CAPÍTULO VI: IMPUTACIÓN OBJETIVA
4. TIPO Y ANTIJURIDICIDAD
5.1. Causalidad:
This leads to the final category of taonga. As mentioned, taonga can be many things to different people but for the purposes of this research it is important to juxtapose the previous two types discussed with a third more traditional iteration. Writing in 1998, Paul Tapsell acknowledged the limited array of sources that manage to encompass an approximate understanding of what may or may not constitute a taonga. Citing Sir
Hugh Kawharu’s (1989) explanatory footnote to The Treaty of Waitangi, Tapsell sets forth a traditional definition from the perspective of his iwi, Te Arawa.42
More than simple markers of ancestral lands, Tapsell attributes taonga with three essential elements, Mana, Tapu, and Korero. Mana (authority; power; prestige; status), being instilled by the ancestors as it is passed from one generation to another, the greater the ancestors associated with a taonga, the greater the mana (Tapsell, 1998, p. 13; Mead, 1990). In a complementary fashion, to maintain the mana of a taonga, it must be treated as tapu (protect; sacred; prohibited; set apart). This governs the appropriate actions when interacting with taonga, ensuring that its sanctity is undiminished. For Tapsell, korero is the most important of the three essential elements. It can include ancestral knowledge, rituals and historical stories and is a traditional means to confer lore and knowledge, tying a specific iwi to their ancestors and ancestral lands (Tapsell, 1998, pp. 14-‐17).
With their mauri (life essence; life force; power of creation from the gods) protected by an ancient karakia (recitation; incantation; highly ritualised prayer), taonga are harbourers of ancestors’ wairua (spirit; essence of being; soul) and are often acknowledged as living entities (Tapsell, 1998). The presence of taonga during a life-‐ crisis is central to their importance within iwi. Here, taonga are performed, breaking down the temporal barriers that separate an iwi from their tūpuna (ancestors), whereby ancestors and descendants are brought together into “a powerful, singular genealogical identity” (Tapsell, 1998, p. 15). The ability to dissolve temporal distance is what Salmond elegantly terms the “alchemy of taonga” (1984, p. 120).
There is one final definition of taonga that be must raised. A number of Waitangi Tribunal claimants have challenged what the term taonga actually encapsulated in the second article of The Treaty of Waitangi.43 But perhaps none are as encompassing or as
42 ‘Treasures’: ‘taonga’. As submissions to the Waitangi Tribunal concerning the Maori language
have made clear, ‘taonga’ refers to all dimensions of a tribal group’s estate, material and non-‐ material – heirlooms and wahi tapu, ancestral lore and whakapapa, etc.
See, Kawharu, I. H. (Ed.). (1989). Waitangi: Māori and Pākehā perspectives of the Treaty of Waitangi. Auckland, New Zealand: Oxford University Press, p. 320.
43 See, New Zealand. Waitangi Tribunal. (1989a). Report of the Waitangi Tribunal on the Kaituna
River claim (Wai 4) Waitangi Tribunal reports (2nd ed.). Wellington, New Zealand: Author. New Zealand. Waitangi Tribunal. (1989c). Report of the Waitangi Tribunal on the te reo Maori claim (Wai 11) Waitangi Tribunal report (2nd ed.). Wellington, New Zealand: Author. And New
far reaching as the long awaited Ko Aotearoa Tēnei (The Waitangi Tribunal, hereafter The Tribunal, 2011), commonly referred to as the Wai 262 report. Effectively arguing for a sui generis classification when dealing with anything mātauranga Māori, any products of mātauranga Māori, or contribution to mātauranga Māori, the report questions, “who (if anyone) owns or controls Māori culture and identity (The Tribunal, 2011, p. 17).44 In examining this question, the Wai 262 report defines a number of taonga but in reference to this research it is their identification of a taonga work that is relevant,
A taonga work is a work, whether or not it has been fixed, that is in its entirety an expression of mātauranga Māori; it will relate to or invoke ancestral connections [whakapapa], and contain or reflect traditional narratives or stories [korero]. A taonga work will possess mauri and have living kaitiaki in accordance with tikanga Māori.
(The Tribunal, 2011, p. 54)
There has been some debate around the use of the specific terms mentioned (A. Hakiwai, personal communication, December 18, 2013). Nonetheless, it is the opinion of this researcher that this definition does not add anything further to the other examples presented, with mātauranga, whakapapa, and kaitiaki (trustee, custodian, guardian), inherent within Tapsell’s traditional taonga, as is the validation of the both old and new embodiments.
Interestingly, within the cultural sector many museum curators and employees, Māori and Pākehā alike have assumed the kaitiaki role for the taonga within their stores. But as previously noted, many of those objects have been separated from their korero and are hence unable to function as traditional taonga and arguably would not be encapsulated within this definition. Nonetheless, the report also recognises another distinct form of object related to taonga works, which are categorised as taonga-‐ derived works.
Zealand. Waitangi Tribunal. (1989b). Report of the Waitangi Tribunal on the Manukau claim (Wai-‐8) Waitangi Tribunal report (2nd ed.). Wellington, New Zealand: Author.
44 Sui generis is Latin for “of its own kind.” In legal terms it is used to describe a form of legal
protection outside typical legal protection, indicating that it is something unique or different. For an earlier precedent see Working Group on Indigenous Populations. (1993). Mataatua declaration on cultural and intellectual property rights of Indigenous Peoples. Paper presented at the First International Conference on the Cultural and Intellectual Property Rights of Indigenous Peoples, Whakatane, New Zealand. Retrieved from
A taonga-‐derived work is a work that derives its inspiration from mātauranga Māori or a taonga work, but does not relate to or invoke ancestral connections, nor contain or reflect traditional narratives or stories, in any direct way. A taonga-‐derived work is identifiably Māori in nature, but has neither mauri nor living kaitiaki in accordance with tikanga Maori.
(The Tribunal, 2011, p. 54)
This is not to suggest that these works are not important in their own right or are incapable of having their own stories or connections, rather that these objects reflect modern times and connections, not ancient ones. And in this, they are prescribed lesser recommendations for protective governance than taonga works.45