Chapter 3
A brief history of our burial and cremation law

Te oranga mutunga

3.6Death and the rituals surrounding it have held a central place in the culture of Māori since their migration to Aotearoa New Zealand. Like all societies, the rituals and practices associated with death were shaped by both spiritual and pragmatic realities. Then, as today, the remains of the dead were regarded as tapu. In his study of early Māori burial customs, historian R.S. Oppenheim describes how the concept of tapu was reflected in the rituals that developed around the handling of one’s relatives.67

Bones were the visible remainders of the dead, but they were dangerous reminders; more than sacred relics to be reverenced, they were by their very nature capable of causing death or misfortune to the living.

3.7The concept of tapu was also intrinsically linked with the level of mana attached to the person in life. This in turn was reflected in the elaborateness of the tangihanga that followed death and ultimately the disposition of the human remains. Burial practices varied between different iwi and in response to different geographical and sociological conditions. However, anthropologists believe that after the tangihanga the dead were commonly buried in relatively shallow graves on the perimeters of settlements. These burial grounds, known as urupā, were regarded as wāhi tapu, where human activity was controlled by strict protocols and prohibitions, reflecting both the sacred status of the dead and also the risk their presence could pose for the living.

3.8In common with a number of Polynesian societies it was also a custom, often reserved for high ranking Māori, to later reinter the cleaned bones in secret burial places where they were safe from desecration by war parties or tribal enemies. The presence of the ancestral remains was critical to both preserving the connection between the living and the spirits of their ancestors and cementing the tribe’s status as tangata whenua.68

3.9Permanent settlement and the absence of inter-tribal warfare allowed for the visible commemoration of the dead in the forms of canoe cenotaphs, and elaborately carved mortuary houses known as papa tūpāpaku were built to contain the bodies of high ranking individuals during the first cycle of grieving and before permanent interment. A notable example was the elaborate four metre high mausoleum constructed at Raroera Pa to house the remains of Tainui leader Te Wherowhero’s daughter. High ranking Māori were also commemorated through the creation of wāhi tapu used as repositories for clothes and tapu objects belonging to the dead.

3.10Stephen Deed points to the importance of rural marae and their associated family urupā to the preservation of tikanga Māori throughout the tumultuous period of colonisation and land alienation. The tangihanga and urupā continue to play a pivotal role in modern Māori society. Like all cultural practices, however, Māori burial traditions have evolved and adapted in response to such influences as Christianity and the increasing urbanisation of the Māori population.69 The establishment of Mission stations and rapid adoption of some form of Christianity by many iwi during the 1830s and 1840s saw some changes in burial practices, including a falling away of the practice of exhumation and re-interment, although the fundamental elements of the tangihanga remained intact.

3.11In the contemporary context urupā are given legal protection within our legal framework under Te Ture Whenua Maori Act 1993. This Act sets out the powers of the Māori Land Court and establishes a range of administrative structures for application to different land uses. Among these, section 338 sets out the provisions for the establishment of Māori reservations. Like cemeteries and recreational reserves set aside by the colonial government, these reservations were intended for communal purposes such as marae and urupā. Te Ture Whenua Maori Act allows for any land of special significance to Māori to be designated as a reserve. The land cannot be alienated except with the approval of the court and with respect to wāhi tapu sites the trustees can impose whatever restrictions necessary to protect the tapu status of the site.

67R S Oppenheim Maori Death Customs (Reed, Wellington, 1973) at [24].
68See ch 14 for detailed discussion of tikanga Māori and death.
69Deed, above n 66, at [57].