Story: Whāngai – customary fostering and adoption
Page 3 – Whāngai and the law
Whāngai is a customary practice that has been used from time immemorial to the present, though its status within the legal system has varied over time. In legislation it has variously been ignored, recognised and rejected. In the 19th century whāngai was recognised. The Adoption Act 1881 did not affect the status of whāngai children. In the 1919 case of Hineiti Rirerire Arani v Public Trustee, it was observed that the customary right of whāngai was recognised within the New Zealand legal system.
Whāngai and dual inheritance
One of the major issues around whāngai was the land rights attached to the whāngai. In 1900 Hōne Heke Ngāpua, the member for Northern Māori, raised the issue of whāngai and land in Parliament. He noted that the institution of whāngai was quite different to Pākehā adoption, and spoke about a concern of Māori relating to land inheritance. He observed that some whāngai might receive shares in land from both their whāngai parents and birth parents. In cases like these it seemed unfair that a whāngai might effectively be ‘double dipping’.
Modifying customary rights
The process of bringing whāngai into the legal system began with the Native Land Claims and Adjustment Act 1901, which required that whāngai be registered with the Native Land Court in order to be able to inherit the lands of their whāngai parents. This became more prescriptive under the Native Land Act 1909. The customary practice of whāngai was no longer recognised in law. Instead Māori had to adopt through the Native Land Court.
The issue of transcultural whāngai was raised at an April 1909 meeting of the Tūwharetoa tribe, where it was stated: ‘Mo nga tamariki whangai: Kaua e whaimana te tamaiti whangai pakeha, ahakoa i rehitatia ki nga rawa a te matua whangai Maori’1 (regarding whāngai children: Don’t give legal recognition to a Pākehā child who has been taken as a whāngai, even though the Māori parent has made provision for the child to get his or her assets).
Under the Native Land Act passed later that year, only Māori children could be adopted through the Native Land Court.
Secrecy and closed adoption
From 1915 most adopted children were re-registered with the names of their adopted parents, and secrecy became more important. However, Native Land Court adoption hearings remained open, as Māori adoptions were published in the Kahiti (Māori Gazette) and the New Zealand Gazette.
The Adoption Act 1955 implemented closed adoption. The principle of a clean break from the child’s birth family was considered paramount. The act also stated that ‘no person shall be capable of adopting a child in accordance with Maori custom and with certain exceptions, no adoption is of any force or effect, whether in respect of intestate succession to Maori land or otherwise.’ Māori customary whāngai was no longer legally recognised, and the philosophy of open adoption was rejected. By the late 1980s whāngai practice began to be worked into legal adoption. Although whāngai is not recognised by the Adoption Act 1955, Māori have continued with this customary practice into the 2000s. It is sometimes described as informal adoption.
Te Ture Whenua recognition of whāngai
Te Ture Whenua Māori Act 1993 provides for whāngai to succeed to land, and defines whāngai as ‘a person adopted in accordance with tikanga Māori’ (Māori customary practice).
The nature of whāngai has been explored in contemporary cases. In one case, Wharehuia Milroy gave evidence on the practice within the Tūhoe people. The whāngai would be a blood relative of the adopting parent, and the hapū (and sometimes iwi) would give consent, particularly where a share in land was at stake. A whāngai who looked after their matua whāngai would receive their whole land interest.
In another case, relating to Ngāti Mahuta, Fred Kaa and Ngāpare Hopa observed that whāngai relationships – while usually based on the same bloodline or extended family – could also exist between non-kin. Whāngai usually started at birth, but sometimes children were taken at a later date.