The Law of the Land
The Māori way. Wikimedia Commons
Ever since the doctrine of terra nullius was overturned in 1992, the relationship between Aboriginal Australians and the Crown has been a complex one. How can our government balance the competing doctrines of parliamentary supremacy and native title? If we look to New Zealand for answers, we’ll find that the Crown struck an agreement with various Māori tribes — the Treaty of Waitangi — which recognised that the land had been formerly inhabited. The Treaty is now considered to be a constitutional document of New Zealand. How much did this help? Who did it affect? What can we learn from this?
To assess the state of our trans-Tasman neighbours, The Brief is proud to present a conversation with Judge Michael Doogan, who serves as a kaiwhakawā (judge) in the Māori Land Court and as a presiding officer on the Waitangi Tribunal.
How would you describe the historical background of the Treaty of Waitangi?
New Zealand’s history is different to Australia's in a number of respects. A broad-brush historical overview would begin in the 1810s, when British missionaries established relationships with key chiefs of various Māori tribes, particularly in the north of New Zealand.
Around 1820, two of the leading chiefs, Hongi Hika and Waikato, were invited to England. Unusually for those times, they had an audience with the King and were treated like distinguished representatives of a foreign nation. They were introduced to a scholar who undertook a study of Māori language and recorded it in a written form for the first time. Notably, while there are different dialects of Māori language, they are generally mutually intelligible.
The chiefs returned and literacy developed. At that time, European whalers and traders were keen to trade for flax and timber, and so Māori began producing various products, trading, and sailing across the Tasman in their own newly-built schooners.
However, this growing trade also introduced a technological imbalance in Māori warfare. With the introduction of muskets, some northern chiefs (including Hongi Hika) wrote to King William around 1831, seeking an alliance and asking for a flag that would protect Māori vessels in international waters. Muskets, among other things, concerned the missionaries, who increasingly called upon the Crown to act and to claim sovereignty over New Zealand to protect Māori and the growing settler population under British laws.
Keen to secure this trading relationship, a New Zealand Declaration of Independence (Māori: He Whakaputanga) was signed by 34 chiefs in 1835 and acknowledged by the Crown in 1836. The text was drafted by the British Resident in New Zealand and stated that all sovereign power and authority in New Zealand was held by the Māori Confederation of Chiefs.
The Crown was quite reluctant to formally proclaim sovereignty, but by the late 1830s felt compelled to act for a number of reasons. To follow international law, the Crown needed to obtain the free and intelligent consent of Māori before asserting sovereignty. The resulting treaty, the Treaty of Waitangi, was drafted in English and Māori (translated by an English missionary). The Māori text of the Treaty was not a direct translation of the English. In the English preamble it states:
[Queen Victoria], anxious to protect [the] just Rights and Property [of the Native Chiefs and Tribes of New Zealand] and to secure the enjoyment of Peace and Good Order has deemed it necessary… to constitute and appoint a functionary properly authorised… over the whole or any part of those islands.
The following three articles of the Treaty granted the Crown governorship over all of New Zealand, the Crown guaranteed chiefs their authority over their territories and possessions, and Māori were given all the rights and privileges of British subjects.
Over 500 chiefs signed the Treaty in 1840, and nearly all signed the Māori version. However, at Waitangi, the chiefs argued whether they should sign. William Colenso, a missionary who spoke Māori, produced an account of what he heard. A northern chief by the name of Te Kēmara made a strong case against the move:
Were all to be on an equality, then perhaps, Te Kēmara would say ‘Yes’, but for the Governor to be up and Te Kēmara down low, small, a worm, a crawler — No, no, no. Go back.
But then Tāmati Wāka Nene, a chief who supported the idea, would get up and say:
Had you spoken this in the old time, when the traders and grog sellers came — had you turned them away, then you could well say to the Governor, ‘Go back’, and it would have been correct, straight. But now as things are, no, no, no — Do not thou go away from us. Remain for us — a father, a judge, a peacemaker.
The northern chiefs were aware, for example, that the French knew of New Zealand. If Māori didn't agree to the terms set out by the Crown, there would likely be other nations. The northern chiefs also placed considerable weight on their existing relationship with the Crown, which had begun some twenty years earlier with Hongi Hika and Waikato.
The chiefs debated. Eventually, quite a number signed, but not all. Later, the Crown proclaimed sovereignty. There's still a debate as to when actual sovereignty was acquired; in 1840, the chiefs still had actual political and military control over all of New Zealand because the settlers were in such small numbers. But after 1840, the number of settlers arriving began to rapidly increase, putting pressure on the Crown to acquire Māori land for settlement.
In 1860, war broke out near Mount Taranaki when the Governor upheld by force a purchase of Māori land from a person who lacked the authority to do so under Māori law, or tikanga. The chief with authority didn’t agree to the sale, and that ultimately led to war
As a result of land wars in the 1860s and 1870s, large areas of land were confiscated by the Crown. Critically, the Treaty was considered an international treaty which meant that it had no domestic standing unless incorporated into statute. It was a moral obligation on the Crown, but not something that the courts upheld. In 1877, the highest court in New Zealand held that the Treaty was ‘a simple nullity’.
Now, that was the conventional legal position for a very long time, but since about the 1960s, there have been some fundamental shifts in the political and legal recognition of the status of the Treaty. And a lot of that has come about as a response to growing Māori protests about the loss of what little Māori land remained by the 1960s.
How did the Treaty of Waitangi re-emerge in New Zealand’s legal discourse in the 20th century?
In the 1960s, Māori were protesting against the ongoing alienation of land. In 1975, there was a march on Parliament known as the Māori land march. Following these protests, a Māori MP by the name of Matiu Rata helped to pass the Treaty of Waitangi Act 1975 which established the Waitangi Tribunal as a response to this reality. The Tribunal has authoritative power to determine the meaning and interpretation of the two texts of the Treaty and the power to investigate Crown conduct against the principles of the Treaty. It’s a recommendatory power, so it has the power to investigate and report but not to make binding decisions. Initially, it could only work on contemporary policy matters, but that was changed in 1985 to give a historical jurisdiction going back to 1840.
Does the Tribunal fall under the executive or judicial branch of the New Zealand government?
A recent decision has confirmed that the Tribunal doesn’t sit in the executive branch of government.[1] But neither does it sit squarely within the judicial branch, because its powers are largely recommendatory. There's a narrow band of jurisdiction over which the Tribunal has adjudicatory powers.
In the 1980s, the Crown was creating state-owned enterprises under the State-Owned Enterprises Act 1986. In a number of cases, these were significant Crown land holding estates that had been acquired from Māori and were going to be transferred to these new enterprises. That policy was challenged on the grounds of the Treaty, as the Act referenced the Treaty in sections 9 and 27. In 1987, the Court of Appeal found that there was a failure on the part of the Crown to act consistently with the principles of the Treaty.
The Treaty Act was then amended to give the Tribunal the power to make binding recommendations for the return to Māori of land that had been transferred from the Crown to state-owned enterprises, and a memorandum was put on all those titles. So for that narrow class of land, the Tribunal has a binding jurisdiction. It's only been exercised once in the late 1990s, but it didn't get to final orders because a settlement was negotiated. More recently, there's been litigation right through to the highest courts confirming the nature of the Tribunal’s jurisdiction. Some recent binding orders have been made that are still the subject of litigation in the higher courts, but generally the Tribunal’s jurisdiction is non-binding, except for that specific type of former Crown land.
How had Māori land been treated prior to the establishment of the Tribunal, and how has that changed since then?
Following the Treaty in 1840 and the establishment of representative government in 1852, one of the major legal mechanisms for Māori land loss was the process established by the setting up of the Native Land Court, now the Māori Land Court. The Crown was initially the sole purchaser of Māori land, but they soon allowed other parties to purchase and lease land. Thus, the Crown sought to convert Māori customary land into title recognised by the Crown. This was the work of the Native Land Court, established under the Native Lands Act 1865.
For the greater part of its existence, the primary role of the Native Land Court was to investigate and award Crown recognised titles to Māori that could then be sold or leased. There is still some Māori customary land, or land under native title, but it’s widely understood that these are generally small isolated parcels of land because titles have been issued over the vast majority of New Zealand’s landmass.
Land under customary Māori title goes through this conversion process to be registered under a Torrens title system. The Māori Land Court is responsible for the title records and administration of Māori land. About 6% of New Zealand’s total landmass has Māori land status. The only way that the government or the state has any power to acquire or change the status of this land is through due process. There are powers under acts like the Public Works Act 1981 for compulsory acquisition for major public works, but due process has to be followed, whether it's under Māori title or general title.
There's no prerogative right as such, and there's no residual right vested in the Crown by dint of its territorial sovereignty. There is the legislative power which could pass an act changing the designation of a title, but there's no inherent power other than exercising some form of either parliamentary or legal process over land.
Do you believe that the proportion of Māori titles in New Zealand will decrease or increase in the future?
The Crown has been negotiating settlements of historic Treaty breaches with Māori for maybe 30 years now. Those settlements typically involve a Crown apology and redress, which is both commercial and cultural. Quite often, lands that the Crown retains are returned to Māori as part of a package of redress. These lands are typically under general or European title, and it's rare for Māori who receive those settlements to then convert that land into Māori land status. Māori land is still very restrictive and it's quite cumbersome to administer; it comes in a legal framework which is fairly complex when compared to general title.
Nonetheless, Māori who receive land back from the crown are typically looking to the long term stewardship of all of their assets. They're trying to reestablish a collective base for their future and for the future of their descendants. Regardless of title, ownership and long-term stewardship are more important. I don't think more land will necessarily be converted to Māori title, and neither do I think there'll be a significant change or reduction from the current land that has Māori land status, simply because the legislation is now designed to try and retain it as Māori land, owned by Māori.
How are Māori concepts of property ownership different to the Crown's understanding of property ownership?
The Crown’s policy was generally hostile to concepts of communal title or holding. The Native Land Court was flawed for a number of reasons; significant costs were put onto Māori owners to pay for surveys of the land, and if they couldn't pay, land would be taken in lieu of the survey charges. Names of individuals were put on titles and conflict within Māori communities would develop because the wrong people sometimes got put on titles. Once titles were issued, there was pressure to sell. Poverty and urbanisation increased pressure on titleholders, leading to alienation of land. The land now remaining is often in more remote and difficult terrain, and Māori in some places organised in ways to effectively resist the way the court was operating.
Until Te Ture Whenua Māori Act 1993, our legal system wasn't sympathetic to Māori concepts of ownership or to a different conceptual understanding of property. Since that act, the Māori land court has quite a different focus. Māori land has not lost Māori ownership, but there are often barriers to use due to lack of access or capital.
Ultimately, the emphasis is on the owners’ abilities to retain and use the land, so there are quite strong restrictions on alienation. It's now difficult to change the status of Māori land to general title. While it remains in Māori title, if a person wishes to alienate their interests, it has to stay within the bloodline. Māori land is still much more complex to administer than other property registered under the Torrens system.
How has the urbanisation of New Zealand impacted the Māori population and Māori land claims?
It's a little bit hard to generalise. The migration of Māori from rural areas to urban cities increased greatly since the 1950s. Those who have moved try to maintain cultural continuity with their original lands, and Māori who remain in their traditional areas are called the ahi kā: the ones who keep the home fires burning. The ahi kā are often those who look after and live on Māori land.
Some of the regions, such as the east coast of the North Island or the far north of the North Island, have also suffered from underinvestment in terms of good roads and good infrastructure. These places are quite vulnerable in terms of floods, and storms; and they are relatively poorer in terms of employment, health and education outcomes, and opportunities. Sometimes, Māori who have remained in those places may resist relatives who have been away for a generation or two, but nonetheless are shareholders in the land. There may be tensions about how much they should have a say in what's happening on the land. That is a dynamic that often arises with people who are still connected to ancestral lands, but do not live together on those lands.
Any opinions expressed by Judge Doogan are his own view and are not made on behalf of the Māori Land Court or the Waitangi Tribunal.
[1] Colleen Skerret-White and Ors v Minister for Children and Ors CA259/2024 [2024] NZCA 160.
This article was originally published under the title ‘A Brief Conversation with Judge Michael Doogan: Civilisations Immemorial and the Law of the Land’ in The Brief Edition 3, 2024 — Ad Aeternitatem.