Originally published 24 May 2021 by Salient
Rhianna Morar, Ngāti Porou, Te Arawa (She/Her)
Johnny O’Hagan Brebner (He/Him)
“Ko te waka hei hoehoenga mā koutou hei muri i au, ko te ture. Mā te ture anō te ture e āki. The canoe for you to paddle after me is the law. Only the law can be set against the law.” – Te Kooti-Arikirangi
If there is a history of anything in Aotearoa, it is the history of land. Its discovery, settlement, theft, conquest, and resettlement. The problem when it comes to history, however, is the distance many put between themselves and it. Injustices of the past are not just of the past. Our current constitutional arrangements remain that of the oppressor. Through Parliament and the Courts, colonial assimilation continues to legitimise the intentional alienation of Māori land. The obvious source is legislation. Many Acts of Parliament were designed, or used, to impose Crown dominion over Māori land. But for every Act, there is a court to apply it. The Native Land Courts ignored fraudulent land dealings, forced hapū into large natural groupings with arbitrary land boundaries, and usually sent them home landless. Today, this tradition is proudly upheld by New Zealand’s general courts. Mau Whenua embodies this dismissive and colonial judicial mind — Māori are pitted against each other, pay dearly for expensive litigation, have their system of property rights ignored, and the existence of whakapapa in land denied despite laws to protect it. It represents a broken and colonial judicial mindset often thought of as ‘of the past’, but was made under just the last two governments.
Western Legal Thought asserts that law has universal application to everyone. Many liberal democracies cloak this as “the rule of law”. This universality is problematic because it fails to accommodate the different ways in which law operates according to distinct peoples, and the different legal systems those peoples have. In colonial states such as ours, our understanding of law and how it ought to apply comes from the desire of the coloniser to dominate and assimilate indigenous peoples and their legal traditions.
The Waitangi Tribunal in its Ko Aotearoa Tenei report describes the interaction between Kupe’s people and Cook’s people upon their arrival to New Zealand. Both Kupe’s people and Cook’s people brought with them different worldviews and legal systems. The interaction between these two peoples and the land generated new problems, and thus new legal remedies, which continue to shape the evolution of both legal systems.
So when Kupe’s people and Cook’s people met, so did their relationships with the land. These systems and their meeting were embodied in the Treaty of Waitangi. Although there is much debate about the interpretation of the Treaty, whether it be the text or the judicial creation of ‘Treaty principles’, neither can be constitutionally transformative as their interpretation remains stalwartly colonial—kāwanatanga and tino rangatiratanga are constrained to the benefit of Crown sovereignty alone. The idea that Māori law is something to be ‘recognised’ within the Crown’s legal system fails to question the legitimacy of the Crown’s legal system itself. This universality, in which only the Crown’s law can be dominant, means that debates about the text or Treaty principles are only useful as far as they squeeze tikanga and Te Ao Māori into the existing colonial framework. Therefore, the true constitutional relationship between kāwanatanga and tino rangatiratanga can only be sought out within the context of a Māori legal system—recognising that land and whakapapa are intrinsically linked.
The new land traditions brought by the British also distorted this constitutional relationship. Libertarian philosophy, championed by John Locke, introduced the idea of ultimate dominion over both land and people—sovereignty. Comprehensive Crown control of land in a way recognisable to it is the prerequisite to this sovereignty. This control was accomplished piece by piece in Aotearoa New Zealand. First with the signings of the many Treaties of Waitangi, then by fraudulent and broken purchases, by war and raupatu, and assisted all the way by the obscure mechanisms of the Courts.
The transformation of Aotearoa into New Zealand was then necessarily a result of denying the existence of whakapapa relationships with whenua to instead impose Crown title over land. But the whakapapa remains. Although the Treaty now sits pride of place in the National Archives, it faces a Parliament which is the Crown’s only, and where its paper was once gnawed by rats, its promises are corroded by the Courts. Land then, and the law that incircles it, is of extreme constitutional significance.
The Crown’s state did not stop stealing or hiding away Māori land at the end of the Native Land Courts, or even at the creation of the Waitangi Tribunal. Even in the new century it continues. From Parliament we saw the introduction of the Foreshore and Seabed Act, and from the Courts, a sustained campaign to recognise only Western property conceptions at the expense of both Māori and Crown law. Before we can start on the Courts, however, we need to look at legislation. The key to the Land Transfer Act (LTA) is that titles to land on the Register become “indefeasible”—it cannot be qualified by other land rights (like a right of way) that aren’t also on the Register. From experience, a wall of text is not the best way to understand this system, and the exceptions to it. So instead:
The key point here is that title is easy to get but hard to lose, unless you happened to have been the hundreds of iwi and hapū who lost land through fraudulent and misrepresented ‘sales’ confirmed by the Native Land Court. And with the good faith third party protections, land could be whisked far away from its original people in just a few years. The fact that many of these later buyers were well aware of their title’s dubious origins rarely meant anything to those same Courts.
In 1993, the Te Ture Whenua Māori Act (TTWMA) was introduced to replace the older Māori Affairs Act. While some things remained the same (for example, the Māori Land Courts continued to hear claims about Māori land), the TTWMA was designed to introduce a new regime with more protections for Māori land. Many of these related to the Māori Land Register (a set of Māori Land Court orders documenting interests to Māori land). For example, under the TTWMA the status of land as Māori land did not change to general land if it was sold to non-Māori. This had been the case under the MAA, and meant that the restrictions on sale and use that went on Māori land disappeared if sold to non-Māori.
But because the Courts have continued to actively undermine the protections under the TTWMA, recently a new and exciting addition was made in the LTA 2017. The new Manifest Injustice provisions in the Act create a new exception to indefeasibility. Section 54 of the LTA provides that persons who have been deprived of an interest in land by registration under a void or voidable instrument may apply for cancellation of the registered proprietor’s title, in cases of manifest injustice (subject to ss 55 and 56). If it would be “manifestly unjust” for an interest off of the Register not to be held against the registered title, the Court could enforce that unregistered interest.
Time to see how badly they manage to screw this up.
Manifest Injustice and Mau Whenua
Despite the new manifest injustice provisions, Aotearoa New Zealand’s property law regime has not moved on from protecting the indefeasible title of pākehā or corporate landowners at the expense of Māori. It is clear that the State legal system continues to perpetuate the “divide and conquer” assimilation strategy that supposedly died with the Native Land Court. Moreover, the extent to which Western proprietary rights provide absolute and exclusive ownership upon registration of an otherwise defective title is fundamentally at odds with the inherent relationality between Māori and the land.
The sale of Shelly Bay is currently one of the most contested Māori land issues in Te Whanganui-a-Tara. Land held at Shelly Bay by the Port Nicholson Block Settlement Trust was sold to developer Ian Cassels, despite opposition from the Trust's Māori beneficiaries. As the sale proceeded, Taranaki Whānui who remained opposed to the sale, Mau Whenua, challenged it in court. The land dealings at Shelly Bay have been the only test of the new manifest injustice section. The parties sought refuge in the law, more specifically in the High Court, to determine whether the sale of land was lawful. In this case, Mau Whenua argued that the purchaser should not have indefeasible title because the sellers—Port Nicholson Block Settlement Trust—had failed to authorise the major transaction by a special resolution passed by a 75% supermajority, with only 50.97% of those voting supporting it. Although the land was not given as redress per se, the beneficiaries voted in support of purchasing the land at Shelly Bay, which is now owned and operated by the Trust. An Independent Registrar Report commissioned by the Māori Land Court found that “successive generations of Trustees and administrators, over the past nearly ten years have failed in their obligations, to give effect to the requirements of the Trust Deed”.
Nevertheless, the Court held that Mau Whenua had not specifically identified any defects in the title, and therefore manifest injustice did not apply. The application to sustain the caveat was dismissed—the recognition of an interest that would have prevented the transfer of Shelly Bay. Instead, the claimants would have to establish a breach of trust in equity. We disagree.
It is laughable that Māori interests in land are not considered caveatable interests.
The relationships between trustees and beneficiaries needs to adapt to recognise the special significance of Māori land.
What is even more ironic is that Māori are the land—how can you not have a proprietary interest in something that is an intrinsic part of you?
On one hand, the LTA has provisions recognising that immediate indefeasibility should not apply in cases of manifest injustice. On the other hand, the judgment references Frazer v Walker, which says that defective title is perfected upon registration, and yet fails to acknowledge that this legal principle in and of itself serves to undermine the very basis for these manifest injustice reforms.
Mau Whenua also demonstrates the challenges posed by forcing tikanga land holding systems into the Western trust system. While Ahu Whenua Trusts—trusts which hold land for Māori beneficiaries—have some special rules, they operate on New Zealand’s trust models and all the colonial conceptions of property that go with it. Under a trust, a trustee owns the land, but has to use it in the interests of the beneficiary. A beneficiary that often only has limited, and non-caveatable, interest in the land. Not only does this expose Māori beneficiaries’ interests in the land, it understates the interests those beneficiaries would otherwise have in a tikanga system.
General land owned by Māori is Māori land. We have a land transfer system that is publicly searchable by interested buyers. If anything, this illustrates that purchasers of Māori land must exercise due diligence by inquiring into whether the seller has in fact met the requirements to sell this land. This due diligence obligation is of utmost significance given the special characteristics of Māori land, and must be read against the purpose of manifest injustice. The failure to fulfil the requirements for sale clearly illustrates that manifest injustice has occurred—this is particularly so if we consider the purpose of the Te Ture Whenua Māori Act 1993, which is "the retention of Maori land and General land owned by Maori in the hands of the owners''. Purchasers should be expected to make reasonable inquiries in regards to any land held in trust for Māori.
The Court’s interpretive approach highlights the colonial constraints of our State legal system by continuing to legitimise the ignorance of law designed to protect Māori land. Ultimately, Mau Whenua raised an arguable case on questions that deserved greater respect and thought. Dismissing them at a preliminary proceeding ignores the significance of that question and the reality of Māori property rights. Without a doubt, they certainly should not have been dismissed for lacking a “proprietary” nature.
The decision is simply another example of how Pāhekā definitions of what is considered “proprietary” or an “arguable case” for a caveatable interest interferes with the retention of Māori land, and undermines Māori concepts of land as part of the whakapapa matrix. However, there is no reason as to why the State legal system should not adapt to recognise interests in Māori land as caveatable interests worthy of protection where there is a breach of trust. This would simply give effect to the fact that tikanga Māori is the first law of Aotearoa New Zealand, let alone the purposes of the TTWMA.
Mau Whenua illustrates that we seriously need to reconsider the exercise of public power in Aotearoa New Zealand. Ironically, Parliament has done this to an extent by recognising that whenua, such as Te Urewera, or awa such as Te Whanganui River, have legal personhood. While this does not recognise Māori legal traditions in and of themselves, it does show that the State legal system is willing to recognise some whakapapa relationships with nature. Clearly the Crown is beginning to realise some responsibilities to exercise kāwanatanga in a way that legitimises the whakapapa matrix in which land sits. But under our existing constitutional arrangements, the separation of powers provides for each arm of the state to keep the others in check if they overstep. When the Court in Ngāti Apa recognised Māori customary title to the foreshore and seabed, Parliament wronged this terrible right by introducing this country’s largest ever raupatu under the Foreshore and Seabed Act 2004. When Parliament decided it wanted to finally protect Māori land with the Te Ture Whenua Māori Act 1993, the Courts in Mau Whenua couldn’t bear to see such an injustice slide. To the Crown, its role is to sustain its own claim of sovereignty, and so its control of land. It uses many tools to do this. But while war and theft are now rising in the Pākehā consciousness, the law remains a largely hidden weapon in the Crown’s arsenal. Universality, sovereignty, and the Courts’ colonial brain prevent any steps to qualify this claim to supremacy in the face of its kāwanatanga responsibilities. In the 60s and 70s, lawyers had a meltdown realising the Treaty could no longer be ignored as part of our constitution. Today the challenge is materialising this change, which cannot be done while tikanga and whakapapa is suppressed, as it has been for nearly the last two centuries.
*Beneficiaries: people who a trust is held on behalf of. Usually gain an advantage or profit.
*Breach of Trust*: where the conditions of trust have been broken, e.g. selling assets without proper authorisations from the people who are making decisions about the trust.
*Caveat: a warning or condition placed on a property title. For example, a person can hit up the Land Registrar if they have an interest in the land, and have that noted on the title.
*Equity: a confusing part of the law that is concerned with “fairness”. It was developed outside of the common law to suit situations where the existing law couldn’t really find a decent remedy.
*Indefeasible title*: title to land that cannot be lost or taken away even if there are other claims to that land.
*Manifest injustice*: up to interpretation. The Court looks to a number of things like the way the land was acquired, who is actually occupying the land, or if the land is of special significance, and makes a call.
*Proprietary rights*: rights in relation to property; includes right to sell or subdivide.
*Trust: a legal arrangement where property or assets are held on behalf of one party for the benefit of another.