“Artificial Maori” and “Customary Rights”

“ARTIFICIAL MAORI” AND “CUSTOMARY RIGHTS”

By- Reuben P. Chapple

The Marine and Coastal Areas (Takutai Moana) Bill  (“the Bill”) purports to convey property rights that never existed in pre-European New Zealand to a Maori collective and various subgroups that may have existed in 1840 but can today no longer be adequately defined in terms of setting public policy.

For many decades now, there has been no discrete or separate Maori ethnic group. All so-called “Maori” alive today are of mixed European-Maori descent.  It would be virtually impossible to find a “Maori” who doesn’t possess more of the blood of the colonisers than that of the colonised.

To illustrate this point, prior to the passage of the Electoral Amendment Act 1975, the legal definition of “Maori” for electoral purposes was “a person of the Maori race of New Zealand or a half-caste descendent of such a person.” After panicked complaints from its Maori MPs that soon nobody would be eligible for the Maori Roll, the then-Labour Government changed the law to read “any descendent of such a person.”

Under current electoral law, New Zealanders with Maori ancestry can determine once every electoral cycle if they wish to be on the Maori Roll or the General Roll. We thus have a legal definition of “Maori” that is based solely on a mixed-blooded individual’s periodic decision to culturally identify as “Maori.”

Writing in 1972, historian Joan Metge offers a compelling explanation as to why a subset of New Zealanders today might continue see themselves as “Maori.” She states: “New Zealanders, both Maori and Pakeha, tend to identify others as ‘Maori’ if they ‘look Maori,’ that is if they have brown skin and Polynesian features.”

Since the Maori phenotype tends to predominate in one’s appearance, many New Zealanders with Maori ancestry are likely to be identified by others as “Maori” whether they like it or not. This psychic wound is often compensated for by aggressively embracing a collectivist “Maori” identity and seeking utu from the majority culture these people feel shut out of.

The rest of us should not be obliged to validate or fund someone else’s adjustment issues. There is no logical reason for public policy to support the notion that anyone less than half-Maori should be lawfully regarded as “Maori” and nor should it dignify their cultural pretensions.

Today there is no such thing as a Maori. There are only New Zealanders of Anglo-Maori ancestry who have adopted a Maori cultural identity because public policy both allows and encourages them to do so.

In terms of racial claims to the seabed and foreshore (and indeed to anything else), the Emperor clearly has nothing on.

Turning now to the nature of property rights, such rights can come about in one of two ways:

[1]     What the Bill refers to as “Customary Title.” This is not ownership at all, merely a temporary right of use or occupation, lasting only until extinguished by superior force.

[2]     Legal ownership. This means the ability to exclude others by the force of law. The underlying requirement is a universally recognised, settled form of civil government that protects property owners against violent dispossession, and provides for ongoing security of tenure, i.e. “time without end in the land.”

Prior to the signing of the Treaty of Waitangi in February 1840, there was no such thing as a collective “Maori.” Nor was there any settled form of civil government. The functional social unit of pre-European Maori society was the hapu, or sub-tribe. Each hapu was in a Hobbesian state of nature (“War of every man against every man”) with every other hapu, making life “nasty, brutish and short.”

In his book Maori Land Tenure: Studies of a Changing Institution (1977), Sir Hugh Kawharu blatantly sets out to fabricate a ‘universally recognised’ body of Maori property rights pre-dating the Treaty of Waitangi. By implication, these were rudely subsumed by white-settler governments, who substituted their own Eurocentric notions of property ownership. This now widely accepted thesis is arrant nonsense designed to fudge or remove the fact that “Customary Title” is in practical terms no title at all.

Within the hapu-controlled estate, whanau groups sometimes enjoyed the exclusive rights of occupancy or usufruct that Kawharu has identified, but the only universally accepted concept of land ownership BETWEEN hapu was “Te rau o te patu” or “The Law of the Club.”

In the absence of a settled form of civil government, hapu used or occupied land only until someone else came along and took it off them. Article I of the Treaty of Waitangi (the assumption of national sovereignty by the Crown) modified this position; also Article II, which purported to convert this ephemeral “Customary Title” into permanent legal ownership.

However, the Treaty was never meant to convey to Maori ownership of the entire land area of New Zealand. It was intended to secure the various hapu in their legal (as opposed to “Customary Title”) ownership of land that they actually used or occupied as at February 1840.

In practice, this meant ownership of land identifiably occupied and cultivated. At a most generous assessment, such ownership might stretch to include a reasonable hunting and gathering range around a Maori settlement. At the time the Treaty was signed, even in the vastly more populous North Island, such settlements were typically few and far between

The North Island in 1840 was home to an estimated 100, 000 Maori.  Edward Dieffenbach, a German-born naturalist who travelled throughout the North Island in 1844, reported that “even in the areas of greatest Maori habitation, there are huge tracts of land, even up to hundreds of miles, between the various tribes [hapu].”

The South Island lay practically deserted. Edward Shortland’s 1846 census found some 2, 500 Ngai Tahu, resident at several coastal locations. To suggest that     2, 500 people [a] lived on; cultivated; or [c] hunted and gathered over more than 13 million hectares of land is more arrant nonsense.

Even in the North Island, aside from the immediate areas around a Maori settlement, the “waste lands” were uninhabited, unimproved, uncultivated, and untrod by human feet, other than those of an occasional war party or traveller. Since the forcible exclusion of other groups was in practical terms impossible, the “waste lands” had no “Customary Title” owners to become legal owners under Article II of the Treaty.

The mischievous notion that Maori “owned” land and associated resources they neither used nor occupied was a fiction propounded in the 1840s and 1850s by the missionaries. They were well aware that the Crown had little money for land purchasing. The missionary agenda was to keep secular, worldly Pakeha confined to areas already settled, thus ensuring missionaries remained the only European influence in the all-Maori hinterlands they sought to Christianise.

The Crown was obliged to accept this misinformation because it had a mere handful of troops available to enforce its edicts against 100, 000 well-armed and potentially warlike Maori. Once Maori learned that the Treaty supposedly gave them title to the entire land area of New Zealand, each hapu became an instant “owner” of huge tracts of “waste land” adjoining its settlement(s). Naturally, this created multiple competing “ownership” claims.

To convey a clear title to subsequent purchasers and ensure incoming settlers were unmolested, the Crown was obliged to extinguish this Maori “ownership” by paying all potential claimants. In many early land purchases the Crown paid out anyone asserting a right to be paid.

The Native [now Maori] Land Court was originally set up to deal with these competing claims to the “waste lands.” “Ownership” was typically awarded to whoever could spin the most convincing whakapapa about how his remote ancestor had travelled over the land 500 years before naming natural features after parts of his body.

Had the missionaries not queered the pitch for the Crown, the “waste lands” and appurtenant rights would have simply been assumed by all to be vested in the Crown, to be held, managed, onsold, or otherwise used for the benefit of ALL New Zealanders, irrespective of race.

“Appurtenant rights” of course include those associated with the foreshore and seabed, which in any event fall outside the scope of any rights purportedly reserved to “Maori” under the Treaty.

The English Treaty version at Article II refers to “fisheries.” This is simply the right for Maori to go fishing and gather shellfish. Since Article III conveys to individual Maori “all the rights and privileges of British Subjects,” keeping the seabed and foreshore in public ownership clearly fulfils these requirements.

Correctly interpreted, the Treaty establishes no exclusive rights for today’s mixed-blooded New Zealanders whose Maori ancestors signed the Treaty to control any of New Zealand’s foreshore and seabed, let alone clip the ticket for activities not in contemplation at the time that the Treaty was signed.

If the Bill passes, corporate iwi claims to seabed and foreshore will no doubt be mounted on the basis of maps such as those accessed via the links below below.

http://www.takoa.co.nz/iwi_maps_north.htm

http://www.takoa.co.nz/iwi_maps_south.htm

As the foregoing discussion demonstrates, this “Map of Europe” approach with its arbitrarily drawn “frontiers” is yet another fabricated nonsense.

Since Maori owned nothing in 1840, the foreshore and seabed are resources that should rightly remain vested in public ownership for the benefit of ALL New Zealanders, not passed to self-identified, self-interested, minority groups.

Should this proposal to allow racial claims to the foreshore and seabed proceed, we are headed at very least towards economically damaging rent-seeking behaviour from a subset of New Zealand’s population, at worst towards a race war.

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