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New Zealand Yearbook of New Zealand Jurisprudence |
Last Updated: 25 April 2015
CUSTOM AND THE NATIVE LAND COURT
DR GRANT YOUNG
The Native Land Court, established in the midst of armed conflict between
Māori and the Crown, was designed to provide stable
title to land which
could be alienated by purchase. The Crown had found it increasingly difficult to
resolve customary disputes in
its land purchase activities and extinguishing
customary title was a problem as disputes about who had the right to sell became
more
common. For Māori, resolutions of disputes based on competing
interests in land were always dealt with by negotiation. Whether
it was
rangatira sitting as a rūnanga to resolve a dispute among whānau,
conflict involving taua over the use of resources
or peace negotiations between
iwi to establish or re-establish stable relationships, the outcome was always
one negotiated by the
people who lived on the land and used the resources. This
did not occur in a vacuum. There were processes for dealing with the issues
and
power relationships were always a key feature. The resolution of particular
customary disputes developed over time based on history
as groups with distinct
identities derived from their individual whakapapa passed on traditions which
informed their relationships.
In this paper I discuss custom and the Native Land Court from an historical
perspective. For those hoping for a clear definition of
custom which can be
applied in a modern jurisdiction, or even an effective method for settling any
customary dispute over land, this
paper will be fundamentally unsettling. I am
going to develop three key points:
• There are no external objective criteria against which claims to land
based on custom can be assessed;
• Any decision to exclude particular kinship groups or tribes is always
arbitrary – a political decision made because a decision has to be
made;
To develop these three points, I am going to draw particularly on recent and
ongoing research during which I have examined thousands
of pages of evidence and
hundreds of decisions of the Native Land Court and Native Appellate Court,
research undertaken before and
since in working with claimant groups to prepare
historical evidence on their claims in the Waitangi Tribunal and the report of
the
tribunal on the Tāmaki Makaurau settlement
process1. The inquiry and the tribunal’s criticism of the
process adopted by the Crown was an important turning point for treaty
settlement
negotiations in Tāmaki Makaurau and the Crown has subsequently
adopted a more inclusive approach. I participated in the inquiry
as a witness
and I prepared independent evidence for one of the applicants, the Marutuahu
Confederation, with Michael Belgrave. The
urgent inquiry followed the
Crown’s decision to enter into an agreement in principle (AIP) with the
Ngāti Whātua
o Ōrākei Trust Board early in 2006. The AIP
raised some particular issues about the way officials in the Office of Treaty
Settlement had considered and dealt with questions of customary interests. These
were explored in our evidence and considered by
the tribunal in its reports and
the findings are very significant. I will deal with these in the second half of
the paper but will
start with a discussion of Norman Smith’s four
take2 and the practice of the Native Land Court in the nineteenth
century.
The Ngāi Tahu decision of the Māori Appellate Court3
was a response to a question stated by the Waitangi Tribunal regarding the
boundary between Ngāi Tahu and its northern neighbours.
The issue to be
determined was defined by the Court and the parties to the litigation as one of
customary rights to land. Significantly,
the Tribunal in its stated question
defined these rights as an archaic and historical entity fixed in time. The
boundary could be
determined as at the dates of the Kaikoura and Arahura deeds
of purchase and that was the boundary for all time. To find the answer,
the
Court decided it first had to determine what those take were and briefly stated
it found four take which the “pre-European
inhabitants of New Zealand had,
over many centuries, developed certain customary take or rights concerning
land.” They were
discovery, ancestry, conquest and gift. Each of these
take had to be supported by some form of occupation. The take were absolute
and
unchanging, except for the right to conquest which was limited by the Treaty of
Waitangi. In essence, to resolve the competing
claims regarding the location of
the boundary, the three judges reached for their Norman Smith. They recognized
the importance of
their decision as it was the first case to be determined under
the new legislation but, at its most basic, the Ngāi Tahu decision
gave
judicial authority to Smith’s model of take.
2 Native Custom and Law Affecting Māori Land (Māori Purposes Fund Board, Wellington,
1942).
3 4 South Island Appellate Court Minute Book 672 (1990); Waitangi Tribunal Ngāi Tahu
Report 1991 Volume 3, Appendix 4 at 1122-1145 (Brooker & Friend
Ltd, Wellington, 1991).
In 1942 Norman Smith codified the rules used by judges of the Native Land
Court4 to determine according to Māori custom and usage who
owned land held under customary title. Ironically, by then such codification
did
not really matter in terms of the Court’s practice. Its primary role was
no longer the investigation of title to customary
land as it had become part of
a large and rapidly growing bureaucracy which administered the land remaining in
Māori ownership.
Applications for title investigations were received
infrequently and the area of land affected was quite small. The model of take
developed by Smith therefore was produced as an abstraction rather than as a
product of the Court’s practice. If in practice
Smith’s codification
was of limited significance, it has had a major impact on the way in which
historians have considered
the activities of the Court. His antecedents are
difficult to determine for Smith does not provide any indication, other than
statute
or a few of the Court’s decisions, of the authority on which his
views are based. Although he does acknowledge the assistance
and authoritative
knowledge of Robert Noble Jones, a former Chief Judge of the Native Land Court,
it is far from clear how Smith
arrived at this particular model of take.
Smith acknowledged that it is “somewhat difficult to elaborate the
rules governing that question”.5 Even if the Native Land Court
had established the grounds on which rights to customary land could be claimed,
the question was not,
it would seem, easily answered. Nevertheless, Smith
identified four principal take recognized by the Court when considering the
applications
of Māori claimants to customary land: discovery, ancestry,
conquest and gift. Along with these four take there was the essential
requirement of occupation “or the exercise of some act or acts indicative
of ownership in order that the claims made might
be deemed well grounded and
effectual”.6 Some form of occupation based on one of the four
take was required to prove any claim conclusively and Smith went on to describe
in
considerable detail the degree of occupation required to support a right. To
illustrate these points and discuss the four take further,
he drew on
Fenton’s Important Judgments7, Alexander Mackay’s
Opinions of Various Authorities,8 and several decisions of
the Native Appellate Court.
4 Native Custom ... Above, n 2.
5 Native Custom ... Ibid, at 47.
6 Ibid, at 48.
Although Smith acknowledged the complexity of the issue, he came up with four
clearly defined and unambiguous take used by the Court
to determine ownership of
customary land according to Māori custom and usage. His antecedents however
are not easily located.
Certainly, his account was not a result of a
comprehensive and systematic assessment of the decisions of the Court. And there
is
also no indication as to why he chose 1895 as the year when Māori custom
and usage was clearly defined.
Where did Smith find his four take? That is a question which is very difficult to answer. One possibility was Important Judgments, the collection of decisions of the Court printed by direction of the first Chief Judge, F.D. Fenton, in 1879.9
However, apart from vague references to conquest, ancestry and occupation the
judgments provided very little indication as to the
grounds on which the Court
determined according to Māori custom and usage ownership of customary land.
Fenton’s focus
was apparently on preserving an historical record of
Māori – one which was determined by judges too, not Māori
claimants
– rather than creating a body of legal precedent for the
purposes of regulating the operation of the Native Land Court. For
an overview
of the Court’s approach to Māori custom and usage in the 19th
century, Important Judgments provides few insights. Smith quotes
from them, but the decisions would have provided little assistance in
determining the Court practice.
So, Important Judgments is not particularly useful. Mackay’s Various Opinions10 may have been a little more useful. This was a collection of extracts from papers and correspondence published in March 1890, containing the views of a range of colonial officials, missionaries, soldiers, Māori leaders and judges on the question of Māori customary rights to land. Extracts from papers and letters written by several Native Land Court judges and a memo from a group of assessors were also included. Of the documents included, only Maning’s letter to Fenton in November 1877 directly addressed the question of determining customary rights to land. Long and rambling, it was full of complaints, especially of “the impossibility of doing what is really the reduction of an unwritten, and in some degree still disputed, law to writing”.11
His account of Māori customary land ownership focused on original
discovery and subsequent conquests. Gifting, usually as a result
of support in
war, was also recognized as a valid title by Maning. His principal conclusion
regarding customary rights to land was
that rights to land had to be maintained
by force. But in general he had “never been able to fix upon any
established principle
9 Above, n 7.
10 Above, n 8.
11 Ibid, pp 17-21 at 17.
for my guidance”.12 He simply dealt with the circumstances
of each case “in the best manner I could”. Where there were still
questions, “natural
equity” was used to resolve them.
Mackay himself attempted to provide some sort of synthesis on the question of
Māori customary rights to land. He too sounded
a warning: “the
opinions expressed in the aforesaid papers are very conflicting on many
points” but believed there was
a “general consensus of
opinion”. 13 Rights were based on either ancestry through
possession of land over several generations or land was acquired by conquest,
occupation
or gift. Mackay’s approach to occupation was very similar to
that of Smith:
possession of land, even for a number of years, did not confer a right unless
the occupation was found on some previous take of which the occupation
could be regarded as a consequence, and this take must be consistent with
the ordinary rule governing and defining Maori customs.14
Mackay concluded that it was “almost impossible to lay down any fixed
rule for fully defining the law of Māori land-tenure,
as the customs vary
in different localities”. He added nevertheless that his general
principles were those usually accepted
by the Native Land Court. Perhaps,
though, Mackay’s concluding comments are the most significant. Like
Maning, he believed
fixed rules were difficult to define and where disputes
could not be resolved, judges had to fill the holes with “equity”:
their own opinion or “good conscience” based on the particular
circumstances. The Court’s practice appears much
less clear than
Smith’s four take would suggest. Smith had three other accounts written by
judges of the Native Land Court
in the 20th century to draw from as well. When
comparing Smith to these models, however, similar inconsistencies over the
definition
of take emerge. What is striking about them is the extent to which
each of these models differs in quite fundamental ways, especially
in relation
to its definition of what the basic take were. Smith had several different
models of Māori land rights from which
to draw and none provide a coherent
definition of take.
How did the Court deal with Māori customary interests in land? The
minutes of hearings and decisions of the Court are recorded
in detail in several
thousand minute books. After examining a sample of more than 250 title
investigations, rehearings and appeals,
I have found that rather than imposing a
clearly defined model of take or Māori customary interests in land on
claims, judges
and assessors deployed a range of strategies appropriate to the
circumstances of the particular case they were dealing with. For
example, they
might focus
12 Ibid at 21.
13 Ibid at 1.
14 Ibid.
on occupation at a certain period (though not necessarily at the time of the
hearing or 1840), they might seek inclusiveness and accept
that all competing
claimants had an interest or they might assess the credibility of the evidence
given by a particular witness and
in particular assess its consistency at that
hearing and in relation to other hearings for adjacent land. Certainly, over
time Court
decisions grew considerably in length as the disputes become
increasingly complex and difficult to resolve. The Court was forced
to find ways
to deal with the mass of evidence accumulated during hearings to determine the
Māori owners of a block of land.
As I said at the start of this paper, the
Court’s role was to provide a stable title which could be alienated.
Failure to properly
consider the matters put to it by the parties would lead to
further litigation and prevent alienation.
What is clear is that the Court had no model or system of take which was
applied to its decisions. Judges and assessors might draw
on earlier decisions
of the Court but they did so selectively and there was no attempt to create a
body of precedent. The vast majority
of Court decisions remained buried deep in
the bound volumes of minutes. Deciding the interests of parties was a complex
process
and the strategies applied to do so depended on the nature of the
individual circumstances. There were no clear and fixed rules defining
take and
when they might apply to certain circumstances. Take were certainly not a model
which was simply applied to a block of land;
the diverse and numerous narratives
presented by Māori witnesses rendered this approach entirely
impossible.
Smith codified the practice of the Court by imposing 20th century order
retrospectively on 19th century uncertainty. Yet as this essay
has shown, even
the judges who were adjudicating on questions of Māori custom and usage in
the nineteenth century were very
ambivalent about the possibility of a group of
rules which governed their decisions. Important Judgments only supports
the point. Smith had to find something on which their judgments rested: statute
required that the Court determine the
owners according to Māori custom and
usage. The fact that custom and usage was so elusive that the judges themselves
were unwilling
to define their practice clearly is particularly significant
given the discretion statute had always given the Court in such matters.
Certainly, Smith’s take are not the starting point many historians or
indeed judges have assumed them to be when describing
the process by which
Māori customary land tenure was converted to individual title by the Native
Land Court in the first 60
years of its operation.
Smith’s approach to custom, however, continues to inform the way
interests in land have been dealt with. There is a series of
abstract rules of
custom which can be identified in tikanga and applied to particular
circumstances
to determine who has interests and who does not. It also provides the basis
for what I would describe as fortress tribalism. This
conceives of tribes as
monolithic entities where all legal rights inside a defined tribal boundary can
be legitimately allocated
to that tribe. My work with Māori communities
across the North Island over the past decade suggests that such an approach to
boundaries and to the definition of tribes – given the layered nature of
customary interests in land and the complexity of
the whakapapa which defines
those interests – is deeply flawed. It is important to flag here that I do
not accept that a lack
of rules or absence of a model of custom means chaos.
Such an approach is an attempt to force Māori custom relating to land
into
a different, usually legal, context. My research indicates that land was managed
through relationships between rangatira and
between rangatira and their
communities. The contrast is the Māori Appellate Court’s decision
which I have already referred
to15 and now I want to move on to the
Crown’s agreement in principle with Ngāti Whātua o
Ōrākei.16
The key issue which I want to address is the question of the exclusive
redress proposed in the AIP. In relation to custom, this probably
has the most
significant consequences primarily because exclusive redress prevents the Crown
from providing the same redress to claimants
groups other than the settling
groups. The decision to provide exclusive redress had the effect of excluding
others and so was a
decision on custom. Two forms of exclusive redress were
offered. One was exclusive commercial redress which included a right of first
refusal area to purchase any surplus Crown properties within defined areas on
the isthmus and the North Shore. The other was exclusive
cultural redress which
included vesting the freehold titles of the sites of Maungawhau (Mount Eden),
Maungakiekie (One Tree Hill)
and Puketapapa (Mount Roskill) in the governance
entity subject to a number of reservations (to guarantee existing public
access).
The Crown’s initial response to concerns raised by the Marutuahu
Confederation about the exclusive redress, both cultural and
commercial, was
that the redress was not based on assessments of customary interests. This
remained the Crown’s position at
the hearing but it was not supported by
the evidence presented. Many of the most significant documents did not become
available until
shortly before the hearing began and would never have been made
public without the urgent inquiry. Professor Belgrave and I based
our evidence
on the only document available to us – the AIP – and correspondence
between counsel for the Marutuahu Confederation
and the Office of Treaty
Settlements (OTS) manager in charge of the negotiations. It soon became
15 Above, n 3.
16 Signed by the Crown and Ngāti Whātua o Ōrākei representatives in 2006, modified in 2010
by a supplementary agreement taking into account some of the matters referred
to below.
apparent from reviewing the documentation that decisions on custom were being made and that exclusive cultural and commercial redress was being offered to the settling group because officials had concluded they held
‘predominant’ interests over the sites affected. A definition of
‘predominant’ interests was not provided
in the documents or at the
hearing. Despite these documents, the Crown witness continued to insist that
determinations of custom
were not associated with the exclusive redress offered.
This position was rejected by the tribunal.17
The decisions about custom which informed advice to ministers and appeared to
provide the basis for the redress offered were prepared
by an official from OTS
who was a recent graduate with very limited experience in treaty issues let
alone custom. No evidence that
his work was supervised by a more experienced
official was located. The tribunal expressed six concerns about the
Crown’s method
for dealing with the customary interests of all kinship
groups and tribes in Tāmaki Makaurau:
• the Crown did not acknowledge the customary implications of what
it was doing, nor recognise its importance to others who
were completely
excluded;
• the Crown did not recognise the need to involve the other tangata
whenua groups at all;
• the historical material relied on was not adequate for the
task;
• the Crown’s methodology for dealing with conflicting
customary information was nowhere revealed in evidence or submission;
• the people within the Office of Treaty Settlements who were making
decisions about customary interests were not sufficiently
expert; and
• expert help was not sought. 18
Some months after the AIP was signed, Grant Hawke, chair of the Ngāti
Whātua o Ōrākei Māori Trust Board,
wrote in the New Zealand
Herald that the negotiations were able to proceed:
... because the history and status of Ngāti Whātua o Ōrākei within the Auckland isthmus is already well established. In 1869, Judge Fenton in the Māori Land Court looked at the evidence before him at that time and recorded that Ngāti Whātua o Ōrākei was the dominant tribe of the central Auckland area. Later in
1987, the Waitangi Tribunal produced a report that came to the same
conclusion.
17 Waitangi Tribunal Tāmaki Makaurau Settlement Process Report (Leglislation Direct, Wellington,. 2006) at 104-106.
18 Ibid, at 86-99.
And, as part of getting to the Agreement in Principle, a third document has
also been produced that backs that status - the Agreed
Historical Account. The
painstaking development of that agreed account between the Crown and Ngāti
Whātua o Ōrākei
details what has happened in dealings between the
Crown and our hapu since 1840. 19
It is important to point out that the second Ōrākei decision of the
Native Land Court was about the ownership of the 700
acre block at
Ōrākei and not the entire isthmus. The Waitangi Tribunal’s
Ōrākei report was about Ngāti
Whātua’s treaty claims
over the same 700 acre block and not about their interests in the isthmus. The
Crown insists that
the agreed historical account is not an assessment of custom
and yet, along with the Court’s decision and the tribunal’s
report,
is used by Mr Hawke to justify the trust board’s claim that Ngāti
Whātua o Ōrākei was the ‘dominant
tribe’ in central
Auckland. Decisions which exclude people always have ongoing implications for
those excluded and are frequently
used in different contexts for very different
purposes. The tribunal addressed this issue in dealing with the question of
predominance
in relation to the three maunga in its
findings:20
We do not know whether the interests of Ngāti Whātua o
Ōrākei in these three maunga are ‘predominant’
in relation
to the interests of others and, as we have said, we think this is the wrong
approach to adopt when there are multiple
interests in maunga. We do not think
that it has a basis in tikanga. It was plain on the evidence before us –
and available
also to the Office of Treaty Settlements – that, as regards
the three maunga, there are multiple interests. The interests are
multiple both
in number and in kind. This is a consequence of the intensive occupation of
Tāmaki Makaurau over the centuries,
and activity in different places over
that time. In situations like this, we believe that the grant of redress should
take into account
and reflect the multi-layered nature of these multiple
interests. It is true that, because the Treaty of Waitangi was signed in 1840,
breaches of the Treaty can only date from that time. Māori history did not
begin then, though, and in dealing with cultural
redress the Crown must confront
the reality of layers of interests accreting over centuries.
The findings in relation to the maunga are very strong as the Tribunal
believes the approach used by OTS to decide that such redress
is appropriate was
deeply flawed. In recognising the interests of only one group, the interests of
others can be ignored or denied
and so even proposing such redress in the
absence of early discussions with other groups was a mistake. The tribunal does
acknowledge
that there are other interests and does not dismiss them out of
hand. Indeed they find that ‘there are no maunga about which
it could
confidently be said that only one group has interests’ because interests
in all
19 ‘Contributing to future main aim’ (Guest Column, NZ Herald, Friday Dec 1, 2006).
20 Waitangi Tribunal, above, n. 16, at 105.
of them are layered. They specifically decline to make findings on what they
call the ‘relative strength’ of these interests
because
“[q]uite simply, we do not know enough”. They add, however, that
“[n]either does the Office of Treaty
Settlements”.21
In fact, the tribunal’s view is that the agreed historical account is
based less on rigorous historical method and more on finding
common ground
between what the Crown was prepared to concede and what the settling group were
willing to accept. The agreed historical
account was also informed by the
Crown’s approach to custom. Its method for dealing with custom was to have
unsupervised inexperienced
junior staff making significant decisions about
custom in secret. But what was most disturbing was the planned finality of the
decisions
taken once they were embodied in legislation. No provision was made
for future negotiations. In our evidence, we referred to the
last occasion where
the Crown tried to do something similar: Governor Browne’s decision to
exclude Wiremu Kingi from the Waitara
purchase.22 This led to war in
Taranaki in 1860 and, ever since, the Crown has delegated such matters to a
court or commission to investigate.
Whatever the limitations of the 19th century
Native Land Court, at least it provided the opportunity for kinship groups or
tribes
to participate in a usually open process and hear the evidence given by
competing kinship groups or tribes.
As I argued at the start of this paper, any resolution of competing claims
based on custom is always arbitrary and whether it is acceptable
to all groups
and provides a durable outcome is always dependent on their capacity to
participate in the decision-making process.
Such an approach can be found in
tikanga practised prior to colonisation. What I have also tried to show in this
paper is that there
are no external objective criteria against which claims to
land based on custom can be assessed. Relationships between kinship groups
and
tribes are always subject to negotiation over time and as power relations
between them change. It is up to them to find a solution
with the assistance of
the Crown (or a court) as any decision imposed from outside in the absence of
any group will not prove durable.
The Crown has modified its negotiation process since 2007 and taken steps to
adopt a more inclusive approach to shared customary interests
in Tāmaki
Makaurau. In February 2010, the Crown entered into a framework agreement with
iwi comprising the Tāmaki Collective
(Ngāi Tai ki Tāmaki,
Ngāti Maru, Ngāti Pāoa, Ngāti Tamaoho, Ngāti Whanaunga,
Ngāti Whātua
ō Ōrākei Māori
21 Ibid at 106.
22 Danny Keenan ‘Origins of War in North Taranaki’ in Kevin Day (ed) Contested Ground –
Te Whenua I Tohea: The Taranaki Wars 1860-1881 (Huia, Wellington, 2010) p 19-33, at
21-22.
Trust Board, Te Ākitai, Te Kawerau Iwi Tribal Authority and Te Rūnanga o Ngāti Whātua). Ngāti Tamaterā also signed this agreement on 18 June 2010. The agreement set out the terms on which the Crown would negotiate deeds of settlement with each iwi for the settlement of their historical treaty claims. It is particularly concerned with the return of maunga and the management of rights of first refusal over Crown land in the Auckland region. This process is still in progress with some of the iwi completing deeds of settlement during
2011 and others working in negotiation to reach deeds of settlement by the end of 2012.
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