The Fiction of Maori Ownership

Guest post by A. Mous.

In “Maori Land Law,” Sir Hugh Kawharu blatantly sets out to fabricate a universally recognised body of Maori property rights pre-dating the Treaty of Waitangi. By implication, these were rudely subsumed by white-settler governments, who substituted their own Eurocentric notions of property ownership. This now widely accepted thesis was explicitly created to fudge or remove the fact that “customary title” is in practical terms no title at all.

The functional social unit of pre-European Maori society was the hapu, or sub-tribe. Each hapu was in a Hobbesian state of nature (“War of every man against every man”) with every other hapu, thus rendering life “nasty, brutish and short.”

Within the hapu-controlled estate, whanau groups sometimes enjoyed exclusive rights of occupancy or usufruct as Kawharu has identified, but the only universally accepted concept of land ownership BETWEEN hapu was “Te rau o te patu” or “The Law of the Club.”

In the absence of a settled form of civil government, hapu used or occupied land only until someone else took it off them. This position was somewhat modified by Article II of the Treaty of Waitangi, which purported to change this temporary “customary” Maori use and occupation of land into permanent legal ownership.

It should be noted the Treaty was never meant to convey to Maori ownership of the entire land area of New Zealand.* It was intended to secure the various hapu in their “ownership” of land that they actually used or occupied as at February 1840.

In practice, this meant “ownership” of land identifiably occupied and cultivated. At a most generous assessment, such “ownership” might stretch to include a reasonable hunting and gathering range around a Maori settlement. At the time the Treaty was signed, even in the more populous North Island, such settlements were typically few and far between

In 1840, the North Island was home to an estimated 100, 000 Maori. Edward Dieffenbach, a German-born naturalist who travelled throughout the North Island in 1844, reported that “even in the areas of greatest Maori habitation, there are huge tracts of land, even up to hundreds of miles, between the various tribes [hapu].”

The South Island lay practically deserted. Edward Shortland’s 1846 census found some 2, 500 Ngai Tahu, resident at several coastal locations. To suggest that 2, 500 people [a] lived on; [b] cultivated; or [c] hunted and gathered over 13 million hectares of the South Island is sheer casuistry.

Even in the North Island, aside from the immediate areas around a Maori settlement, the “waste lands” were uninhabited, unimproved, uncultivated, and untrod by human feet, other than those of an occasional war party or traveller. The exclusion of other groups, whether by law or by force, was in practical terms impossible, meaning the “waste lands” had neither “customary” nor legal owners.

The mischievous notion that the property rights set out in Article II of the Treaty applied to the entire land area of New Zealand, including the “waste lands,” was implanted in the Maori mind by the missionaries over the decade following the signing of the Treaty. They were well aware the Crown had little money for land purchasing and a mere handful of troops to enforce its edicts. The missionary agenda was to keep secular, worldly Pakeha confined to areas already settled, thus ensuring missionaries remained the only European influence in the all-Maori hinterlands they wanted to Christianise.

By the mid-1840s, Maori had learned that the Crown would pay to acquire the “waste lands,” in order to avoid the trouble it had no military force to quell. Each hapu became an instant “owner” of huge tracts of “waste land” adjoining its settlement. This created multiple competing ownership claims.

To convey a clear title to subsequent purchasers and ensure incoming settlers remained unmolested, the Crown was obliged to extinguish this Maori “ownership” by paying all potential claimants. In many early land purchases the Crown paid out anyone asserting a right to be paid.

The Native [now Maori] Land Court was originally set up to deal with these competing claims to the “waste lands.” “Ownership” was typically awarded to whoever could spin the most convincing whakapapa about how his remote ancestor had travelled over the land 500 years before naming natural features after parts of his body.

Had the missionaries not queered the pitch for the Crown, the “waste lands” and appurtenant rights would have simply been assumed by everyone to be vested in the Crown, to be held, managed, onsold, or otherwise used for the benefit of ALL New Zealanders, irrespective of race.**

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*Editor’s Note: And under common law, nor could it.

** Editor’s Note: Since the British Common Law still had legs at this time, I submit it is more likely these “waste lands” would have simply been considered “un-owned” until such time as it could be laid claim to by anyone, also irrespective of race, under common law’s various provisions for homesteading, for example, prescription, adverse possession or “lost grant.” 
          This, incidentally, is it the ground on which some iwi were arguing for rights to particular portions of foreshore and seabed—ground cut out from under them by Helen Clark’s Foreshore & Seabed legislation, and removed entirely under Chris Finlayson’s “negotiated giveaway” policy under his Marine and Coastal Area law – Ed.

This post first appeared at Breaking Views and 1Law4All.