The following are some extracts from the Wai 64 Waitangi Tribunal Report 2001 REKOHUA Report on Moriori and Ngati Mutunga Claims in the Chatham Islands in which the terms ‘mana whenua’ or ‘tangata whenua’ are discussed.
Statutory injunctions for authorities to consult with tangata whenua, being persons with mana whenua, or, so it is said, customary authority, have created needless headaches on Rekohu and have engendered an unnecessary bitterness. As used, the terms appear to us to be out of kilter with Moriori and Māori custom. Mana is inherent in persons, not land, and ‘mana whenua’ appears to be a modern thought that does violence to traditional ethics. It has prejudiced all on the islands and prejudices Māori generally. We recommend that the term ‘mana whenua’ be taken from the legislation.
We find that we must part company with the understanding of ‘tangata whenua’ and ‘mana whenua’ as used in the Reserves Act 1977, the Conservation Act 1987, and the Resource Management Act 1991. In section 2 of the latter, ‘mana whenua’ means ‘customary authority exercised by an iwi or hapu in an identified area’. ‘Tangata whenua’, in relation to a particular area, is defined as meaning ‘the iwi or hapu that holds mana whenua over that area’. We think that this confuses several things, not least by its association of‘ ‘tangata whenua’ with power. We have thought it best to leave aside the legal definitions and to look at the matter solely in customary terms.
As we see it, the core meaning of ‘tangata whenua’ relates to an association with the land akin to the umbilical connection between an unborn child and its mother. It comes from creation beliefs holding that Māori were born of Papatuanuku (Mother Earth) and is used to describe the first people of a place, as though they were born out of the land. However, it is also used to describe those who have become one with the land through occupation over generations. It is relevant to ask whether the newcomers placed the placenta of the newborn on the land, whether their ancestors have been regularly buried in particular sacred sites, and whether regular respect for those ancestors and sites is still maintained. These and similar questions define the degree of permanence or transience in cultural terms.
Accordingly, it is possible that some people can be more ‘tangata whenua’ than others, so that the term ‘tangata whenua tuturu ake’ or ‘the true tangata whenua’ might be used to distinguish, for example, Moriori from Ngati Mutunga of Rekohu. Moriori described the latter as ‘tangata whenua iho’, meaning ‘afterwards’. …
The status of tangata whenua is a fact that cannot be changed for as long as the people exist and maintain an emotional connection. In illustration, Ngati Mutunga claimed tangata whenua status in Taranaki even after 40 years of absence and even though they left after being defeated by Waikato. In similar vein, particular interests arising from aboriginality cannot be extinguished. An ancestral association with particular places is a fact that cannot be changed, even though possessory rights may be affected by adverse occupations.
… we cannot support the approach adopted in the Resource Management Act 1991, which defines tangata whenua by asking who has the customary authority in a place. If that question can be answered at all, the answer will surely exclude many who are properly tangata whenua as well. If it is the intention of the Act that some special consideration should be given to Māori who have ancestral associations with particular areas of land, then we think that it would be best if that were said. It might then be found that more than one group has an interest. If in any particular case it is intended that particular Māori communities should be heard, then it would be best to describe the type of community, be it traditional or modern. What must be guarded against is the assumption that in any particular area only one tribal group can be involved. Māori had no land boundaries like those of states, overlaps and pockets of holdings were usual, different groups had different interests in the same resource, and political authority was distributed amongst such local communities as existed from time to time. And what must be watched closely is the tendency to use Māori terms without an appreciation of the associated cultural ethic.
The term ‘mana whenua’ appears to have come from a nineteenth-century Māori endeavour to conceptualise Māori authority in terms of the English legal concepts of imperium and dominium. It links mana or authority with ownership of the whenua (soil). But the linking of mana with land does not fit comfortably with Māori concepts. Recent research tends to agree that the term ‘mana whenua’ itself does not appear in the early records about customary rights to land.
… the term ‘mana’ was personal and was used in regard to the influence or authority of chiefs. Other opinions … consider that mana whenua was a nineteenth-century invention. Crown counsel likewise challenged – we think correctly – its use to describe a general authority of a particular group over any area of land.
We are inclined to think that the term ‘mana whenua’ is an unhelpful nineteenth-century innovation that does violence to cultural integrity. However, subject to such arrangements as may have been settled by the people themselves, our main concern is with the use of the words ‘mana whenua’ to imply that only one group can speak for all in a given area when in fact there are several distinct communities of interest, or to assume that one group has a priority of interest in all topics for consideration. Some matters may be rightly within the purview of one group but not another.
The thrust of conservation and resource management law is that consultation is to be with ‘tangata whenua’. Literally, this means ‘the people of the land’; but in the statute it means the ‘iwi’ (the people) or ‘hapu’ (tribe) that holds ‘mana whenua’, that being said to mean ‘customary authority’. In essence, the Crown or local authority must consult the people with customary authority. …
The main problem is the statutory language. What sort of ‘customary authority’ does ‘mana whenua’ entail? Amongst Māori, there is a large dispute on that and, indeed, on whether the term has value at all. We think that in this case the infusion of Māori words has muddied the statutory intent. If it was meant to say that consultation should be had with runanga or other bodies generally accepted as representing the people traditionally associated with an area, then it would have been better had the legislation said that.
A major difficulty over the use of ‘mana whenua’ in the statutes is that it requires people to proclaim that they have mana, when in Māori ethic that is not done, except as a boastful challenge or in contemplation of war. More regularly, it is thought that those who find it necessary to proclaim that they have mana will almost certainly not have it.
For the reasons indicated above, we consider that the term ‘mana whenua’ should not be used in the statutes. It cuts across customary concepts and protocols. We add that the term appears to be relatively new, having been coined for the authority of Māori as against that of Governor Grey. It was also used in the context of pending war. There is nothing wrong in coining new words. However, it does not sit comfortably with customary concepts when it is used, as here, to describe relationships between Māori groups.
We especially bring to attention the fact that the word ‘mana’ was kept out of the Treaty of Waitangi. The drafter of the Māori text was fully acquainted with the term, but it was assiduously avoided and, with hindsight, rightly so. We think that the Treaty provided a good precedent that the Legislature should follow. ‘Rangatiratanga’ is now used to describe the authority of people in respect of people.
The association of mana with temporal authority and with whenua offends other concepts. For Māori, mana is primarily a spiritual or personal quality. As for temporal authority, it is seen to exist within the people, and not within the land …
Chief Judge Eddie Durie (presiding), John Kneebone, Professor Gordon Orr, Makarini Temara (died in 1994 before completion of report).