There are three types of land ownership in New Zealand:
The Māori Land Court is an institution that appears to have no parallel in any other country.
The original Māori system of land ownership was quite different from that of European settlers. Māori believed they belonged to the land, rather than that the land belonged to them. Their rights to occupy and use their tribal lands were held not individually, but collectively by all members of a hapū or iwi.
From the first days of European settlement in New Zealand, there was a huge demand for the land owned by Māori, which amounted to about 27 million hectares. The English-language version of the 1840 Treaty of Waitangi gave the Crown an exclusive right to buy Māori land (known as the ‘right of pre-emption’). The Crown then resold this land at a higher price to individuals, to fund and promote European settlement. In this way, by 1860 almost the entire South Island had passed out of Māori hands and the total amount of Māori land had decreased by almost half, to 14 million hectares. About 75% of the 11-million-hectare North Island was owned by Māori.
The Crown’s right of pre-emption lasted until 1863. Māori land could then be bought directly by individuals. To simplify this process, the Native Lands Act 1862 introduced a system of property rights requiring Māori to prove legal ownership of their ancestral lands. These lands were surveyed and the legal owners were issued with certificates of title. The purpose was to convert Māori customary title as ‘nearly as possible to the ownership of land according to British law’.1 Under this act, the Māori owners had the right to dispose of their land ‘to any person or persons whomsoever’.2
Section 4 of the Native Lands Act 1862 authorised the governor to set up a court:
for the purpose of ascertaining and declaring who according to Native Custom are the proprietors of any Native Lands and the estate or interest held in them therein, and for the purpose of granting to such proprietors Certificates of their title to such lands.3
The first of these courts was set up in April 1864 in the Kaipara district. Others opened elsewhere in Northland later that year. These early courts included local rangatira serving as judges alongside European magistrates.
To obtain title to their land Māori had to appear before the Native Land Court and prove their rights to it. They gave whakapapa, named their hapū, and identified boundary markers, geographical features, mountains, rivers, streams, bird-snaring areas, fishing grounds, cultivations, battle sites, pā sites, meeting houses, urupā (burial grounds), areas of traditional significance, pā tuna (eel weirs), bathing places and places where cloaks were washed. They related their histories and mōteatea (traditional chants) – all the information that proved that they had occupied and used the land for a long period and knew it well. This process of obtaining title meant that the boundaries of lands became fixed. The older practice of one or more tribes or hapū occupying different lands in different seasons to harvest shellfish or other resources decreased or stopped altogether.
The Native Land Court became a permanent and formal court of record when the Native Lands Act 1862 was replaced by the Native Lands Act 1865. This act was designed by Francis Dart Fenton, who became the first chief judge of the Native Land Court. In December 1864 a new system of Native Land Courts covering the entire colony was introduced. In each of these courts judgements were made by a presiding judge and two Māori assessors.
Francis Fenton, the first chief judge of the Native Land Court, spoke Māori fluently and published his writings on traditional Māori history. After the first auctions of Rotorua land in 1880, the Bay of Plenty Times reported that ‘a disturbance was observable at one end of the room … it was Fenton, the Chief Judge … in an ecstasy of delight performing a haka with two old Rotorua savages, one a hunchback. The ecstasy of the trio arose from the success of the Rotorua scheme, and the prospect of manipulating [£]2,700 odd per annum.’1
The 1865 act was very similar to the 1862 act it replaced. However, the new law stated that land titles issued by the court could list no more than 10 owners. If the land block was larger than 5,000 acres (2,023 hectares) its title could theoretically be issued in the name of the tribe, but in practice this apparently never occurred. By mid-1872 the Native Land Courts had issued titles to more than 2 million hectares of land, almost all of it in the Auckland, Wellington and Hawke’s Bay districts. All of this land was sold under the 10-owners rule.
Following the New Zealand wars of the 1860s, the Native Land Court was involved in the confiscation of Māori land. The courts were given specific powers to investigate the claims of ‘rebel’ and ‘non-rebel’ landowners. Land owned by ‘rebels’ was deemed to be Crown land.
In an 1867 test case, Chief Judge Fenton set a precedent for making succession orders in the Native Land Court. Ihāka Takaanini, a rangatira of Papakura, had died in 1864 intestate (without making a will). His three children disputed with tribal representatives over ownership of a block of his land. Fenton ruled that in cases of intestacy an undivided share in Māori freehold land would pass to the grantee’s children in equal shares.
The Native Land Court became known as ‘te kōti tango whenua’ (the land-taking court) because it provided the means for transferring most of the land belonging to Māori out of their ownership. The term ‘te kōti tango whenua’ was first used in 1867 by a Crown agent, Captain Reginald Biggs, who encouraged tribal owners in the East Coast region to place large blocks of land before the court. Although historians disagree about the precise role of the Native Land Court in the alienation of Māori land, it undoubtedly brought profound changes to Māori society.
By 1873 the development of European settlement in the North Island was lagging behind the South Island, due to the ravages of warfare and the lack of gold rushes and ensuing economic benefits. The Crown chose to promote further settlement – and hoped to avoid the chaos that resulted from uncontrolled private land sales – by returning to buying land directly from Māori. The existing Māori land law had given rise to a repudiation movement by Hawke’s Bay chiefs who wished to cancel sales, return the money and reclaim the land. A commission of enquiry was held into forced sales in the Hawke’s Bay area, where Māori sellers had been paid with goods, or by settlement of earlier debts, instead of cash. The findings of this commission resulted in legislation entirely revising the system of Māori land sales.
The Native Lands Act 1873 laid the pattern for the system of Māori land tenure in use today. The act abolished the 10-owner rule and required the Native Land Court to list all the owners of a block in a memorial of title, as ‘tenants in common’. Those individual owners could pass their shares on to their successors, and if they died without making a will, their shares were divided equally among their children. Under this system, Māori land titles inevitably became crowded with numerous owners.
Under the 1873 act it became more difficult and expensive to buy Māori land since all sellers first had to be identified. If necessary a block was split into portions representing those willing to sell and the ‘non-sellers’. Donald McLean, the native minister primarily responsible for the act, expected it would help Māori retain their land, but in practice the eagerness of the buyers overwhelmed the reluctance of the sellers.
Hearings of the Native Land Court were notoriously complex, lengthy and expensive. The court could only investigate blocks after they had been surveyed, and the survey costs were met by the Māori owners. Often 20% or more of the value of a block was consumed by its survey costs. The claimants then had to attend court sittings where they were prey to ‘a predatory horde of storekeepers, grog-sellers, surveyors, lawyers, land-agents and money-lenders’.1 Court sittings sometimes lasted for months, resulting in additional court costs and legal fees, as well as travel and accommodation costs for the landowners and competing claimants. At a sitting at Cambridge in the Waikato in 1882, ‘[t]he expenses were so great that the value of the land was absorbed in the outlay incurred attending the sittings of the Court.’2
Māori grew deeply alarmed at the actions of the court and between 1880 and 1890 they submitted a huge number of petitions on this subject to the House of Representatives.
Sittings of the Native Land Court often resulted in drunkenness and other social problems. A Rotorua minister told a government commission in 1898, ‘Whenever the Natives had their land purchased … it was a scene of continual orgies until the money was spent. They would go up to the hotels and buy liquor in quantities, drinking to excess, which led to frequent accidents, some of which were fatal.’3 During court sittings in the King Country, ‘drunken Maori women and girls are a common sight there; and the results generally … are most deplorable.’4
One reason for the many long and expensive Native Land Court hearings was the complexity of Māori land law. Successive governments passed and amended a huge number of laws dealing with Māori land and the Native Land Court – eight in 1888 alone, and nine in 1889. In total, between 1865 and 1909 about 560 acts dealing with Māori land were passed.
The law became so complex, and dealings in land so confused and tainted by claims of dishonesty, that in 1891 the government set up a commission to enquire into ‘Native land law, the alienation of interests in Native land, and the Native Land Courts’.5 The commission was also asked to establish principles for the administration of Māori land that would promote settlement. It became known as the Rees–Carroll Commission after its commissioners, lawyer and politician William Lee Rees and Māori politician James Carroll.
The main remedies recommended by the commission were:
Few of the commission’s other recommendations were implemented, mainly because they were inconsistent with government policy to open up Māori land for European settlement.
The Native Land Court Act 1894 was one of several laws making it easier to buy Māori land. It set up a specialist appeals court and restored the Crown’s right of pre-emption, a right which lasted until 1909. However, the Crown already purchased most large blocks of Māori land, and in other cases the pre-emption clause was routinely waived.
By the early 20th century about 2 million hectares of land remained in Māori ownership. Māori leaders repeatedly petitioned Parliament to take action to protect their people from landlessness, and to make better use of Māori land regarded as unoccupied and unproductive. James Carroll, native minister from 1899, tried with little success to slow the rate of Māori land loss under what was known as the ‘taihoa’ (wait a bit) policy.
Carroll’s attempts to reserve remaining land for Māori included the Maori Land Administration Act 1900. This established a Māori Land Administration Department and several Māori Land Councils. The councils were empowered to recognise specific areas of Māori land as papakāinga blocks, which could never be sold. A combination of inadequate financial resources, unwillingness on the part of Māori to commit their land to the councils and settler impatience with a system that slowed their access to Māori land led to the councils ceasing operations within five years.
The complexities and inequity of the law governing the Native Land Court are shown by the sale of Tūtira, a hill-country block north of Napier. This land, belonging to a hapū of Ngāti Kahungunu, was leased to Herbert Guthrie-Smith (who later wrote Tutira, a famous account of his efforts to develop the property). The owners offered the land to the Crown in 1917 but the sale was not completed until 1941. Owners unwilling to sell their shares not only did not benefit from their land, they also had to pay major surveying costs.
The Maori Land Settlement Act 1905 replaced the Māori Land Councils with seven Māori Land Boards, each consisting of a president and two other appointed members, at least one of them Māori. Māori could voluntarily vest their lands in these boards, which operated only in the North Island. If owners were in arrears with their rates, or their land was infested with noxious weeds, the Crown could compulsorily vest their lands in the land boards. Land that was considered ‘surplus’ (not required or suitable for occupation by its owners) could also be compulsorily vested. The land boards administered the lands on behalf of the owners, and could lease out blocks for up to 50 years. They also oversaw the sale of more than 930,000 hectares of Māori land in the following 20 years.
As board members were usually the judge and registrar of the local Native Land Court, the courts took on administrative as well as judicial functions in regard to Māori land. The land boards formed an administrative arm of the Native Land Court until 1952, when their functions were transferred to the Māori Trustee.
The Native Land Act 1909 consolidated a complex mix of legislation into one comprehensive law. The act prevented the Crown from buying Māori land unless a meeting of all owners had agreed to accept the Crown’s offer. Crown pre-emption was again removed. The Native Land Court was empowered to set up consolidation schemes to regroup adjacent blocks of land into larger blocks, which were often then sold to the Crown. The jurisdiction of the court was extended to include social functions such as:
This act did little to restrict Crown purchases of Māori land, and over 800,000 more hectares, almost all in the North Island, were sold in the following 14 years.
A 1920 survey showed that only about 19 acres (7.6 hectares) of Māori land remained for each of the 49,000 North Island Māori. From this period the government showed less interest in buying remaining Māori land, and more concern that impoverished Māori should not be a burden on the state. The Native Land Court moved away from its role as a ‘land-taking court’, and instead made greater efforts to help Māori develop their remaining lands. A Native Trustee was established to loan money to individual Māori for this purpose. Under the influence of Sir Apirana Ngata, the Native Trustee funded a series of large land-development schemes in rural areas.
The Native Land Court became the Māori Land Court under the Maori Purposes Act 1947, which required that the term ‘Māori’ should replace ‘native’ in any official context. In 1952 the Māori Trustee assumed the functions of the Māori Land Boards.
The Maori Affairs Act 1953 defined three types of Māori land – customary, freehold and reserve land. Most controversially, it gave the Māori Land Court the power to vest Māori freehold land valued at less than £25 in the Māori Trustee. The act also tried to improve the use and development of Māori land by allowing some flexibility in land management, such as through trusts. It remained the governing legislation for Māori land for 40 years.
A committee of inquiry chaired by former Chief Māori Land Court Judge Ivor Pritchard reviewed the power and jurisdiction of the court in 1967. Many of its recommendations were incorporated in the Maori Affairs Amendment Act 1967. Māori opposition to the compulsory acquisition of ‘uneconomic interests’ (land blocks worth less than $50) and provision to convert Māori land with fewer than five owners to general land led to the act’s replacement by the Maori Affairs Amendment Act 1974.
In 1978 another commission of inquiry, chaired by Sir Thaddeus McCarthy, inquired into the structure and operation of the Māori Land Court and Māori Appellate Court. Its 1980 report recommended that both courts should operate without major changes until Māori lands were adequately recorded in District Land Registries. The courts’ judicial functions should then be taken over by general courts and their land administration functions by the Department of Māori Affairs and bodies such as the Māori Land Board and Māori Land Advisory Committees. The McCarthy Commission noted the complexity of the Maori Affairs Act 1953 and advised that a complete revision of the law governing Māori affairs was necessary.
From the 1970s Māori issues, including Māori land legislation, became much more prominent in New Zealand’s political life. A shift in political attitudes to focus on preventing further sales of Māori land led to the revision of Māori land law proposed by the 1978 McCarthy Commission. The resulting legislation, Te Ture Whenua Maori (Maori Land Act) 1993, was the first piece of Māori land legislation to include a reference to the Treaty of Waitangi. Its preamble acknowledged the special relationship between the Māori people and the Crown established by the treaty, affirmed that it is desirable to recognise that land is a taonga tuku iho (treasure handed down) of special significance to Māori people, and promoted retention, occupation, development, and use of land for the benefit of its owners, their whānau and their hapū.
Since 1993 the objectives of the Māori Land Court have been quite different from the Native Land Court of the 19th and early 20th centuries. In the past the court facilitated the transfer of land from Māori ownership. Since then its primary objectives have been to:
All Māori land transactions must go through the Māori Land Court. Māori land generally has a lesser monetary value than land in general title because it can only be sold to a very restricted number of potential purchasers. The intent is to keep Māori lands within the ownership of the hapū associated with the land. The court also has jurisdiction to hear cases under the Maori Fisheries Act 2004, the Maori Commercial Aquaculture Claims Settlement Act 2004 and several other statutes.
The Māori Land Court maintains the records of title and ownership information relating to Māori land. These records, particularly the early minute books, contain a wealth of unique information of great interest for historians, Māori-language students and researchers.
The court makes occupation orders enabling an owner to build a home upon ancestral land without having to obtain a separate title to part of the block. It must consider whether other owners support an occupation order, the best use of the land and the effect of the occupation order on other owners. This is one way that Māori may make good use of land while retaining it in multiple ownership.
In the 2000s the Māori Land Court retains jurisdiction over many social aspects of Māori life. Marae are generally built on Māori reservations, and the court regulates the trusts and trustees that govern these marae. With regard to Māori land trusts or incorporations, the Land Court regulates matters such as shareholdings, dividends, appointment of valuers and auditors, accounts and balance sheets.
The court also has the jurisdiction to advise upon or determine representation of Māori groups. It can be asked to advise on the most appropriate representatives of a group of Māori for the purposes of negotiations, consultations, allocations of property or other matters. The court is also empowered to determine the appropriate kaitiaki (guardians) of taonga tūturu (precious artefacts that have been recently discovered).
Although many Māori no longer have contact with their ancestral land, the Māori Land Court remains a highly significant institution to the Māori people.
Asher, George, and David Naulls. Maori land. Wellington: New Zealand Planning Council, 1987.
Boast, Richard. Buying the land, selling the land: governments and Māori land in the North Island. Wellington: Victoria University Press, 2008.
Boast, Richard, and others. Māori land law. Wellington: LexisNexis, 2004.
Loveridge, Donald M. Maori land councils and Maori land boards: a historical overview, 1900 to 1952. Wellington: Waitangi Tribunal, 1996.
Ward, Alan. A show of justice: racial ‘amalgamation’ in nineteenth century New Zealand. Auckland: Auckland University Press, 1995.
Williams, David V. ‘Te kooti tango whenua’: The Native Land Court 1864–1909. Wellington: Huia, 1999.