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MAL97

Maori Land - what every practitioner needs to know

NZ $30.00
incl GST
Author(s): Russell Feist, Gina Rudland, His Honour Judge Smith
Published: 5 May, 1997
Pages: 60


   

Introduction


By way of introduction it is proposed to traverse briefly the origins and history of the MLC.

As a result of pressures brought to bear upon the government of the day by disaffected would-be settlers seeking land, and through difficulties experienced by the Government in affecting purchase of land culminating in all out warfare following the Waitara purchase in 1860, the Native Land Act was passed in 1862. The function of the court constituted by that Act and presided over by European Magistrates, was to determine who was the customary occupier of any particular land and then issue certificates of title in favour of the “tribe, community or individuals whose titles shall have been ascertained, defined and registered”. The Act also provided that the persons named in the certificate of title may dispose of lands described in the title by way of absolute sale or lease or by way of exchange to any person or persons whomsoever.

It was not until the Native Land Act 1865 that the MLC as we know it today was established. Again the chief purpose of the Act was to establish a system of ownership of Native lands and substitute “titles derived from the Crown” for the existing customary or communal occupation by Maori then in force. Such would facilitate the purchase of land for settlement.

The 1865 Act provided for the appointment of judges to exercise jurisdiction under the Act. It is perhaps pertinent to note that since the constitution of the MLC under that Act in 1865, there have only been a total of 95 judges appointed to that bench. During the formative years of the MLC not all of those appointed to the bench came from legal backgrounds and the judges were selected on the basis of their background skills in dealing with Maori. As a result the array of judges included teachers and linguists, such as Sir Walter Buller: writers of the ilk of Frederick Manning: surveyors and explorers such as Charles Heaphy, and a farmer by the name of William Gilbert Mair a family name frequently appearing in the current press in relation to Maori land disputes.

Section 7(2) of “the Act” provides that the number of Judges in the MLC shall not at any time exceed eight.

The 1865 Act provided for Maori Assessors to counsel and advise the judges during hearings, and the provision for assessors continued, particularly in respect to title matters and partitioning of land, until 1894. Thereafter, although the provision for assessors remained, their use was discretionary until they were finally abolished by the 1953 Maori Affairs Act. “The Act” has, however, reintroduced the system in the form of non-judicial “additional members” to the court. Their attendance is mandatory in applications to determine the appropriate representatives of Maori (s 30) and in matters relating to Tikanga Maori (Maori custom) s 32. Other sections of the Act, s 29 (reference to the court by the Minister, Chief Judge or Chief Executive) and s 61 (case stated from the High Court to the Maori Appellate Court) provide a discretion for the use of additional members.

New Zealand is divided into seven Maori land districts each with its own registry and these are Taitokerau at Whangarei; Waikato-Maniapoto at Hamilton; Waiariki at Rotorua; Tairawhiti at Gisborne; Takitimu at Hastings; Aotea at Wanganui and Te Waipounamu at Christchurch. Court sittings are held regularly at various venues within each of the districts and in accordance with the MLC Rules 1994 the dates for sittings are gazetted annually. Particulars of times and places of hearings are available from the respective registries.

In the late 1860s, because of the existence of the new titles, and the creation of the ability of the owners of the land to deal with the land, the Crown waived its pre-emptive right of purchase established under the Treaty of Waitangi, and the settlers and land developers were able to deal directly with the Maori owners. The result was far from satisfactory in that in some instances, persons holding land from the Crown as trustees for the hapu sold the land without consultation with others having rights in the land and appropriated the proceeds to their own use. This led to the passing of the Native Land Fraud Prevention Act of 1870, intended to confer on Maori, protection in their land dealings with Europeans. Under the provisions of that Act all alienations of Maori land by Maori found to be contrary to equity or in consideration of the supply of liquor, arms or ammunition, or which produced a result whereby insufficient land remained for the adequate support of the owners alienating, were invalidated. Trust Commissioners were appointed to oversee alienations of land by Maori to prevent improvident and fraudulent dealings. This legislation appeared to be a genuine attempt on the part of the legislature to protect Maori from exploitation by settlers.

Whilst the desire to protect the Maori landowners from exploitation by exercising control of the sales may have been admirable in principle the continuation of the policy of Europeanising the titles to the land was clearly not in the interests of Maori as a whole. Prior to the coming of the English colonists lands were occupied by the Maori people in a tribal or communal sense. The boundaries of each tribal area, though not defined with any accuracy of survey necessary under English law, were nevertheless known to each tribe sufficiently well to prevent encroachment by other tribal groups. Within the tribe there was no individual personal tenure of the tribal land other than was necessary for cultivation and food supply. A family group (whanau) could enclose an area and this group had undisturbed right to occupy it. Each tribe was socially and politically independent and at times hostile to other tribes. Nevertheless, as Judge Norman Smith “the first” commented in his book entitled Maori Land Law, that if we look back in retrospect there is no doubt that the individualisation of Maori lands has been a major factor in the breakdown of the Maori social system and in the gradual adulteration of the communal idea of ownership which had long since been left behind under the English system.

Perhaps the kaupapa, or principle, behind the Native Land Act is best expressed in the words of the Honourable Henry Sewell who when introducing the Native Land Fraud Prevention Bill said:
The objective to the Native Lands Act was twofold: to bring the great bulk of the lands in the northern island which belonged to the Maori and which, before passing of that Act were extra commercium - except through the means of the old purchase system, which had entirely broken down, within the reach of colonisation. The other great object was the detribalisation of the Maori - to destroy - if it were possible, the principle of communism which ran through the whole of their institutions and upon which their social system was based, and which stood as a barrier in the way of all attempts to amalgamate the Maori race into a social and political system. It was hoped by the individualisation of titles to land giving them the same individual ownership which we ourselves possessed, they would loose their communistic character and that their social status would become assimilated to our own.
The trust commissioners established under the 1870 Act exercised their supervisory role over alienations of Maori land until 1894 when by the Native Land Court Act of that year the jurisdiction reverted back to the MLC.

The Stout-Ngata Commission of 1907, in reviewing the position relating to alienations of Maori land, recommended that Maori Land Boards should be given power to exercise control and management of Maori land and confirm alienations. From that date until 1932 the jurisdiction to confirm alienations of Maori land was vested in the Maori Land Boards. The Native Land Act of 1931 restored the jurisdiction to the MLC once again.

Over the years the law relating to Maori land and the jurisdiction of the MLC has been altered and extended by many Acts, the major legislation being in 1908, 1931, 1953, 1967 culminating in the current “the Act”, which came into effect on the 1st July 1993 and which was some 12 years in the making.

The kaupapa or principle behind the current Act could be said to have turned full circle when one compares the wording of the preamble to the 1862 Act expressed by the Honourable Henry Sewell, to the preamble to the 1993 Act which states:
Whereas the Treaty of Waitangi established the special relationship between the Maori people and the Crown: And whereas it is desirable that the spirit of the exchange of kawanatanga for the protection of rangatiratanga embodied in the Treaty of Waitangi be reaffirmed: And whereas it is desirable to recognise that land is a taonga tuku iho of special significance to the people and, for that reason, to promote the retention of that land in the hands of its owners, their whanau, and their hapu: and to facilitate the occupation, development and utilisation of that land for the benefit of its owners, their whanau, and their hapu: And whereas it is desirable to maintain a court and to establish mechanisms to assist the Maori people to achieve the implementation of these principles: Be it therefore enacted by the Parliament of New Zealand.
The current Act came into effect.

Section 2 of “the Act” imposes a duty on the MLC in exercising its jurisdiction, powers and discretions under the Act to interpret the Act “in a manner that best furthers the principles set out in the preamble” to the Act.

The current Act contains a number of provisions designed specifically to preserve Maori freehold land in the hands of the owners, their whanau or hapu. The most notable of these is the right of first refusal granted to those persons falling within the preferred class of alienees as defined in s 4 of the Act namely:
(i) Children and remoter issue of the alienating owner.
(ii) Whanaunga (blood relatives) of the alienating owner who are associated in accordance with tikanga Maori (Maori custom) with the land.
(iii) Other beneficial owner of the land who are members of the hapu associated with the land.
(iv) Trustees of those persons.
(v) Descendants of any former owner who is or was a member of the hapu associated with the land.
A further protection is afforded by the manner in which the status of Maori land is preserved. Under “the 1953 Act” Maori freehold land was defined as land, other than General land, owned wholly or in part by Maori. Section 2(2)(f) of that Act provided that where the legal fee simple in Maori land is transferred otherwise than by order of the court, except where it appears on the face of the instrument of transfer that the lands should remain Maori freehold land, the land is deemed to be General land. On the basis of that definition, land acquired by non-Maori, ceased to be Maori freehold land, and even when land was transferred by way of transfer to a Maori the status of the land was deemed to be General land. Section 129 of “the Act”, however, provides that all land shall have the status applying at the date of the commencement of the Act and shall not change otherwise then by order of the court. Ownership by a Maori is no longer a prerequisite for land to hold the status of Maori land nor does the transfer for Maori freehold land to a non-Maori change the status which remains Maori land until such time as an application is made to the court and the court makes the appropriate order. Maori land is now defined as land, the beneficial ownership of which has been determined by the MLC by freehold order. These provisions and the manner in which they are to be applied throughout “the Act” go a long way to ensure retention of Maori land in the hands of the owners.

In dealings before the MLC it has been notable that many of the older practitioners who like myself would not have had the opportunity of learning of Maori land during their University years have shown a marked reluctance to take instructions on Maori land matters or appear in the MLC. For many practitioners the MLC appears as an ogre which gobbles up ones time with little financial return and to be avoided at all costs. In the days, not so long ago, when the Court sat three monthly, delays in processing applications through the MLC were the norm, but with the introduction in the mid-1980s of regular monthly hearings with scheduled fixtures the practitioners time can be more profitably apportioned and delays in the MLC have largely been obviated. The current Business Process Reorganisation taking place within the MLC, which, hopefully will soon include the provision of full information technology resources, will produce even more time-saving in dealings with the court.

The forum provided by the MLC is decidedly less formal than that prevailing in most other jurisdictions, and because of the inquisitorial function imposed on the court, proceedings can be carried on with a minimum of formality and without the proliferation of paper in the form of memoranda, statements of claim, counterclaim and defence, and interrogatories existing in some of the other jurisdictions. For any practitioner who is not familiar with the workings of the court, a brief visit to the MLC while in session will immediately allay any misconception or fears as to any complexity of the proceedings.

Whilst knowledge of “the Act” is necessary, for anyone who aspires to work in this field, there are a number of regulations relating to diverse sections of the Act which one must also refer to. These comprise the MLC Fees Regulations 1993, MLC Rules 1994, The Maori Reservation Regulations 1994, The Maori Incorporation Constitution Regulations 1994, The Occupation Orders Regulations 1994 and the Assembled Owners Regulations 1995. All are quite specific to the particular subject matter and easy to follow. The MLC Rules 1994 present a useful tool in dealings before the MLC insofar as the forms appended at the end of the Rules provided a ready reference to the sections of the Act or any regulations which may be appropriate to the matter in hand.

If there is a problem in accessing the statutes relating to Maori land it is brought about by the legislature’s constant use of Maori Purposes Acts to bring about amendments to Acts relating to Maori land. These Maori Purposes Acts may contain legislation relating to Maori Trust Boards, Maori Trustee or Maori Reserved Lands or a variety of matters but quite often include amendments to the Maori Land Act. Fortunately all amendments to date to “the Act” have been affected through amending Acts under the name of the parent Act although there are two amendments pending at the time this paper is going print which will be included in a Maori Purposes Act of 1996. This should not, however, present a problem if one is working from a statute which is annotated regularly.

Appeals from decisions of the MLC are to the Maori Appellate Court the coram of which comprises at least three Judges from the MLC bench, with a right of appeal from the Maori Appellate Court to the Privy Council.

In addition, the Chief Judge of the MLC exercises a quasi appeal jurisdiction in terms of s44 of the Act where it is proved to his satisfaction that there has been an error on the part of the court in making the order complained of or in the presentation of the evidence to the court. The Chief Judge may exercise this jurisdiction to revoke or vary any order despite the provisions of s 77 which provides that orders affecting Maori land are conclusive after 10 years and may not be annulled, quashed or disturbed or held to be invoked by any court.

This paper is intended to be a preparatory introduction to the MLC with a cursory commentary as to its history. Other aspects of the work and the functions of the court will be developed in other papers.

 

Content outline

  • An introduction to the Maori Land Court (MLC)
  • Maori Land - what is it?
  • Dealing with Maori Land
  • The function of the Maori Land Court
  • Land utilisation: key principles/issues arising out of land governed by the Act
  • Maori Land and associated legislation
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