What makes a treasure a Taonga?

Publication Date 
13 April 2017

When a couple separates there may be some special items that both the parties wish to keep but that cannot be shared.

In a recent High Court case[1] the judge had to decide whether two taiaha and a tewhatewha belonging to a deceased man should go to his partner or to his parents (with both the partner and the parents planning ultimately to pass them on to the deceased’s three sons). His partner claimed the taiaha and tewhatewha had belonged to him and thus she was entitled to inherit them from him. The man’s parents claimed that they were the guardians of the items, which were taonga. The High Court recognised the items to be taonga and concluded that in the circumstances, they were held on trust by the deceased’s parents, ultimately to be passed to the deceased’s three sons.

The starting position under the Property (Relationships) Act is that all property that each partner owns is classified as either relationship property or separate property.  However, taonga are explicitly excluded from the Act’s definition of family chattels (which are otherwise treated as relationship property) to recognise their particular significance to the owner and the owner’s whānau or family. The law has not clearly defined what taonga are, but the courts have expressed willingness to define taonga broadly enough to include non-Māori assets such as a Pākehā painting[2].

University of Otago Law Professor Jacinta Ruru has suggested that there should be close examination of whether the courts could classify an item as a taonga although it is not owned or held by a Māori person; is not made by a Māori person; and has no Māori association or content. [3]

Would it be more appropriate to have a Pākehā equivalent of a taonga for the purposes of the Property (Relationships) Act 1976?

In another recent family law case[4] a Pākehā artist unsuccessfully argued that his expensive art collection was taonga. Judge Coyle noted there was no clear definition of taonga in the law. He concluded that for an item to be a taonga it needs to be presented on behalf of a kin group or tribal group ceremonially in a marae-like setting. It must also have a history of whakapapa or some particular significance or mana.

Now, with the Law Commission reviewing the entire Property (Relationships) Act, we need hear from Māori about what taonga are and how the law should treat them. We also need to hear from all communities about whether there should be more categories of culturally or personally significant items that the law should exclude from the shared pool of relationship property.

 

[1] Biddle v Pooley [2017] NZHC 338 [6 March 2017]

[2] Perry v West HC Auckland CIV-2002-404-002114

[3]Jacinta Ruru "Taonga and Family Chattels" [2004] NZLJ 297

[4] Sydney v Sydney [2012] NZFC 2685