Indian clientele. The result was a resounding loss for the Indian claimants, at least in that court.
I would nonetheless support a code of ethics for researchers, as a guide and a shield from criticism. There is a code of ethics in law for example. Amongst other things lawyers must advise the court of cases against their argument as well as those in support. They must show no bias in quoting from texts or previous decisions. Professional anthropologists and historians before the Tribunal generally do the same, but some claimant submissions are bad in this respect. If there is overt bias or dishonesty in submissions, the Tribunal must treat them with suspicion or discard them altogether. The Tribunal has sought to overcome problems of non-disclosure, by compiling document banks and casebooks of all known, relevant material before hearings begin. It has now also completed broad research for the main claims in each district across the country and which is available to all claimants.4