Moana Jackson   |   Foreshore and Seabed Review

Tipuna title as a tikanga construct
re the foreshore and seabed

March 2010

There are three essential baselines which underpin tipuna title in Maori terms -

    1. It is a concept sourced within tikanga.

    2. As a concept of title it naturally presupposes a set of subsequent rights or entitlements - title without recognised and enforceable entitlements is a contradiction in terms.

    3. The integrity of the title presupposes and was always dependent upon the fact that the foreshore and seabed belongs to Maori.

1. Tipuna title as a tikanga concept

Tipuna title may be described as the physical and spiritual interests that collectively vested in Iwi or Hapu as part of their mana or rangatiratanga in regard to the whenua. It is a title that exists within what may be termed "relational interests", that is the interests that inhered in the relationships of a particular whakapapa and the willingness of our people to develop existing or potential relationships with others.

It is an absolute title in the sense that rangatiratanga and whakapapa create inalienable ties to the land. Being tangata whenua implies having whenua to be tangata upon, and "tipuna title" presupposes a continuing authority in relation to it.

It may in fact be construed as a unique Maori construct of ownership because it implies a collective exclusivity. In that collective context a mokopuna was born into the collective title through his or her whakapapa. It depends upon the fact of birth and the presumed permanence of whakapapa.

Because the title inhered through whakapapa in this way it was defined through an understanding of whakapapa as a concept and a reality. For example if an Iwi or Hapu was defeated in battle or a mokopuna with an interest moved away the ability to practically enforce the title would slip into abeyance but the notional title would remain as long as the whakapapa endured.

An analogy may be drawn with the pepeha of the people of Whanganui, "E rere kau mai te awa nui mai te kahui maunga ki Tangaroa ko au te awa, ko te awa ko au". In that case the people are part of the river because of their whakapapa and they have "tipuna title" because of their relationship with it. If they move away they may not be able to fully participate in everything that that means in a practical sense but their notional title remains because moving does not extinguish their whakapapa.

In a very real sense the people can never give up or give away their river, and so an Iwi or Hapu cannot give away its tipuna title.

2. The rights or entitlements that flow from tipuna title

The rights or entitlements that flow from tipuna title are naturally sourced in the same whakapapa as the title itself.

The rites of birth affirmed the tipuna rights derived from the title that were then exercised within a tikanga of reciprocal obligations to manaaki the land and the moana. In that context they may be accurately defined as "relational rights".

Thus in 1886 the Ngati Kahungunu rangatira Te Ataria defined the origin of rights in terms of our whakapapa with the land and our place as tangata whenua - "Ko te putake o o tatou tikanga, tenei tonu i te rakau kauri. I whanau tonu i konei, i tipu ake tatou i konei, ko tatou te tangata whenua."

The rights were real and enforceable and included an absolute right to permit or restrict access by others in appropriate circumstances. In Ngati Kahungunu a notion of kauhanga or "passageways" developed as the means to facilitate access by others on approved and negotiated terms.

In certain circumstances access or use rights might therefore be granted to others with whom Iwi sought a relationship, while in other cases they might be developed in new ways without diminishing the mana or integrity of the tipuna title itself.

3. The integrity of the title

The integrity of every Maori concept to do with the land and waters was premised on the fact that if the earth is indeed Papatuanuku, the Mother, then like the people of Whanganui we belong to her and she belongs to us. In that context the foreshore and seabed clearly belongs to Maori.

The integrity of the title was guaranteed by the mana and rangatiratanga of each Iwi and Hapu.

What the title is not - The title is not a customary title as defined in Pakeha law.

Those titles are definable by Pakeha law which also reserves to itself the right to then extinguish what it has defined. Tipuna title presupposes that the title is definable only by Iwi and Hapu.

The title is not the same as the Pakeha notion of radical title. That title is predicated upon the idea of an institution (the Crown) being the ultimate landlord.

Tipuna title presupposes that Maori have mana whenua. The relational rights that flow from tipuna title are not the same as Pakeha property rights. Those rights are predicated on an individual exclusivity. Relational rights presuppose individual entitlements within a collective exclusivity.

It is important to stress that the entitlements are akin to but not the same as "property rights" simply because they are derived from a quite different cultural and legal paradigm.

Moana Jackson

Indigenous peoples' rights   |   Moana Jackson