Landmark decision upholds Maori tribal ownership

Press, 22 October 1986, Page 13

Landmark decision upholds Maori tribal ownership

PA Wellington In what could prove to be a landmark decision, the Maori Land Appeal Court has upheld the principle of tribal rather than individual ownership of Maori land. The case has national implications in that the problem at its root also underlies two big claims awaiting hearing by the Waitangi Tribunal, Bastion Point and the recent Ngaitahu claim to much of the South Island’s Crown pastoral lease lands.

The Court ruling means that 106 years after the affair began, a central North Island tribe, Ngati Manawa, will have the tribal endowment it should always have had. Through what is a rare turn of events, 'because the Crown does not often pass land over to Maori people, the Ngati Manawa tribe of Kaingaroa has become one of the few tribes in New Zealand to own land for the benefit of the whole tribe in accordance with Maori custom.

The decision brings to an end a 63-year-old claim by the tribe for

compensation for land wrongly acquired by the Crown in 1880.

It upholds the rarelyallowed right for land to be held on behalf of a tribe. It directs also that certain land interests given by the Crown in compensation for the loss of a native reserve be held for the tribe as a whole, not for specified individuals. In 1873 the Native Land Act provided for an investigation of remaining tribal lands to determine which lands be bought by the Crown and which parts reserved as permanent endowments for the tribes.

While the Ngati Manawa lands of the Kaingaroa Plains were being investigated in the 1870 s, the Crown was negotiating with the Ngati Manawa to buy the “surplus” part of their lands for an “artificial forest,” now known as Kaingaroa State Forest.

The Ngati Manawa agreed to this sale provided adequate reserves were made for them. The result, in 1880, was the creation of two Ngati Manawa reserves for a

total of 439 ha and the sale of more than 40,000 ha to the Crown. To facilitate the sale, the land was put into the names of 28 people only. The money was then taken to a tribal gathering of some 3000 for distribution.

Right from the beginning of Maori land law in 1862, all Maori land had to be held by individuals; none could be held for the tribe as a whole or even in the name of trustees. The Maori Land Court had been bound to implement the law which in this appellant court decision is inherently criticised.

The vesting of the land in 28 people did not matter until 1909 when the Government removed all restrictions on the alienation of Maori lands. The reserves, including the Kaingaroa one, ceased to be reserves and could be sold by those owning them.

The problem in Kai ngaroa was that there were meant to be three reserves for the Ngati Manawa. The third, to have been called Motu-

mako, was to comprise 202 ha and had been wrongly sold to the Crown. Ngati Manawa wanted it back.

Ngati Manawa put their complaints in a petition to Parliament in 1923, and an official inquiry conducted through the Maori Land Court concluded they were right and should get their land back.

The Crown hesitated to do anything, however, and a further petition had to be bought. In 1931 the Crown offered 40ha of land elsewhere but Ngati Manawa would not accept. Negotiations dragged on until 1981 when it was agreed that in settlement of the Motumako claim the Crown would give over shares it had bought in adjoining lands in Whirinaki State Forest. The Whirinaki land, in addition to that at Kai ngaroa, had been owned by a branch of the Ngati Manawa.

The then argument began over who the land should be returned to — the descendants of the 28 titleholders or the whole tribe, which was the issue

the appellate court faced. The court faced the Maori land law that had never permitted tribal ownership, in spite of tribal protest that it should, then found what has been described as a “crack” in the old policy of individualisation. The crack was a relatively new section of the Maori Affairs Act, section 437, which provided that Crown land held for Maoris can be vested in individual Maoris, or trustees, for the whole tribe. The importance of the case lies partly in that an appellant court looked into the long history of the lands and lent over backwards, finally using a provision in the law that had never been appreciated, to get back to the principle of tribal ownership which the Maori have long wanted. It lies also in the likely applicability of the case to others, such as Bastion Point, where what was meant to be inalienable Ngati Whatua reserve land, originally vested in 13 people, was sold and acquired under the Public Works Act.