“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.

29 thoughts on ““Artificial Maori” and “Customary Rights”

  1. Problem is that we now have such a BIG LIE that most people are brainwashed into believing what they have been told and they simply don’t want to hear the facts. Having stood in the street week after week collecting signatures on the petition against the Seabed & Foreshore Act(which eventually didn’t succeed) I know that although there are a lot of people completely fed up with the current situation there are also a huge number of mostly middle class New Zealanders who have swallowed the BIG LIE completely. To even want to discuss it you get labelled ‘bigot’ and reacist

  2. There is a common misconception that New Zealand became a colony of Britain at the time of signing of the Treaty of Waitangi. This simply is not true. New Zealand became a colony of Britain in 1814, 26 years before the Treaty was signed. Refere to the “Book of Dates” published in 1860. You will note that just 20 years after the Treaty was signed, there was no mention of it in the book. The Treaty must have been perceived as a documnent with little significance, not to be mention. The transcript of the section on New Zealand follows.

    “NEW ZEALAND (in the Pacific Ocean). Discovered by Tasman in 1642. He traversed the eastern coast, and entered strait, where, being attacked by the natives, soon after he came to anchor, he did not go ashore. From the time of Tasman, the whole country, except that part of the coast which was seen by him, remained altogether unknown, and was by many supposed to make part of a southern continent, till 1769-70, when it was circumnavigated by captain Cook. Captain Cook, in 1773, planted several spots of ground on this island with European garden-seeds; and in 1777 he found some fine potatoes, greatly improved by change of soil. New Zealand now has become an important colony. The right of Great Britain to New Zealand was recognised at the general peace in 1814, but no constituted authority was placed over it until 1833, when a resident subordinate to the government of New South Wales was sent with limited powers; but it was separated in April 1841. A charter, founded upon an act passed in 1846, creating powers municipal, legislative, and administrative the, Dec. 29, 1847.This charter was not acted on, and a legislative council was opened by the governor, sir George Grey, Dec. 20, 1848. Banks and other public institutions have also been established. A new constitution was granted to New Zealand, June 30 1852 (16 & 17 Vict. C. 72), and another act passed in 1857. New Zealand was made a bishop’s see in 1841, and in 1852 it was subdivided to form another called Christchurch. There was an earthquake here on Jan. 23, 1855: it did not cause much damage.”

  3. Good point Roger. But in private, people do show their frustrations. In fact, it could be said that treatyist have stigmatised their people to such a state..they are unemployable. Sounds yucky, but true. In order to fuel a grievance industry, you must have victims, unemployed, unhealthy and uneducated. Nzders do know this and they see it everyday and they know it is self-inflicted in accordance of the instructions of the hierarchy. I think you will find a majority will embrace a party in parliament as a coalition partner that will bring to light these issues. The great thing about having your vote…its secret. The voter can make a huge difference by just ticking a box. Isnt it funny Roger, you try to make it so all races are equal but you get told your are racist? Its that exact reason that cements the reality that treatyist are worried about the billions of dollars that they may no longer extort from the rest of NZ….but Maori taxpayers too.

    1. I agree and we must remember that many Maori-the ordinary people like the rest of us are as fed up with the BIG LIE as we are. Some of the most enthusiastic people signing the petition against the Seabed and Foreshore bill on the street in Thames were Maori and expressed to me just how frustrated they were with the whole situtation the way it has developed. Actually it was the Greens who were most vocal againsts us-no surprise there!

  4. Brilliant Roger you have taken the words from my mouth,well said and well put.We all need to get behind 1LAW4ALL. and get this movement up and running,i strongly believe with a bit of momentum this train will gather speed and strength.keep up the comments

  5. Richard, are you implying the treaty is null and void?

    Not a smart arse question, but something that has bothered me for some time. I had a party start-up called Kiwi Nation. Long story, but we wanted to abolish the treat of waitangi. It was a document in dispute, different copies, different meanings, re-written over 150 years later and adjusted, two languages…. nobody knew what the hell was going on in later days. I believe at the time, the SPIRIT of the document was known when signed. With the interpretations, the claims that ancestors were to thick to know what they were signing….. does that not make the TOW void? Shouldnt any reference to a treaty in dispute make it useless? Sorry for the simplistic question, but if the treaty was deemed invalid…what?

  6. If the Treaty were abolished-what then-well nothing actually – we would go back to the way things were for most of the 19 century and for the biggest part of the 20th as well. Equality would mean just that-laws that were colourblind and simply didn’t refer to race or ethnic origin. What people did privately with regard to language etc would be entirely their own business. Culture would mean what it really means-whatever customs, music or whatever you want have-not something dictated by who you grandparents were.

  7. Roger. Im still trying to get my head around the fact everything revolves around this document that is in constant dispute.

    If I and some other friends (foes) had a written agreement with someone else, and it worked out to be a treaty everyone was happy with..that would be fine.

    BUT…..

    If we had a written agreement that was in dispute by both parties, that wouldnt be fine. Just for arguments sake, lets make up some reasons why we would not like that agreement.

    1. A representative took a different agreement for some of my friends to sign. Added his own wording ect..

    2. The REAL agreement that most of us signed had its wording changed years later to match the false agreement the representative got signed by just a small portion to the signatories.

    3. A few years later, one of the signatories children decided to give new meanings to the words. Instead of Ford Falcon being the object of the agreement, it now meant Private Jet. Not only the jet, but the hanger, airport, ground staff, pilots and crew, the air in which it travels, the rubber plantation whos product is contained in the tyres, the refinery that provides the fuel, the land that supplies the grapes for on-board wine, the oceans because snapper is on the menu……

    4. Some of the signatures claimed they signed under duress after some friends (foes) threatened them.

    So, the group of signatories dont know what the agreement is about, have changed the SPIRIT of the document by rewording and re-interpreting…. the guy that made the agreement feels ripped off and bullied and the true meaning of the agreement has been lost.

    Surely, if both parties are disputing the agreement, it is not workable….. It must go….surely?

    1. Paul – If you don’t mind me saying so I think your error here is thinking about the Treaty as a legal document-a lot of people and especially white middle class people that Elizabeth Rata characterises so well, have turned it into a religion and that makes so much of the logic that you bring to the arguement null and void. Religions simply don’t operate at the logic level.Often I find that when you argue logically people smile and tell you that you don’t understand. They credit a race with special qualities such as saying that Maori have a special attachment to the land etc

  8. #2 I think that you are spot on with your argument but rolling it back, and that is what has to happen, gets more and more difficult with every year. We must remember that both major political parties have the last 40 years at least not bothered to consult with the public. It has never really been a compaign topic and we just catch glimpses of what is the true public feeling with reactions to the Orewa speech. Try discussing TOW with your local MP…I doubt that you will discover what they REALLY think.
    Both parties ahve shown a great ability to stigmatise any opposition.

  9. #3 – I also intended to say (I can’t seem to put in much before it won’t work any more…) that the media really avoids the truth about TOW -you simply don’t read anything that is really informed. They seem to think that it’s really ‘not nice’ to publish any discussion on the subject except that which is ‘acceptable’. The universities likewise-please read Elizabeth Rata’s latest piece in universities – she is very brave woman! You would have thought that universities would be bastions of free debate not the opposite which seems to be the case.

  10. You are right Roger. For some odd reason, we have been brought up and lived with this magical treaty. Glorified like its the actual shroud that laid on Jesus. Holier-than-thou. A document never to be seen, touched and only worshipped by those who wail and wave punga fronds. A top secret for only certain eyes to gaze upon, to manipulate and cast magic. The mysterious magical document that controls all, demands so much…..and what?? Its not legal??? WTF??? Lets burn the damn thing!!!

  11. I beg to differ with Paul , it is visible at Te Papa and in many books and editions…unlike the other statutes and laws that govern our every movement…..how many of those have you seen or been able to touch..and why do you think that you have to see and touch it for it to be credible….It was an agreement by maori to allow the Crown to share our country in return for them to keep their wayward tauiwi in line and to have some sort of control over the behaviour of those who had already settled here…to share but not at the cost of the annihilation of the maori people and their culture

    1. The language you use shows the propaganda-they didn’t just share the country,they became one nation by interbreeding to the point where talking about Maori and non-Maori is really a useless exercise. Culture doesn’t just equal race in a nice neat equation-nothing could be further from the truth. Culture is what you want it to be. Being someone with some Maori blood doesn’t mean that they are automatically interested in kap haka-they may be keen on country music. Ethnic origin is something you have and something you can’t alter.You could be just as likely to be interested in speaking Welsh.

  12. I ask the questions, what are your qualifications that gives you the right to define what a maori is and what they might prefer in life….that is not for you to pass comment on…We, who are born with the wairua and are raised with the values of our elders claim our heritage from within….we both have red blood..but the DNA is different..I do not need you to tell me if I am Maori or not….I know.

    1. Personally I couldn’t care less how you define yourself or even how you define what a Maori is, but I DO care when from that you plan to take assets from the taxpayer in countless full and final settlements and when you claim this definition to claim separate voting rights and separate seats of councils.On one hand some Maori want to be separate but when those separate statistics show a higher crime rate (as an example) they decline to take ownership of the problem.

      1. Well the first thing you need to ask yourself is why is the government deeming it neccessary to pay compensation for the wrongs done to maori over a long period of time…why are do we have separate system of jurisdiction to manage our lands…not our idea but the skullduggery of your race to create a judicial system to divest maori of land…now they are paying for it..You are a bigot and entitled to your views but do not criticise maori for what is happening now….

        1. Moyra, you have a very negative view of our history and the intentions of the British. I don’t know where you got that view, but lets just say it is very different to how things really were.
          The government/s have been paying settlements for alleged wrongs for a long time because they have wanted to keep the Maori vote.
          The Maori land courts were not set up to divest Maori of their lands. That is rubbish. Maori were only to happy, in fact they were queuing up to sell their lands. The Maori land courts were set up to make sure that the sales were fair, that the prices paid were fair and that it was all done legally.
          Moyra, we have nothing against most Maori. We are anti the Treaty gravy train industry that has developed, the spurious claims made for power and profit that have absolutely nothing to do with the Treaty and the Maori elite who are constantly advocating special racist laws and rights for Maori. We also criticise those appeasing politicians who go along with all the falsehoods and give in to them.

        2. You begin to lose the argument Moyra as soon as you label people who you don’t know with labels like ‘bigot’. We are well past being labelled which is why you have got as far as you have with the BIG LIE. Stoking guilt in the non-Maori population is begining to wear off as so many of us begin to read the history and not listen to the propaganda that you have managed to propagate.I believe in equality before the law for ALL in our country regardless of race or ethnic origin. Tell us what you believe in-or is it just racial superiority?

  13. Our rights to freedom of speech gives us the right to comment on anything we choose. What exactly are you trying to say with that last comment?

  14. Yes you are entitled to have your say ans so am I….but there is alot of stuff you seem to have no idea about…and I take exception to being described as an articial maori…there is no such person as a maori…did you know that….Your race labelled the tangata whenua when they arrived here..it is not in our language…and your government has obtained the property rights for the word Maori……

  15. Here you can see the mentality of the Maori. Nothing in the document refers to sharing. Annihilation??? You really do love to live as a victim dont you? Its a wonder you didnt fit holocaust into your ramblings.

  16. And actually, I dont personally think you have a right to have your say. We have had to endure your whining and demands for 40yrs. I would be quite happy for you to disappear and go back to your white-hate sites.

    This is our time….time to stop you in your tracks and that will happen in 2014.

    This is not a site where you can brandish your lies, fabrication and propaganda to line your pockets.

  17. I knew a guy years ago that broke his hand. Was on ACC for years. One day, the doctor signed him off as being able bodied and was fit to work. So, he went home, put his hand on the wall and smashed it with a claw hammer. He had enjoyed being a victim of an injury, the ACC that came with it and working didnt fit in with his lifestyle.

    That scenario fits perfectly with the treatyist mentality… Moyra included.

    You cant scream grievance without victims. Victims are the core source of income of the treatyist.

    So, how do ensure you have an ongoing supply of victims?

    You create them…simple. You create a money stream.

    From birth, you tell them that they will never amount to anything. You tell them that they are unable to be educated, will die earlier than their friends and they will be unemployable. A steady stream of income straight from the birthing unit.

    And how do I come up with that theory?

    Simple. Maori that are abroad are achievers. They are not shot down for trying to get ahead, they are not pressured into tribalism and they are not continuously brainwashed into the victim mentality.

    The Maori that live abroad are the lucky ones. They dont have to dumb-down to fit in…they succeed. I guess they also dont get to hear that their great great grand parents were irrational fools as Moyra and treatyist keep insisting.

    For a people that supposedly worship their ancestors, you sure as hell love to belittle them. You should be ashamed of yourselves.

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