There are three types of land ownership in New Zealand:
- Crown land belongs to the state.
- General land is ordinary private land.
- Māori land is owned by Māori and is subject to the jurisdiction of the Māori Land Court.
The Māori Land Court is an institution that appears to have no parallel in any other country.
Traditional Māori land ownership
The original Māori system of land ownership was quite different from that of European settlers. Māori believed they belonged to the land, rather than that the land belonged to them. Their rights to occupy and use their tribal lands were held not individually, but collectively by all members of a hapū or iwi.
Treaty of Waitangi
From the first days of European settlement in New Zealand, there was a huge demand for the land owned by Māori, which amounted to about 27 million hectares. The English-language version of the 1840 Treaty of Waitangi gave the Crown an exclusive right to buy Māori land (known as the ‘right of pre-emption’). The Crown then resold this land at a higher price to individuals, to fund and promote European settlement. In this way, by 1860 almost the entire South Island had passed out of Māori hands and the total amount of Māori land had decreased by almost half, to 14 million hectares. About 75% of the 11-million-hectare North Island was owned by Māori.
Native Lands Act 1862
The Crown’s right of pre-emption lasted until 1863. Māori land could then be bought directly by individuals. To simplify this process, the Native Lands Act 1862 introduced a system of property rights requiring Māori to prove legal ownership of their ancestral lands. These lands were surveyed and the legal owners were issued with certificates of title. The purpose was to convert Māori customary title as ‘nearly as possible to the ownership of land according to British law’.1 Under this act, the Māori owners had the right to dispose of their land ‘to any person or persons whomsoever’.2
First Native Land Courts
Section 4 of the Native Lands Act 1862 authorised the governor to set up a court:
for the purpose of ascertaining and declaring who according to Native Custom are the proprietors of any Native Lands and the estate or interest held in them therein, and for the purpose of granting to such proprietors Certificates of their title to such lands.3
The first of these courts was set up in April 1864 in the Kaipara district. Others opened elsewhere in Northland later that year. These early courts included local rangatira serving as judges alongside European magistrates.
Proving rights to land
To obtain title to their land Māori had to appear before the Native Land Court and prove their rights to it. They gave whakapapa, named their hapū, and identified boundary markers, geographical features, mountains, rivers, streams, bird-snaring areas, fishing grounds, cultivations, battle sites, pā sites, meeting houses, urupā (burial grounds), areas of traditional significance, pā tuna (eel weirs), bathing places and places where cloaks were washed. They related their histories and mōteatea (traditional chants) – all the information that proved that they had occupied and used the land for a long period and knew it well. This process of obtaining title meant that the boundaries of lands became fixed. The older practice of one or more tribes or hapū occupying different lands in different seasons to harvest shellfish or other resources decreased or stopped altogether.