The Land Court In Matakaoa


1. The Treaty of Waitangi - Precedents Set by Busby's Confederation, The Signing at Waitangi, Aftermath of the Treaty;
2. The Treaty of Kohimaarama
- The Conference at Kohimaarama, The Land Wars, The 'Land-Taking' Court, Peaceful Mediation of Disputes a Necessity.

1. The Treaty of Waitangi

Precedents Set by Busby's Confederation
In the Bay of Islands, from 1831 onwards missionaries had lobbied the British Government to take responsibility for New Zealand (Resolutions of 1831, Church Missionary Society Letter Book 1820-1841), but it was not until the New Zealand Company attempted to found an independent state, and the French prepared to claim New Zealand, that Britain activated her interest in this part of the world (Clarke, G. 1903:36-39).

In 1835 Busby, the British Resident of New Zealand, concerned about French influence on the ‘simple-minded Native’, requested British settlers to use their influence to imbue the ‘Chiefs and people with a spirit of resistance to the landing of a person [Baron de Thierry] on their shores who comes with the avowed intention of usurping a sovereignty over them’ (Address to his Countrymen, 10th October 1835 cited in The Treaty of Waitangi facsimile 1877:3). According to Busby, foreign invasion was so imminent that he called a meeting of all the Northern Chiefs. At this meeting the Chiefs signed a Declaration of Independence, and from this time the Northern people of New Zealand were referred to as ‘The United Tribes of New Zealand’ (ibid:3-4).

Busby's statements set a number of precedents which are restated in the Treaty, and ensuing land legislation. When it is also considered that Busby framed the wording of the Treaty, because the newly-arrived Governor Hobson was ill (Busby 1860:3-4), and that he was also instrumental in getting the Treaty signed - calling the Chiefs singly by name from his own private list, beginning with Hoani Heke, the most favourable towards the Treaty (Colenso, W. 1890 reprint 1971:32) - his role becomes more significant. His 'disinterested and unbiased advice' (cited in Busby 1860:3) was of considerable use to Hobson 'in reconciling the minds of the natives' (ibid) and Europeans to the prospect of British rule.

While Britain had, by this time, gained considerable experience of cultures at variance with her own, her policy towards them had generally been one of subjugation. Busby, in this tradition, assumed that people different in physical appearance and customary practices were unable to manage their own affairs except by force: 'It is doubtful whether the New Zealander, until he witnessed the exercise of authority under the British Government, possessed any idea corresponding to our minds by the word "authority" ' (1860:5). He sent the Declaration to England with an appeal, on behalf of the 'United Chiefs', for the King to act as 'the parent of their infant State' (facsimile 1877:4). While the request suggests a willingness on the part of the Chiefs to accept Busby's interpretation of the situation (foreign invasion, 'simple-minded Native'), it must also be remembered that Busby presented to them the concept of a benign King (probably similar in many respects to the missionary-taught concept of God) without which such a request is most unlikely to have gained their support. Critics have suggested that Busby was not a good Maori scholar and rarely left his place of residence (Clarke, G. 1861 reprinted 1923:2); he was therefore in no position to comment on Maori culture let alone interpret their desires to the British Government. The difference between Busby's construction of Maori mental capacities and their actual competence is clearly demonstrated by the following Maori statement:

"The land will remain forever to produce food, and after you have cut down the old trees to build houses, the saplings will continue growing, and in after years will become larger trees; while the payment I ask for will soon come to an end. The blankets will wear out, the axes will be broken after cutting down a few trees, and the iron pots will be cracked by the heat of the fire"

Te Waharoa to Rev. A. Brown cited in Caselberg, J. 1975:29).

While Busby certainly puts forward the idea that this Declaration was representative of all the tribes of New Zealand, it must be made clear that only the Northern Chiefs signed it, and there is no evidence to suggest that its authority extended beyond Northland. Busby, convinced that no law and no authority existed in New Zealand prior to the arrival of the Pakeha (1860:7) - 'their only law was that of the strong arm' (ibid:5), also proposed that annual meetings of the 'United Chiefs' be held in the North to institute law. Although no further meetings were in fact held, Busby thus created the semblance of a unified political body - ‘The United Tribes of New Zealand’, [1] an entity conforming to British notions of Government, rather than to Maori concepts, where there was no unified chiefly authority over man or land, and within each tribe there were many sub-divisions, each under their own chiefs (Ngata, Sir A. 1922 MS307:2). Britain was thereby placed at a political advantage, and a single meeting with the Chiefs of the so-called Confederation was sufficient to initiate the annexation of New Zealand through the signing of the Treaty of Waitangi.

When one considers Busby's role as a 'cultural translator' who, as an 'intermediary' helped to manage the interpretations (cf. Cohen, A. and Comaroff, J. 1976:87-107) each culture had of the other at that period, then some of the complexities surrounding the signing of the Treaty at Waitangi can be appreciated. To the Maori people Busby presented the image of a benevolent monarch; to the British Government, a united Maori people requesting guidance to achieve a British (rather than French!) way of life. Busby's intercultural management of meaning, that is his translation of each culture to the other was only the beginning in this process of mutual interpretation, for many 'cultural translators' from both Maori and Pakeha cultures were to follow. This account focuses upon the intercultural dialogue between Maori groups and Pakeha as it emerged from 1840 through to about 1875.

The Signing at Waitangi

Hobson was appointed Governor-designate and sent to New Zealand in 1840 with instructions from Stephen, the British 'permanent Undersecretary', who had drafted the 'Great Bill for the Emancipation of Slaves' (Wilson, E. 1936:53). The spirit of the Treaty was aimed at preventing injustice to the Maori, although Hawtrey noted at the time, 'the only consequence of establishing the same rights and the same obligations for both will be to destroy the weaker in a show of justice' (1837 cited in Ward, A. 1973:34).

Both Busby and the missionary Marsden had written to England about the high interest shown by the Northern Maori people in the english modes of settling disputes. Combined with Busby's appeals, alleged to be on behalf of the United Chiefs, for protection and guidance it is probable that nineteenth century British humanitarians believed that the Treaty and subsequent British rule was exactly what the Maori people wanted.

Hobson arrived in the Bay of Islands in January 1840, and immediately invited all the Northern Chiefs to gather at Waitangi to discuss the Treaty. As he was the representative of the Queen, such a request would have been honoured and probably viewed by the Chiefs as acknowledgement of their mana (power and authority). However Hobson, as a stranger and guest, may have been expected to receive a welcome from the Chiefs (tangata whenua - hosts), to present his koha - gift, and then to take part in discussions for several days at least, before any question of a treaty could be settled. In the unusual situation which arose, the guest became the host and convener of a meeting without the resources to support such a large-scale operation, and yet continued to proffer gifts. Roles for both sides became confused, and cultural misunderstandings arose. Hobson's gifts have been described as bribes to encourage the signing of the Treaty, and certainly all Chiefs who signed at Waitangi received two blankets and a quantity of tobacco (Colenso, W. 1890:95). However it is also important to consider such gifts within the context of Busby's 'benevolent monarch', and Maori protocol concerning the host-guest relationship.

On the fifth of February 1840, the first day of the deliberations at Waitangi, the sun shone auspiciously. Northern Chiefs from other settlements, some from as far South as Auckland, and locals from the Bay of Islands, both Maori and Pakeha, crowded into the marquee to listen to Hobson and the speeches for and against the Treaty. It had been arranged for the Treaty to be signed two days later, but the gathering was so large, and there was so little food that the missionaries suggested the second meeting should be held the next day. Many of the Chiefs must have been concerned at the lack of hospitality shown by the British, who appeared unaware of their obligation to provide food and accommodation as hosts in a Maori situation. Some may have been convinced a slight was intended. A gathering of such magnitude, especially of such high-ranking persons, would normally have entailed several months collection and preparation of food (compare Iharaira Te Houkamau's hui at Wharekahika in 1874, page 89). By the second day of the meeting most of the Chiefs from any distance had left since no food or accommodation had been offered, and the others had to wait several hours for the Governor to arrive.

As notification for the meeting had been given for the third day Hobson would not permit any discussion of the Treaty, but he did accept signatures. Colenso interrupted the proceedings to ask the Governor whether he believed the 'Natives' understood the Treaty which they were signing, as he had 'spoken to some chiefs concerning it, who had no idea whatever as to the purport of the treaty' (1890:32-33). The Chiefs were asked to sign but no-one moved, then Busby called upon Chiefs by name to sign and in this way even those most opposed came forward, although their names were at the end of Busby's list. When Busby called the Chiefs singly by name it is not known whether he realised the full import of his actions in a Maori context. Given the background of reluctance on the part of Maori people to mention their own name and the belief that by giving one's name to something it creates life and power for that thing and makes the name given even greater (Johansen, P. 1954:124), Busby's invocation of the Chiefs' names put some of their life-force into the Treaty thereby imbuing it with power, and made it difficult for them not to sign the Treaty or give their consent to it without denying their own mana (power, prestige, authority). If the situation had been under Maori control the debate may have continued for several days until some form of consensus had been reached. The speed with which the situation had passed from the Chiefs' control may have left many of them confused and distressed, although Colenso's account of the Treaty proceedings does not include any speeches to this effect.

There has been some debate over whether the Chiefs who signed the Treaty understood what it was they ceded to the Queen. Certainly from the speeches recorded at Waitangi and in signing ceremonies at other areas, their main concern was with loss of land and the means of retaining their remaining estates. Their speeches vary principally in the tactics proposed: some call on the Governor to stay so that 'our lands may remain with us - that those fellows and creatures who sneak about, sticking to rocks and gullies may not have it all' (Tamati Pukututu of Te Uri-o-Te-Hawato in Colenso, W. 1890:21-22), others forecast their own downfall:

'No Governor for me - for us Native men. We, we only are the chiefs, rulers. We will not be ruled over. What! Thou a foreigner, up and I down! Thou high, and I, Tareha, the great chief of the Ngapuhi tribes, low! No, no; never, never' (Tareha of Ngatirehia ibid:24),

and call on the governor to leave:

'Go back, go back, there is no place here for the Governor'(Kawiti of Ngatihine ibid:22).

Some of the speeches suggest Maori people's relationship with the land:

'It is from the earth we obtain all things. The land is our father, [2] the land is our chieftainship; we will not give it up', (Te Aperahama Taonui ibid:48)

and indicate that a Governor concerned for the welfare of the people would be acceptable; without land this welfare could not exist (ibid:49).

Hobson's statements at Hokianga during the signing of the Treaty there, suggest he believed the Maori people were ceding something more substantial than a shadow. During a long debate against the Treaty Hobson accused a Chief of using introduced (English) concepts. When the Chief admitted this, a Paheka was asked to explain:

He (the Pakeha) replied that he conscientiously believed that the Natives would be degraded under our influence, and that therefore he had advised them to resist, admitting at the same time the laws of England were requisite to restrain and protect British subjects, but to British subjects alone should they be applicable. I asked him if he was aware that English laws could only be exercised on English soil' (Treaty facsimile 1877:8).

Hobson's adversary sat down. Whether this was seen as a demonstration of Hobson's mana, or the interpreter failed to explicate the concept of English soil sufficiently is not known, however following Hobson's statement 'if you listen to such counsel and oppose me, you will be stripped of all your land by a worthless class of British subjects' (ibid:9), the debate turned in favour of signing the Treaty.

By signing the Treaty, the Maori Chiefs, both within the Confederation, and those independent of it, ceded 'all rights and powers of sovereignty which they possessed over their respective territories' to the Queen of England. In return the Queen:

'confirmed and guaranteed to the chiefs and tribes of New Zealand the full, exclusive and undisputed possession of their lands and estates, forests, fisheries, and other properties which they might collectively or individually possess, so long as it was their wish and desire to retain the same in their possession' (cited in Colenso, W. 1890:39-40)

with the Crown having the sole right of purchase. The third clause 'extended to the Natives of New Zealand her (the Queen's) protection and imparted to them all the rights and privileges of British subjects' (ibid).

Missionaries collected signatures for the Treaty from Maori Chiefs throughout the North Island. In expectation of the Treaty being signed Hobson proclaimed British sovereignty over the whole of New Zealand in May 1840; over the North Island by virtue of the Treaty, and over the South Island on the grounds of discovery (Orange, C. 1980:62-63).

Aftermath of the Treaty

In 1842 Governor Hobson died and Fitzroy was appointed his successor. In 1844 Fitzroy issued a proclamation in both Maori and English which waived the Crown's right of pre-emption in certain areas, except for paa, burying-grounds, and land required by the 'Natives' for their own use 'however desirous the owners may now be to part with them' (New Zealand Gazette 10th October 1844:139; Te Karere o Niu Tireni 1st April 1844:18). This decision appears to favour Maori aspirations to sell their land on an open market and thereby receive maximum profit from the sale. Fitzroy's attitude is still protective but less restrictive; this is the first indication in Government publications that responsibility for land rested with both Maori and European cultures.

Land Commissions were established to investigate all land purchased prior to the Treaty of Waitangi. By advertisement they notified all interested parties to attend hearings with their witnesses and original deeds and documents - with translations if in Maori (New Zealand Gazette 27th January 1844:31). Claimants were also requested to pay a fee of £5 prior to the investigation of any claim or opposition to it (ibid). A grant was not recommended by the Commissioners unless the claimant, or his representative, appeared before the Commission during the gazetted period (ibid). Following a recommendation by the Commissioners a Crown grant to land was issued by the Governor.

Claims were heard amid great social upheaval. In the Bay of Islands Chiefs vowed never to submit themselves to similar investigation (Commissioner Godfrey, E. to the Colonial Secretary 16th February 1843) and in some instances, haka (war chant with actions) were performed in Court with loaded rifles (Brodie, W. evidence before a Select Committee British Parliamentary Papers 1844:30). While the Government attempted to blame Maori repudiation of sales for the unrest, the Land Commissioners found fault with European buyers - they could scarcely recall 'a single investigation in which the testimony given to us by the natives was not deserving of the most entire credibility' (Commissioners Godfrey, E. and Richmond, M. to the Colonial Secretary 4th May 1843 in B.P.P. 1844).

Tensions between the Governor and Pakeha 'land grabbers' (the New Zealand Company) intensified. In 1845 Governor Fitzroy reversed Land Commissioner Spain's recommendation to award extensive tracts of land to the New Zealand Company. Powerful backers of this Company lobbied the British Parliament against Fitzroy, and the 'sacking of Kororareka' provided the opportunity for his dismissal.

He was succeeded by Grey, who on his arrival immediately restored the Crown's right of pre-emption. Extensive tracts of land awarded to Europeans under Fitzroy were confiscated and retained by the Crown (Busby, J. MS46 folder 13 n.d.:8).

In England changes were also taking place - the Secretary of State, Lord Stanley, had been replaced. Stanley's policy upheld the guarantees of the Treaty against a determined attempt by the New Zealand Company, and their allies in the British Parliament to thwart them (Report of Select Committee, B.P.P. Appendix 2 1844:556). While lawyers viewed the Treaty as 'a praiseworthy device for amusing and pacifying savages' (ibid), Stanley refused to admit 'that any person, or any Government acting in the name of Her Majesty, can contract a legal, moral, or honourable obligation to despoil others of their lawful and equitable rights' (ibid).

Stanley also allowed 'native' custom to prevail where their dealings were with one another (compare the suggested Maori interpretation of the Treaty), and within the bounds of 'the universal laws of morality' (Despatch 21st June 1843 in New Zealand Gazette 17th September 1845:115).

His successor, Earl Grey, viewed the New Zealand question rather differently. Contrary to reports suggesting that there was no waste land in New Zealand, Earl Grey instructed Governor Grey to proclaim all unoccupied 'native' land the property of the Crown (Despatch 23rd December 1846 in B.P.P. 1847 No.43:64). Enraged missionaries, who had encouraged the Chiefs to sign the Treaty, protested that such policy directly contravened the Treaty, as:

'the entire country is divided among the several Tribes, - the boundaries of every property being accurately defined, - and that the proprietorship is so vested in each Tribe, according to well-understood Native usage, that all families and individuals of the Tribe have a beneficial interest therein .....' Correspondence between the Wesleyan Missionary Committee and Earl Grey 1848:10).

Grey reacted by accusing the protestors of misinterpreting the instructions, and sent letters to Earl Grey cushioning Bishop Selwyn's outraged comments (B.P.P. 1847 No.43:81). Pressure from prominent settlers and fear of widespread Maori retribution delayed Grey's implementation of these instructions and, for that period at least, they were seen as impractical and rescinded. Nevertheless the seeds of distrust had been sown.

In 1852, when the British Government allowed New Zealand self-government the country was split into six provinces, each with its own parliament to run local affairs, including the purchase of land. A seventh parliament, the House of Representatives, administered national affairs. Governor Grey appointed land purchase Commissioners to buy land in advance of settler demand. They were so effective that a league was formed amongst the tribes of 'Cook Strait' to resist further land alienation (Richmond, G. to Richmond, T. 27th August 1855).

In response to the spread of Maori resistance the Government set up two Commissions of Inquiry. The first was intended to find the best means of settling outstanding land claims, products of the conflicting policies adopted by Governors Fitzroy and Grey. The second was to enquire into and report on the state of 'Native' Affairs (Martin, Sir W. 1860:5; McLean, P. 1886:12).

The 'Outstanding Land Claims' Commission found that many of the cases had been re-opened with the appointment of new Commissioners; they therefore recommended the appointment of a Court of Commissioners with power to declare its decisions final and irrevocable (Votes and Proceedings Vol. 2 1856:4-11). These recommendations were put into practice in the 1856 Land Claims Settlement Act (see Bell's Commission at Turanga in 1859).

The other Commission, in an attempt to collate the best information, interviewed thirty-four persons 'well-acquainted' with the 'Natives'; only nine of whom were 'Natives'. They found that:

'each Native has a right in common with the whole tribe over the disposal of the land of the tribe, and has an individual right to such portions as he, or his parents may have regularly used for cultivations, for dwellings, for gathering edible berries, for snaring birds and rats, or as pig runs' (Report to Governor Gore Brown, Sessional Papers 1856).

Generally there is no such thing as an individual claim, clear and independent of the tribal right [and] even chiefs who may exercise an influence at the disposal of land, have only an individual claim like the rest of the people to particular portions …... There is no part of the country which is not claimed by some party or other' (ibid)

and in early land transactions the Maori

'intended only to convey a title similar to that which they as individuals hold themselves - the right to occupancy' (ibid).

Despite the emphasis given to tribal 'ownership' and tribal differences in this report, in 1859 Governor Gore Brown allowed the direct land purchase party to buy from individuals. He claimed that this practice was supported by Maori custom in general: 'The right to sell land belonging to themselves, without interference on the part of the Chiefs (not having a claim to share in it) is fully admitted by Maori custom' (Despatch 29th March 1859 cited in Martin, Sir W. 1860:25). While it is difficult to ascertain the source for his claim it perhaps indicates the political lobbying power of the direct purchase party in the parliaments of New Zealand and Britain. Other Governors had been removed for acting in the interests of Maori people and slowing the progress of colonisation. The newspapers saw the 'new policy' as 'a great step forward - a deliverance of the oppressed - the suppression of a sort of feudal tyranny' (cited in Martin, Sir W. 1860:25). Large tracts of land, often 'sold by stealth' (Williams, W. to the Governor 5th June 1861 AJHR E-3G:4), were obtained under the new regulations and settler-oriented provincial governments hoped that such a policy would be everywhere 'steadily and zealously adhered to' (Hawkes Bay Provincial Council Resolution 20th March 1860).

A land dispute between sellers and non-sellers flared up in Taranaki. The Government moved its troops in to support the sale, and full-scale warfare broke out.


2. The Treaty of Kohimaarama - The Conference at Kohimaarama

In 1860 Governor Gore Brown invited Maori Chiefs throughout New Zealand, to attend a conference at Kohimaarama near Auckland (Te Karere Maori 10th July 1860). Some of the invited Chiefs could not attend as King Potatau had died just before the conference (ibid). There was also wide-spread influenza and a small pox epidemic in Auckland (ibid). Any one of these would have provided sufficient justification for postponing the conference in a Maori setting; together such inauspicious circumstances would have cancelled it. Influenza also affected many of the Chiefs at the conference, some of whom declared that:

'na te mate i whakararuraru nga korero a te Kawana' - sickness interfered with [our understanding of] the Governor's address
(Wi Pahuru and Wikiriwhi Matehenoa letter to the Governor 17th July 1860, ibid 30th November 1860:50).

The fact that the conference was held, despite McLean's [3] awareness of Maori attitudes, is indicative of the crisis reached in Maori and Pakeha relations under Governor Gore Brown.

All the Chiefs were requested to write down their views concerning loyalty to the Queen and the quarrel in Taranaki - described by the Governor as the 'wholly indefensible' behaviour of Te Rangitake [4] and the Maori King Movement, and the 'justifiable' response made by himself (ibid 3rd August 1860:6-7). While the disregard for Maori attitudes concerning omens displays insensitivity, the request by the Governor for written statements from Chiefs trained in oratory (which involved complete recall of the points made by other speakers) suggests that the conference favoured European skills. Governor Gore Brown, with his inability to converse in Maori, was in no position to display mana in a Maori setting, and it is not surprising [p23] that some attempts were made to construct a European setting for this conference. What is problematic is that this also defined an unfamiliar setting for the Chiefs (compare the signing of the Treaty of Waitangi).

The Governor was interested in discussing the Treaty of Waitangi and ways of simplifying the ownership of land. He wanted to define tribal boundaries and secure individual titles to land, 'with a view of removing many of the difficulties …… surrounding Native title' (ibid:11). The 1856 Native Affairs Commission found that individual rights to land did not exist independently of tribal rights, and that difficulties in tenure only arose when land was transferred from Maori to European ownership. The Governor's preoccupation with settler rather than Maori interests [5] must have alarmed some Chiefs, especially those who were adamantly opposed to selling their land.

The Land Wars

In spite of the Conference at Kohimaarama the dispute at Taranaki grew and spread first to the Waikato, and then to the Bay of Plenty. Various authorities suggested that a number of issues had contributed to the original Taranaki dispute. Firstly, there were no settled rules or principles guiding the alienation of land, as it was claimed customs varied between districts. Secondly, no principles as to what constituted a title had been set out. It follows that decisions were made by individual Commissioners who were (or were not) familiar with land ownership customs of the tribe under investigation (Hadfield, O. and McLean, D. AJHR 1861 E-l:6, 20). Governor Gore Brown on the recommendation of the Chief Justice, Sir William Martin (1860:6), suggested that a tribunal be established to determine any questions of difference relating to land between the Crown and the 'Natives' or between the 'Natives' themselves (AJHR E-11 1862), but this suggestion came too late. As Governor Gore Brown's efforts proved ineffectual he was recalled to Britain and Sir George Grey was reappointed.


Soon after his arrival Grey granted legal recognition to the ruunanga - a form of Maori self-government which operated in most districts. Under this system the country was divided into districts each with its own Resident Magistrate and Principal 'Native' Assessor. A single district was composed of five or six groups, known as 'Hundreds' each with its own 'Native' Assessor, Warden and two or three Karere (messengers). All of these positions received payment from the Government: a Principal Assessor received £50-0-0 per annum, a 'Hundred' Assessor £40-0-0, and a warden £24-0-0 (AJHR 1863 E-4:40-41).

The 'Land-taking' Court

A tribunal similar to Sir William Martin's proposal was established by the 1862 Native Lands Act. This Act removed the Crown's right of pre-emptive land purchase, but allowed the Chiefs in each ruunanga district, under the chairmanship of a European magistrate, to investigate titles to 'native' land and to award subsequent owners with Certificates of Title (cf. the Papatipu Block Committees and the Land Boards set up under the 1900 Maori Lands Administration Act see page 168). The disturbances in the colony, prolonged by the 1863 New Zealand Settlements Act nullified the peaceful intentions of this Act (Sorrenson, K. 1955:22), and little, if any, land was investigated under it (Smith, N. 1942:7). Under the 1863 New Zealand Settlements Act land could be investigated by the Land Court without the owner's consent and confiscated from Maori owners deemed to have taken part in the 'rebellion' against the Government. The Act also granted power to local authorities to lay out towns to encourage the settlement of 'rebellious areas' by military personnel. This Act was brought into operation as a temporary measure through the strong recommendations of Governor Grey, but it never received the Queen's consent (Preece to the Governor 27th March 1868, AJHR 1868 A-16:2).

In 1865 a further Native Lands Act was passed, which repealed the [25] 1862 Native Land Act and constituted the Native Land Court. Like the 1862 Act it's intention was to promote settlement by 'simplifying' Maori land tenure (that is made it conform to British concepts of individualised tenure) through its reduction to fixed rules (McKinney, J. 1939:31). The Court consisted of a Chief Judge and other Judges, together with Native Assessors who were appointed by the Governor. Its function was to ascertain ownership of particular pieces of land according to Maori custom, and to issue no more than ten of such owners with a Certificate of Title to each block. On the basis of this award the Crown issued a Grant, and the 'individualised' Maori tenure made land accessible for purchase by Europeans. While the ten recorded owners were understood to hold the land in trust for the rest of the owners, the Court and/or the Crown Grant issued by the Governor failed to record this caveat (ibid:32), and vast tracts of land were misappropriated. By this Act decisions were no longer made by local Chiefs, as in the 1862 Native Lands Act, but by Judges in consultation [6] with two Native Assessors. No judgment could be given, theoretically at least, unless all three concurred (McLean, P. 1886:40). Their decisions were restricted to evidence produced in Court, although White had suggested in 1859, that both sides would make out their respective cases so clearly 'it would take a Judge and jury possessed of more than human attainments to decide the ownership of land' (Lecture at the Mechanics' Institute, given in 1861 cited in AJHR 1890 G-l:13); there was no appeal against fraud. Former problems of land policy had not been overcome. There were still no principles outlining what constituted a title, and Judges continued to apply their own criteria irrespective of possible tribal differences.

In 1867 Parliament passed an Act which allowed Court records to show all the names of persons or tribes interested in a block of land, although the Certificates of Title continued to name no more than ten persons. These ten could lease the land and keep all the proceeds if they felt like it, but [p26] the land could no longer be alienated, as under the 1865 Native Lands Act, without subdivision into ten owner blocks. This subdivision could occur only with the consent of all, or a majority, of the owners (Coleman, P. 1949:24). Trustees could no longer alienate the shares of minors for more than twenty one year leases without the consent of the Governor-in-Council. The Court was allowed to use evidence from previous cases in which the persons were the same as in the case under investigation (McLean, P. 1886:49), but the number of Native Assessors was reduced to one (ibid:41). Land could not be investigated by the Court unless it had been advertised in Te Kahiti (the Maori version of the New Zealand Gazette) one month before the hearing (Judge Manning Gisborne M.B.I). In 1869 an Amendment Act was passed which prohibited the sale, lease, or mortgage of land by less than a majority of the owners (McLean, P. 1886:52).

There was little relief from misconduct in land sales until the Native Lands Frauds Prevention Act was passed in 1870. This Act appointed Trust Commissioners to investigate all alienations of Native land and ensure that sufficient land remained to support Maori people; purchases were not made in consideration of liquor, arms, or ammunition, and transactions were not contrary to equity or good conscience (Native Lands Act 1909 - preamble:xxii). Provided titles were investigated by the Native Lands Court prior to land purchase, and these purchases were validated by the Trust Commissioners, as required by law, the system worked; however in practice both Government purchasers and private speculators advanced money on land prior to Court investigations (Captain Porter to the Under Secretary of the Native Department 5th June 1876, AJHR 1876 G-5:9), and in some cases land continued to be ‘sold by stealth’, often in towns distant from the land and its owners, by individuals proclaiming (exclusive) rights of ownership (Pukeamaru Block Waiapu M.B.6:228; Ahomatariki Block, Waiapu M.B.11:197-8).


Peaceful Mediation of Disputes a Necessity

In 1871 McLean, the Native Minister, appointed Colonel Haultain to form a Commission to investigate the working of the Native Lands Acts. Maori opinion suggested that the greatest grievance lay in the admission of only ten names in a Crown Grant, with the power by each one of these to alienate land in direct contravention of the law (1867 Amendment Act) as interpreted by the Native Land Court Judges (Karaitiana Takamoana - East Coast Parliamentary Representative 29th July 1871 in AJHR 1871 A-2A:40; Te Wananga reporting Parliamentary Debates by Sheehan 1875:323).

In 1872 McLean introduced the Native Councils Bill which gave power to local ruunanga to investigate and determine disputed boundaries; these decisions were then to be ratified by the Land Court. Although Maori people from Opotiki to Gisborne strongly approved this measure (Brabant, H. Resident Magistrate at Opotiki AJHR 1873 G-l:10-13; Campbell AJHR 1873 G-l:13), a settler-oriented Government was not prepared to allow control of such a valuable asset - the land - to pass to Maori people (Ward, A. 1973:247).

Another Commission was appointed in 1873 to inquire into widescale land alienation in Hawke's Bay. Although this Commission convened for an insufficient period to hear all the evidence (AJHR 1873 J-6 and J-7 Petitions), many of its recommendations were included in the 1873 Native Lands Act. This Act consolidated the 1867 Amendment Act, and overcame the injustices of the 1865 Native Lands Act, whereby ten or fewer individuals were named on the Certificate of Title. The Court was required, after ascertaining ownership, to issue a Memorial of Ownership, on which a description of the land was given, and a list of the names and proportionate shares of every individual within the tribe or hapuu found to be entitled (Sorrenson, K. 1955:128-9). No contract, agreement, lease, sale, or mortgage was valid without the consent of every recorded owner (Smith, N. 1942:14). Land under a Memorial of Ownership could not be alienated until a Crown Grant [p28] was issued, which required subdivision by the Land Court into blocks with no more than ten owners (McLean, P. 1886:52-53). To ensure sufficient land existed for Maori people Native Reserves were established, and proclaimed inalienable without the consent of the Governor (Native Lands Act 1909 - preamble:xxii). Any document relative to land alienation had to be explained by an interpreter and endorsed by a statement of its contents in the Maori language (ibid). Private surveys were stopped (AJHR 1874 H-11). The presence of a 'Native' Assessor was reduced to the discretion of individual Judges, and their concurrence in judgments was no longer required (McLean, P. 1886:41). This Act also suggested that preliminary inquiries should be made by Judges to ascertain whether an application for a hearing represented the wishes of the owners. District Officers were appointed to make preliminary investigations into land titles; their findings were sent to the Chief Judge (Mackay, J. 1887:9). Claimants could request the Governor to grant one rehearing provided sufficient reason was shown, and the application was made within six months of the original judgment (Te Waka Maori 15th October 1873).

The 1873 Act was printed in both English and Maori (ibid) and further publications of Te Waka Maori carried an explanation of the Act, and articles on 'making your will' by 'a legal gentleman' (ibid 21st January 1874:17; ibid 7th April 1874:82). For the first time since its establishment, the newspaper appeared column for column in English and Maori, rather than just Maori. Letters sent to McLean from Maori people throughout the country - thanking him for the 'new Act ... which will enable their children to inherit their property', were published in Te Waka Maori along with the explanations of the Act (ibid 21st January 1874:16-17). By demonstrating that such approval for the Act existed, McLean was probably hoping to generate further Maori support.

On the Government level the Act was declared 'utterly unworkable' [p29] (Mackay, J. 1887:11) and a meeting of Land Court Judges persuaded the Government to compromise, and the Land Court continued to work under the old system - sales, leases, and subdivisions were made without the assent of all the owners (Coleman, P. 1949:118). The 1873 Act however added a new twist - speculators finding it impossible to secure the assent of all owners began to deal with individuals and their proportionate shares, as defined by the Memorial of Ownership. These shares were purchased, cut out, by obtaining a partition order from the Court, and declared freehold (Sorrenson, K. 1955:149). These practices were legalised by an Amendment Act in 1874. The Judges' preliminary inquiries were never put into effect (Mackay, J. 1887:9), and District Officers' investigations were reduced to ascertaining whether claims could be heard without disturbing the peace (ibid:9). McLean's intention to halt wholesale land alienation and settle land disputes was thwarted by the Land Court Judges' failure to implement the safeguards defined in the Act.



Chapter 2

[1] 'Ko te wakaminenga o nga Hapu o Nu Tireni' - the caused to be assembled sub-tribes of New Zealand, a smaller and more probable grouping than that conveyed in the translation to the King of England.

[2] Only the English version is available, but the word was probably matua - elder or parent, which is not necessarily indicative of the male gender.

[3] Donald McLean was the convener and principal Government interpreter for the conference

[4] Te Rangitake was better known as Wi Kingi.

[5] My discussion of the East Coast Chiefs' interpretation of the Treaty suggests that the Governor was responsible for a proper balance in all human affairs between Maori and Pakeha, therefore Governor Gore Brown's support of settler over Maori interests would have been difficult to understand.

[6] Of the cases heard under this Act (none on the East Coast) consultation was primarily at the discretion of individual Judges.

1983 Gail H. Dallimore

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