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SHORTER COMMUNICATIONS

RÄHUI: A BLUNTING OF TEETH

FIONA McCORMACKUniversity of Hawai‘i

In contemporary public discourse the Mäori concept of rähui is normally used as a synonym for the English terms restriction, ban, reserve or prohibition, and is most often employed as a fisheries management tool or as a cultural marker of death by drowning. As a fisheries management tool, rähui receives a degree of recognition in legislation but as a cultural principle, rähui imposition following a drowning receives no legislative backing, though is informally and variously adhered to by the general public. However, it should be noted that the traditional practice of rähui is multi-faceted and much broader in its application: it is grounded in Mäori tikanga ‘law, custom’, it is intimately bound up with the concepts of kaitiakitanga ‘resource guardianship’ and tapu ‘sacred, holy, forbidden’, it is deeply enmeshed in structures of ownership and it extends to terrestrial environments. In this article I argue that the present narrower interpretation is largely a consequence of the transformation of Mäori common property rights since colonisation in 1840. These rights became privatised in the case of land and subject to Crown ownership in the case of the sea. The imposition of rähui was, and to a degree remains, fundamentally a property act—a claim to ownership, an assertion of sovereignty.1 The articulation of such ownership practices with the broader public and private property regimes, within which they currently sit, has led to a situation characterised by struggle.

This article is divided into three sections: the first describes the literature pertaining to the traditional concept and practice of rähui; the second draws on field research conducted with Mäori in two New Zealand communities in 2007 and 2008 which, inter alia, examined current uses of rähui, and the final section analyses the contradictory forces which have led to a decline in but also the persistence of rähui in contemporary New Zealand.

DEFINING RÄHUI

Rähui is both a noun and a verb: it refers to an object (such as a pole) used to signify that access to a certain area is restricted, and the act or process of establishing a rähui (Benton 2004). Typically, Mäori draw a distinction

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between different types of rähui which have different purposes. In the literature these are categorised as follows: to serve conservational ends, when a death has occurred and to advance political objectives (see Mead 2003, Mead and Fleras 1980). To these Metge (1989) has added overarching psychological and social functions.

Traditionally, the first type, the conservation rähui, was enforced to protect the fertility of terrestrial and marine resources such as berries, birds, fish, cultivated crops, fern root, flax or places where ochre was obtained (Best 1904). A rähui was initiated, for example, during the spawning season of certain kinds of seafood; when plant species, animals or fish exhibited signs of depletion; to allow for the replenishment of food stocks; and when it was necessary to build up stocks for a special occasion. The second instance of rähui was imposed in situations when an accidental death had occurred, such as in battle or by drowning. In the case of a drowning the rähui enabled the avoidance of personal physical and spiritual contamination resulting from the consumption of seafood from an area made tapu by death and, at the same time, was an expression of respect and aroha ‘love, good will’ for the deceased. The third type, the political rähui, was imposed explicitly to claim ownership of a resource, a type of no-trespass order that was placed across a particular forest pathway or fisheries. Firth noted that struggles over property rights “often led one party deliberately to break down a rähui declared by the other, with the result that war ensued” (1959: 262).

Rähui can also be categorised according to whether they are weak or strong in their effects: Best (1924) distinguished between rähui with “teeth” and those without, and Firth (1959: 258) differentiated between “destructive” and “mild” rähui. Essentially, the former type implies that certain prayers and rituals are preformed when the rähui is implemented such that the power of gods becomes a component of the rähui thereby adding a supernatural sanction. According to Firth (1959: 258-59):

A post was set up in the ground on the edge of the forest or the bank of a stream which it was desired to guard, and to it was attached a maro, a lock of hair or bunch of grass. This was termed the rahui post. The priest then proceeded by means of an incantation to ‘sharpen the teeth of the rahui that it might destroy man’. A kind of ‘conditional curse’ …was set upon the post, so that any person meddling with it, the forest, or the productivity thereof, either by practical or magical means, would be slain by the force of the spells associated with the rahui.

Ethnographic accounts suggest that rähui “with teeth” were primarily imposed for political purposes. Conversely the mild, or toothless, form of rähui which “was much less severe in its supposed effects, and in itself was

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not particularly dangerous to life, since it was set up without the deadly soul-destroying spells” (Firth 1959: 259), was mainly instated following an accidental death or for conservational reasons.

Underlying these seemingly disparate functions and effects is the contextual significance of rähui as a property act. Rähui is bound up with the bundle of rights inherent in a common property complex. To impose a rähui is to claim ownership of a particular resource, it is to exert a property right, an unequivocal mark of proprietorship (Maxwell and Penetito 2007, Sinclair 1999, Tregear 1904). It gives rights of exclusion and inclusion, it directs the relationship between a hapü ‘sub-tribe’ and its resources, and between a hapü and other hapü. It expresses a relationship to a particular thing, an identification with a particular place, whether terrestrial or marine. It is through property relations, the multiple ways people hold and use the various things in their environment, that people create a myriad of social identities (Hann 1998).

Three related common principles can be discerned which give further coherence to rähui as a cultural institution. Firstly, rähui is best conceptualised as part of a holistic and articulate system of tikanga related to the environment. Fundamental to this system, which combines practical and spiritual or religious ideas, is respect for and care of resources (kaitiakitanga). Metge (1989: 19) categorised the various tikanga mo kia moana ‘laws/customs concerning the sea’ into those that variously emphasise (i) acknowledgement of the mauri ‘life principle’ and kaitiaki ‘spiritual guardian’ of the resources and their origin in god, (ii) avoidance of damage to the physical well-being of mataitai ‘salt-water products’ and their environment, (iii) avoidance of physical and spiritual pollution of both users and mataitai, (iv) co-operation in the conservation of group owned assets, (v) treating mataitai with the respect due to people, and vi) the encouragement of self-discipline and sharing.

Secondly, rähui has a spiritual or religious dimension. It was used to “protect the life principle (mauri) of forest gardens or fishing-grounds from inadvertent or enemy interference” (Metge 1976: 12). Rähui can generally be conceived of as a variety of tapu (Best 1924, Metge 1976), the object of the prohibition being primarily directed at controlling access to particular food products.

Thirdly, rähui is linked to political and social control. The efficacy of a rähui is directly related to the mana ‘prestige, authority, power, influence’ of those who instituted it (Best 1924); for instance rähui with teeth were ordinarily imposed by chiefs and the incantations carried out by tohunga ‘expert, priest’. As noted by Best (1904: 84) “it requires an influential person to establish a rahui.... A chief or priest would set up the pou rahu [rähui post], because it would need to be done by a person of influence, or rather a person

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possessing mana”. Mead (2003:203) pointed out that conservational rähui were not only associated with the control of community resources but also the political use of resources. The removal of rähui, often an occasion for celebration, could be used to enhance the prestige of the chief who initially imposed it (Firth 1959: 261).

RÄHUI TODAY

At present rähui are largely confined to the “without teeth” kind and are generally restricted to marine environments. They are imposed following a drowning or are directed towards the conservation of resources (Mead 2003) and can be either state sanctioned or informal. The imposition of rähui following a drowning is not formally provided for in legislation, neither is it illegal. Thus, it can be considered as an occasion of legal pluralism, an informal or covert recognition of Mäori tikanga.2

Drawing upon von Benda-Beckman (2002: 38), I take legal pluralism to be an analytical concept which best describes the de facto existence in contemporary societies of “a great complexity of cognitive and normative conceptions. These constitute forms of legitimate social, economic and political power and organization and provide standards for permissible action and for the validity of transactions, as well as ideas and procedures for dealing with problematic situations…”.

These concepts have differing degrees of state recognition cross-culturally and what is considered legal at any one time varies and is subject to unequal power relations. This type of situation is particularly marked in post-colonial contexts. The dominant state-sanctioned legal system in New Zealand is built on a two-tier structure of (i) statute law and regulations and (ii) common law. These form an implicit hierarchy where the former positive interpretation of law takes precedence over the latter normative one in instances when the two are in conflict. To be accepted as common law a particular custom must “have become sufficiently notorious to have attracted sustained judicial attention” (Benton 2004: 4). Benton has suggested that the concept of rähui, through a constructive and creative “beating” of the state judicial system, has acquired a degree of common law standing.

Post-drowning rähui have been substantially modified over time. For instance, recently the length of time and area covered have been restricted to accommodate the demands of other marine users—in particular, commercial fishers. In Leigh, a small tourist and fishing community 100km north of Auckland, the hapü of Ngäti Manuhiri has imposed two post-drowning rähui in the past five years and both have lasted for a few weeks. The rähui were enforced as follows: “We rang the local community groups. We let the surf life saving club, the fishermen, the locals know, we put the word out

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that there’s a rähui on. We advertised it in the paper” (Mook Hohneck, pers. comm. 2007). On the whole both rähui were respected by the general public. Ngäti Manuhiri has not however, imposed any conservational rähui in recent memory: “…we haven’t ever put a rähui on to the best of my knowledge to protect the actual kaimoana [seafood] or the resource.” That conservational rähui have not been imposed does not imply an abundance of local fish stocks. According to research participants the absence of such rähui is due to a lack of resources coupled with the demographic pressures of living in a popular tourist destination.

We’ve talked about it and we’ve wanted to but… at the end of the day, if we put that on how are we going to control it? Also who is going to do it? Are those people going to get paid? We’ve nominated kaitiaki, half a dozen, we’ve nominated whanau [extended family]… that’s only one step. That’s not the complete process… there has to be more involvement than that because of the huge numbers impacting on our area… because of our location, we suffer this every week… too many people, they just get in the car, drive an hour with their boat up here. We can’t monitor that. I just don’t think we’re able to, we need to be resourced enough to control it… we need better plans, more statistics and information. (Mook Hohneck, pers. comm. 2007)

Metge (1989) found a similar pattern in Ahipara, a small tourist town in the Far North district of New Zealand with a population of approximately 1100. Te Rarawa, the local iwi ‘tribe’, continues to impose rähui following a drowning, however, since the war years no conservational rähui have been enacted.

In contrast, each of the 13 hapü of Te Whänau ä Apanui in the East Cape of New Zealand have imposed a conservational rähui over their respective rohe moana ‘territorial sea space’, and these appear to have been generally respected. The existence of conservational rähui in this locale is a consequence of three main factors. Firstly, the East Cape is a relatively isolated region; historically, it occupied a marginal position in relation to the colonial political economy and, in contemporary times, the pressure from tourism is largely absent. Secondly, there is one road in to and one road out of the area, thereby making it relatively simple to apprehend offenders who transgress community imposed fisheries management methods. Thirdly, Te Whänau ä Apanui own 97 percent of coastal land in their rohe ‘territory’. Multiple-owned Mäori land titles are the primary property structure and each title incorporates a cluster of houses of closely connected kin. The ongoing existence of a type of common property in land strengthens the absolute conviction of local Mäori that their property rights extend to their rohe moana, in opposition to formal legislation wherein the sea is conceived of as public property, i.e., owned by the Crown on behalf of all New Zealanders.

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A research participant insisted: “There’s been this consistent rejection of Crown control here and saying clearly that the authority rests with all the hapü groups… we could never look at those rocks and believe that anybody else could own it eh?” (Rikirangi Gage, pers. comm. 2008). The presence of rähui signs erected by members of local hapü groups are a powerful visible reminder of ownership claims.

This de facto ownership practice is consistent with Mäori, and indeed Pacific wide, conceptions of property whereby land and sea are intricately bound up in the same property construct (Clarke 1990, Hviding 1996, Hviding and Baines 1994, Johannes 1981). In New Zealand this linkage was inconsistent with colonial property ideologies whereby boundaries were drawn around where land meets the sea, the former being designated as susceptible to private property divisions and the latter subject to Crown ownership (Mulrennan and Scott 2000). The sea, according to English customary law, is the public property of all citizens. This understanding persists in New Zealand despite the concurrent existence of private fisheries rights, maritime aquaculture sites and the ownership of the foreshore by private individuals and harbour boards. The strength of this ownership ideology was clearly illustrated in the mid 2000s when a racist public rhetoric emerged to counter Mäori aboriginal title claims to the foreshore and seabed. The claims were finally circumvented by legislation which legally repositioned the state as an elite holder of public property rights and created a new synthesis of the land-fisheries dichotomy (McCormack 2010).

Rähui directed at the conservation of marine resources receives a degree of state-sanctioned legal recognition in the Fisheries Act 1996. Somewhat surprisingly, however, rähui is not included in Customary Fisheries Regulations 1998 which directly stem from the settlement of Mäori Treaty claims to fisheries. Customary Fisheries Regulations 1998 permit a hapü or iwi to declare its coastal boundaries (rohe moana), appoint guardians (kaitiaki), establish mataitai reserves, prepare a local management plan that eventually feeds into Ministry of Fisheries policy decisions and regulate the capture of fish for ceremonial occasions. Although contested by many Mäori, the regulations have political and administrative significance. They symbolise a potential acknowledgement of the rights of Mäori as indigenous people and the bicultural Treaty relationship between Mäori and Päkehä ‘New Zealand Europeans’. They are also the pre-eminent managerial package through which Mäori are legally authorised to manage their fisheries in a sustainable manner. However, in practice the impact of these provisions is undermined in a number of ways. The regulations are associated with a lack of resources to implement the various tools, an overarching ministerial control of available mechanisms and a complex application process (see Kerins and McClurg

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1996, McCormack 2007, McHugh 1992), all of which results, perhaps unsurprisingly, in a low level of uptake by hapü Mäori (Waitangi Tribunal, 2004). Further, given that rähui was the major overt mechanism through which Mäori traditionally managed their fisheries resource, it is somewhat disconcerting that this practice was not included in Customary Regulations.

This is not to suggest that such legal codification necessarily confers advantages, indeed the opposite may be the case, as is evidenced by the complexities encountered in implementing customary fisheries management tools and the limitations resulting from the inclusion of rähui in the Fisheries Act 1996 (discussed below). In this instance the opportunities facilitated by legislation represent a significant dilution in the power of indigenous groups to impose rähui when compared to the de facto imposition of rähui by Te Whänau ä Apanui (described above). An interesting question is to what extent the Crown’s motives for omitting it from the Customary Regulations package was based on the perception that rähui, as an overt assertion of Mäori property rights, threatened the basic principles of Crown-sanctioned public and private property regimes.

Rähui receive a diluted form of recognition in Section 186A and 186B of the Fisheries Act 1996, which “Allows for the Minister of Fisheries to temporarily close an area to fishing, or to restrict a method of fishing, in order to provide for the use and management practices of tangata whenua [people of the land, indigenous people] in the exercise of their non-commercial fishing rights”. This, according to the Ministry, “give[s] legal support to voluntary rähui”. However, notwithstanding the rather intriguing use of the term “voluntary”, this formulation is minimally representative of the traditional cultural institution of rähui. First, it redirects the power to instate and remove rähui from Mäori to government officials and thus subverts the political and sovereign rights enshrined in these actions. It thereby reduces the participation of Mäori to that of an advisory body. It is also noteworthy that anybody, regardless of ethnicity, can request that Section 186 be applied to a given coastal area. Second, as Maxwell and Penetito (2007) have argued, the spiritual component of traditional rähui is absent. Section 186 is designed to replenish a resource as opposed to restoring the mauri of a species in accordance with kaitiakitanga. Third, flexibility is curtailed. A recognised strength of local resource management systems is the ability to respond immediately to situations as they arise (Rose 2002). The process from application to enactment of a Section 186 order is approximately one year. Once established “voluntary rähui” have a set life span of two years, after which another application, with more extensive qualifying criteria, is required in order to extend the closure for a further two years. The maximum length of a Section 186 application is six years. Currently four temporary

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closures of this kind are in existence in New Zealand (Ministry of Fisheries 2011). Finally, and importantly, “voluntary rähui” do not recognise Mäori property rights or relations of ownership.

RÄHUI AND RESISTANCE

In New Zealand the Polynesian practice of rähui has persisted despite colonial subjugation of Mäori cultural practices, the alienation of Mäori property and resources, and the operation of current Fishery Management regimes. Rähui continue to be informally instated consistent with Mäori tikanga and have a degree of formal recognition in legislation and common law. As a marker of death the practice is culturally attractive; as a resource management tool the concept has broad appeal and both Mäori and non-Mäori cooperate in the application of Section 186 temporary closures. Often the implementation of such orders is accompanied by dawn ceremonies which typically draw heavily on Mäori cultural protocol. However, as noted, the governing legislation is problematic and the number of currently existing temporary closures is remarkably small.

The decrease in functional diversity of rähui is linked to a number of factors. Maxwell and Penetito (2007) have suggested that the Tohunga Suppression Act 1907, which criminalised practicing as a tohunga, is strongly implicated in the decline of rähui “with teeth” because the accompanying rituals were antithetical to colonial and missionary sensibilities. That rähui are no longer regularly imposed in terrestrial environments is, according to these authors, possibly a consequence of a larger population and thus increased administrative difficulties post colonisation (Maxwell and Penetito 2007). However, this explanation is not wholly convincing. Arguably a more powerful determinant of the decline in terrestrial rähui was the privatisation and subsequent alienation of Mäori land following colonisation. Of the 66 million acres held by Mäori in 1840, three million remained in their control by 1901. Presently, approximately five percent of land in New Zealand is Mäori Freehold Land and “much [is] on poorer land, some seven percent unworkable” (Durie 1993). As noted above, the imposition of rähui with teeth was an assertion of a property right.

Metge has suggested three possible explanations for a decline in marine conservational rähui in Ahipara. These hint at the importance of ongoing property rights and social relations of ownership. First, the period following the Second World War coincided with increased numbers of Päkehä living in Ahipara, many of whom assumed that the foreshore was a public resource owned by the Crown and neither knew of, nor respected, Mäori tikanga, including rähui. Second, the war and post-war urban migration brought

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Te Rarawa into contact with a wider world, which may have deemed such practices as rähui un-Christian and unscientific. Third, account has to be taken of the actions of government agencies which assumed an active role in coastal management “...using the secular mechanisms of limits and licenses and prosecuting those who breached them, including tangata whenua, who believed the mataitai theirs” (Metge 1989: 36).

The decline in conservational rähui in coastal areas is arguably an outcome of Crown ownership of the sea, a long-standing, albeit presumed, property right that was made legal in the Foreshore and Seabed Act 2004 and its more recent mooted replacement, the Marine and Coastal Area Bill (Takuti Moana) Bill. Managerial responsibilities have long been co-opted by governmental departments including the Ministry of Fisheries and the Department of Conservation. Customary Fisheries Regulations 1998, while permitting the declaration of territorial boundaries by hapü and iwi, are a poor substitute for common property rights and formal “voluntary rähui” are a conservational tool detached from any relation of ownership. Ethnographic evidence in coastal Pacific regions points to the importance of the relationship between customary marine tenure and the knowledge inherent in indigenous management tools (Hviding 1996, Johannes 1981). To detach this knowledge from structures of ownership implies the emasculation of indigenous resource management systems; such knowledge becomes a collector’s item, divorced from time and space, alienated from its very producers and homogenised in the process (see Agrawal 1995).

In Leigh, the absence of conservational rähui was linked by research participants to demographic pressures and insufficient resources. However, notwithstanding the importance of these two considerations, it is arguable that the underlying causal factor is an absence of common property rights. When asked how the situation might be best mitigated, participants outlined a plan of action that is realisable only by strengthening hapü ownership: in short, an aspiration for common property structures, in particular, rights of exclusion, inclusion and the power to make decisions.

[We] need a system where everyone comes through the tangata whenua, using this office as a central database. I think that a permit… would be really good in a lot of cases because then we would know who’s fishing, how they are fishing. Then if we put in a rähui or a mataitai reserve we could go down there and say, ‘Hey you’re fishing, where’s your permit’? We’ve got a tangata whenua office, we should be making those outsiders come through it, so if someone comes up from Auckland and they want to go and get mussels or kinas or whatever, they have to come through the tangata whenua. (Mook Hohneck, pers. comm. 2007)

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The existence of informally imposed conservation rähui in the East Cape of New Zealand rests on the extensive and a priori ownership of coastal property by Mäori in that region. This ownership allows for an ongoing identification with the sea, the implementation of sustainable management tools which draw their legitimacy from Mäori tikanga, the informal sanctioning of offenders and the exclusion of those who jeopardise the resource.

Another factor which needs to be taken into account is the articulation of rähui with informal and formal legal orders. The concept of legal pluralism directs our attention towards an investigation of law that is not necessarily tied to state practice and that falls outside the dominant legal ideology of a given society. Alternatively, legal pluralism also encompasses plurality within any one legal order, such as the incorporation of ngä tikanga into New Zealand state law. It is important to note that legal pluralism is neither a theory nor an explanation; rather it is a valuable heuristic device for analysing and describing complex empirical situations where law is taken to be a dimension of social organisation, and it enables an inquiry into the intricacies in cognitive and normative orders and the association of these with human interaction (von Benda-Beckmann 2002: 40). The study of rähui thus offers a window through which to explore the multilevel positioning of rähui within New Zealand law. As an intrinsic component of Mäori tikanga directed towards resource management, rähui imposition outside the state legal order is most effective when coupled with common property rights. The incorporation of rähui into the state legal order is contradictory: rähui is recognised as a conservation device though this recognition is belittled in a number of ways including the exclusion of rähui from state-sanctioned indigenous fisheries management tools. Conceived as a property right, a fuller formal legal recognition of rähui would conceivably overtly threaten dominant state property practices and ideologies.

In conclusion, a number of considerations affect the possibility of imposing a rähui, such as the positioning of rähui within New Zealand’s legal orders, the ability to enforce the prohibition and the extent of alternative uses of the resources. These are important factors but the most crucial determinant is the property regime within which economic and social transactions are legitimised. When the resource is privatised the possibility of imposing a rähui is minimised. Under conditions of common ownership the possibility is maximised. Where public ownership prevails there is some space for negotiations and compromises. Success in negotiating is most likely where a cultural principle such as respecting the site of an accidental drowning has a universal appeal, where there is a common interest at stake, such as preserving a scarce resource, and where the restriction is temporary and seemingly

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divorced from claims to ownership. This leaves room for continuing struggles as arguably, the imposition of rähui by Mäori remains a dynamic symbol of ownership (Sinclair 1999), a form of resistance to dominant property structures and ideologies, no matter how teeth may have been blunted.

NOTES

1. In this article the term “property” is used to denote the spectrum of ownership practices through which people form social attachments to “things”. Property in this sense encompasses distinctively different ways of owning. At a general level it is possible to distinguish between four main types of property regimes namely, private property, public property, common property and open access (non property). “Property” is certainly not synonymous with “private/individualised property” which is a particular type of ownership practice. The introduction of a dominant private property regime in New Zealand on colonisation is implicated in the alienation of Mäori resources and the transformation of Mäori common property rights.

2. Hence, the imposition of rähui post-drowning points to the persistence of Mäori law or tikanga and in this sense creates a situation in which more than one legal system is in operation, whether or not this is formally recognised.

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ABSTRACT:

This article discusses the Mäori concept of rähui and its implementation both traditionally and in contemporary times. It situates the imposition of rähui in structures of ownership and various property rights and legal regimes. I argue that the present narrower interpretation of rähui is largely a consequence of the transformation of Mäori common property rights since colonisation in 1840. The imposition of rähui was, and to a degree remains, fundamentally a property act—a claim to ownership, as assertion of sovereignty. The articulation of such ownership practices with the broader public and private regimes, within which they currently sit, has led to a situation characterised by struggle.

Keywords: Rähui, property, legal pluralism, Mäori.

Fiona McCormack