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LEGAL 406-22B Māori Land Law Assignment

Task Assignment:

Q. Whatungarongaro te tangata, toitū te whenua. With reference to two examples, how did 19th Century native land legislation impact customary Māori land tenure? How does Te Ture Whenua Māori 1993 reflect the worldview encapsulated in the whakataukii above? Refer to sections of the Act as well as case law in your answer.

Answer

Introduction

Whatungarongaro te tangata toitū te whenua

While People Come and Go, the Land Remains

The Treaty of Waitangi had previously enforced a ban on buying Māori land, but in the 1860s, this restriction was lifted. Previously, the acquisition of Māori land had been illegal. The federal government in the United States, following its wins in the American Civil War of the 1860s, enacted new legislation and established new judicial institutions to put its victories into practice. Losing thousands of acres of land will have a lasting impact on the Mori people and their culture for a very long time.[1] The very first Native Land Court was founded the following year in 1865. The Pkeh were in charge of administering a centralised court system that followed colonial law to a large extent. As a direct result of the passage of the Native Lands Act in that year, European colonists were given the opportunity to purchase Māori land free and clear for the first time since the 1840s.[2] Mori’s input was critical in determining which individuals were awarded which individual plots of land. Eleven Māori were selected to fill the judicial positions in a regionalised court system piloted in the north with some success. Everything underwent a fundamental transformation after 1865.[3]

Impact of 19th Century Native Land Legislation on Customary Māori Land Tenure

Because ownership of land has changed hands on multiple occasions throughout history, the concept of land “rights” has never been crystal clear and has consistently been a cause of misunderstanding. The entitlements of subgroupings such as whanau or individuals, and sometimes even related hapu, to utilise particular resources within a hapu territory are included on this spectrum.[4]. There is no restriction on the number of entities that can jointly own a particular type of right, and there is no limit on the number of entities that can hold a right at the same time. Both of these things are possible without limitation.[5] The more extensive communal land grabbing unit known as the hapu served as the basis from which individual rights and the rights of the extended family, known as the whanau, were derived in the ancient Māori system of land tenure.[6] This was the primary idea that served as the basis for the old Māori land tenure system. As a direct result, the right could not be exercised until after the development of positive interpersonal connections within the household and the neighbourhood.

For the organisation to be able to protect the rights of the group as a whole as well as the rights of any subgroups, it was vital to develop a commitment to the ideas of whanaungatanga, utu, and kaitiakitanga.[7] It was necessary to take this action to ensure that the collective right would be protected. All these privileges may be altered or revoked at any time and for any cause whatsoever, with or without prior notice.[8] This would be the case in instances such as these.

Two Examples

Putting at risk the tribe’s claim to ownership

The court proceedings, however, involved more than only the transfer of traditional Mori title to Crown-granted land. Even worse, it discouraged Mori from holding on to their land and promoting the sale of that land to non-Mori. There was a fall in the tribe’s influence because of all of these things. Francis Dart Fenton, the nation’s first Chief Justice, completely disregarded this. From what he could see, the intent of the 1865 legislation was not to promote property sharing. This resulted in many Māori being coerced into selling their land. Tribal komiti were created by Māori communities as an alternative to the Native Land Court (committees). As court advisers, that was the only official function for which they were recognised. Private property rights were broadened with the Native American Land Act of 1873. Since 1865’s law, it was impossible to transfer ownership to an entire hapu or iwi, but all owners had to be listed. There was a private sale option for each shareholder. Before 1894, Mori landowners lacked the requisite legal standing to cooperate. Suddenly, nameless people with paper titles to various parcels of land appeared out of nowhere and began using them. They decided that selling the property was their best option.

We started buying up land in earnest in the 1870s

By 1865, the Māori had only retained a tiny fraction of South Island, less than one per cent. Only a portion of this land was purchased. Lands owned by Mori and Europeans were taken by the government for the benefit of public works projects, including roads, railroads, and other infrastructure under the Public Works Lands Act of 1864 and other laws, sometimes without any form of compensation. Forcibly capturing some Mori land, this territory was prioritised over neighbouring Pkeh territory. It was standard procedure for roadways to wind their way through Mori territory. Land that the Māori believed should have been used for educational purposes but wasn’t returned to its rightful owners was another complaint of the Māori people. After that, people started complaining that they had to pay rates to local authorities that didn’t look out for their best interests, although they had never received the promised services.

Reflection of the Worldview Encapsulated in the Whakataukii

No one Māori word or phrase is capable of effectively conveying the notions of both institutional law and customary law. This is because the Māori language does not distinguish between the two types of legal systems. This is because Māori is primarily an oral language. The word “true” has largely taken the place of the older phrase “law” in common usage in today’s society. It draws its name from the Hebrew word that translates to “the Law,” which also happens to be the name of the first five books of the Old Testament (the Pentateuch).[9]

The Māori Land Court’s operations are primarily based on the Te Ture Whenua Māori Act 1993, passed in 1993 and is the primary legislative foundation upon which the court operates (henceforth “Ture”). It is generally accepted that most of New Zealand’s institutional law was primarily influenced by either English common law or “western” common law. It is possible to use the phrase “Pakeha law” to refer to either institutional law or truth while discussing what is being discussed here.[10] This is a result of the fact that Pakeha is indigenous people of New Zealand who have lineage from Europe.

In the preamble to the Te Ture Whenua Māori Act, enacted in 1993, it is said that land is a taonga tuku iho for Māori people, which means that it has a tremendous amount of value. The central idea that underpins taonga tuku iho, which is to relate to the relationships that one’s ancestors had with the land, has not been translated into the English language in any way, not even in the English text of the prologue.[11] This is even though the English language version of the prologue was written in English. This is even though the prologue is written in English in both its original and translated forms. A sizeable proportion of Māori believes that taonga tuku ih should be protected.

According to the Te Ture Whenua Māori Act enacted in 1993, it is imperative that the Māori Land Court be familiar with the significance of whanau and hapu in this context and understand the role that whanau and hapu play in the administration of Māori land. Additionally, it is imperative that the Māori Land Court understand the role that whanau and hapu play in the administration of Māori land. This is because it is essential for the Māori Land Court to have an understanding of the part that whanau and hapu play in the administration of Māori land.[12] This precondition is discussed in greater depth not just in the introductory portion of the Act but also in Section 2. The purpose of the Act is to protect Māori land and guarantee that its current and future owners will be able to pass on ownership of the land to members of their whanau, hapu, and other descendants in a manner that is consistent with traditional Māori customs. It is considered that land possesses the value of a taonga tuku iho because of its uniqueness and inability to be duplicated.[13]

The Te Ture Whenua Māori Act of 1993 has provisions in sections 29 and 31–33 that make it possible to refer patients to the Māori Land Court for investigation and report.[14] The guidelines for adequately citing sources can be found in this section. One category of such individuals is comprised of those who have a solid understanding of tikanga Māori (section 32).[15] For the purpose of conducting consultations, judges sitting in both the High Court and the District Court have access to evaluators as well as other commercial specialists. This right is granted to them by the courts in their own countries. It is possible that it would be desirable for a court that hears cases involving tikanga Māori regularly to have the ability to select additional members who are knowledgeable about tikanga Māori and who practise it. One such court is the Environment Court, which serves as an excellent example. This can be the situation if tikanga Māori customs and traditions come up regularly in the course of legal processes. In addition, it is up to the discretion of each court or tribunal to decide whether or not to include a tikanga expert on its bench or whether or not to send a case to a specialised court that has pukenga on its bench.[16] This decision is based on the particulars of the case. Within the scope of this discretionary power are included both the appointment of tikanga specialists and the referral of patients to specialised courts.

Conclusion

Historians are aware of a handful of acts that legally recognised Māori sovereignty and authorised the use of tikanga Māori in limited contexts. Committees formed before 1883 under the Native Committees Operate have the most clout; they can act as an arbitration court and challenge the Native Land Court’s rights to land, but its jurisdiction is limited. Papatupu block committees were given the authority to research block ownership by the Māori Lands Administration Act of 1900. Around 1900, certain townships were granted autonomy under the Native Townships Acts. The significance of Pukenga may encourage Māori to employ tikanga Māori in resolving problems.[17] They may advocate for Māori-led, tikanga-based approaches.[18] The pukenga’s standing as total participants in the legal process will provide legitimacy to the outcomes if the national legal system becomes engaged, as may happen if non-Māori are involved or if one side decides to use conventional courts. New Zealand’s two competing legal philosophies are reflected in the decisions.


[1] Re Roera Rangi, Native Appellate Court, New Plymouth, 28 October 1906 – quoted in Customary Maori Land and Sea Tenure: Nga Tikanga Tiaki Taonga o Nehera, Wellington, Manatu Maori, 1991, p 2

[2] R G Crocombe, ‘An Approach to the Analysis of Land Tenure Systems’ in H P Lundesgaarde (ed), Land Tenure in Oceania, Honolulu, University Press of Hawaii, 1974, n 7, pp 16-17

[3] Opinions of Various Authorities on Native Tenure’, 1890, AJHR, G-1

[4] N Smith, Maori Land Law, Wellington, A H & A W Reed, 1960

[5] N Smith, Maori Land Law, Wellington, A H & A W Reed, 1960

[6] Alex Nathan, Wai 38: doc D27

[7] Waitangi Tribunal, Te Roroa Report, Wellington, Brooker & Friend, 1992, p.49

[8] M Jackson, ‘Criminality and the Exclusion of Maori’, (1990) 20 Victoria University of Wellington Law Review, Monograph 3

[9] Law Commission, (1997) Te Aka Korero, no 6, p 4

[10] A T Ngata in ILG Sutherland (ed) The Maori People Today: A General Survey, Auckland, Whitcombe & Tombs, 1940, p 181

[11] E T Durie, ‘Will the Settlers Settle? Cultural Conciliation and Law’, (1996) 8 Otago Law Review 449, at p 462

[12] Re Roera Rangi, Native Appellate Court, New Plymouth, 28 October 1906 – quoted in Customary Maori Land and Sea Tenure: Nga Tikanga Tiaki Taonga o Nehera, Wellington, Manatu Maori, 1991, p 2

[13] J Davidson, The Prehistory of New Zealand, Auckland, Longman Paul, 1984

[14] Faulkner v Tauranga District Council [1996] 1 NZLR 357, at pp 365-366

[15] R G Crocombe, ‘An Approach to the Analysis of Land Tenure Systems’ in H P Lundesgaarde (ed), Land Tenure in Oceania, Honolulu, University Press of Hawaii, 1974, n 7, pp 16-17

[16] J Prytz-Johansen, The Maori and his Religion in its Non-ritualistic Aspects, Copenhagen, E Munksgaard, 1954, p 172

[17] M Henare, ‘Ngā Tikanga me ngā Ritenga o te Ao Māori: Standards and Foundations of Māori Society’ in Royal Commission on Social Policy, The April Report (1988), vol 3, at 3-42.

[18] M Marsden & T A Henare, ‘Kaitiakitanga: A Definitive Introduction to the Holistic World View of the Maori’, paper for the Ministry for the Environment, 1992, pp 2-3

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