Must Follow Tribal Customs

The people who are responsible for planning the new system have to think of a number of things. First, naturally, they must think of some form of title which will enable the land to be worked in the best possible way and produce the most. But they must also, as far as possible, plan the new system so that it will fit in, to some extent with the customs of the people and their social organisation. If the change is too great the tribal organisation of the people will break down and the new system simply will not work—or at any rate not for several generations. The way in which a people lives cannot be completely changed overnight.

The systems adopted are not necessarily the same in all countries. Because of the different circumstances of land use, different tribal circumstances and customs, relationships between different races, and so on, there is no general and ideal system possible. What may work in, say, Uganda, may by no means suit Papua. Each case has to be worked out by itself for there is no world-wide rule about what is the best form of tenure.

The history of Maori land titles is a subject of particular interest to the Maori people on which little has been published in a generally available form. The opinions and conclusions, contained in this article are not to be taken as representing any official viewpoint.

Maori Ancestral Rights

To get back to our question in New Zealand: before any criticism can be made of the course taken here, it is necessary to know what did happen and, broadly, why it happened. Some brief historical survey is therefore necessary.

In the days before Europeans arrived the Maori customary system of land holding centred on the tribe or hapu. Founded on ancestral right, conquest or occasionally gift, confirmed always by occupation or use, a tribe would hold an area of land consisting of a number of blocks. Within the tribe, the hapus or family groups would have rights located in blocks or parts of blocks, but rarely was there anything approaching individual ownership. Generally speaking rights would tend to be more finely divided out in closely settled areas, as in places of fixed residence and areas of intensive cultivation. There are however examples of something approaching individual rights of use, if not of the ownership order, in bird-sharing trees, rat-catching runs, fishing channels and the like.

But there was no real certainty of rights since they could be overturned by force. Within the tribe there was a reasonable chance of preserving rights but they could hold good only within the tribe. No assertion of ancestral title or gift or occupation could avail against a superior force of arms by an outside tribe. There could be no certainty as a lawyer would put it of “quiet enjoyment”.

It is clear, therefore, that title, even where it might approach the individual title, stood or fell with the tribe or hapu whose corporate strength would defend it. The individual could not exist apart from his membership of the group and the rights of the group dominated the rights of the individual, as witness for example the “muru” custom. The chiefs and elders were the governing organs of the community, and, to a greater or lesser extent according to their degree of autocracy, could claim to speak for the tribe.

Buying the Land

When a European prior to the Treaty of Waitangi and for many years thereafter wanted to purchase land, he was faced with the initial hurdle of ascertaining the tribe or chief with whom he should negotiate—i.e., those who would have the right to sell the land. Sometimes this was comparatively easy—it was obvious from the circumstances. But many and many a would-be purchaser found that after he had, as he thought, completed a bargain with the proper people, others came forward alleging their rights. As he had no sure means of determining who had the better title, he must either satisfy all or give up the land. Many claims were disallowed by the early Land Purchase Commissioners because negotiations had not been with the right people.

It was more than twenty years after the Treaty of Waitangi that something effective was done to meet this situation.

The danger of trouble arising from purchasing from one tribe land claimed by another became more and more prominent. The outstanding and classic example is Waitara which was the occasion, if not necessarily the direct cause of the Taranaki Wars. In addition the old Maori social order was

already seriously shaken, and the authority of the chiefs weakening—particularly in regions of close settlement. Thousands of Maoris had already left their village communities to work for or with settlers. They had discovered the attractions of a cash economy and had developed more sophisticated tastes in clothing, food, furniture, and, of course, stimulants and sports. Boys who had been given a sound education in missionary schools had become men and the Christian teachings were on the whole not calculated to maintain the communal relationships previously existing.

Land Court Established

The obvious course was therefore taken of setting up a special tribunal to determine ownership, very much for the purpose of ensuring that when purchases or leases were made they would be made from the right people and there would be made from the right people and there would be no argument. There was no question but that from the European point of view purchasing was necessary, with thousands of square miles in the North Island held by the Maoris and surplus to their actual needs. Settlers were still arriving, and routine systems of farming were being evolved. Communications still needed much development.

In addition, although this probably had less importance attached to it, such a tribunal would enable effect to be given to the undertakings of the Treaty of Waitangi to confirm the rights of the Maoris to their land. Before those rights could be confirmed they must be ascertained. Disputes between tribes and hapus must be settled, the point of reference being the position at the time of the Treaty itself. The Maoris who had had interests in land were entitled to look to the Government or the Crown for protection against encroachment by Europeans or other Maoris. In the old days, as a last resort the strong arm was an effective title deed, but now some other means had to be found.

An attempt to set up such a tribunal was made in 1862 when the first Native Lands Act was passed. For a number of reasons however, this was abortive. It was operated only in the far northern districts and to a very minor extent and it was not until 1865 that the first effective Court was set up by the Native Lands Act, 1865. The process by which the Court dealt with lands brought before it was essentially the same as was followed right down to the early part of this century, when, except for a very few small areas, the last of the blocks of Maori customary land were being dealt with. Claims were lodged, the land was surveyed, a sitting was held where the various claimants stated the nature of their claims and led evidence. The Court then, from the conflicting evidence, determined who were the owners

as at 1840, the date of the Treaty, and issued a certificate of ownership which resulted in the issue of a Crown Grant. But the Court could only put 10 names in any certificate and accordingly inserted the names of ten or less persons selected by the owners—normally the leading chiefs or heads of families—the idea being clearly that they should hold for and on behalf of the hapu or tribe. It was, in fact, possible for the Court instead to issue the certificate in the name of a tribe or hapu. The trouble about this was that no method was provided of dealing with land in this way, that is, of selling or leasing, and the eyes of the Maoris as well as those of Europeans were turned towards alienating. The consequence of the ten owner system was, unhappily in many cases that the persons (usually chiefs) nominated as owners dealth with the land as if it were their absolute property, and in many cases the remaining beneficial owners got nothing.

Indeed, various steps were taken to avoid this, and later the names of all members of the tribe were inserted as beneficial owners, but the grantees still had power to lease. Eventually the law required, as perhaps it should have done from the start, the insertion of all names.

Towards Full Individual Ownership

With this arose fresh problems. Since all were included in the title, a sale of the land required the execution of a deed of conveyance by all, including minors and other persons under disability. No relative shares were at this stage defined. This made the process of alienation well nigh impossible particularly where the members of the owning tribe might reach some hundreds, until at last the time came when the law permitted the sale of undivided interests which might be cut out by partition for the purchaser. Ultimately the Court was required to define interests. This was normally, in fact, arranged by the owners themselves reaching agreement and submitting the result to the Court.

The flow towards the individualisation of interests once commenced was irreversible and it resulted in more and more difficulties, complicated by the constant spate of legislation and it is true to say that it was not until the Act of 1909 that one coherent and clear system of dealing with Maori Land Titles was set forth. Here despite earlier foreshadowings we first have a clear system of dealing by vote of the owners in the assembled owners procedure; the incorporation system enabling the owners to work their land by means of an incorporation; the governing body being an elected committee of management; the relatively clear system for cutting up and leasing lands vested in the Maori Land Boards which, for reasons often quite unforseeable, were to go so astray—also a comprehensive code for the purchase of Maori Land by the Crown. It was well on in the 1920's before any workable system of financing the development of Maori land for Maori settlement was formulated.

Succession and Partition

The position was, then, that much Maori land after passing through the Court was held by a number of owners each individually, with a defined share. Before long it became necessary to provide for some method of succession to a deceased owner to be found. For this purpose the Court was given power to act and it was laid down that succession (to land interests) should as nearly as possible be in accordance with Maori custom. This meant that, generally speaking, succession was in favour of all children equally so that as time went by shares got smaller and smaller as the number of owners became larger.

The Court also, at quite an early stage, was given power to partition land—that is to cut out the interests of different people or groups of people into different parts, each with a separate title. Over the country the Court has made many thousands of partitions, resulting in pieces of land of all shapes and sizes which today are not easily handled for practical use. There are for example, the “fiddle-string” groups of sections, perhaps several miles long and only a chain or two wide. We tend to wonder these days why a piece of land should be cut up into such fantastic shapes. There is usually an explanation. The “Fiddlestring” type of partition was designed to give the owners of each section a part of each sort of land in a block. Thus the section might run from the sea back into the hills, enabling the owners to have access to the sea for sea food, to have some flat land for residence and cultivation, and some hill country for forest foods and timber.

Could Tribal Ownership Have Been Maintained?

So we come to to-day's position. The great part of Maori land has been sold. Of what is left a great deal is broken and poor in quality, and much is difficult to deal with owing to badly shaped sections and a multitude of owners.

Our question is whether some other system of titles could have been used which would have prevented all these difficulties, and which would perhaps have encouraged, at a much earlier stage the farming by the Maoris of their land for their own benefit. Many people think this would have been possible if some system of ownership nearer to the tribal system had been carried on by the laws and the Maori Land Court, rather than the giving to each person of a distinct share which he could deal with himself.

The issue between the communal type of title

and the individualised title is not a new one. It has been argued almost from the beginning by different people interested in the administration of Maori land. In the report of the Native Land Laws Commission of 1891, the question is discussed to some extent but not in a very constructive way. The majority report, by W. L. Rees, M.H.R., and James (later Sir James) Carroll, M.H.R., expressed vague bankering for the days when all sales were carried on in public by the natural leaders of the tribe and “when the Maori chief was a gentleman”. But the report is really concerned mainly with ease and convenience in alienation, more than anything else, although considerable thought is given to the providing of safeguards against unfairness to Maori settlers. The report is not particularly impressive, on the whole, bearing indications that it is mainly the work of Rees, who was something of an amateur political economist. He has, of course, a particular interest in connection with Maori land since he was largely concerned with the promotion of the Native Land Settlement Scheme on the East Coast, which if it had not been for the intervention of Government at the eleventh hour, would have resulted in the loss by many Maoris of the East Coast of the greater part of their land. However, the report did serve to draw attention to the complex and inconsistent web of legislation, and the separate memorandum by Carroll is remarkable for its discussion of the need to assist Maoris by training and finance to farm their lands for themselves.

All the argument has been as between the individual and communal type title. Would the retention of a communal title have helped the farming of the land by the Maoris themselves at an earlier stage? There are some indications this way. In certain districts especially, particularly in the early 1850's, considerable quantities of produce were provided by Maori communities for sale to Europeans—usually sent to the cities or towns by coastal shipping, frequently owned by Maoris themselves. Wheat, maize, potatoes, fruit, pigs, kumaras were produced as it seems by something approaching the old communal system. In the old records of the Native Office one comes time and time again across references to the giving of a plough, a horse, a mill (often a steel hand mill but occasionally a water-powered mill) or seed to various chiefs (i.e., to them and their tribes or hapus), or the loan of moneys to buy some of these things. Small ships as well, should be included in the list. A thrifty people could perhaps expand their activities from their profits but it must be remembered that the Maoris were quick to desire the warmth and smartness (?) of European clothes; the relish and softness of European foods and tobacco and drink, to purchase (even for peaceful purposes) guns and ammunition and a hundred and one other things. So long as settlers were pouring into the country to be fed, and the pattern of New Zealand farming had not as yet settled itself, when white farmers were “mixed farming” and feeding themselves before producing a saleable surplus, the crops of the Maoris sold. But once farmers began to specialise, the market for Maori goods contracted and they

could no longer get for their relatively poor produce the prices which formerly induced their energy. It is to be noted, too, that a strong market has been created for all food produce by the Californian and Australian gold rushes. When this extraordinary demand ceased prices dropped heavily both in Australia and New Zealand.

Meanwhile, the good lands were diminishing fast, by sale. It may be that the rate of sale was too fast, but it is plain nonsense to blink the fact that the pressure to sell was irrestible. Once let settlement commence and the rest had to come.

Chiefs Lose Power

Notwithstanding all this, could not the Maoris have gone on on the lands they occupied on a communal agricultural or even pastoral basis—to a greater extent than in fact happened? In my view this was impossible because the old system of social government was breaking down, and there was nothing to replace it as yet. Under the older system, there was a coherent will in the community, expressed finally perhaps through the chief or chiefs, but nevertheless naturally flowing from all. Management on details would be vested in the chief or such other person as might be delegated. As settlement spread, however, and employment could be obtained either with settlers, local authorities or Government contractors, the relatively tight group fell apart. Some at least of the men sought work with a cash payment, or if not for that for the adventure and interest of novel ways. There was, in fact, little to hold them together. The office of chieftainship became more and more a ceremonial status and pakeha law began to permeate the tribal settlement. The ultimate authority of force was little by little prohibited. The slaves were now free men and had an interest in maintaining their changed status.

This short essay must omit to deal with the effect of the wars which did not touch all districts or even a majority of them. The Waikato, Taranaki, the East Coast and Bay of Plenty were affected but some to a minor degree only. Notwithstanding the temporary tightening of tribal ranks around the chiefs and men of influence it seems that even these episodes would in the long run accelerate rather than reverse the decadence of the corporate entity that once existed. The more travelling involved, the long absences from tribal lands, the loss of those lands and the settlement on them of pakeha—all these spelt the end of the communal working group.

It seems unlikely that the preservation of the communal type of title would, by itself, have held together the tribal or hapu community as a working and living group.

Perhaps there could have been a middle course—something short of a title vested in all the owners in defined shares. Possibly an incorporated body such as is common today, managed by a committee of management composed in the main of the recognised leaders of families. Such an arrangement would be closer in spirit to the ancient ways. But even here, there is room to think that the other forces already mentioned might have been too strong. It must have been a necessary part of any changeover in title that the membership of the tribe or title be fixed and this recording of membership would at this stage at any rate contain the seeds of individualism. It was not until much later that, after a period of despair and poverty, the East Coast people prompted by men trained in the pakeha world, drew more closely together again in communal farming projects.

Individual Ownership Inevitable and Successful

One is drawn more and more to the conclusion that the type of title given to the Maori people by the laws of the Europeans was relatively unimportant in the general circumstances that then existed. The brutal facts are that no one was genuinely interested in preserving Maori land in Maori ownership. On the contrary the Government, the settlers and many Maoris were concerned mainly with buying and selling. No device of titles or restrictions could have held up the irresistible pressure of settlement. By the time this pressure was relaxed, it was too late in many districts. The cream of the land was gone. What was left was relatively unattractive, and while it might be suitable for a papakainga area was by no means adapted to modern farming use.

It is with this remnant of land that we are now concerned. There is little enough in comparison with the growth of the people. It is too late to change the broad outlines of the system, even if there were good reasons for doing so, but there are plenty of ways and means of improvement. The pattern is fairly clear. The main line of progress must, it seems, be towards true individualisation—one person or family owning and using land in the most efficient and productive way. Another special line is that of the incorporation where a central management runs a large block for the benefit of the owners.

There is an enormous amount of work to be done before we can be satisfied about the condition of Maori land. The question is whether this work can be done within a reasonable time. This will depend largely on the recognition by the people of the extent of the task, and their determination to tackle it. Fortunately it is clear that most people are now aware of the problems and are doing their best to overcome them. If this attitude is kept up there can be no doubt of success.