Mana whenua : indigenous land ownership in New Zealand

Abstract

The purpose of this thesis is to analyse the past and present approach of the New Zealand Crown towards the land rights of its indigenous people, the Maori. It begins by summarising the relevant historical circumstances, including the settlement of New Zealand, the Treaty of Waitangi and further developments in the 19th and 20th century and concludes that these had an adverse impact on Maori land ownership. Next, the different concepts of Maori and British-New Zealand property law are discussed, which turn out to be diametrically opposed to each other. The first focal point of the thesis is an examination of crucial statutes and their effect on Maori land rights. The early Native Lands Acts were deliberately designed to facilitate the alienation of Maori land and successfully achieved this aim. By contrast, the present Maori Land Acts are concerned with the retention and development of the little land that is left in Maori hands. While the objective of retention has been attained, the development of multiple owned and fragmented Maori land is hindered and suggestions for improvement are put forward. Then, the five effective mechanisms for Maori to retain and reclaim traditional land are outlined. These are proceedings in the Waitangi Tribunal and in the Maori Land Court, direct negotiations followed up by settlements, direct purchase and litigation in the ordinary courts. The second focal point of the thesis is a case study, analysing the Maori Council and the Marlborough Sounds case. The latter one is presently pending in the Court of Appeal, but it is suggested that a confirmation of the Maori Land Court decision could have great implications for Maori, non-Maori and the Crown alike. It is thus recommended that the Crown and Maori enter into direct negotiation to avoid negative consequences. Furthermore, the predominance of statute and the side-stepping of broader issues are identified as characteristics of New Zealand's politico-legal tradition, which have meant that certain important Maori issues have not been addressed. Finally, the national mood is considered to be quite optimistic. Significant progress has been made in addressing historical injustices, but much more remains to be done.