Maori Law-Te Tiriti o Waitangi me Te Ture Whenua Maori.pdf

Te Tiriti o Waitangi
Te Ture Whenua Māori
Māori Community Projects
Rau Hoskins
10 April 2013

Overview
Ü Māori world view
Ü Basic outline of Te Tiriti o Waitangi
Ü Relevance to Māori land
Ü What is Māori land
Ü Utilisation and legislative issues
Ü Case Studies

Te Ao Tū roa- The Enduring Light
The world that stood through time
Te Waka a Maui
Te Ika a Maui

Aotearoa- New Zealand

Mana and Rangatiratanga
Ü Power to control, determine and decide in the
management of resources
Ü Self determination
Ü Linked to identity and social standing

Kaitiakitanga
Ü The exercise of guardianship by tangata whenua of an
area in accordance with tikanga Maori in relation to
natural and physical resources; and includes the ethic of
stewardship
Ü Responsibilities and obligations passed down from the
ancestors to take care of the places, natural resources
and other taonga in their rohe, and the mauri of those
places, resources and taonga

Tūrangawaewae
Ü An individual or groups ‘standing place’
Ü Sense of identity
Ü Ancestral homeland
Ü A place that resembles your connection to the
land and other whanaunga (kin)

Mauri
Ü Principle life essence or life
force
Ü the spiritual power and
distinctiveness that enables
each thing to exist as itself
Ü the life force believed to be
possessed by all things
whether animate or inanimate

E tu ana a Huruiki maunga
Tu i te ao, tu i te po
Ko Ngāti Hau ki Uta
Ko Ngāti Wai ki tai

The Treaty of Waitangi
2 versions
3 Written
Articles

First National Planning Document
“Chiefs and Tribes of New Zealand and to all the respective families and
individuals thereof the full exclusive and undisturbed possession over their
lands, estates, forests, fisheries and other properties which they may
collectively or individually possess so long as it is their wish and desire to retain
the same in their possession

Background to Te Tiriti
Ü Increasing number of British settlers
Ü Lawlessness and land speculation
Ü 1831 – Some chiefs petition the Crown for
protection from lawlessness/French
Ü 1833 – British Resident arrives
Ü 1835 – He Whakaputanga o Niu Tireni signed by
52 rangatira/recognises sovereignty
Ü 1837 – NZ declared a colony

Te Tiriti o Waitangi
Ü Hobson appointed in 1839
Ü 6 February 1840 – Te Tiriti o Waitangi signed
Ü 21 May 1840 – Sovereignty proclaimed over North
and South islands by cession/Stewart Island by
discovery
Ü 512 signed Te Tiriti (Māori text)
Ü 40 signed the Treaty (English text)
Ü Many ariki/rangatira did not sign

Te Tiriti v The Treaty
Ü Article 1 – Kāwanatanga v Sovereignty
Ü Article 2 – Tino Rangatiratanga v Exclusive and
undisturbed possession of all lands, fisheries, etc
Ü Article 3 – Rights of British subjects
Ü Crown pre-emption

Status of Treaty
Ü Lord Stanley to Governor Grey
“I repudiate with the utmost possible earnestness,
the doctrine maintained by some, that the
treaties we have entered into with (the Maori
people) are to be considered as a mere blind to
amuse and deceive ignorant savages. … You
will honourably and scrupulously fulfill the
conditions of the Treaty of Waitangi “

Asserting sovereignty
Ü 1840s – NZ Company/Land speculation
Ü Increasing immigration
Ü 1852 Constitution Act
Ü 1854 – First Parliament
Ü 1858 – Kingitanga
Ü 1860-1870 – NZ Wars
Ü 1867 – Māori seats established

Land Tenure Reform
Ü Māori land held by hapu/rangatira
Ü Native Land Act 1862 – Provided for ownership of
Māori land to be determined
Ü Native Land Act 1865
Ø Individualisation of title
Ø Ten owner rule
Ø Native Land Court established

Assimilation
Ü Buller report 1862 re Kaiapoi lands
“In short we submit that a proper individualisation
of their lands must after all be the first
appreciable step towards the introduction of the
Native People to the benefits of a more
advanced civilisation. … such a system, if carried
out, would very much facilitate land purchasing
operations … would pave the way to a more
general alienation by the Natives of their waste
lands.”

Detribalisation
Ü Sewell 29 August 1870
“The other great object was, the detribalisation of
the Natives, - to destroy, if it were possible, the
principles of communism that ran through the
whole of their institutions, upon which their social
system was based, and which stood as a barrier
in the way of all attempts to amalgamate the
Native race into our social and political system.”

Land Tenure Reform
Ü Native Land Act 1873
Ø All interests recorded on title
Ø Majority consent required for alienations
Ø Partitions enabled and simplified
Ø Forced to participate
Ü 1873-1900
Ø Large scale Crown purchasing operations
Ø Advancing settlement

20 th Century legislation
Ü Native Land Act 1909
Ø Alienations had slowed
Ø Act designed to vest control of administration in Māori
Land Boards
Ø ‘Use it or lose it’ policy
Ü Native Land Act 1931
Ü 1947 – ‘Native’ replaced with Māori

20 th Century Legislation
Ü Maori Affairs Act 1953
Ø Facilitated use and alienation
Ø No alienation restrictions
Ø Status of land changed on transfer
Ø Trusts structures introduced
Ø Automatic europeanisation 1967-1973
Ø Fragmentation and fractionalisation of ownership

Te Ture Whenua Māori Act 1993
Ü Approach changed following groundswell of Māori
opinion
Ü Retention and utilisation are the principal objects
Ü An expression of the principles of Te Tiriti o Waitangi
Ü Alienation restrictions introduced
Ü New ownership vehicles introduced (Whānau and
whenua tōpu trusts)

Māori Land Ownership
Ü Legal title
Ø Vested in multiple owners as tenants in common
Ø Vested in trustees of ahu whenua or whenua tōpu trusts
Ø Vested in Māori Incorporations
Ü Beneficial ownership
Ø Vested in individuals by shares
Ø Whānau trusts

Status of Land
Ü Māori freehold land
Ü Maori customary land
Ü General land owned by Māori
Ü General land
Ü Crown land

Restriction on alienation
Ü Status can only be changed by Māori Land Court
irrespective if land sold
Ü Land can only be sold if it is first offered to the
Preferred Class of Alienees
Ü Sales and Long Term Leases require threshold of
consent from owners
Ü Cannot Will Māori land to a person outside the
Preferred Class of Alienee

Issues with Māori Land
Ü Everybody’s land and nobody’s land
Ü Multiple ownership – Worst of both worlds
Ü Access to capital and finance
Ü Ability to use hampered
Ü Fragmentation and fractionalisation of
ownership

History of Local Authorities
Ü Iwi, hapu were ultimately the original local
authorities
Ü Exercised rangatiratanga - held the power to
decide and define what was important and to
manage and protect all taonga within in their
areas.
Ü Manaakitanga -an obligation to care for all people
within their takiwa
Ü kaitiakitanga an obligation to protect
papatūānuku within their tribal domains

Maori and Local
Government
Ü Key statutes totally neglected Māori
Ü Town Planning Act 1926- ignored Māori. no
consultation, no provisions to recognise
knowledge that Māori had of the environment
Ü Town Planning Act 1953- Again no recognition
of Māori

Local Government Act 2002
Ü Local Government Authorities have the
opportunity to establish Māori wards under
sections 40(b) and 40(d). Additionally, section
77(c) requires local authorities to take into
account the relationship of Māori and their
culture and traditions when making significant
decisions about land or body of water.

Auckland Council (LGAAC09)
Ü Independent Māori Statutory Board
Ü Māori Strategy and relations Unit -Te Waka
Anga Mua
Ü Specific Māori roles
Ü CCO’s

Resource Management Act 1991
Ü provisions with specific reference to Māori
Ü Four broad categories
Ü Treaty of Waitangi
Ü Cultural interests
Ü Iwi interests
Ü Māori language usage

Housing
Ü Owner must have shares in land
Ü Either need a:
Ø Occupation order; or
Ø Partition
Ü Occupation order
Ø Exclusive occupation for the term of the order
Ø Can pass by succession
Ü Partitions can be difficult

Housing
Ü Access to finance limited
Ü New Kāinga Whenua scheme
Ü Tripartite agreements with Housing New Zealand
Corporation
Ø Trustees agree to licence/occupation order
Ø Owner agrees to repay loan
Ø Housing Corp finances
Ü House must be detachable
Ü If owner defaults, house is removed and sold

Issues
Ü Is the owner a sole owner of the land?
Ü If not, do they have an occupation order? For
how long? For what area?
Ü Do they have resource consent? What does it
allow?
Ü Does the Trust consent to the building?
Ü Building consent

Ownership Vehicles
Ü Trusts
Ø Legal title vested in trustees
Ø Have ability to build and construct structures
Ø Subject to RMA, Building Act, etc
Ü Māori Incorporations
Ø Legal title vested in Incorporation
Ø Owners are shareholders of the Incorporation
Ü Potentially more freedom
Ü Prudence and diligence

Māori Reservations
Ü Areas reserved for special purposes – marae, urupa,
etc
Ü Also has housing
Ü Non-ratable up to a certain point
Ü Kaumātua housing
Ü Community papakāinga

Papa kainga
Ü More being established
Ü Issues:
Ø Ownership
Ø Limited availability of land
Ø Finance
Ø Housing styles
Ü Community approach

Ngāti Whātua o Ōrākei
Ü Originally from the far North - Resident in Tāmaki from mid
1700s.
Ü Main base remains in the wider Kaipara area
Ü 80,000 acres in the Tāmaki Isthmus
Ü March 1840 deputation of Chiefs Invited Hobson to
establish a colonial presence
Ü Sept 1840 3000 acres allocated for the establishment of
Auckland (Mt Eden to Hobson Bay & Cox’s Bay)
Ü 1952 ¼ acre Ūrupā (cemetery) at Ōkahu Bay following
evictions

Ngāti Whātua o Ōrākei
Ü 1976 Government moved to sell off the last of the
unallocated land at Ōrākei
Ü Occupation culminated in 222 arrests in May 1978
Ü 1986 Waitangi Tribunal Ōrākei claim lead to the 1987
Ōrākei Report
Ü 1991 Ōrākei Act $3M compensation plus Papakāinga land,
land to be used for commercial purposes and Whenua
Rangatira Reserve
Ü Whenua Rangatira Reserve owned by the Iwi but
administered jointly with Auckland Council via the Ngāti
Whātua o Ōrākei Whenua Rangatira Reserves Board

Apihai Te Kawau

Whare taonga &
Interpretation centre
Maintenance
Depot
Waka culture centre
Whare
waka
Orakei Sports
& Leisure Club

Whare Waka taua
Ü Need to provide a long term base for a new waka taua (or 2) to honour
Ngāti Whātua Mana whenua / Mana Moana and significance of Ōkahu
Bay as a Pacific voyaging destination
Possible location at west end of Okahu Bay

Papatākaro

Pūkaki Papakāinga - Māngere
This project is about the alienation of a whānau from their tupuna
whenua at Pūkaki and their deeply held desire to come home
together.
Ü Te Ākitai a Tainui / Waiohua hapu occupied Pūkaki until the
1950s when the new airport flight path occasioned their
removal from the land
Ü Land returned in the early 1990s with all infrastructure in place
Ü Papakāinga Zone in the District Plan
Ü Key personnel – Ree Anderson and Leigh Auton
Ü Marae built in 2004
Ü Papakāinga to be commenced in May 2012

Pūkaki Papakāinga

Pūkaki Papakāinga

Urban Fringe
Papakāinga
Puukaki Marae
Te Akitai Iwi
Mangere, South Auckland
• 18 new dwellings
• 2-5 bedroom
• Communal areas
• Communal maintenance
• Walkway to Marae

Summary
Ü Post settlement Māori / Iwi becoming major
developers
Ü Iwi strengthening relationships with Local government
through RMA and LGA provisions
Ü Architects increasingly need cultural skills to work
well with Māori client groups – Te Reo & Tikanga
Ü Very significant and interesting design opportunities!