He Tai Whatiwhati Rua: The Incorporation of Rāhui in the State Law of Aotearoa New Zealand

Abstract

Rāhui is a customary legal practice in te ao Māori which prohibits certain activities from occurring or continuing in accordance with the nature or circumstance in which it is applied.
Although it is a well-established legal tenet in te ao Māori, the incorporation of rāhui in the state law of Aotearoa New Zealand is uncertain and untested. At present, rāhui largely exists as an expression of Māori autonomy outside the state legal system. Its legitimacy and enforceability beyond tikanga is dependent on voluntary compliance rather than state sanctions.
A recent petition by the Iwi Chairs Forum for greater legal recognition of rāhui, alongside rampant debate in the media as to the enforceability of the rāhui placed on Whakaari White Island, illustrates the shortcomings of the current legislative regime in regards to rāhui. These events prompt questions as to whether state mechanisms, such as legislation, are required to ensure compliance with rāhui, or, whether the practice should remain within the realm of tikanga.
This article adopts a three-limb inquiry into rāhui and its relationship with state law. First, this article attempts to define the many faces of rāhui. Secondly, this article examines the extent to which rāhui is incorporated into New Zealand's state law, including its prevalence in legislation and the common law. Thirdly, this article assesses the risks, challenges and tensions that may arise if rāhui receives increased recognition through state mechanisms.
This article concludes that state recognition of rāhui, either through legislation or the common law, may jeopardise the tino rangatiratanga of Māori to implement rāhui in accordance with tikanga-ā-iwi. It draws parallels with the Fisheries Act 1996 and Waitākere Ranges Heritage Area Act 2008, and highlights the risk of rāhui becoming divorced from its spiritual roots and parameters.