The Legal History of Maori Land Rights

At the end of the Maori Land March Mrs. Whita Cooper and 1760 others presented a petition praying that there be no further alienation of Maori land.

The petitioner's second prayer was:

"That all pernicious clauses in every statute of the present day or in new statutes in the future which have the power to take Maori land, alienate Maori land, desicrate Maori land, or confiscate Maori land be repealed and never be administered on the Maori land remaining at the present day, and that the management, retention and control remain with our Maori people and their descendants in perpetuity".

In the course of submissions to the Parliamentary Committee on Maori Affairs, Te Matakite o Aotearoa proposed that there should be encouragement by law for the return of some land to its former Maori status and an exchange for Maori land taken for public works. Proposals were also made for the protection of multiple owned land against a sale for rates and for the protection of historic and sacred places as reserves.

All in all, about 15 acts and more than 60 clauses are considered to undermine the principle of multiple-owned Maori land. Right now two land struggles, at Bastion Point and Raglan, are in the public eye. Many more are in the offing. This article looks at some of the legislative methods by which governments have paid lip service to the notions of bi-culturalism and justice to the Maori people.

A marked dichotomy of attitudes has always been evident in Maori/pakeha land dealings. The pakeha settler brought with him the utilitist concept of land as "an individually owned, freely marketable entreprenurial resource" (I).

The Maori on the other hand regarded land in a spiritual context: "The mortal remains of countless generations of ancestors of the Maori were laid to rest in the bosom of the earth mother, received in her sacred caves, sandhills and the other secret places on tribal lands. There they remained to bind the glories of the past to the present. At the same time they presented their challenge to the tribe to maintain its integrity in the interests of generations to come."(2))

But spiritaul importance was no match for the coercive mechanism of the state. Ever true to the laws of colonialism the pakeha settler made the mistaken and arrogant assumption that his way of life was the best and only workable one. He introduced a programme for Maori assimilation into the western culture and economy, never considering that the Maori might not want assimilation.

The first device the pakeha used was to individualise land titles. By a complex procedure claims to land totles were decided and the individual Maori found himself with a freely marketable commodity. Sadly many succumbed to the temptation of the glittering pakeha world spurred on by the numerous unscrupulous speculators and entrepreneurs.

Moreover the process of individualisation could find no room for the Maori 'ariki's power of veto as frequently the chief did not hold the Europeanised "Title". Maybe the exclusion of the power of veto was deliberate. Henry Sewell, Minister of Justice, said in 1870:

". . . the object of the great Native Raids Act was two-fold: to bring the great bulk of the land in the northern island which belonged to the Maori .... within reach of colonisation.

"The other great object was the detribalisation of the Maori—to destroy, if it were possible, the prinicple of communism which ran through the whole of their insituations, upon which their social system was based and which stood as a barrier in the way of all attempts to amalgamate the Maori race into our own social and political system."

Governor Gore Brown stated that he would buy no land without the owner's consent but would not allow anyone to interfere in the sale of land unless that person "owned" part of it, and the stage for the land wars was set.

The Maori Land Court

The Maori Land Court has been the principle legislative tool of the pakeha since 1865. In its early days it became known as "god-father". The Maori was seen as the nation's younger brother and had to be gently guided, nurtured and accustomed to the wheeling-dealing world of commerce. The Maori Land Court's role was labelled "quasi-parental" (4). But was it really?

There can be no doubting the genuine concern of the judges on the Maori Land Court bench—many developed a deep and abiding affection and respect for the Maori. To a large extent this respect was reciprocated. However the question that seemed inherent in much of the Court's reasoning was "how will this help assimilate the Maori people?" Once again the pakeha's arrogant assumption of cultural superiority became evident.

Mat Rata did not return the Court's parental jurisdiction during his ministry, but he did tighten up the quorum requirements for meetings of owners. 75% support of the owners had to be given to any sale of land under multiple ownership. The corollary of Rata's Amendment Act was the greatly increased usage of section 438.

Manipulation by Trustees

Section 438 provides that the Court can vest Maori land in trustees. This means the Court can hand over to trustees appointed by itself the power to "use, manage or alienate" land at their own discretion as long as the ensuing "benefit" accrues to the owners. Section 438 is full of loose statutory language and is the subject of much contention.

Several judges, practitioners and even ministers of the Crown have stressed that s438 is intended for use in cases where it is virtually impossible to locate, summon or even trace all the owners of a block which may be in "need of development" of which might be desired to be sold. We are supposed to believe that it is an expedient for the benefit of the owners.

Why then has it sometimes been used as an appressive measure? Why is there no proviso guaranteeing its use only for the stated purpose? Such a proviso is one of the many urgent needs of the Maori land legislation.

A recent case illustrates the point well.

The Ngatihine Disputes

The Ngatihine block covers some 13,626 undeveloped acres in Northland. In March 1974 the Maori Land Court appointed a 7-man trust under s438 of the Maori Affairs Act 1953. Already weaknesses of s438 are apparent:

a) the section "suggests" that the owners of the land be given a choice "as far as practicable" to express their opinion as the person/s appointed as trustee/s. But the Court is not under any compulsion to seek the opinion of the land-owners. Of course in situations where many of the land-owners are not known the opinion of the majority might not be easily ascertainable. But surely the Court should be required to find out the opinions of the owners who live on the land or who are readily available? This did not happen in the Ngatihine situation.

b) Although the Court on its own voliton can find out the wishes of the owners it is not obliged to heed those wishes.

The trustees decided the Ngatihine land would be developed for logging by Carter Holt but when the lease was formally presented one trustee, Graham Alexander, refused to sign because he believed it disadvantageous. Eventually Alexander was removed from the trust (again the owners had no say) but he was reinstated in August 1976. There was a catch however. Under sub-section 5 of section 438 the Court can "confer in the trustee or trustees such powers as the Court sees fit, but subject of any express limitations or restrictions."

The Appellate Court changed the definition of the trust's objective to "the leasing of the land to Carter Holt Farm and Forestry Ltd." Faced with a apparent Hobson's choice Alexander still refused to sign. He considered the lease extremely disadvantageous and thought his people had the right to "shop around" for a better deal. Whether the lease is unfair is beside the point. At issue here is the Court's power of manipulation afforded by s438.

For a comparable situation one might imagine the Wellington Rugby Football Union Management Committee being declared a trust under 2438 and selling Athletic Park to the New Zealand Rugby Football Union for a nominal sum (perhaps even a pepper corn). The Maori Land Court could not even protest that the consideration is inadequate.

After the Land March

The Maori Land March has had hitherto unrealised effects upon its own people. Many absentee landowners have rediscovered their roots and become aware of the land struggle and its broader significance. There has been a sudden burgeoning resistance against alienations or transfers of interests from these people. Even if their share of the land is worth barely $100 many Maoris are now determined to keep their "standing place for the feet".

Similarly it appears that to a limited extent the Maori Land Court (as far as a predominantly pakeha institution can be) is no longer so obviously "assimilationist".

Recent decisions of Russel in the Tairawhiti Registry mark an overt attempt to re-establish the quasi-parental jurisdiction and protect the Maori minority land-owners from pakeha's who seek lenient leases of alienation (6).

The Public Works Act 1928

The Public Works Act 1928 contains some of the most racist clauses that ever stained New Zealand's statute Books. Section 22 subsection 3 states:

"The provision of this section requiring the names of the owners and occupiers of the land to be shown on the plan therof, and requiring copies of the notice to be served on the said owners and occupiers .... shall have no application to any Maori who is an owner or occupier of the land or has an interest therein unless his title to the land is registered under the Land Transfer Act 1952....'

A great deal of Maori land is under multiple ownership and on the Maori Land Court's "files record": it is registered but not on the books of the Land Transfer Office. Hence it does not satisfy section 22, ss3. The only statutory notice many Maori owners get is a samll announcement in the Public Notices column of the local paper.

How many "ordinary blokes" (blame Muldoon for that tag) read the public notices column expecting to find an announcement that their land is being compulsorily acquired for public works? Often Maori owners only find out their land has been sold when the bulldozer is on the front paddock. Too late to object they often give up without a fight.

Only Maori land is excluded from the ratification process. Why has no proviso similar to that in s12. ss3 of the Reserves Act 1977 been included? This proviso brings Maori land on the "files record" into the ratification process but it is significant that it took extensive lobbying by the Maori Council, Tairawhiti District Maori Council, and the Maori Graduates Assn. to get this proviso included. This anomaly requires urgent rectification yet the government doesn't seem too concerned.

The Reserves Act

This piece of legislation was a slap in the face for the Maori people who bent over backwards to help the government. The inherent susceptibility of Maori land to the act is spelled out in the following:

"A great deal of the land which has remained in Maori ownership is rather more rugged, less fertile and more sparsely populated. These factors have combined to make much of the remaining Maori estates undeveloped and unspoilt and thereby attractive as parks and domains, and as scenic and foreshore reserves"(7)

These submissions were rejected. It is now open slather for Maori land for all local bodies. Perhaps dilapitations like the Te Porere Redoubt (historic Maori fort near Tokaanu worn down and virtually ruined by endless sightseers—adminstered by the Historic Places Trust) will be more common.

But the disregard of the Maori doesn't stop there. What if land is taken for a certain "public" purpose and not used for that purpose? Can the original owners get the land revested? This is what has arisen in the Raglan Golf Course controversy(8).

Ministerial Intervention or Real Victory?

A recent Supreme Court decision(9) appears to be a victory for the Maori who have always held strongly to the view that land acquired for reserve or other public purpose should be revested in or offered back to the owners if no longer required for the reserve or public purpose for which it was originally acquired.

The Cook County Council acquired some Maori land for a road but eventually earmarked it for a rubbish dump and thereafter for recreational purposes. The owners of the blocks had already given the Council substantial land fronting onto the Poverty Bay foreshore. Not unnaturally they felt they'd done their bit for recreation and they didn't want their land used for a rubbish dump.

They asked Mat Rata (then Minister of Lands) to re-vest the land in them. He said yes but the Council said that only the Land Settlement Board can revest. The Land Settlement Board, taking its role from the Minister's wishes, re-vested the land. The Council lost its Supreme Court appeal on substantially the same grounds.

The Court's rationale turned on what the Minister wanted, but what if Venn Young and not Mat Ratahad been the Minister? On the facts the Court's decision is meritorious but surely its reasoning is open to abuse? Is it right for the Minister of have such influence on what is ostensibly a judicial proceeding? In this sense the decision is a very dangerous one.

The Role of the National Party

Every controversy has shown the National Party's lack of care for the Maori people. Why do the Tainui Awhiro people have to pay to get the Raglan Golf Course back? Why has Muldoon been so underhand (secret negotiations with elders) and conniving over Bastion Point? He promised Whina Cooper on the steps of Parliament that he'd ammend the Town and County Planning Act where it hurts the Maori. Why has he not done so?

Why does the Government which makes so much of our "multi-racial harmony" not do anything positive but legislates against the concept? Why did the National Party stack the Maori Council in its early days with National Party members who told the government exactly what it wanted to hear? Why aren't the Maori MP's considered representative of the Maori people by the National Government?

Why? Because the National Party epitomises the pakeha/settler ethic of open market warfare and hence is a party of assimilation not multi-culturalism. Perhaps an enlightened Maori Land Court and the new "Europeanised" mode of leadership emerging in the Maori can combat the trend. Determination to occupy at Bastion Point and Raglan regardless of Court decisions marks a new era in the land struggle.

There is a saying: "Assimilation is what the shark said to the Kahawai before he opened his mouth and swallowed him for breakfast."

Paul McHugh