Land Law 101: English Land – Māori Whenua
In order to effectively govern as an MP, and to be part of the solution not part of the problem, understanding the purpose of law, and then understanding the purpose and basis of land law is essential. Land law is the law of immovables. That which can be touched but is not intended to move from one place to another. Territories are claimed. Boundaries are marked. Ownership is established and defended.
- The English, starting in 1066 AD developed a concept of land ownership called sovereignty that continues to this day in New Zealand
- Māori have a very different relationship to land called mana whenua, where the collective people who live on the land are called tangata whenua.
Unfortunately for New Zealand, too many students of government and even law students seem to have slept through Property 101. This is further complicated by Te Tiriti o Waitangi where two very different concepts of land and property law were married.
As a result, one finds regulatory creep where (if you pardon the pun) the boundary of law has been moved by advocates and bureaucrats over time.
The point of law is that it does not move except by due process, meaning changed by majority vote in a democratic system of governance. Over the past 20 years this regulatory creep has happened with land and property law, to the point where a restatement is deemed necessary. For example, the idea of Māori sovereignty sounds appealing to advocates, but if properly using the word sovereignty, it makes no sense whatsoever. It’s not how Māori worked when it came to whenua.
What is Law?
Law is a social contract in which humans who live in proximity develop agreements to get along with each other. There are two fundamental origins of law:
- Agreement: The adults agree to get along. Typically this emerges out of a family where parents lay down the law and the young agree or suffer consequences.
- Conquest: A warring party fights and dominates another people, and then lays down the law to which the losers agree in order to survive after conquest.
In either case, law begins informally and over generations – especially if the culture uses written language – become more codified. Eventually, law becomes so complicated a class of experts called lawyers and judges emerge to interpret the written law as agreed to by a formal governance body. In NZ it’s called The Crown.
What is Property Law?
Tangible: Property consists of tangible property (things that can be touched) and intangible things (things that cannot be touched).
Realty vs Chattel: In this page, focus is on tangible property, and more specifically immovable property (called realty: land and anything fixed to land, such as a stone wall or a castle) and property that can be moved (called chattel such as a dumped pile of stones that may become a wall or castle, but at present is not). The grey area comes when it is unclear if the property is fixed to land or not, and in such cases the courts make decisions, often based on intent, that can be precedent setting, meaning once decided for that case, it is not overturned except by new and explicit law.
Sovereignty: The above distinction is based on English Law, also called Common Law. In short, since 1066 AD, all land within the realm (all of NZ) is owned by the Sovereign, also referred to as The Crown presently in the titular name of King Charles III. What we call realty or real property/real estate is a bundle of rights granted by the Crown, not ownership. A Kiwi can own cattle (a word related to chattel), but only owns fee simple rights to the paddock upon which the cattle graze. Those rights seem so strong that ordinary folk regard them as absolute, but in law this is an illusion. It’s not real.
Colonial Law: This sovereign concept of land ownership became more complicated when the British Empire started colonising the planet. In colonisation, the Western Powers agreed to the International Law of Colonialism where one nation claims ownership of foreign land, after which another nation can only take ownership by conquest (Norman), treaty (Waitangi), purchase (Alaska) or revolution (American).
Eurocentric: The native peoples who were colonised had no say in the establishment of International Law of Colonialism and in many cases the land the colonial power “discovered” were already occupied by native peoples who held absolute ownership of land in accordance with their own social contracts. International law had procedures for dealing with colonising lands already occupied, but they were agreements made among Western powers, not the natives already there.
Since New Zealand (Nu Tirani in Te Tiriti o Waitangi) was colonised under the International Law of Colonialism, it’s important MP’s understand its basis in law:
Sovereignty
THE KING HOLDS ABSOLUTE OWNERSHIP OVER ALL THE LAND
To understand Western governance, one must begin with Christianity, most notably Genesis 1:29
And God blesses them, and God says to them, “Be fruitful, and multiply, and fill the earth, and subdue it, and rule over fish of the sea, and over bird of the heavens, and over every living thing that is creeping on the earth.
Sovereignty means absolute ownership of land and supreme authority over people to establish a state of lawfulness. New Zealand sovereignty was born by conquest in 1066, in which supreme authority was vested in the Crown by divine right. But over time sovereignty increasingly became subject to a system of checks and balances requiring consent of the people by their elected representatives. In other words, it has moved from conquest to agreement, but NZ still has vestiges of conquest at its fundamental basis. When it comes to checks and balances, the collective government still holds absolute sovereign power because there is no written Constitution to which the people can appeal and to which the officials swear allegiance.
1066 AD: In 1065, England was controlled by several Earls, not one supreme king. The Earl of Wessex was Harold Godwinson. In 1066, Duke William of Normandy became William the Conqueror by defeating Harold at the Battle of Hastings. As King William I, he claimed absolute ownership over all land and everything fixed to land such as castles, as his own. He then issued a bundle of rights called realty (real estate / real property) where a landlord was issued a title. To cement this, in 1085 William recorded his ownership in the Domesday Book.
This is not a historic curiosity. It remains the basis of land law in New Zealand today. The Crown holds underlying absolute ownership of all land, be it in Māori title or Freehold. Over the centuries, the limits on Crown authority were both increased and codified, but there is no question that at law, all land and all fixtures attached to land are owned by the Sovereign. Any careful reading of the laws related to land makes this clear…
Estates & interest: When one buys fee-simple freehold land, one buys rights (estates and interest), not absolute ownership. These rights may appear to be absolute until the Crown takes land by eminent domain, or passes laws such as the Resource Management Act that gives the state (as delegated to the councils) authority to determine what improvements may be done on fee simple land. To make a change, one must apply for a consent.
While it is said Māori did not understand the legal concept of sovereignty in 1840, it would be reasonable to say in 2023 very few, including MPs understand the legal concept of sovereignty, especially in regard to land ownership, because it is rooted in archaic history of conquest that is alien to most in the 21st century.
No one (other than fringe groups like the Sovereign Person movement) question the supreme authority of the sovereign. As stated by Department of the Prime Minister and Cabinet: The King reigns, but the government rules so long as it has the support of the House of Representatives.
Because NZ forms political parties, and elected Members are compelled by their party to vote as a block, power is centralised to a small group of like-minded people, especially if under MMP, a single party wins over 50% of the vote. The cabinet holds extensive power where, with the exception of the power to demonstrate, protest or occupy land, the people have little say except at election time.
Mana
EARTH DOES NOT BELONG TO HUMANS, HUMANS BELONG TO EARTH
To understand Māori view of whenua, it is explained in whakatauki that set out a different relationship between humans and the Earth:
Whatungarongaro te tangata, toitū te whenua
(People disappear, the land remains) and
Ko au te whenua, ko te whenua, ko au
(I am the land and the land is me)
Mana whenua: In order to understand the precolonial Māori social contract, it is essential to understand the concept of mana, of which mana whenua (land) was a central principle. Mana whenua comes from land held by a hapū, a tribe that descended from a common ancestor. Multiple hapū would recite their ancestry to a common iwi (which waka their ancestors sailed on), but iwi did not control land or serve as a collective level of governing.
Mana tangata: Hapū ruled supreme over their whenua, kāinga and taonga katoa, and the rangatira was their chief who ruled by a form of collective decision-making in the hui. If a rangatira lost the confidence of the hui, the chief’s mana tangata was lost. No impeachment or recall vote, loss of mana would be immediate, obvious and devastating. This served as a brake on the people who may not like the decision made by their rangatira, but accept it in respect to the chief’s mana.
Mana whenua was claimed and defended, but was not rigidly fixed.
Prior to arrival of European technology, agricultural, weaponry, money and law, Māori were predominantly a hunting/gathering culture where one tribal territory abutted the next because all of it was needed for food. When Europeans arrived, they altered the Māori economy by bringing livestock, seed, farm implements and farming knowledge which Māori adopted.
This meant a need for less land, but fed a need for money to buy these European advances. One way to raise money was for hapū to sell surplus land. In doing so fully understood they were abjuring mana. For example, in 1897 at the Native Land Court, rangatira Neho Keepa testified “All the earlier tupapaku (ancestral bodily remains) were removed [from Matiatia] to Wharekawa (the Miranda Coast)… on account of the uncertainty as to whether this land would be sold or not...” By removing the tupapaku, the tribe was relinquishing its mana over that land.
It is alleged Māori lacked the legal capacity to understand the concept of sovereignty, thus did not do so in Te Tiriti o Waitangi. However, while the rangatira at Waitangi did not have legal training in principles of Common Law or the International Law of Colonialism, it is clear they understood they were giving up absolute ownership over whenua they regarded as surplus to their requirements. In Māori terms, they were giving up claims to the whenua in question. Otherwise, they would have demanded utu.
To be clear, this does not apply to land that was confiscated by subsequent wars or other reasons for which the Waitangi Tribunal is making reparations.
Subdue or Kaitiakitanga – which is more aligned with the present?
Sovereignty is a historic vestige from a time when kings ruled and claimed their right as divine, meaning it came from God and they were accountable to God, not to the people over whom they reigned. Christianity was ever-present in the people’s lives, and indeed to this day, crowning of the King/Queen is a Christian ritual. Unfortunately for the planet, the injunction in Genesis 1:28 has actually come to pass. Humans have subdued the earth. They have filled almost every arable corner of it, and believe they rule the birds of the air, the fishes of the sea and all that moves across the land, although by rule, it seems to mean bringing fauna (and flora) to extinction.
As humanity becomes more aware of its environmental footprint, the Māori worldview of kaitiakitanga becomes more relevant. As the NGO Conservation International reminds us: “Nature doesn’t need people. People need nature.”
Baggage: This opens up a very interesting possibility for New Zealand – the new sea land – to move beyond sovereignty to a legal system in which land is not owned, it is cared for. Title to land continues, but the concept of sovereignty with its negative historic baggage is left behind.
Law of Empires: Curiously, the arguments Māori make in regard to whether the British Empire did or did not secure sovereignty by Te Tiriti are based on western international law of colonialism. They argue while sovereignty was claimed in the English version, in Te Tiriti, the rangatira representing hapū only granted kāwanatanga, not mana whenua, meaning sovereignty – absolute ownership of all land by the Crown in the person of the Queen or King of the day – was never secured. This is a curious state of affairs where Māori are demanding their rights under English and Colonial Law while asserting English and Colonial Law was never properly ratified and therefore lacks legitimacy. To argue illegitimacy from a platform declared as illegitimate by those advancing the argument creates an oxymoron and only stands because until recently, with the apparently-serious proposal for co-governance, there was no pushback.
A New Hereditary Aristocracy: This argument came to the fore under the 6th Labour Government when the concept of co-governance moved from an academic discussion to a political platform that would in law create a new hereditary aristocracy in which authority was vested based on ancestry (think House of Lords in the UK) not election by the people (think House of Commons in the UK). While the Crown has the supreme authority to whatever it wants, it is historically dishonest to say it is compelled to do so based on Te Tiriti, or to use the current political jargon, it is based on misinformation or disinformation.
Regulatory Creep
On 29 July 2020, the government received an independent review of the Resource Management Act (RMA). The nearly 600 page document, prepared by retired Court of Appeal Judge Tony Randerson QC, gives advice on how to move forward by practically repealing the RMA and starting again. In that report, the term ‘mana whenua’ is proposed to be defined as “‘an iwi, hapū or whānau that exercises customary authority in an identified area.”
Customary: This is not historically accurate. The word “customary” greatly expands the territory, to include land that was sold by competent hapū and whānau under the protocol set out in Te Tiriti. The records of the Native Land Court clearly show the hapū who petitioned to sell land fully understood they were relinquishing mana over the land they were selling. Such land was surplus due to their shift from hunter-gatherers with minor kūmara agriculture to farmers in which almost all food was grown using imported seed, livestock and farming methods.
iwi never exercised customary authority because the highest form of authority was hapū. This would be like the United States granting customary authority to families who trace their ancestry back to the Mayflower.
Why this matters
People need certainty in their lives. Tūrangawaewae – having a place to stand tall on the planet – is fundamental to human wellbeing, and it is attained by a careful balance between the needs of society and needs of the individual. New Zealand was colonised predominately by the losers in the Norman Conquest of 1066. The Anglo-Saxons, Celts and Norse who were conquered by William became tenants in their own land. They became subservient to an overlord class who claimed ownership rights over land the conquered people’s ancestors had owned until William confiscated them by right of conquest. The descendants of those tenants took the arduous journey to the other end of the earth to start a new life in which there were no overlords. They did not conquer the native peoples, they intermarried, to the point that today there are hardly any natives left. All are what in Latin America is called mestizo, persons with mixed ancestry.
Land owning may be a bundle of rights granted by the Crown, rather than absolute, but it is important to Kiwis, regardless of ancestry or DNA.
Increasingly, the right to change ones land, such as constructing a new home or structurally changing an existing one comes with an overlay of consent charges and delays that are becoming burdensome. In almost all cases, the consent is eventually granted, but not until one has paid a new class of experts to write the application in a form the council accepts after charging substantial additional fees and sometimes contributions that mean less money for bricks and mortar, less for the beauty in the finishing materials because the available money ran out.
To add a mana whenua cultural overlay, be it a mana whenua review of a consent application paid by the applicant, or use of rates to pay for the services of a new hereditary class that is paid by council for consultation, seems a step backwards. Councils need kaitiakitanga, but it should be based on knowledge, understanding and field experience, not ancestry.
The recent 2023 election saw a repudiation of co-governance in the switch from a Labour government to a National government, but there does need to be a more nuanced way forward. The idea of a hereditary class granted powers due to ancestry seems a backward step for the nation, but at the same time, sovereignty appears as a historic vestige that perhaps should be retired in favour of kaitiakitanga.
CASE STUDY
“Mana whenua is an iwi, hapū or whānau that exercises customary authority in an identified area.”
On Waiheke Island, most visitors and residents arrive by ferry at Matiatia, but few notice the picket fence on the foreshore that is the urupa of a former Taranaki Māori slave who was brought to Waiheke by with his former owners, the tangata whenua, released from bondage by Te Tiriti, and was given Matiatia valley as tuku whenua (right to occupy) where he was buried and is still honoured to this day. Matiatia exemplifies the realty of Te Tiriti, and it is worthy of a review for those still reading this page. It is helpful that historian Paul Monin wrote a book, Matiatia Gateway to Waiheke that documents the history.
In about 1700, Ngati Paoa, a hapū of the Tainui iwi began to extend settlement onto Waiheke Island. Their mana was contested by Ngati Maru, Ngati Rongo, Te Kawerau as well as the earlier tribes of Patukirikiri, Nga Tai and Te Urikaraka with conflicts and killings. With colonialism came firearms and Ngapuhi under Hongi Hika was quick to adapt to the new, much more lethal form of warfare. He came down to the Hauraki Gulf and launched massive raids on the Hauraki Tribes, including Ngati Paoa with devastating effect. Ngati Paoa fled south to the Waikato and did not return to Hauraki for another decade. They were joined there in 1831 by freed Hauraki slaves who returned from the Bay of Islands.
Of these was future rangatira Wiremu Hoete who had been released from Ngapuhi captivity in the Bay of Islands. As a boy, the enslaved Hoete had been placed in the Anglican Mission at Paihia and on his return to Hangaura he built a raupo chapel at what became known as Church Bay. His mana and that of his whanau extended over Te Huruhi, the western peninsula from Oneroa Bay to Huruhi Bay, what now is called Matiatia Estates, Matiatia wharf and valley, Church Bay Estates and Park Point.
Hoete married Hira who was part of Ngati Te Ata, a Waikato tribe whose father captured a number of slaves, including a young boy, Rapata Te Rou, who was called The Taranaki from the Taranaki tribe Hira’s father defeated. This Taranaki was exceptionally industrious. As a means of rebuilding his mana lost when he became a slave, the generous and devout Christian, Wiremu Hoete and his wife Hira, gifted Matiatia to Ropata Te Rou as tuku whenua in which land use is gifted, but mana whenua is retained. If they cease to occupy, land reverts to the mana whenua.
Ropata owned five sailing vessels in succession, transporting firewood, horticulture and livestock to Auckland over a 30-year period until he died in 1894. He had fully adapted to English technology and farming. Over the hill in Church Bay, Hoete ran productive farms with woolsheds as well as horticulture growing potatoes and other crops. However, when that generation passed on, subsequent mana whenua petitioned the Native Land Court to partition the whanau land in 1894. In 1897, the Native Land Court accepted the Māori application and partitioned Te Huruhi, the commonly-held whanau land into 13 blocks that eventually became about 40 titles with numerous absentee owners non-resident on Te Huruhi. By 1911, when Native Land Court restrictions on land sales effectively disappeared, te absentee owners rushed to have their sections surveyed so they could be sold. Gradually, Pākehā farmer Fred Alison and his wife Anna Frances purchased these Māori titles until they amassed ownership of 2,360 acres. By October 2014, the last Ngati Paoa community departed Waiheke, ending over 150 years of occupation. At Matiatia, as mentioned above, All the earlier tupapaku (ancestral bodily remains) were removed [from Matiatia] to Wharekawa (the Miranda Coast)… as the mana whenua connection to the land became tenuous. The bones found at Matiatia were those of the Taranaki, the former slaves and tuku whenua, not mana whenua, not Ngati Paoa.
While some Māori families remained, with five families living on Waiheke, they lived on freehold land, travelling by ferry to jobs in Auckland. They ceased to be whanau or hapū with tino rangatiratanga over whenua, kāinga and taonga katoa, as they had adopted a western lifestyle.
Then in 2003, Matiatia became of interest when Fay Richwhite partners as Waitemata Infrastructure Limited (WIL) purchased the freehold title at Matiatia, including the Alison homestead and carpark and proposed a Private Plan Change to rezone the land for a boutique hotel and high-end visitor amenities. The Waiheke community was almost universally opposed, and soon united the opposing submitters into the Community and People of Waiheke Island (CAPOW). They raised funds, retained legal and expert representation. They were united except for one notable standout: Ngati Paoa Whanau Trust. When a second consent application was lodged there were 759 submissions in opposition and one in support, from the Ngati Paoa Whanau Trust in the name of Hariata Gordon, not resident on Waiheke. At the time, mana whenua did not have the hereditary status they have today, and it was general knowledge at the time that the Whanau Trust received compensation for their submission in support. In the end, the threat to Waiheke was resolved when newly-elected Mayor Dick Hubbard prompted the Auckland City Council to purchase WIL and Matiatia for $12 million, ending the plans for a hotel and entertainment centre at Waiheke’s gateway.
In 2010, with increasing interest by the Piritahi marae (an unusual marae in that it was created cooperatively by Pākehā and Māori (primarily driven by the vision of Ngapuhi kaumatua Kato Kauwhata, who was not not tangata whenua), on preserving the urupa of Rapata Te Rou, the Auckland City Council commissioned a ground radar study that found indications of other buried tupapaku. The historic record shows these were not the remains of tangata whenua or mana whenua, but of former slaves who had been granted tuku whenua that eventually became a marketable title approved by the Native Land Court and sold as freehold land to Pākehā.
With such a history, where the mana whenua / tangata whenua had vacated the whenua over a century before, what in Te Tiriti o Waitangi grants a residual customary right of mana whenua, as suggested by the Randerson Report?