Whenua is a New Zealand Herald project to show and tell stories of our land and explain how our history affects the present day. In this article, Julia Gabel hears from a historian, a land lawyer, and a former Māori Development Minister about the key laws they say affected Māori land ownership in New Zealand.
History doesn’t just lie in the past, it’s what we carry with us today. For some of us, that may seem truer now than ever before.
Here we are, 184 years after the Treaty of Waitangi was signed, with many divergent views over how we arrived at the present and what it means.
And yet, many facts sit in plain sight where people seldom look – in weighty court judgments, in transcripts of debates in Parliament, in the minutiae of our laws.
This is a story of the points in our history when legislation was passed that saw millions of acres of land shift from those who were here and those who came after.
This is our history. Some of you will be reading it for the first time.
The mid-1800s and 1900s were a period of great land loss for Māori. Before the Treaty was signed in 1840, most of the land in New Zealand was Māori land. By 1920, only 8% remained under Māori ownership, according to Government estimates.
Most of the South Island passed from Māori to Pākehā hands in a series of land sales that were contested very soon afterward, with almost all the land gone by 1865.
Land is a cornerstone of this country’s history – it was the basis of the New Zealand Wars, the foundation of many protests, a key reason why we have iwi settlements. It remains a topic of contention today.
Historian Dr Vincent O’Malley says to understand the present – and how the descendants of this land loss may feel – we have to know the past. To understand why some Māori may feel aggrieved today, or are overrepresented in certain statistics, we must know the history of Māori land loss in New Zealand.
For so long, the reality of this land loss was just not known by Pākehā, O’Malley said.
“Generations of us didn’t learn anything about this at school and without that kind of understanding of the context, what’s happening today doesn’t really make any sense.”
It wasn’t until the protests of the 1970s, including the Māori Land March, Bastion Point and the rise of Ngā Tamatoa, when Pākehā realised New Zealand race relations were not as harmonious as they thought, O’Malley said.
“For a lot of Pākehā, this is probably the first time they’re aware that Māori are not happy with what’s happening in this country because they’ve grown up in this era through the 1950s and the 1960s when they have this kind of image of New Zealand as a land of perfect race relations.
“Not until the 1970s, they don’t even comprehend that there might be anything wrong with that relationship. These things, for many Pākehā, kind of come out of nowhere because they don’t have the historical awareness and grounding.
“You kind of need to understand that there’s a back story to that. When people learn that, it is kind of a shocking story.”
‘Engine of destruction’: Native Land Acts 1862 onwards
The Native Land Act allowed for the creation of the Native Land Court (renamed the Māori Land Court in 1947), which was described by Professor Sir Hugh Kāwharu in his study of Māori land tenure as an “engine of destruction” and by lawyer Bryan Gilling as “one of the most significant institutions affecting Māori-Pākehā relations”.
Gilling has three decades of experience in various roles in the Waitangi Tribunal, in Māori land law and in representing Te Tiriti o Waitangi claims.
He told the Herald the court’s main focus initially was to convert Māori customary land, which was communally owned and managed by Māori, into Pākehā title and the European land system. This made sales of Māori land easier.
“A whole lot of land is lost in several different ways as a result of that.”
O’Malley said the court was a very “centralised, formal and Pākehā-dominated system”.
Courts were often convened in Pākeha townships, far from the actual lands being considered, imposing “huge costs” on Māori communities.
Māori were forced to engage in the court system whether they wanted to or not.
The court process allowed anyone to turn up and claim a piece of land – meaning someone else could get the title to the land – while the real owners might not even be aware the hearing was on.
“If somebody applied a native title to their piece of land, they have no choice but to go to court, otherwise they lost everything. Māori who wanted to boycott the court... could do... but they would lose their land as a result.”
It was often unclear when a particular piece of land would be called up in court, forcing anyone who wanted to lay claim to a block to stay in that area the whole time, waiting for the case to be heard.
There were also “very heavy” surveying costs involved, so even if claimants were successful, they would often have to sell their land to pay the debts accumulated while they waited to get ownership papers, O’Malley said.
In the Native Lands Act 1865, the “10-owner” rule was introduced permitting only 10 owners to be listed on a land title, contradicting the traditional and communal Māori practice of managing land which could include hundreds of people within a hapū.
This provision, O’Malley said, made it easier for Pākehā land speculators to target individuals and acquire the land directly from them. In some cases, this rule would cause chasms in the hapū structure. For example, individuals who faced deprivation may be forced to give in to the pressures from settlers to sell.
Death by a thousand cuts: Native Lands Rating Act 1882
In 1882, the Native Lands Rating Act introduced rates on Māori land at much higher levels than European-owned lands. Gilling says when the rates were not paid, the land could be seized by local authorities.
Gilling represents clients today in court whose tupuna’s land was taken due to non-payment of small rates arrears.
“There’s all these little, little bits of land, whānau homes and things which are lost. It’s just endless death by a thousand cuts,” he said.
“In a legal situation, we talk about things being lost or happening ‘by a sidewind’ – old sailing ship days where you’re sailing and all of a sudden there’s a gust coming from the side that you weren’t expecting.
“In the Ngāti Apa case, the Foreshore and Seabed Act case, one of the judges actually says in there – you can’t just take stuff off people, take their land away by a sidewind. You’ve actually got to confront it and do it full on.
“A whole lot of these other things, the rates stuff, and the Public Works stuff, and all the rest of it, they’re all these little side winds. Nobody consults Māori about them.”
‘At the point of a gun’: New Zealand Settlements Act 1863
In 1863, the Settlements Act allowed the Crown to confiscate Māori land without compensation from any North Island tribe said to be “engaging in rebellion against” the Crown.
As a result, Te Āti Awa lost all of their Taranaki land (following the First Taranaki War) and Waikato-Tainui lost almost all of their land (following the 1863 invasion of Waikato).
More than 3.4 million acres (1,375,000ha) was confiscated across Waikato, Taranaki, Tauranga, eastern Bay of Plenty and Mohaka-Waikare – including from Māori who had fought on the Government’s side.
“When we talk about raupatu [confiscation], it’s not just the loss of the lands, it’s a military invasion that forms part of that process as well. It’s taking those lands at the point of the gun,” O’Malley said.
Settlers who served in the military occupying forces were given a portion of the confiscated land in return, while the rest of the land was sold on the open market to pay the costs of the war.
Many of the Māori who lost their land were plunged into poverty.
“They developed a scheme of military settlements. They would invade the district, confiscate the lands, plant military settlers on some of those and sell the rest for a profit and that would finance the whole scheme,” O’Malley said.
The Compensation Court was established to review the confiscations – but anyone deemed a “rebel” was not allowed to apply.
The scheme was popular with land-hungry Auckland settlers, but O’Malley noted there were some prominent contemporary Pākehā critics whose warnings sound prescient today.
Former Chief Justice Sir William Martin predicted a “brooding sense of wrong” – similar to the Irish reaction to British land seizures – which would be passed down from one generation of Māori to the next.
Canterbury politician and lawyer Henry Sewell said in his journal that the scheme was a corrupt plan by Auckland land speculators and politicians to falsely portray Māori as rebels and confiscate their land in response.
Deliberate targets: Public Works Acts
The Public Works Act 1864 allowed Māori and Pākehā land to be forcibly acquired for roads, railways and other public works. O’Malley said Māori lands were commonly targeted as that was seen as the “path of least resistance”.
“Māori are just not represented in local government until the late 20th century. So, in many areas you’ll have Pākehā farmers and businessmen and others making those decisions and obviously they don’t want their own lands to be taken, so they’ll take the lands from the pā down the road because it’s much easier for everybody,” he said.
“One of my standing jokes is one of the reasons New Zealand roads are so windy is they go from one piece of Māori land to the next, avoiding all the European lands nearby.”
A notorious example of the law in action was the taking of Māori land for the establishment of the Tūrangi township in the 1960s.
“The owners of those lands, they didn’t want to give them up,” O’Malley said.
“They fought tooth and nail to hold on to that area, and in the end the Government uses these measures to require the lands compulsorily and sends some bulldozers in and the Māori settlement there is obliterated essentially to make way for this new township for people working on the [Tongariro] power scheme.”
Birth of the Waitangi Tribunal: Treaty of Waitangi Act 1975
The Treaty of Waitangi Act paved the way for the creation of the Waitangi Tribunal in 1975 – the same year thousands of people marched the length of the North Island protesting Māori land loss. Instrumental in this work was Matiu Rata, a former Minister of Māori Affairs and champion of Māori rights.
The tribunal is a permanent commission of inquiry that makes recommendations on claims brought by Māori relating to Crown actions which breach the Treaty of Waitangi. This includes iwi settlements or other issues, such as the repealing of Section 7AA from the Oranga Tamariki Act or the government directives around the use of te reo Māori in the public sector.
O’Malley says the tribunal’s jurisdiction was initially limited to only investigating grievances since its creation in 1975 – even though most Māori land was already lost by that point.
“The tribunal could not investigate that at all,” he said.
“That only happens 10 years later with the 1985 amendment to that legislation, which allows the tribunal to investigate grievances dating back to 1840 and that opens up the modern era of treaty claims.”
Legacy of land loss: Te Ture Whenua Māori Act 1993
Things changed in 1993 with the Te Ture Whenua Māori Act, Gilling says, which focused on protection of Māori land.
The act describes land as a “taonga tuku iho” (a treasure to be prized) of special significance to Māori and it was desirable to “promote the retention of that land in the hands of its owners, their whānau, and their hapū, and to protect wāhi tapū”.
Although the legislation has been updated to promote the retention of Māori land, former co-leader of the Māori Party and former Māori Development Minister Te Ururoa Flavell says the ramifications of Māori land loss are evident in generations today.
Alongside land loss, further laws gravely affecting Māori were implemented concurrently, including the Tohunga Suppression Act 1907, which sought to stop Māori using traditional healing practices in place of western medicine, and the Native Schools Act 1867, designed to assimilate Māori into Pākehā society, he says.
“The effects of [the Native Schools Act 1867] were practical things like parents and grandparents being strapped, smacked for speaking their language. Imagine being at a young age at a primary school and being smacked when the only language you ever knew was Māori.
“You put all that together – war, legislation, physical conflict, attack of the soul and the overrun of people now, Pākehā, arriving in Aotearoa and spreading throughout and bringing their tikanga – it’s no wonder we’re in that place.
“It’s all linked to the process of colonisation and it’s not just ‘go for the land’ – it’s the big picture. You’re talking about basically taking over a people.”
Landmarks such as mountains are often considered ancestors while rivers, coasts and the land itself were primary sources of sustenance.
For example, when the Crown formally apologised to Waikato-Tainui in 1995, it acknowledged losing the land would have made the iwi feel like “orphans” and would have had a “crippling impact” on the welfare, economy and future development of the iwi.
In the preamble of the Waikato Raupatu Claims Settlement Act 1995, the Crown said “the effects of the raupatu [confiscation] have lasted for generations”.
As a result of separation from one’s land – whether immediate or generational – Māori can in turn experience a sense of disconnection from their culture, people and language – a feeling that can present as anxiety or inner turmoil.
“If you haven’t got your language, your pepeha ... you’re an observer of your own culture. All you can do is stand at the side,” Flavell says.
“We got nothing left now. We only [have a small] percent of the land that we originally had and the worst part is it’s gone.”
Scores of laws were created since 1840 affecting Māori land – these are just six of them. Other legislation includes but is not limited to:
- Native Townships Act 1895: This law allowed the Government to establish townships without first acquiring land from Māori. The Crown could compulsorily acquire land Māori would not sell.
- Māori Lands Administration Act 1900: This act provided for the formation of Māori Block Committees to investigate the ownership of customary land. Māori lost control of non-papakāinga land because it had to be vested in the Māori Land Councils responsible for administering land for settlement purposes.
- Native Land Settlement Act 1907: This Act required Māori Land Boards to sell 50% of surplus lands vested in them and lease 50%.
- Native Land Act 1909: This Act prevented the Crown from buying Māori land unless a meeting of all owners had agreed to accept the offer.
- Māori Affairs Act 1953: Anyone who could show the Māori Land Court that a good piece of Māori land was not being used could apply to have it vested in trustees.
Whenua is a New Zealand Herald data-led project, supported by the Public Interest Journalism Fund, in association with Māori land legal expert Adrienne Paul (Ngāti Awa, Ngāi Tuhoe) from the University of Canterbury law school.