By Reuben Chapple

Reblogged from Breaking Views

Property rights come about in one of two ways:

1. What in a pre-legal society might be referred 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.”

Former Auckland University Professor of Maori Studies, Dr Ranginui Walker, has stated: “On the eve of the signing of the Treaty of Waitangi, there was not one inch of land in New Zealand without its Maori owners.”

Such an assertion, while politically useful, is factually vacuous.

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, rendering life “nasty, brutish and short.”

In his book Maori Land Tenure: Studies of a Changing Institution (1977), Sir Hugh Kawharu 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.”

This means that before 1840, though various Maori tribes were effectively the sole occupants of New Zealand, they were never owners. In the absence of a settled form of civil government, hapu merely 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 a 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. It is ludicrous to propose that someone would expend more energy foraging for food than it would provide once found. So at a most generous assessment, such ownership might stretch to include perhaps one day’s 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. Ernest 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 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 went unmolested, the Crown was obliged to extinguish this Maori “ownership” by paying all purported 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,” the Crown holding 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.

Corporate Iwi claims to seabed and foreshore are already being mounted on the basis of maps such as those accessed via the links below below:

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

7 thoughts on “Maori Land

  1. Good work Reuben. If I might take some slight objection to one aspect then that is of the historic definition of fisheries. The word has to be assumed to be no different in intention or fact to that in use in Britain at the time. The fisheries does not refer to all ‘fishing’ but to distinct ‘fisheries’ such as a well known and exploited local fishery for eels, oysters or pipi etc. These are very local entities and would have provided a valuable food source to one local group. Ensuring that hapu would have access to traditional food gathering sites is only what one would assume as ensuring the ability of a group to continue to feed itself. It was not exclusive but the right to harvest was ensured. Fisheries in Britain could be owned and other could be excluded from harvesting within the local fishery. The Treaty’s provision for access to a known fishery was actually an improvement over The Home Country in this sense.

  2. As an earlier statement I read explained that the Maori race were not the original people to inhabit New Zealand they were and are immigrants to this land and it has been explained even by the Maori that they arrived here in 3 or 4 canoes long after this land was created. Not I must add as the say now that Maui fished it up out of the sea. Taking that as the actual fact gives them no more or less rights to this land than any other immigrant who has come here since. Why is our Government not recognising that situation and giving these people every opportunity to take over our country. Is it a divide and conquer situation or lets see what I can get out of this . I can assure every one that we the mainstay of this country will not allow this to happen. This is our country for our use not just for Maori but for all us immigrants.

  3. Nuvver objection! Reuben said:

    “The English Treaty version at Article II refers to “fisheries.”

    There were never two treaties, one in English and one in Maori. The only valid Treaty (in Maori language) was the one signed at Waitangi. The bogus (erroneously called) English Treaty [version] was a monstrous malfeasance created by the Waitangi Tribunal Act.

    Get it right, Reuben.

    1. Simple Simon simply wishes that the truth not get in the way of convenient fictions. Social disparities will not go away until more folk accept that we are all equal as human beings. So Simple.

  4. A fabulous rendition of fact which was not and still largely is not a prerequisite of Maori contentions. The nonsensical holding to beliefs, pretending them to be facts, must end, if progress is to be the outcome. Thanks heaps Reuben

  5. What an enlightening article , but we must make sure that the Maoris do not get to hear about it because they tend to get upset when they hear the truth—Yeah Right.
    Who really is surprised,?, the land grab gravy train has been going on for so long that they will do anything to have it last for ever more , something like, Why let the facts get in the way of a good story.
    I guess that most law abiding folks hold out hope that one day we might get some strong politicians who have a bit of backbone and are capable of standing up and putting a stop to all this legalized stealing.
    We live in hope.

  6. Just read the PM’s Waitangi speech and noted the following …”The Treaty is a formal agreement but it must be interpreted over time, and adapt to new situations, through negotiation between the Treaty partners.” Wow – from the horses mouth. JK is definitely happy that we just adapt the Treaty annually depending on how things are going/what is discovered. Be very afraid for NZ .. the gravy train will continue and I cannot see any party that gains power in the future changing that.

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