Article: Book review: ‘Te Kooti Tango Whenua’ The Native Land Court

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14 September 1999 at 18:53:18 ‘Te Kooti Tango Whenua’ The Native Land Court 1864-1909 David V Williams. 1999 Huia Publishers. 390 pp This publication covers the period from the beginning of the working life of the Native Land Court until the major amendment of Native land legislation in 1909 under Ngata. It is not a detailed history of the land court in the period, but instead presents a historical/legal argument that the work of the land court amounted to “judicial raupatu” or confiscation every bit as injurious and Treaty breaching as “legislative raupatu” under the NZ Settlements Act 1863. Williams argues that acceptance of this argument by the Crown will ensure claimant groups do not have to enter into detailed research about the work of the court in each district, but simply compare the position of a tribe and its land holdings before the court with its current situation as a prima facie case for the claim. He notes the recent announcements in Crown policy which go some way towards this approach (see Mäori LR February 1999 p6). The two major points argued in the book are: * That the Native Land Acts were no less than an all out effort to relinquish Mäori of title to their lands, in the interests of European settlement. Williams reviews arguments that the court actually assisted Mäori, by defining title, arranges surveys of land etc. Unquestionably benefits were there, and Mäori leaders sought to use the system in a traditional way – but it simply was not adaptable in that fashion. Its fundamental purpose was to break up communal holdings and that purpose did not change. Williams examines the allegation that modern writers are attempting to impose late 20 century ideas and standards on the past. He rejects these sorts of approaches, referring to the comment of the Waitangi Tribunal in the Muriwhenua Land Report 1997 that the entire project of colonisation was a forward looking enterprise and could have contemplated and did contemplate the outcome. Williams says the focus should not be on those who did not sell, but on the fact that Crown always changed to the rules to ensure a ready supply of land. Holding on to ancestral land was not an option the Crown was willing to contemplate. * The land court was not truly an independent body, but actually an agent of the central government fulfilling its policy, and thus its actions were essentially actions of the Crown. The Crown policy was “control” of the land court. Williams notes a number of situations where the court itself did act independently, but the government and the judges liaised closely over policy and judges even suggested draft legislation. He cites many instances of the court granting applications to adjourn to allow the Crown to work further on purchase arrangements. Williams follows up these arguments in detail in subsequent chapters. Land court to land loss Williams first looks at the (often patchy) official statistics on Mäori land collected over the period. He notes that the fact that hundreds of thousands of acres are “missing” in the statistics reflects on the state of mind of the government in relation to Mäori land. In 1865 roughly 19 million acres of land were in Mäori ownership and control in the North Island. The land court process did not individualise land holdings in the sense of giving individuals areas to cultivate and built residences, but rather converted customary rights into negotiable paper. By 1909, all but around 1 million acres had passed through the land court and of that which had been through the court roughly 11 million had been alienated permanently and a further 3 million had passed and been leased to non-Mäori. Government policy was that such leases were a pre-cursor to eventual sale. Just 360,000 acres were recorded as actually in Mäori occupation and use. Land tenure revolution Williams next considers whether this wholesale conversion and land loss was a forseeable consequence of the work of the land court. He examines the policy and events behind the passing of the Native Lands Act 1862, and subsequent acts and the many statements about the intended operation of the acts and the court. He argues that the policy of displacing Mäori from their land was clear and consistent. The progressive removal of restrictions on alienation can also be seen in this light. William’s disputes the view of Richard Boast that the native land acts were not intended to destroy Mäori society and were viewed by Päkehä politicians as an urgent but regrettable necessity to advance settlement. He prefers Judith Binney’s view that the Native Lands Act 1865 was an “act of war”. While the native land legislation were in their strict words permissive and seemed to make entry to the system of title conversion voluntary, they were in fact compulsory for most Mäori, since an application by any one person forced a whole hapu or whanau in the process. Practically the court could not be avoided. The Crown was aware that that was the intention and operation. In the Mäori Land Settlement Act 1905 the policy was made overt. The Act empowered the Native Minister to initiate an investigation of title to remaining customary land, on the basis that some Mäori were deliberately “avoiding” the court. Williams says that he is not arguing that individual Crown officials did not act in good faith, but rather that the impact of their policies was in practice a breach of the Treaty of Waitangi. In addition, it was not as if the Crown were not aware that there was an alternative approach. Many chiefs expressed a willingness to have titles defined in terms of English law, but through a system managed by Mäori, usually by committees established in each district, and with tribal control to be maintained. The Crown had direct knowledge of Mäori discontent through hundreds of petitions each year expressing Mäori concerns about the effect of the court operations, as well as through various commissions which reported on the shortcomings of the legislation. The Crown failed to undertake any substantive reforms to protect Mäori interests along the lines suggested in reports from such commissions. Those few reforms which were undertaken were quickly overcome. The overarching policy, to get land before the court so that it could be sold and opened up for settlement, was openly and candidly admitted and pursued. Early policies Williams next looks at policies which prepared the way for the 1862 legislation. He examines the origin of Crown policy towards Mäori land which resulted in the creation of the native land court process. The Colonial Office instructions to Hobson in 1839 required that in any land purchases the government must be conducted in a manner which allowed Mäori to retain sufficient for their present needs and an endowment for future needs. Only excess lands were to be purchased. The notion that the Crown would have the exclusive right to purchase was foreshadowed in the instructions – although it is not stated clearly in the Treaty of Waitangi. At a deeper level however, the Crown assumed that it had the radical title to the soil and the Treaty was intended to confirm this, but Williams argues that one could equally argue that the Treaty confirmed Mäori radical title to the soil. The Crown assumption of radical title was inconsistent with the way in which Mäori related to the soil, and in discussions surrounding the Treaty it was made clear that Mäori customs were to be protected. Consequently, the assumptions underlying the jurisdiction of the Native Land Court are open to challenge. In addition, since the English Laws Act 1858 imported English law only “so far as applicable to the circumstances of the colony”, arguably the doctrine of tenure did not apply in NZ. In fact, the Crown considered that it had promised too much in the Treaty and under Governor Grey large-scale Crown purchasing occurred to rapidly extinguish Mäori title. It was only when that policy faltered and war broke out that the government swung in the opposite direction, abandoning its policy of exclusive pre-emption and cast about for “any prudent plan for the individualisation of Native Title” and purchase directly by settlers. Engine of destruction Williams then examines the operation of the native land legislation in practice. He notes: * The legislation was confusing. A large number of amendments were passed. In 1888, eight acts were passed dealing with the land court and Mäori land, 9 in 1889. * Purchasers, in particular Crown purchasers, developed the practice of making initial monetary payments to individuals to generate debt and force them to bring land before the Court. This practice was known variously around the country as tamana, raihana, takoha. Crown purchase officers acknowledged that it was used on occasion in a deliberate attempt to break up tribal efforts to prevent sales. * The power in the land court lay with the judges. The legislation provided for Mäori assessors to sit with the judges, but these had no power and were ignored. The court had discretion to appoint a Mäori jury, but this discretion was used only on one or two rare occasions. * Judges were selected on the basis of contact with and knowledge of the Mäori language and previous government service. Initially, only the chief judge was legally qualified. The judges held their positions basically at the pleasure of the government. Williams considers that they were actually Crown officials. The 1865 legislation allowed for land to be vested in tribes. But this rarely happened as the court insisted on ten names only per block. Mäori were invited to arrange among themselves who would represent the interests of the group as a whole. Consequently, the court issued absolute title to a few with the full knowledge that they in fact represented many owners. The court was basically issuing false certificates since these people were not the “owners according to native custom” as the legislation required. Only from 1873 did the legislation permit the court to give effect to voluntary arrangements. Williams argues that statistics support the view that, until 1873 when all persons with an interest were named in the title, the ten-owner rule seems to have prevented the alienation of some lands ie the ten owners took their trust seriously in many cases. Williams notes how the “Famous Five” first bench of the land court, Fenton, Rogan, Monro, Smith and Maning, frustrated the intentions of legislation which was designed to give some protection to Mäori interests, promoting the line that, in all cases, Mäori customary title should be extinguished and converted to a Crown title as soon as possible. The land court also made the “utterly arbitrary” determination in 1867 that, when a person died intestate, their interests should be divided equally among all their children (the Papakura decision). This decision led directly to the extreme fragmentation of Mäori landholdings which continues to plague the management of Mäori land today. The land court also created the “1840 rule”, that customary ownership should be based on a determination of the owners at the fixed date of 1840. Williams argues that this rule and an over-emphasis on conquest (take raupatu) as the source of title, significantly distorted the Mäori customary basis of ownership. This problem continues in present day decisions about tribal boundaries. Williams examines the excessive costs of court hearings. Court sitting fees and land survey costs (and any interest accruing) were all chargeable to the lands under investigation. Fees fell as much on those who were responding to an application to investigate title as on those who first applied for the investigation. There were many instances of hearings adjourned because those attending were without food. Hearings limited the time available for planting crops. Deaths were commonly reported in association with the poor accommodation and conditions experienced by people when they attended court for lengthy investigations. The legislation allowed up to 5% of any block passed through the court to be taken for roading. Compensation was payable only where actual residences and cultivations were directly affected. Protection mechanisms In the face of all this, the protective mechanisms provided in the legislation were largely ineffective. In addition, Mäori were not interested in them, since they deprived them of the ability to deal with their basic capital for development. But, in contrast to Päkehä farmers, Mäori got no assistance to develop their lands until the 1920s. And the Crown would never allow what Mäori consistently asked for, the legal ability for hapu and iwi to manage land issues in each district. While the early legislation required the land court to inquire whether Mäori retained “amply sufficient” land before approving land sales, in subsequent years this became “sufficient” and, by 1909, simply whether a Mäori would be rendered “landless” by a sale. In fact very few if any purchases were invalidated on this ground. At the same time that such ineffective mechanisms were in place, the government used very aggressive measures to secure land purchases, including providing money to enable Mäori to pay for tangi expenses, and then claiming the loan back in shares in land. There were efforts around the turn of the century to respond to Mäori complaints, culminating in the Mäori Lands Administration Act 1900 which for a brief period allowing owners to voluntarily vest their lands in a land council made up of a majority of Mäori owners. However that initiative lasted just 5 years and control was effectively returned to the Crown and the land court in 1905, because it was said that Mäori were “keeping back from settlement valuable lands”. From grievance to resolution In his conclusion, Williams suggests that, on the basis of his study, it should be unnecessary for claimant groups to prove how the land court affected them specifically in each case, and simply present a general report on the area of lands lost to the tribe through the land court process. He argues that in many respects the land court was not a normal court separate from the Crown, but very much a statutory agent of the Crown carrying the Crown policies into effect. While the Waitangi Tribunal has found that, strictly speaking, decisions of the Native Land Court are not actually decisions of the Crown, the Crown is obliged to make up any breaches of Treaty principles which may have resulted from decisions of the land court. He notes the recent government announcement that it accepts that many actions taken under the Native Land Acts could have been in breach of the Treaty and claimant groups may enter into negotiations without establishing breaches in detail. However, the policy hints that the effects of the land court will be seen as less serious than confiscations, although the Crown has said it will consider the seriousness of the breach in each case. In writing the book Williams says he is “hoping to encourage politicians, Crown officials and a significant number of informed observers of the Waitangi Tribunal process to move away from defensive manoeuvres, or procrastination, or denying the merits of claims relating to the impact of the Native Land Court system on Mäori.” Copyright The Maori Law Review 1999 Tom Bennion

Copyright 1999 Victoria University of Wellington