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Young, Dr Grant --- "Custom and the Native Land Court" [2011] NZYbkNZJur 16; (2010-2011) 13-14 Yearbook of New Zealand Jurisprudence 213

Last Updated: 25 April 2015



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.

  1. Waitangi Tribunal, The Tāmaki Makaurau Settlement Process Report (Waitangi Tribunal, Wellington, 2007).

2 Native Custom and Law Affecting Māori Land (Māori Purposes Fund Board, Wellington,


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.

  1. F D Fenton Native Land Court Important Judgments Delivered in the Compensation Court and Native Land Court 1866-1879 (H Brett, Auckland, 1878).
  2. Alexander Mackay Opinions of Various Authorities on Native Tenure (Government Printer, Wellington, 1890).

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


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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