July 1999 Contents

Mäori Land Court & Appellate Court

Designations and trespass to Mäori land

Other Courts and Tribunals

Court of Appeal – review of Mäori land trust

High Court – heritage protection order, Kaituna river

High Court – export of South Island indigenous timber, exemption for landless Mäori

Other

D Williams - The Land Taking Court

 

Mäori Land Court & Appellate Court

Chadwick Family Trust & Karamu GB (Balance)

156 Napier MB 242 29 April 1999 Isaac J

In this case the applicants sought an interim injunction under s19(1)(a) Te Ture Whenua Mäori Act 1993 as a matter of urgency to prevent the Hastings District Council from designating a roadway under the Resource Management Act 1991 across Mäori land. The designation over the land would enable the district council to prevent any development on the land in anticipation of a roadway to be built over it. It would also allow the council to compulsorily acquire the land, if necessary. Section 19(1)(a) gives the land court the power to issue an injunction for "any actual or threatened trespass or other injury" to any Mäori freehold land.

Council argued that:

• The Mäori Land Court is created by statute and must find specific jurisdiction within its statute.

• Section 19(1)(a) should not apply because it does not confer jurisdiction to prevent a local authority from exercising functions under other statutes (in this case the Local Government Act 1974 and the RMA 1991)

• Trespass is an unlawful entry onto land. The council would be proposing to act with lawful authority.

• While s19(1)(a) also refers to "other injury" to land, that must be read alongside the reference to "trespass" and unlawful behaviour only was meant.

• The RMA 1991 does not constitute a special regime for Mäori land. It is subject to the general processes of the 1991 Act. Nor were the Local Government Act 1974 or the Public Works Act 1981 subject to the TTWMA 1993. It could not have been the intention to allow Mäori to use procedures under TTWMA 1993 to frustrate the carefully considered and comprehensive scheme of the RMA 1991.

• The decision of the Court of Appeal in AG v Mäori Land Court & Proprietors of Tahora 2F2 (see Mäori LR Dec 1998/Jan 1999) is a parallel example of a case where the jurisdiction of the Mäori Land Court was found to be restricted.

• There had been substantial consultation with the applicants about the roadway route over a 13 month period

Held: an interim order should issue preventing the district council from proceeding to designate the land for a road. On determining an application for interim injunction, the court had to consider whether there was a serious matter to be tried and the balance of convenience. There was a serious matter to be tried, in that a designation was proposed which was consistently and strongly opposed by the applicants. The balance of convenience was with the owners of the land, since it would affect their ability to deal with the land.

[Ed: the court minutes suggest that the designation had not been notified and the appropriate submission and hearing process under the RMA 1991 had not been commenced. Although the land court set the matter down for further hearing, its decision to grant an interim injunction is under review in proceedings in the High Court on the ground that the court exceeded its jurisdiction. A judgment is expected shortly.]

 

Other courts & tribunals

The Proprietors of Mangakino Township v The Mäori Land Court & Hemi

CA65/99. Court of Appeal, Wellington. 16 June 1999.Gault, Henry, Keith, Blanchard, Tipping JJ

The appellant incorporation, the trustee of Pouakani 2 Trust, had applied to the Mäori Land Court for a review of the trust under s351 Te Ture Whenua Mäori Act 1993. This section was a transitional provision for trusts constituted under s438 Mäori Affairs Act 1953 but it used the same language as the general provision (s 231/1993) for the periodic review of trusts constituted under Pt XII of the 1993 Act. The incorporation had sought the confirmation of the original trust order. However, the land court, aware of dissatisfaction among some beneficial owners, had proposed that two performance auditors, one an accountant and the other with experience of Mäori trusts, be appointed to prepare "an independent report on the stewardship of the trust". Counsel for the incorporation had supported the court’s proposal, although a later request for an opportunity to comment on possible appointees and on their terms of reference was not granted. When the auditors submitted their report to the court, it was accompanied by two supplementary reports on forestry and on farming prepared by other authors. The report was highly critical of the incorporation’s management of the trust and it entered the public domain through the media. Mr Hemi, the second respondent, who was a beneficial owner, applied under s239/1993 for the appointment of new trustees. In judicial review proceedings in the High Court (see Mäori LR June 1998 p6), the incorporation had sought:

• A declaration that the order appointing the auditors was a nullity and that the land court had no jurisdiction to conduct a hearing involving an audit of the management and performance of the trust and its trustee.

• An order prohibiting the land court from conducting a hearing involving such an audit or from directing the holding of a meeting of the beneficial owners to ascertain their wishes as to whether the incorporation should continue as trustee.

The High Court had made an order preventing the land court from directing the holding of a meeting of beneficial owners otherwise than in accordance with Part IX/1993 and applicable regulations, and a declaration that the audit reports should not be taken into account unless the authors were called as witnesses by the land court and submitted to cross-examination. It dismissed the remaining applications but held that there was no implied power to appoint auditors under s351/1993 and that the land court had therefore acted under the wrong provision. Rather, the auditors could have been appointed under s69(2)/1993, which provided:

"The Court may itself cause such inquiries to be made, call such witnesses(including expert witnesses), and seek and receive such evidence, as it considers may assist it to deal effectively with the matters before it, but shall ensure that the parties are kept fully informed of all such matters and, where appropriate, given an opportunity to reply."

Appealing the High Court’s decision, counsel for the incorporation submitted, amongst other things, that it was for the trustee in its application to set the scope of the review, that a "review of the trust" meant a review of the trust order, that the land court could not investigate the trustee’s management of the trust under ss231 or 351/1993 without invoking ss238-240/1993, in which case "procedural safeguards would apply and natural justice could be accorded the trustee", and that s69(2)/1993 did not empower the land court to make the appointment of experts such as it had done in this case.

Held: it was clear from the drafting of ss231 and 351/1993 that the land court was required to conduct a review of the trust itself, not merely the trust order. A review of the trust could not sensibly be conducted without some regard to the trust’s performance, which would "necessarily" require the land court to look at the competence of the trustees. While the land court should "concentrate on the broader picture" in conducting a general review, it was "impossible to see any bright line between matters of governance and policy, on the one hand, and questions of operational management, on the other".

The land court’s appointment of the auditors under s351/1993 was inappropriate and "artificial". Section 69(2)/1993 empowered the land court to direct the preparation of an independent report on the affairs of a trust for the purpose of a review. That provision should not be read down. The Act gave the land court "the most extensive supervisory powers" in respect of trusts to which Part XII of the Act applies and it could not be doubted "that it is intended that the Court is to have all powers which it needs effectively to conduct that review". The principles of natural justice applied to the land court’s jurisdiction to review a trust and s69(2)/1993 itself imposed procedural safeguards by requiring that the court ensured that the parties were kept fully informed of all matters and, where appropriate, given an opportunity to reply. The appeal was dismissed, although the Court corrected the way in which the two performance auditors had been appointed by deleting the land courts’ order for the variation of the trust order and replacing it with an order under s 69(2)/1993, albeit in the same terms, for the appointment of the auditors. The Court of Appeal also expressed a concern with the breadth of the land court’s original order:

"Where the Court thinks it proper to obtain a report from an expert concerning the affairs of a trust it is preferable that the order should specify exactly what is (and what is not) required of the report maker by way of investigation and in the content of the report itself. ... Those instructed to prepare reports, and ultimately the Court itself and the trustee, are likely to be assisted if the Court writes a more detailed prescription than was done in this case."

 

Te Runanga O Ngäti Pikiao v Minister for the Environment

CP133/96. High Court Wellington. 15 June 1999. Gallen J

Te Runanga O Ngäti Pikiao applied to the Minister for the Environment under s188 Resource Management Act 1991 to be approved as a Heritage Protection Authority (HPA) for part of the Kaituna River in the Bay of Plenty.

Section 188 provides that any body corporate having an interest in the protection of any place may apply to the minister to become such an authority for the purpose of protecting that place. The minister must be satisfied that the approval of the application is appropriate to protect the place and that the applicant is likely to carry out satisfactorily all the responsibilities of an HPA, including financial responsibilities. Once appointed, an HPA has power (under s189) to "give notice to a territorial authority of its requirement for a heritage order for the purpose of protecting:

• Any place of special interest, character, intrinsic or amenity value or visual appeal, or of special significance to the tangata whenua for spiritual, cultural, or historical reasons; and

• Such area of land (if any) surrounding that place as is reasonably necessary for the purpose of ensuring the protection and reasonable enjoyment of that place".

In 1978, the Ngäti Pikiao people had taken a claim to the Waitangi Tribunal to prevent the Rotorua District Council proceeding with a proposal to discharge effluent into the Kaituna River (Wai 4). In November 1984, the tribunal issued the Kaituna River Report, which upheld the claim and spelt out the depth of the association that Ngäti Pikiao had with the river, and their concern for its protection, both physically and culturally.

Some time after the tribunal’s report, Ngäti Pikiao established an incorporated body, Te Runanga O Ngäti Pikiao, and in April 1994 resolved to apply for status as a heritage protection authority.

The application pointed out that Ngäti Pikiao carried on traditional responsibilities as kaitiaki, and had the necessary expertise, being regularly involved with central and local government authorities in resource management issues affecting the river. It identified the "place" to be protected as the river from Okere Falls to Paengaroa River, including the bed and banks.

The minister sought further information on several matters. The runanga indicated that the waahi tapu to be protected included, among other matters, more than 50 caves regarded as urupä and waahi kai along the entire river and that rähui were applied on parts of the river or its entirety according to tikanga Mäori.

The minister received several pieces of correspondence about the application:

• The local Rotorua MP indicated that the application would cut across negotiations between the district council and the Arawa Federation of Mäori Authorities about access to the river for rafting. The district council was seeking to be responsible for the control of all commercial rafting on the river.

• The Rotorua District Council argued that Ngäti Pikiao as an HPA would restrict legitimate uses, and warned against creating divisions between Mäori and Europeans.

• A sub-tribe in the region (Ngäti Hinerangi) indicated that it was the body with customary authority over parts of the river and was opposed to the appointment of the runanga as HPA. After further meetings, however, the runanga indicated to the minister that issues of mandate had been resolved.

The minister received a legal opinion from the Ministry for the Environment that, on the basis of all information received, the application should be approved. In particular, the definition of the "place" to be protected had been adequately given.

The Crown Law Office advised the minister that he was not required by the Act to consider the letters of objection, but, if he did so, he should notify the runanga. This he did, and the runanga advised that it considered the letters irrelevant.

The Department of Conservation indicated concern that the runanga might be given control over areas of reserve. This and further disputes about mandate were the subject of correspondence in the following months with local iwi and groups, the Rotorua District Council, the Department of Conservation, the Crown Law Office and the Ministry for the Environment.

While the government was considering its response to the Ngäti Pikiao application, the Rotorua District Council issued a notice of requirement over the river to protect it, including Mäori values. By virtue of its constitution, the district council automatically had status as an HPA under the RMA 1991 and did not require approval from the minister to become an HPA.

In a final report to the minister on the Ngäti Pikiao application, the ministry raised the question of whether the "place" had been adequately described. The minister rejected the runanga’s application on the basis that:

• There was not sufficient detail about the place to be protected;

• There were other bodies capable of protecting the place, in particular the Rotorua District Council, which had issued the notice of requirement to protect the river, including Mäori values.

After the minister had made his decision, the district council withdrew its notice of requirement, citing as its reason an amendment to the RMA 1991 which had been introduced to Parliament and which would provide that heritage protection orders could not be sought over water bodies (see Mäori LR September 1997 p7). However, this had not yet been passed.

Held: the decision of the minister should be set aside and referred back to him for a re-determination.

Place

In Trustees of the NZ Hibernian Australasian Catholic Benefits Society v Storey (HC Wellington CP 167/93 19 March 1998) it was noted that good definition of the 'place' is required at an early stage, but the definition is not definitive until a protection order is applied for.

The initial definition of the place had been inadequate. There was a reference to bed and banks. Bed was defined in the RMA 1991, and there were judgments that had defined banks to mean the area covered at regular flood levels. The runanga had been specifically advised of these references and had accepted this definition, which had been put forward by the ministry. It had also complied with a ministry request that it describe sections of the river and banks where waahi tapu occurred without specifying exactly where these were. The ministry had therefore later changed its mind and advised the minister that he could consider that the place had not been adequately described – but this had never been communicated to the runanga so as to give it an opportunity to respond. This was procedurally unfair and factually wrong.

Counsel for the minister raised the point that, because under the RMA 1991 regional councils have control of activities over water, heritage protection orders could not be made in that respect, and thus HPAs could not be appointed for water bodies. Yet this jurisdictional point was not a matter that the minister had previously raised when deciding the runanga’s application. Further, just because regional councils might control matters over water, that did not prevent an HPA being appointed over water, even if their powers might be limited to those matters not dealt with by the regional council. Also, in the Storey case an argument that "place" should be limited to land and buildings with heritage value had been rejected. If there was a problem with including the bed of the river, that could be dealt with when a heritage protection order was applied for.

The minister had raised a concern that waahi tapu had not been precisely located. However, the ministry had specifically advised the runanga that they did not need to identify precisely where waahi tapu were, and had not advised the runanga that he required further information.

Other bodies

In rejecting the application, the minister indicated that he believed that other bodies had an interest in the protection of the place, namely other groupings of Mäori, and the district council, as a body representative of conflicting interests and not representing one interest.

The RMA 1991 did not appear to rule out more than one HPA in relation to the same place, but there would be practical problems with implementation and the conflicting groups were therefore a matter for the minister to consider.

The minister could not rely on the fact that the district council was already a heritage protection authority because all local authorities are automatically HPAs. To take this into account would mean that no applicant could ever succeed. Also, the district council had produced absolutely no material identifying the nature and location of the Mäori sites it would protect. The council had not identified them on any map. "It is difficult to see how a body which is unaware of the nature and location of sites requiring protection can be seen as capable of protecting them. I should have thought that in view of the emphasis contained in the Act itself and in Part II on the association of a Mäori tribal subtribe with waahi tapu directly related to it, it is difficult to see that a body not even aware of the location of those places or their significance could be preferred as a guardian." This came close to unreasonableness.

It seemed that the minister concluded that the district council was more suitable than the runanga because it was an elected body and particularly so in the face of objections expressed by other groups to the application by the runanga. While that approach appeared superficially attractive, the minister was required under the RMA 1991 to determine the suitability of the applicant, not the comparative advantages between competing applicants. That issue would arise when the HPA gave notice of a requirement and groups concerned with use as opposed to protection could raise their concerns.

In terms of disputes among Mäori about the mandate to act as guardian of the place, the runanga submitted that it was not open for the minister to avoid making a decision on this issue. There were traditional Mäori ways of deciding such mandating issues and they had been followed in this case. The minister had been advised that all objections had been withdrawn, there had been a hui-a-iwi to address the issues, and objections had not been renewed.

It was not appropriate for the court to lay down fixed criteria in respect of inter-Mäori disputes since in each case different considerations were involved. Nevertheless, in this case, the minister was required to consider the appropriateness of Ngäti Pikiao as kaitiaki or guardian of the waahi tapu of the river. Ngäti Pikiao had been accepted by the Waitangi Tribunal as having this status. The tribunal was an expert body in such matters, and nobody had questioned that the runanga was the body representative of Ngäti Pikiao. In as far as other applicants were considered, they would have an opportunity at the requirement stage to ensure that their interests were taken into account.

Counsel for the runanga argued that the minister had essentially avoided deciding that the runanga was the kaitiaiki and that he was not entitled to do so given the evidence before him.

The key issue was whether the minister had determined the question of who was an appropriate authority under s188, or had considered issues more appropriate for s189, when a notice of requirement was issued.

There was argument about how far the purpose and principles of the RMA 1991 (Part II and ss5-8) were relevant to the decision under s188. The Crown argued that they were extremely relevant and that therefore conflicting interests between Mäori were important to his decision. The runanga, however, argued that Part II matters were not so relevant to a s188 determination. While the court was inclined to the latter view, it did not have to decide the issue in this case since the Waitangi Tribunal had already identified Ngäti Pikiao as the appropriate body in terms of Part II type matters.

It was apparent that the minister had really been concerned that if the runanga were appointed it might have consequences for other river users. This was a matter under s189 rather than s188. The minister’s task was to determine the appropriateness of the applicant in relation to the place, not in relation to what the body might do after appointment.

In declining the application, therefore, the minister had taken into account irrelevant matters and considered other matters which were not relevant and there were procedural flaws in his approach.

The minister’s decision should be set aside and he should reconsider the issue. Now that all mandate issues were resolved and the district council had withdrawn its application and there were no issues about the definition of the place to be protected, the minister’s decision might be more straightforward.

[Ed: the High Court was not impressed with the attitude of the district council to the application from Ngäti Pikiao. It noted a response from a council officer to the application: "It appears to me to be unintelligent to create further points of strife between Mäori and European and to set further precedent where Mäori pressures leads to further alienation of publicly owned and used land for minority group use alone."

There seems to have been a real reluctance on the part of the council to consider sharing authority over parts of the river under provisions of the RMA 1991 which clearly contemplated such sharing. A background issue appears to have been a fear that Ngäti Pikiao were seeking to control commercial rafting on the river.

With regard to representation, the court seems to have agreed with the argument of counsel for Ngäti Pikiao that there will be circumstances in which persons acting under the RMA 1991 cannot avoid coming to a decision on who are the tangata whenua and kaitiaki in a particular situation, despite challenges to that mandate and authority. Compelling evidence of mandate and authority (such as a Waitangi Tribunal report) will help.

This judgment is one of several important recent developments in the area Mäori authority over rivers. The proposed amendment to the RMA 1991 to remove the ability to seek heritage protection orders over water bodies remains under debate. And the recent Whanganui River Report of the Waitangi Tribunal (see Mäori LR June 1999 p1) recommends that the RMA 1991 be further amended to properly recognise Mäori interests in rivers, while also recommending that Whanganui people in particular be given a co-management role in their river.]

 

Alan Johnston Sawmilling Limited v Governor-General & Ors

CP140/97. High Court Wellington. 9 June 1999. Wild J

In 1906, following several inquiries, Parliament enacted the South Island Landless Natives Act 1906 by which 57,538 hectares of land were permanently reserved to 4, 064 Ngäi Tahu Mäori and their descendants. The lands, commonly known as SILNA lands, were located mostly in Southland and on Stewart Island and were reserved so that Mäori who had become dispossessed of land would have an economic and social base.

This case centred on the coastal Rowallan-Alton blocks of western Southland on which grow indigenous beech forests. The plaintiff was a sawmiller and woodchip producer and was logging the blocks under contracts with the Mäori owners. Under the contracts, the plaintiff was required to remove all standing timber. The sawlogs were milled and the unmillable timber was chipped and exported, there being no market for the woodchips in New Zealand.

On 1 October 1996, the Customs and Excise Act 1996 and the Customs Export Prohibition Order 1996 came into force. Regulation 4 prohibited the export of indigenous timber products. In the same month, the Minister of Forestry approved conditions, pursuant to reg 4, for the routine approval of the export of indigenous timber products. The conditions required that, to qualify for export, the indigenous timber products must be from an area under a sustainable management plan approved by the Secretary of Forestry and be surplus to domestic requirements.

The plaintiff contended that reg 4, or, alternatively, the conditions prescribed by the Minister of Forestry, were invalid because the SILNA lands were exempted from export controls by a provision of Part IIIA of the Forests Act 1949. The purpose of Part IIIA (which came into force on 1 July 1993) was to promote the sustainable forest management of indigenous forest land. This was achieved by prohibiting the export of indigenous forest produce unless logged from an area managed under a registered sustainable forest management plan or permit, and by prohibiting the milling of indigenous timber unless taken from an area managed in accordance with a registered sustainable forest management plan. However, s 67A(1)(b)/1949 provided that nothing in Part IIIA of the Act should apply to "Any indigenous timber from or on any land permanently reserved under the South Island Landless Natives Act 1906 and having the status of Mäori land or General land owned by Mäori under the Ture Whenua Mäori Act 1993."

Held: Before Part IIIA of the Forests Act 1949 came into force, the controls on the export of indigenous forest produce defeated the economic use of the forests on SILNA lands. However, the exemption that s 67A(1)(b)/1949 afforded SILNA lands was a Parliamentary recognition of the Crown’s obligations to SILNA owners. The evidence showed that it was the intention of reg 4 of the Customs Export Prohibition Order 1996 to remove the SILNA lands from the Part IIIA exemption. Accordingly, insofar as that regulation, and the Minister of Forestry’s conditions of approval made under it, applied to indigenous timber and indigenous timber products taken from SILNA lands, they were illegal as being repugnant to the exemption in s 67A(1)(b)/1949.

 

Reports & Articles

‘Te Kooti Tango Whenua’ The Native Land Court 1864-1909

David V Williams. 1999 Huia Publishers. 390 pp

This publication covers the period from the beginning of the working life of the Native Land Court until the major amendment of Native land legislation in 1909 under Ngata. It is not a detailed history of the land court in the period, but instead presents a historical/legal argument that the work of the land court amounted to "judicial raupatu" or confiscation every bit as injurious and Treaty breaching as "legislative raupatu" under the NZ Settlements Act 1863. Williams argues that acceptance of this argument by the Crown will ensure claimant groups do not have to enter into detailed research about the work of the court in each district, but simply compare the position of a tribe and its land holdings before 1864 with its current situation as a prima facie case for the claim. He notes the recent announcements in Crown policy, which go some way towards this approach (see Mäori LR February 1999 p6).

Williams first major argument is that the Native Land Acts were no less than an all out effort to relinquish Mäori of title to their lands, in the interests of European settlement. Williams reviews arguments that the court actually assisted Mäori by defining title, arranging surveys of land etc. Unquestionably benefits were there, and Mäori leaders sought to use the system in a traditional way – but he finds that the court regime was simply not adaptable in that fashion. Its fundamental purpose was to break up communal holdings and that purpose did not change. Williams examines the allegation that modern writers are attempting to impose late 20th century ideas and standards on the past. He rejects these sorts of approaches, referring to the comment of the Waitangi Tribunal in the Muriwhenua Land Report 1997 that the entire project of colonisation was a forward looking enterprise and could have contemplated and did contemplate the outcome. Williams says the focus should not be on those who did not sell, but on the fact that Crown always changed the rules to ensure a ready supply of land. Maori retention of ancestral land was not an option the Crown was willing to contemplate.

Williams second major contention is that the land court was not a truly a independent body, but actually an agent of the central government and thus its actions were essentially actions of the Crown. The Crown policy was "control" of the land court. Williams notes a number of situations where the court itself did act independently, but the government and the judges liaised closely over policy and judges even suggested draft legislation. He cites many instances of the court granting applications to adjourn to allow the Crown to work further on purchase arrangements.

Williams sets up these two arguments in the first chapters of the book and provides detail in subsequent chapters.

Land court to land loss

Williams first looks at the (often patchy) official statistics on Mäori land collected over the period. He notes that the fact that hundreds of thousands of acres are "missing" in the statistics reflects on the state of mind of the government in relation to Mäori land. In 1865 roughly 19 million acres of land were in Mäori ownership and control in the North Island. The land court process did not individualise land holdings in the sense of giving individuals areas to cultivate and built residences, but rather converted customary rights into negotiable paper.

By 1909, all but around 1 million acres had passed through the land court and of that which had been through the court roughly 11 million had been alienated permanently and a further 3 million had been leased to non-Mäori. Government policy was that such leases were a pre-cursor to eventual sale. Just 360,000 acres were recorded as actually in Mäori occupation and use.

Land tenure revolution

Williams next considers whether this wholesale conversion and land loss was a forseeable consequence of the work of the land court. He examines the policy and events behind the passing of the Native Lands Act 1862, and subsequent acts and the many statements about the intended operation of the acts and the court. He argues that the policy of displacing Mäori from their land was clear and consistent. The progressive removal of restrictions on alienation can also be seen in this light.

Williams disputes the view of Richard Boast that the native land acts were not intended to destroy Mäori society and were viewed by Päkehä politicians as an urgent but regrettable necessity to advance settlement. He prefers Judith Binney’s view that the Native Lands Act 1865 was an "act of war".

While the native land acts permissive in their wording and seemed to make entry to the system of title conversion voluntary, they were in fact compulsory for most Mäori, since an application by any one person forced a whole hapü or whänau in the process. Practically the court could not be avoided. The Crown was aware that that was the intention and operation.

In the Mäori Land Settlement Act 1905 the policy was made overt. The Act empowered the Native Minister to initiate an investigation of title to remaining customary land on the basis that some Mäori were deliberately "avoiding" the court. Williams says that he is not arguing that individual Crown officials did not act in good faith, but rather that the impact of their policies was in practice a breach of the Treaty of Waitangi.

In addition, it was not as if the Crown was not aware that there was an alternative approach. Many chiefs expressed a willingness to have titles defined in terms of English law, but through a system managed by Mäori, usually by committees established in each district, and with tribal control to be maintained.

The Crown had direct knowledge of Mäori discontent through hundreds of petitions each year expressing Mäori concerns about the effect of the court operations, as well as through various commissions which reported on the shortcomings of the legislation. The Crown failed to undertake any substantive reforms to protect Mäori interests along lines suggested in reports from such commissions. Those few reforms that were undertaken were quickly overcome. The overarching policy, to get land before the court so that it could be sold and opened up for settlement, was openly and candidly admitted and pursued.

Early policies

Williams next looks at policies that prepared the way for the 1862 legislation. He examines the origin of Crown policy towards Mäori land that resulted in the creation of the native land court process. The Colonial Office instructions to Hobson in 1839 required that in any land purchases the government must be conducted in a manner which allowed Mäori to retain sufficient for their present needs and an endowment for future needs. Only excess lands were to be purchased. The notion that the Crown would have the exclusive right to purchase was foreshadowed in the instructions – although it is not stated clearly in the Treaty of Waitangi.

At a deeper level, however, the Crown assumed that it had the radical title to the soil and the Treaty was intended to confirm this, but Williams argues that one could equally argue that the Treaty confirmed Mäori radical title to the soil. The Crown assumption of radical title was inconsistent with the way in which Mäori related to the soil, and in discussions surrounding the Treaty it was made clear that Mäori customs were to be protected. Consequently, the assumptions underlying the jurisdiction of the Native Land Court are open to challenge. In addition, since the English Laws Act 1858 imported English law only "so far as applicable to the circumstances of the colony", arguably the doctrine of tenure did not apply in New Zealand.

In fact, the Crown considered that it had promised too much in the Treaty and under Governor Grey large-scale Crown purchasing occurred to rapidly extinguish Mäori title. It was only when that policy faltered and war broke out that the government swung in the opposite direction, abandoning its policy of exclusive pre-emption and cast about for "any prudent plan for the individualisation of Native Title" and purchase directly by settlers.

Engine of destruction

Williams then examines the operation of the native land legislation in practice. He notes:

• The legislation was confusing. A large number of amendments were passed. In 1888, eight acts were passed dealing with the land court and Mäori land, nine in 1889.

• Purchasers, in particular Crown purchasers, developed the practice of making initial monetary payments to individuals to generate debt and force them to bring land before the court. This practice was known variously around the country as tamana, raihana, takoha. Crown purchase officers acknowledged that it was used on occasion in a deliberate attempt to break up tribal efforts to prevent sales.

• The power in the land court lay with the judges. The legislation provided for Mäori assessors to sit with the judges, but these had no power and were ignored. The court had discretion to appoint a Mäori jury, but this discretion was used only on one or two rare occasions.

• Judges were selected on the basis of contact with and knowledge of the Mäori language and previous government service. Initially, only the chief judge was legally qualified. The judges held their positions basically at the pleasure of the government. Williams considers that they were actually Crown officials.

The 1865 legislation allowed for land to be vested in tribes. But this rarely happened as the court insisted on ten names only per block. Mäori were invited to arrange among themselves who would represent the interests of the group as a whole. Consequently, the court issued absolute title to a few with the full knowledge that they in fact represented many owners. The court was basically issuing false certificates since these people were not the "owners according to native custom" as the legislation required. Only from 1873 did the legislation permit the court to give effect to voluntary arrangements. Williams argues that statistics support the view that, until 1873 when all persons with an interest were named in the title, the ten-owner rule seems to have prevented the alienation of some lands ie the ten owners took their trust seriously in many cases.

Williams notes how the "Famous Five" first bench of the land court, Fenton, Rogan, Monro, Smith and Maning, frustrated the intentions of legislation which was designed to give some protection to Mäori interests, promoting the line that, in all cases, Mäori customary title should be extinguished and converted to a Crown title as soon as possible.

The land court also made the "utterly arbitrary" determination in 1867 that, when a person died intestate, their interests should be divided equally among all their children (the Papakura decision). This decision led directly to the extreme fragmentation of Mäori landholdings which continues to plague the management of Mäori land today.

The land court also created the "1840 rule", that customary ownership should be based on a determination of the owners at the fixed date of 1840. Williams argues that this rule and an over-emphasis on conquest (take raupatu) as the source of title, significantly distorted the Mäori customary basis of ownership. This problem continues in present day decisions about tribal boundaries.

Williams examines the excessive costs of court hearings. Court sitting fees and land survey costs (and any interest accruing) were all chargeable to the lands under investigation. Fees fell as much on those who were responding to an application to investigate title as on those who first applied for the investigation. There were many instances of hearings adjourned because those attending were without food. Hearings limited the time available for planting crops. Deaths were commonly reported in association with the poor accommodation and conditions experienced by people when they attended court for lengthy investigations.

The legislation allowed up to 5% of any block passed through the court to be taken for roading. Compensation was payable only where actual residences and cultivations were directly affected.

Protection mechanisms

In the face of all this, the protective mechanisms provided in the legislation were largely ineffective. In addition, Mäori were not interested in them, since they deprived them of the ability to deal with their basic capital for development. But, in contrast to Päkehä farmers, Mäori got no assistance to develop their lands until the 1920s. And the Crown would never allow what Mäori consistently asked for, the legal ability for hapu and iwi to manage land issues in each district.

While the early legislation required the land court to inquire whether Mäori retained "amply sufficient" land before approving land sales, in subsequent years this became "sufficient" and, by 1909, simply whether a Mäori would be rendered "landless" by a sale. In fact very few if any purchases were invalidated on this ground.

At the same time that such ineffective mechanisms were in place, the government used very aggressive measures to secure land purchases, including providing money to enable Mäori to pay for tangi expenses, and then claiming the loan back in shares in land.

There were efforts around the turn of the century to respond to Mäori complaints, culminating in the Mäori Lands Administration Act 1900 which for a brief period allowed owners to voluntarily vest their lands in a land council made up of a majority of Mäori owners. However that initiative lasted just five years and control was effectively returned to the Crown and the land court in 1905, because it was said that Mäori were "keeping back from settlement valuable lands".

From grievance to resolution

In his conclusion, Williams suggests that, on the basis of his study, it should be unnecessary for claimant groups to prove how the land court affected them specifically in each case. Rather, they should simply be required to present a general report on the area of lands lost to the tribe through the land court process.

He argues that in many respects the land court was not a normal court separate from the Crown, but very much a statutory agent of the Crown carrying the Crown policies into effect. While the Waitangi Tribunal has found that, strictly speaking, decisions of the Native Land Court are not actually decisions of the Crown, the Crown is obliged to make up any breaches of Treaty principles which may have resulted from decisions of the land court.

He notes the recent government announcement that it accepts that many actions taken under the native land acts could have been in breach of the Treaty and claimant groups may enter into negotiations without establishing breaches in detail. However, the policy hints that the effects of the land court will be seen as less serious than confiscations, although the Crown has said it will consider the seriousness of the breach in each case.

In writing the book, Williams says he is "hoping to encourage politicians, Crown officials and a significant number of informed observers of the Waitangi Tribunal process to move away from defensive manoeuvres, or procrastination, or denying the merits of claims relating to the impact of the Native Land Court system on Mäori."