Native Land Court, 1865
The Native Land Court was established by the Native Lands Acts of 1862 and 1865 to investigate titles to Māori land. As the Māori Land Court, it is still in operation in the 2000s, and its functions and jurisdiction are set out in the Te Ture Whenua Maori/Maori Land Act 1993.
The 1862 act provided for the governor to set up a court or courts, consisting of a panel of Māori jurors or assessors presided over by the local resident magistrate. This first act only operated in a few places, mainly Northland, because of the turmoil elsewhere caused by the New Zealand wars. It was replaced by the much more comprehensive 1865 act, drafted by Francis Dart Fenton, the first chief judge of the court. This established a formal court of record, with salaried specialist judges who would be assisted by Māori assessors.
The Native Lands Acts also abolished the doctrine of Crown pre-emption, which had governed the system of Māori land alienation up till then. The preamble to the Native Lands Act 1862 stated explicitly:
AND WHEREAS … Her Majesty may be pleased to waive in favour of the Natives so much of the said Treaty of Waitangi as reserves to Her Majesty the right of pre-emption of their lands.
Māori were now free to sell land to private buyers on the open market, provided that the land had first been investigated by the Native Land Court.
The legislation also set up a process by which Māori could convert their land from customary or ‘native’ title to Crown-granted or freehold title, making Māori land legally analogous to ordinary private land owned by Europeans. The process involved three separate steps:
- First, the Native Land Court would conduct an ‘investigation of title’ to a particular block of land and determine its owners. This could often be a very lengthy and contested process.
- Once it had made its decision, the Court would issue a certificate of title to the owners.
- The owners then produced their certificate of title to the governor, who would issue a Crown grant for the land. The owners now had a freehold title. They could sell the block, lease it, try to raise money on it, or simply farm it and live there themselves.
End of customary title
The court began investigating titles to Māori land at a rapid rate. In 1872 Chief Judge Fenton reported that between November 1865 and June 1872 the court had issued titles to 5,013,839 acres (more than 2 million hectares), most in the provinces of Auckland, Wellington, and Hawke’s Bay.
It was not compulsory for Māori to bring their land before the Native Land Court – they were theoretically free to leave their lands in customary title if they wanted to. In practice, however, virtually all land still in Māori ownership in 1865 was brought before the court and converted to freehold title. Very little land remained held purely on customary title.