Status of Maori land examined

Press, 3 April 1980, Page 16

Status of Maori land examined

By

HILDA PHILLIPS,

who made submissions

last year to the Royal Commission on the Maori Courts. She argues that what constitutes “Maori land” is not conditional on racial ownership.

When the Maori Affairs Amendment Act 1974 placed an unrestricted limit on the definition of a Maori so as to include “any descendant of such a person”, this was a statutory recognition of the fact that — as a result of inter-marriage — there are few, if any, full-blooded Maoris in New Zealand today. .

At that stage, New Zealanders should have questioned the necessity for the continued existence of the Department of Maori Affairs. All the more so, as the laws administered by the department are carried to the extreme of providing for differential treatment between biracial New Zealanders of part-Maori descent and their monoracial, non-Maori fellow citizens.

But, instead of coming to terms with the fact that miscegenation is a fait accompli, there has been an increasing pressure for racial separatism, heavily underwritten by the Department' of Maori Affairs culture-cult . programme.

I have watched, with growing concern, the terms Maori and Pakeha become alternative terms for an “us-them” ideology ■ which, more ; and more, bears a resemblance To South Africa’s Afrikanerdom. Both Afrikanerdom and Maoridom are founded on a “minority group” thesis vvhich advocates special consideration on the grounds that the group’s ancestors arrived in the country first, both seek increasingly entrenched legislation on th grounds of cultural difference.

But, first, “minority” and “majority” are relative — not absolute — terms. All the more so in this country, where intermarriage has thoroughly fused the two races.

New Zealanders are no longer two distinct ethnic groups. It is time we stopped talking about “brown-skinned Pakehas”, and woke up to the fact that today many Maori eyes look out of white faces. As miscegenation cannot be reversed, the number of people who have both Maori and European ancestry can only continue to increase. Second, in a democratic state a citizen’s rights should be the same, with the same privilege and protection accorded to all, irrespective of race or how long ago each person’s ancestor’s arrived in the country. Third, multiracial multicul-. turalism means a unified diversity; not separatism. It means having the freedom to

mix, mingle, adopt and adapt as desired. This is what has happened in this country. If the much-maligned Pakeha lifestyle is now predominant, it is more through intermarriage, self-option, and (for better or worse) shared twentieth-century living. Fourth, the most vital cultural consideration in any society is the laws people live by. Unfortunately, there is far too little known about the Maoris’ pre-European “customary” rights; and even less understood, about their statutory rights since 'the Treaty of Waitangi.

In pre-European times, land belonged to the Maoris only for as long as they could defend it against other warring tribes. According to

their “customary” (or, as they are sometimes called, their “traditional”) rights, it' was a case of “let them take who have the power, let them keep who can.” Before the Treaty of Waitangi, inter-tribal warfare was rife. Maoris constantly “dispossessed” each other of their lands; only they called

it “take raupatu” — the right to land by conquest. In those days, the going “price” for land was wholesale tribal massacre. The “loss” of the occurred in pre-European ■ times when Maoris not only lost their

lands, but their lives as well.

After 140 years, it is time that New Zealanders got at least one fact straight: it was the introduction of English law which put an effective end to the Maori’s acquisition, and loss, of land by warfare; and which, at the same time, enabled Maoris (for the first time in their history) to enjoy “the undisturbed possession” of land (as guaranteed by the Treaty of Waitangi). It was the European settlers who introduced a system of law which made it possible for Maoris to own land for “time without end” (that is, in fee simple) — something which the

present-day Maori takes for granted.

It is this transformation in tenure, from unregistered “customary” . right (always liable to be superceded by force) into a registrable proprietary right (capable of being held in perpetuity), which is the most significant consequence of the Treaty of Waitangi. Regrettably, it has never received the recognition or consideration it merits, least of all front the Department of Maori Affairs.

Because of the disputable nature of the Maori’s “cus-

tomary” rights, there were frequently many claimants and counter-claimants to the same piece of land, often even after the land had been sold and paid for in good faith. It was in order to “ascertain, settle and define” who were the rightful owners that the Maori Land Court was established in 1865.

In effect, however, this gave rise to a dual system of land laws; one administered by the Department of Justice, and the other by the Department of Maori Affairs (which grew up round the Maori Land ' Court). These two systems are now called “genera) land” and “Maori land”; but irrespective of

what they are (or have been) called, the difference between them is one of, legal status, and not, as the nation has been led to believe, a difference in racial ownership. In spite of the ethnic connotations of. the term, “Maori land” can also be owned by Europeans (Maori Affairs Act, 1953, sections 93-1 and 133-4). That has always been the case; It seems to bear repeating and stressing that what consitutes “Maori land” is not necessarily contingent upon — nor exclusively restricted to — the racial ownership, and never has been. “Maori land” is a technical term; a legislative device adopted to distinguish a difference between New Zealand’s two systems of land laws. The term merely denotes land held under title still within the jurisdication of the Maori Land Court; mainly because of the multiple, often unknown, ownership which has accrued due to unwise legislation. There is a lot of “gobbledegook” talked about “Maori land law mirroring the cultural life style of the indigenous people of New Zealand." But there is no cultural or legal difference between the Maori and the non-Maori’s ownership of land. Both “general land” and “Maori land” can be held in either individual or multiple ownership; both are now held in fee simple; and both have always been owned irrespective of race.

mony, titles to “general land” were issued to Maoris even before, the Mkori’Land Court was established. When the Maoris’ dual land ownership is taken into account, as it rightly should be, much of the land that Maoris are purported to have “lost” will be found where it has been all the time: in Maori ownership, held by them under title in the “general land” category. The European settlers introduced an alien system of land tenure which, together with other factors (such as the adoption of Christianity and inter-marriage), did profoundly alter the Maori’s traditional way of life. But it has by no means been as much to Maori disadvantage as is frequently contended. Whatever justification there may once have been for a Department of Maori Affairs ceased to exist long ago, overcome by intermarriage and an equality of land rights which has never been acknowledged, least of all by the Department of Maori Affairs. Instead, there appears to have been an inclination to ignore the, Maori’s bi-legal land rights. This has brought us to a crossroads in our history. Which path we take may well depend on the report still to be presented' to Parliament by the Royal Commission on the Maori Courts. Unfortunately, the commission’s terms of reference are inappropriate and inadequate to deal with the matter. It is the law, and the Department of Maori, Af-

As records in the Land and Deeds Office bear testi-

fairs which administers the law, which should also be under inquiry. Last year, when I presented submission to the Royat Commission, I expressed regret at the necessity which compelled me (unqualified in. law and a non-Maori) to make the submission. That the need existed is an indictment of the legal profession and of all those who profess to speak in the name of Maoridom. I presented my submission in the national interest: first, because historical truth demanded it; and second, because (I believe) the honour of all those of Maori descent commands it. My submission is founded on five years of personal research on Maori land rights, both before and after- the Treaty of Waitangi. Having read all the other submissions, as well as the Commission’s recorded evidence, I am convinced of what I have begun to suspect: I am the first person to recognise and give any consideration to New’ Zealand’s two systems of land laws as they, apply to the Maoris. The results of my research' throw a new light on New Zealand’s history, and a much-needed light on Maori Affairs legislation. In a democratic State, and especially a multiracial one like ours, the benefit of special legislation should be based on need, and not, as ours indisputably is, on an ancestral factor which ~ in' many instances — may well be more nominal than genetic.