The Environment Court recently considered at some length the issue of assessing tikanga Maori concepts, in particular waahi tapu, in the context of an application for consents for a new quarry (Winstone Aggregates Ltd v Franklin District Council).
When assessing a concept from tikanga Maori, the Court used a 3 stage enquiry:
determine the meaning of the concept in English if possible assess the evidence availabledetermine how the concept is to be recognised and provided for.After considering dictionary definitions and definitions from the regional policy statement, and the Historic Places Act 1993, Waitangi Tribunal findings, and other caselaw as well as evidence presented in the hearing, the Court found that the term waahi tapu referred to very small specified places, such as burial sites, the birthplace of a founding ancestor or the site of a significant historic event. A claim that the whole rohe or area used by the relevant hapu was waahi tapu was rejected.
When asking the Court to make a finding of fact on matters of tikanga Maori, it should be noted that while the identification of waahi tapu is a matter for tangata whenua, such claims must be objectively established, with material of probative value that persuades the Court on the balance of probabilities.
This is a general summary only and should not be taken as a substitute for specific advice.
For further information contact Celia Haden, solicitor:
celia.haden@phillipsfox.com
Web site:
Phillips Fox