Story: Te tango whenua – Māori land alienation
Page 1 – Land tenure and alienation
Māori land tenure and Pākehā law
Māori land tenure includes complex overlapping rights over both land and sea, with a number of methods of acquiring title. English common law recognises indigenous customary titles through aboriginal title, which means that customary tenures survive until the new sovereign power extinguishes them lawfully.
However, in New Zealand it was not clear whether the normal English law applied. Some judges and legal scholars believed that when the Crown gained sovereignty over New Zealand it also acquired full legal ownership of all land in the country – or of those areas regarded as ‘waste’. However, the practice of the New Zealand government was that Māori title extended over the whole country, and had to be extinguished – usually by purchase – before it could be granted to new settlers.
Today New Zealand courts clearly accept that the common law of aboriginal title is also part of New Zealand law. This accords with government practice over the course of New Zealand history.
Alienation of Māori land
Māori lost land to the Crown and private owners through a wide variety of methods. The dominant acquirer, by purchase or otherwise, was the Crown, even after the first Native Lands Acts were passed in 1862 and 1865, setting up the Native Land Court to investigate Māori land titles.
In the 2000s Māori land alienation is a central subject of investigation and reporting by the Waitangi Tribunal, and a major focus in the process of redressing historic grievances.