REVIEWS

Kaea, Issue 4, 1 September 1980, Page 31

REVIEWS

An ex-Queen Vic girl herself, Kuini Waano has no axe to grind about the school or indeed its latest record. But she does have strong opinions on the “haka boogie” syndrome apparent in commercial recordings, and she airs her views in this review of:

A GARLAND OF MAORI SONG Queen Victoria School Maori Culture Group, Kiwi-Pacific: Record SLCI62, Cassette TCSLCI62, $9.50 each

“A Garland of Maori Song” is another re-run of past recordings by Queen Victoria School and other Maori concert parties. For an action song to be effective and appreciated, it must be seen. When recorded, the only channel of communication between performer and the audience is sound, therefore the performer needs to be more sensitive when portraying a song to a silent and invisible audience. She can no longer rely on her actions and motions to deliver the message of her lyrics. During the medley on Side One, the

harmony and blending of the voices was excellent, pure and natural; however the waiata and women’s haka were harsh and loud having much volume but lacking power. The poi leader tended to kaihoro the words until they were unintelligible, and the cultural leader’s improvisations during “Whakarongo” (Side Two) and others were unnecessary, the lyrics to their original compositions e.g. Ka tu matou, ka waiata lacked poetry and imagination and had to be carried by the tunes. Their rendition of Melbourne’s “Tihore Mai” using the poi was charming. But it’s time the Maori moved on in the music world and it’s about time recording companies stopped producing albums only of this nature, implying this as the only contribution of the New Zealand Maori to the world of music. A recording of an elder or group of elders singing an ancient waiata recalling land struggles, romances, or genealogies would be far more progressive and inspiring but presumably noncommercial so where do we go from here? For the last three decades, dozens of albums by Maori concert groups, performing action songs, haka and poi have been produced, one after the other monotonous and boring. Who buys them? Ex-pupils, ex-members and tourists! We’ve arrived at a point where we’re expected to perform nothing else but “haka boogie”, especially at meetings and even more so when travelling abroad. Will we branch out or are we going to continue into the 1980 s going over the same track until it’s worn down? Perhaps we all need to experience a performance by Syd Melbourne who

has dared to branch out musically, while still maintaining Maori tradition in his lyrics. Music should not restrict in the way recordings of this nature have shown, it should help one to develop, create and build one’s potential regardless of race or tradition.

A highlight of the Artists and Writers Conference was a performance of “Maranga Mai”, the controversial drama which earlier in the year had many people including an extraordinary number who had not even seen it calling for it to be banned. Georgina Kirby did see it, and here she airs her own, rather more sympathetic views.

A tired, self-conscious group of players appeared for their final performance of “Maranga Mai” at the Maori Artists and Writers Conference. Having viewed the players three times already, I thought this particular performance came together with absolute sincerity to portray critical racial attitudes and causes of deep resentful feelings that are reflected within New Zealand society today. “Maranga Mai” is a statement of protest, with strong social protest linked by waiata, waiata tangi, waiata aroha, ngeri, karanga and haka. It is theatre Maranga Mai style, and perhaps it may be one of the factors to create a theatre New Zealand style: it is not skilful theatre in the accepted sense, but Maranga Mai have found a way of

producing their message with feeling and action, and have found a way to be heard. In the traditionally understood senses it is not theatre and it is not Maori culture. It falls somewhere in between. It is a significant type of theatre for us right here in New Zealand, an “us” theatre that has part of its origin in thought, in university-style protest and street drama, and part of its origin in Maori culture. “Maranga Mai” seems to me to vary in its intensity from one performance to another. At its best it can hold an audience enthralled, as it did at Tauranga. The players were criticised for their performances at some venues. No one should have an excuse to be critical of them, everyone should know what to expect of any performance. Guilt causes some predictable and funny reactions.

Earlier this year the Royal Commission of Inquiry on the Maori Lands Courts made its report. Such documents can often make dry reading, but as the Commissioners state themselves in their preface, the Report is published “at a time when issues affecting the Maori people are receiving more attention than at any time in our history excepting, perhaps, the troubled days of the land wars.” so it is appropriate to devote some space and attention to this important Report. Chairman of the Commission was Sir Thaddeus

McCarthy, and other members were Dr Rangi Mete-kingi and Marcus Poole. In this review Peter Rikys examines their investigations and conclusions, and makes some observation of his own.

THE MAORI LAND COURTS Report of the Royal Commission of Inquiry Government Printer $3.85

The recommendations of the Commission are summarised in Chapter 20 for those who have neither the time nor the inclination to read the 150-odd pages of the Report. To take this resort, however, would be to miss a valuable pocket summary of the evolution of the Maori Land Court, the changing nature of its jurisdiction, the various attitudes taken by its judges as to how that jurisdiction should be exercised, and some perceptive insights into some of the reasons why the Maori land system has failed to serve the Maori people as efficiently and as effectively as it should have. The point emphasised in the Report, which readers must constantly keep in the back of their minds, is that the Commission is bound by the terms of its warrant and thus had a field of inquiry limited to the Court, its form and activities. It was not a commission appointed to inquire into Maori land laws or government policy towards Maoridom.

This review is an attempt to isolate the salient points in each of the three parts of the Report: the background to the inquiry; an informative and historical section which clarifies the issues and describes the course of the inquiry; and a look at specific questions posed by the Commission’s warrant.

Part 1: The Preface

The Commission in general terms was required to inquire into and report upon “what changes are necessary or desirable to secure the just, humane, prompt, efficient and economical disposal of the business of the Court, and to ensure the ready access of .... claimants to it”.

The inquiry covered a period of seventeen months and held public hearings at sixteen different locations throughout the court districts, many being held on marae. The overall response to the Commission was felt to be disappointing and the report identifies two reasons for this: firstly that the mass of the Maori people are young and have no prospect of ever owning land; land owning and the issues arising from it are irrelevant to this mass; and secondly that most of the issues raised revolved around

administration rather than principle or fundamental structure. This in turn raised the pertinent question of whether the Commission was necessary at all as distinct from whether it needed a thorough administrative overhaul. The inquiry did reveal a diversity of Maori opinion, especially about the rights of alienations of interest in Maori land. Opinions vary from strong opposition to the lifting of any restrictions on alienation, to views favouring the same freedom as the European enjoys to dispose of interests in land.

The Commission also observed that the legislation governing Maori land was unduly complex and difficult and urged “a much simpler and more

understandable legislative treatment of this most important and troublesome area”.

The Commission was also critical of the lack of positive input by the Department of Maori Affairs and identified as one of the main trouble spots the out-of-date and complex Maori Land Court title system.

Part 2 This deals with the evaluation of the Court and its jursidiction. It notes that the Court can only exercise those powers vested in it by statute and is therefore a creature whose form is dictated by the powers it can exercise.

The Court evolved from its original form in 1865 as a vehicle to identify all lands held in New Zealand under customary Maori title to bring the European purchase of Maori land within an orderly system and thus facilitate peaceful settlement. It imposed a system of individual land ownership on a people whose lands had always been held communally.

Since completing that initial role (largely finished by 1909) the Court has tailored its underlying purpose to changes in its empowering legislation and the different social attitude's reflected by those changes. The predominant theme has been for many years to act as protector and parent to the Maori land owner. This supervisory function is today limited as was highlighted in the Supreme Court decision in the Ngati Hine case of 1978, and in the eyes of some of its judges at least now exists “as a forum to facilitate and enable the utilisation of land held in multiple ownership, to facilitate owner -management of lands and to settle

differences arising in the body of owners” (submission of Judge Durie).

This is not the first official inquiry that has been made into the Maori Land Courts, and this part of the Report accurately describes the relationship between earlier commissions and subsequent changes in Maori land legislation in particular, the Rees Commission and the 1894 Native Land Act and the Pritchard Report 1965 and the Maori Affairs Amendment Act 1967. The report describes the existing legislation as “a morass for the legal profession” which “leads to very great difficulties for the Maori people in dealing with their land”. It also outlines the development of the dual system of land registry which arose because many land partitions were not surveyed and therefore could not be registered under the Land Transfer system. Similarly many other Court orders were not registered in the Land Transfer Office. The result was that the Court records became a second registry of title

information as it related to Maori land. The extension of the land court’s

jurisdiction into social areas in 1909 was noted; but a reactivation of this broader jurisdiction while promoted by some submissions to the Commission, did not receive favour. Chapter 3 and 4 of the Report look at the questions of who is a Maori and what is Maori land and again provide valuable background data as well as good supporting statistics. Chapter 4 also contains an excellent section on the development of incorporations and trusts which today are the backbone to the drive by many Maori for land management on a tribal or hapu basis, i.e., a return to the communal concepts of land use. It notes however that the desire for corporate land management is not universal among Maoris. By individualising Maori customary title the Maori Land Court also set rolling the wheels of ownership fragmentation as interests passed from generation to generation. Fragmentation also imposed enormous administrative burdens on the Maori Affairs Department and introduced almost insurmountable problems to efficient land utilisation. Between 1953 and 1974 Parliament attempted to find legislative solutions to the problem of

fragmentation but with the development of section 213 vestings tended to worsen

rather than improve these problems. Today, the wheel has turned full circle as many (though not all) Maoris now see fragmentation as an opportunity to return to pre-European communal land ownership. The report concludes this Chapter by stating that the job of overcoming fragmentation is administrative rather than judicial, particularly through the Department’s community development programme. Nevertheless the Court in practice is in a powerful position to influence the form and extent of, for example, corporate land management. Some judges who use this power see the Court as a management adviser to owners of land in multiple ownership.

In Chapter 6, which discusses the methods of recording Maori land title, the Commission comes down very strongly in favour of a single Land Transfer Registry. While the exercise involved in converting Maori land titles is both massive and inherently expensive the Commission concludes that “It is clear .... that the present unsatisfactory situation of the titles for Maori land cannot be justified, and is one of the main factors mitigating against the economic use by Maori people of large areas of their land”.

In looking at the structure and operation of the Court today (Chapter 8) the Report is critical of the lack of machinery for both producing uniform judges practice notes and reviewing the Rules of the Court. The narrative form of Court notice of fixtures (Panui) does however receive praise. In assessing the Court’s performance (Chapter 9) the Report identified “grave deficiencies” in the Court’s administration, as well as uncertainties and differences of opinion as to the role the Court should play in modern Maori society. A much higher standard of service and efficiency is called for. While the Commission was sitting the State Services Commission undertook an internal review of the Court’s administration and by and large identified the problem areas. Moves to remedy these problems have since been implemented. The changes in the administration of the Court implemented during the course of the inquiry are detailed in Chapter 11.

Part 3 The third and final section of the Report addresses itself to the specific items of the Commission’s warrant.

Item 1 relates to whether any part of the Court’s jurisdiction could be better exercised by some other tribunal or a non-judicial body. Total abolition is seen by the Commission as a political question to be decided by Parliament.

The Commission responds to its findings that the Maori Land Court’s title and ownership system is in severe disarray by stating that there is an urgent need for the Government to ensure that the Maori Land records are incorporated into the land transfer system without further delay. It also urges that the Government “must assign

the necessary resources of money and personnel to enable” this ‘‘to be dealt with as a matter of high priority”. The Commission sees this transfer taking “some years”, during which time the Court’s activities should continue without major alteration. Similarly the Commission found that the Court was the only body equipped to undertake the task of upgrading records to a condition when they could be transferred to the Land Transfer System.

Once the title situation has been rectified, the Commission sees the need for a separate court to do the judicial work disappearing, these functions merging into the Central Court structure. The administrative work, frequently undertaken by present-day judges by default, should be performed by the Department assisted by Maori land boards and advisory committees. On the question of whether the administration of the Court should be transferred from the Department of Maori Affairs to the Department of Justice, the Commission (a little reluctantly it seems) concludes that the unique association between the department and the Court is fundamental justification for retention of the status quo at least until

conversion to Land Transfer title is complete, provided the servicing is made and kept efficient. The proviso is emphasised, and transfer of administration to the Department of Justice is seen as automatic if the steps taken by the Department of Maori Affairs to clean up its own backyard fail. The Commission saw the future role of the Court as that of almost exclusively a Court of justice with traditional judicial standing and independence. This conflicts with the Court’s present functions, mixed between judicial, social and administrative. The Commission felt that a Court involved in administration placed its independence in jeopardy, created potential conflict with the machinery of state and ran the risk of being partisan. It felt that it was fundamental that administrative services be supplied by the department, not the Court. The Report describes the

encroachment of the Court into administrative areas, and the department’s failure to take up and exercise fully its obligations as set out, for example, under Part 2 of the Maori Affairs Amendment Act 1967. The conclusion from this section is clear; the Court must confine itself to strictly judicial functions. The department is the appropriate place in which all administrative matters should be handled and is appropriately equipped. It is therefore timely firmly and permanently to separate the judicial and administrative functions. Item 2 of the warrant seeks inquiry into the qualification for, methods of appointment of and the promotion of judges. The report sees some room for improvement in the present machinery for appointment of judges in line with the proposals of the Beattie Royal Commission, but otherwise favours the status quo. The third item of the warrant seeks inquiry into the feasibility of expanded judicial functions for registrars. The report came down against major change in this area, favouring judges performing judicial functions with limited delegation. The fourth item of the warrant seeks inquiry into the possibility of appointing commissioners to exercise part of the Court’s jurisdiction. The report comes down strongly against this suggestion.

The Commission identified in the fifth and sixth items major areas for improvement in the Courts practices and procedures which are over-complex and not uniform. In particular it highlighted the need for a committee to review the Rules of Court seeking simplification of and reduction to the forms used (presently 300). Similarly a committee of judges was mooted to produce a uniform code of practice notes for all districts. The Report also felt some applications could be more efficiently handled ex parte but because of the lack of uniform

opinion as to which particular applications came into this category, it felt the issue should be determined by a rules committee. The seventh item in the warrant covers the relationship between the Courts, their staff and persons attending in regard to facilities and procedures. The Report identified a “great need” for information to be readily available on how to go about transacting business in the Maori Land Court, as well as on other areas such as searches of titles, and areas in which departmental assistance is available. In addition publicity, seminars and active enlistment of Maori interest were felt to be essential. A need was also found to provided better information to the legal profession, especially in relation to reports on Court decisions.

It was recommended improving counter service in district offices by recreating land inquiry officers. Simplification of court forms was again recommended. The report commented the narrative form of panui and promoted the fixture system used in other courts as an aid to efficiency. The recording of Court minutes in longhand was seen to be archaic, and modernisation was recommended. Finally some room for improvement of facilities was felt to be necessary to reflect the dignity of the Court.

The eighth item of the warrant looked at the question of representation by counsel, which is presently at the discretion of the judge. It was felt that this should be converted to an “as of right” situation. Special reference was made in this chapter to the two avenues of legal aid open to Maori litigants. Item 9 of the warrant covered any associated matters. Several matters are canvassed in this chapter but one of the most significant was the problems arising from the lack of surveys of Maori blocks. The question is still a vexed one but the main emphasis still seems to fall on government assuming more

responsibility in this area. The Commission also strongly recommended that the department institute a comprehensive staff training scheme. As previously mentioned, the detailed recommendations are listed under the warrant headings for ease of reference, in Chapter 20 of the report. In conclusion, the Report expands on its preliminary findings that the major areas requiring attention in the

government’s activities are administrative. In line with this approach the report recommends a long overdue overhaul of Maori Land Court title records and conversion to the certainty of indefeasible Land Transfer Title. The same conclusion was reached by the Pritchard Commission fifteen years ago. If Government policies concerning Maori land are to have any sincerity this recommendation must be acted upon quickly and effectively. Similarly in my view immediate and urgent steps must be implemented to survey all unsurveyed blocks of Maori

land with immediate or medium-term development potential. The cost of these surveys should be born by the Crown in the first instance, in the national interest; with recovery from the owners as and when the economic circumstances of the block permit. It is only when these steps have been taken that Maori will be placed on equal footing with their European counterparts, to use their land resources to overcome their disadvantaged economic position in New Zealand Society as a whole. After reading the report through and relating it to submissions I have since read and hearings I have attended during the course of the Commission’s considerations, three observations remain. Firstly, as stated, the activities of the Court are indivisible from its statutory base. This base is too complex, outmoded in some areas and out of touch with the growing mood within the Maori people for full opportunities for self-determination. As such, the Maori Affairs Act 1953 and its family of amendments must be completed revised and rewritten not merely consolidated. This view accords with that expressed by the Commission and the New Zealand Maori Council in its submissions on the proposed Bill. It is indicative of the movement in Maori attitude that the New Zealand Maori Council suggested a new act entitled the Maori People’s Development Act. It should go without saying that any revision should be made with the fullest possible participation of and by the Maori people. Secondly, there can be no doubt about the Commission’s conclusion on

the urgent need for the upgrading of departmental administrative services. Whether the department is equal to the task is the real question. Thirdly and finally, the only major area of disquiet I feel relates to the Commission’s insistence on a defined judicial function for the Court in future. While the arguments in favour of this course are persuasive, any person who has appeared before the bench of a number of districts over a period of years will appreciate the unique role played by the Maori Land Court judge and the unique relationship which exists between judge and litigants. This empathy has been built up over many years and does not easily lend itself to the definition of land boundaries as the Commission suggests. It is indeed heartening to see the changes proposed and in some cases implemented by the Department of Maori Affairs to improve its sorry record of administrative performance. One can only hope that is is able to take over the administrative functions performed by judges today, particularly in the areas of promoting Maori land use and management. The Commission makes the point that positive policies of education, information and encouragement are needed from the department to promote participation by Maori land owners. I would like to share the Commission’s confidence that the Department of Maori Affairs can rise to this challenge and provide effective and inspired service to the Maori people. On past performance at least it has consummately failed to do so.