Legal History - Boast Section PDF

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Legal History – Notes Outline – Richard Boast Section NOTES FROM READINGS – Critical Analysis of Each Reading and Some Conclusions Overall Themes • Māori land, since colonisation, has never truly belonged to or been governed by Māori Reading One – Effects of Tenurial Change • Comparative analysis of NZ Māori Land Court / Land Acts of 1862 and 1865 and Latin/Spanish America. Comment on the impact of colonisation and how the coloniser influences the law making.

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Legislation, land and tenure, indigeneity. Politics and ideologies Influence of liberalism Evolutionist anthropology of the day in NZ – Māori were perceived as cultivators and ranked highly in the evolutionist scale o Interesting focus on cultivation and relationship with and ability of people to use land as something that not only placed them highly in evolutionary terms but also affected their entitlement to land and citizenship. Recognised that Māori land titles had to be legally extinguished by either purchase or by means of a process of judicial title investigation. Terra nullius has had no practical relevance in New Zealand o TN being the concept that the land was empty and belonged to nobody, ignoring the presence or natural ownership of the indigenous people. NZ and Uruguay alike in the sense that they both tried to not be out shadowed by their larger neighbours while also trying to form close economic ties with these same neighbours. Greed and ideology play a major role in the sort of Liberal movement of benefiting directly from the alienation of indigenous lands and an ideological belief in the value of modern tenures in unlocking opportunities for development and modernisation. In both Span-American republics and NZ the influence of liberal ideologies on indigenous land rights was profound. o 19th century push in NZ to convert lands into modern forms of tenure recognised by modern law through legislation of colonial parliament o Legislation also to take land from 'rebel' Māori as well as remodel the tenure of land regranted to those deemed not to be in rebellion. Already seeing this theme of laws designed on their face to keep Māori land in Māori hands are actually, on a deeper level, designed to give the government more control over Māori land and ensure that what is being done with it aligns with what the colonial government wants. Powerful connection between the law and the emergence of modern capitalism – neoliberal political economy – a system engineered into place by statutory enactments designed specifically to favour those ends. Statutes a form of law making peculiarly receptive to shifts in the ideological and political climate. Legislation a product of political process. Objectives of legislation re Native Title etc were and remain to be centred around encouraging the extinction of customary tenures for their conversion into Crown grants/land. Unique feature of NZ law – Crown has waived general pre-emptive right to extinguish native customary title. Native Lands Act: title conversion, two-step process of converting Māori land into Crowngranted freehold tenure – owners bring block of land to court, recorded as owners in Crown records – then exchange their certificate to the land for Crown grant to the same area in freehold – presumably intended to extinguish the customary title.

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o Another example of law that on the surface looks to be beneficial but is really just placing more Māori land under Crown control. Connection between property and citizenship. Republicans especially – could not participate unless you owned property. Liberalism vs Republicanism. Spanish America: periods of liberal reforms associated with govts saw huge losses of Indian lands to private ownership in a period of rapid economic expansion. o Later legislation required proof of ownership by way of recognised titles. Similar to NZ law – had to prove to the Crown that you had some kind of title over the land. Constant conflict between whether land should vest with the private sector or the Crown. Māori do have a much larger political influence than minorities in Spanish-America etc though. Overall: compares the processes of Spanish-America and NZ in terms of native land tenure – the way legislation is enacted, how political ideology impacted, and who land rights were given to. Displays a lot of the overarching themes of the readings in the sense of politics and land ownership being massive influences on each other and on the citizenship of indigenous people.

Reading Two – Inconsistencies in the Native Land Court • An ad hoc progression and dysfunctional development contingent on participation and presence of the parties involved. Legal process turned commercial. Money power making the true difference.

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History of the (predominantly) Cambridge hearings State vs Private Sector Barriers for Māori Goals of the system Native trade – the amount of Māori coming to the town for these hearings bolstered the local economy. NLCs could not sit within the proclaimed area, making it impossible for private interests to compete therefore allowing the govt a monopoly over repurchasing land. Govt also principally motivated by the desire to block private competition. Govt imposed restrictions on political grounds and for political reasons. But Private purchasing resulting in the greater part of alienation of some lands. No record of the out of court negotiations where most of the actual grunt work occurred. Very often the real point of the NLC cases was not to secure titles for Māori but for purchasers from Māori. Anti-Māori ownership. Fostering a system that allowed people to purchase Māori land. Auckland businessmen would come to the court – private purchasing business, particularly from London. Even other companies got involved, backing the side they supported for their own commercial gain. Some parties in the land courts were proxies for rival groups of purchasers. o Would not fight so bitterly if they were not egged on by purchasers. Competing purchasers standing behind the parties in court was a problem. o Blackmail? o Speculation/ors Start of a narrative that Māori could not take care of their land. Private sector less interested in settling on the land and more interested in on-selling it, taking the money, and running. Free market of Māori land essentially a cloak for capitalist monopoly and speculation. Newspapers heavily involved and took sides – e.g. Herald took position that the state should control Māori land purchase market (liberal?) as it was the safest option for Māori and the settler community.

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o Strong narrative of protecting Māori from themselves and protecting citizens from the "poor" decisions of Māori. Liberals didn't want companies or overseas entities managing Māori freehold.

Reading Three – Judges of the Māori/Native Land • Charitable description of the bench "more profitable to see them as a very diverse group

who presided over a unique institution which was in a constant state of dynamic evolution." Not lawyers, but instead professionals that could do nothing right in the eyes of Parliament but were constantly being given more responsibilities.

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Influence of the government on the NLC judges Stinginess of government More about WHO was part of the MLC – who had influence, who was it actually for. Sealed from the rest of the Judicial Hierarchy – not actual judges. o Most spoke Māori o Always had a Māori assessor Court had to apply Māori custom because the statutes said so – it was determinative of the owners of Māori land. Sir Hugh Kawharu – the new tenurial system was an engine of destruction for tribe's tenurial land. But the judges were too diverse a group for any kind of ideological leaning to be attributed to them. Judges of the NLC did not dance to the Crown's tune on all occasions – naturally they shared the same trends, predilections, and prejudices that ran through the rest of the governing establishment. o Historiographical standpoint, this makes sense given the time, and we cannot say that the judges were coerced into thinking this or forced to uphold the Crown's view, when they likely independently held similar views because that’s just what the generally held opinion was. o They could demonstrate judicial independence when it suited them. Was not really a true and proper court – but they were considered judges. Most judges were not actually stepped in English colonial law. NLC was enmeshed in political and economic disputation Stingy Government – rather than spend money on the Māori land system, government preferred to give Land court judges additional tasks o This kept them constantly busy and also meant they did not need to hire people for other roles, bc the judges took up all the roles. o Another example of an underfunded and understaffed system being a reflection of how much the government actually prioritises dealing with Māori land in a fair, equitable, and Treaty consistent way. Parliament constantly interfered, usually by way of 'corrective' legislation – adjusting and overruling things o This completely removes the autonomy of the court to address Māori land disputes in the way they saw fit. MLCs were a lot more involved with Māori and a lot more consultative – it is a shame that Parliament was so ready to change the court's outcome Problem with the endless flood of legislation. o So many ill-conceived enactments, a legislative torrent driven by the Native department in response to Māori petitions and complaints. Some critics said they acted too much in Māori interests, others said they acted too much in favour of the Crown. Right and left at war over Māori land and over who should gain access to it

Reading Four – Anthropology • Property and land seen as foundation of non-primitive society • Relationship between culture, race, society and westernisation. • Functionalism • Evolutionism – primitive cultures as examples of early man. Māori seen as advanced in evolutionary terms. • PROPERTY! All-important. Owning property equalled citizenship. Was also at the forefront of political economy. Constant discourse about who deserved property / who it belonged to. • Functionalism heavy influence on NZ and Australia – social rules and practices prevail because they have a functional role. Reading Five – Māori Land Boards • Te Heuheu – Treaty not enforceable in NZ Courts. • MLBs sucked, abolished in 1952 – incredibly unnecessarily complex. • Overall Theme: all of these practices, regimes and entities set up to allegedly benefit Māori just ended up being even worse o i.e. NLC at a deeper level, and the land laws, just designed to allow Crown to control Māori land o All of these were established with little to no consultation with Māori nor any real governance from Māori o Lack of funding and understaffing highlighted the truth of how low a priority they truly were. • The Māori land system has arisen wholly from statute. o Not a customary or communal system (which is probably what it should be) o Again shows how little it reflects true Tikanga o Layer upon layer of shitty statutes • Māori land law about land, a subject which is heavily politicised and land-obsessed legislature were ready to enact statutes at any moment (to continue enforcing the land system they saw fit). • One objective of legislating Māori land was to protect Māori from themselves – from mismanaging land or mismanaging the funds from renting or sales. • Messy, legally complex, and politicised = Māori land law history. They had no choice but to live with it. • Lib govt minister wanted to find a balance between Māori needs versus endless demands from Pākeha and from conservative politicians that there be a continuous flow of Crowngranted Māori land available for the private sector to buy. • Confused and conflicting objectives. • One purpose of Māori Land Councils was to prevent Māori from becoming landless, but also designed to ensure that the flow of land into Pākeha possession did not dry up. o Heavy emphasis on alienation by lease • Vesting process – essentially designed to indirectly force Māori to give up their land for Pākeha or Crown possession. o Māori had to be willing to cede administrative control over their land to the Council/Board, so had to administer it in a way that coerced them into being willing. o Hence came Compulsory Vesting. • Government wanted to spend the minimum amount possible on Māori land administration. • Liberals wanted to stop Māori from selling to the private sector and thought the Crown should control the land, and Conservatives believed the opposite. Commitment by liberals to alienation of land only by lease. • Freehold vs leasehold, liberal vs neolib/conservative, public vs private sector. o Nowhere was Māori people part of this conflict. They were in the centre of it.

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Liberal legislation did not allow large landowners to purchase Māori land. They had enough land as it was. Made it too difficult for Pākeha to buy land straight from Māori, so going the Crown grant route became the best way. Identifying areas "not actually required" by their Māori owners to declare land inalienable. Pākeha once again dictating what Māori land was and who could have it. Party politics played a big part in all of this. Main focus of government regarding Māori land was simply purchasing as much of it as possible. Boards should never have existed, Māori land would have likely been better off. The insufferable complexities that bore down on Māori landowners – those who managed to salvage something from the wreckage is an ever-present affliction. Not just about the land loss, but complexities of the system and the affect this had is also something that should be of focus. Under constant political pressure to buy Māori land in order for it to be surveyed into freehold blocks to be sold to rural settlers. Allowed the government to give the impression of doing something while spending the minimum amount of money possible – govt determined to spend as little as possible on managing Māori affairs. o Boards not really corrupt, but were actually understaffed and underfunded, frequently making mistakes. Law seemed to be designed to the detriment of Māori – consciously. o Trespassing aspect of the law – through vesting owners could become trespassers on their own land à like a new form of confiscation. Māori woman not allowed to sell her land because they said she would be irresponsible with her money… wtf?! Te Heuheu – was mostly about parliamentary sovereignty o Farmers played a big part – naturally, they wanted the land o Māori owners were forced to pay money to a dairy giant that later became Fonterra. o Essentially the state confiscated Māori assets to make a large payment to the business sector. o State-mandated handouts to a giant private company. Tramway scheme fictitious and a scam – another example of NZ corporate property speculation. Māori money handed over to property speculators, for an investment that was bound to never happen. Political context important: National set to turn country in a more conservative direction, dairy farmers favoured. o Heavy handed approach to Māori leading to resentment. Reserve lands were "set aside for Māori" but were leased to Pākeha dairy farmers on super long leases. o Suspicious Compensation for improvements scheme. Māori were not paying their share of rates. A mess. Nat govt wanted to find a solution that exempted the state from having to pay anyone while leaving lessees with a solution that would be acceptable to them. The more Parliament legislated, the worse things became. Overall Theme: ideology in play was a construct of Māori as privileged and cossetted by the state, who "unfairly" did not pay rates, whereas it was farmers who have been cossetted by the state throughout NZ's 20th century history. Cossetting was ideological too – arising from a politically conservative stance that NZ was Britain's farm at a distance. o Politics and ideology plagued the way land was managed and the way Māori rights to and ownership of land played out.

o Even with liberal governments, the approaches were still not actually designed with the best interest of Māori in mind – they always prioritised the involvement of the state in managing the land the way they best saw fit, regardless of which side of the political spectrum was at the helm. Reading Six – Rating of Māori Land • Law was labyrinthine • Māori freehold land – the category of land that the MLC has made. • Both the Court and the land category are creations of statute by NZ's hyperactive and highly politicised legislature. • Māori not paying their rates had little to do with them not being willing to pay and everything to do with the system itself. • Land was so politicised and so pivotal that Parliament could never stop legislating about it. Had to do something to save them from themselves • Again, proof of a political objective to constantly interfere with Māori land management and dictate was what best for Māori – and the results were never truly what was best. • Crown "protection mechanisms" were alienation restrictions in disguise. • Pākeha continued to believe that the problem was Māori "communalism" and the remedy was further individualisation. • The problem was the government bc of the confusing system of Māori land tenure and it's inaction on making Māori land more productive. Also a problem that Māori could not control what the government prioritised. • Govt purchased Māori land with an alienation proclamation – meant that nobody else could alienate Māori land to any purchaser other than the Crown. o Māori could not sell their property, mortgage it, or lease it, but it remained liable for rates. • So many commissions that did nothing ever. • Questionable whether state-assisted Māori land development was ever capable itself of lifting the population out of the state of rural poverty and marginalisation in which it was enmeshed. Reading Seven – The US • Draw together the threads • Consequences in shifts of anthropology and law • Roosevelt govt good • Revitalised policy of assimilation – similarities to Crown involvement in Māori land law. President Truman enacting new Land Legislation without consulting with Native Americans. • Transfer of jurisdiction over Indians to States. Now, states managed a race of people. • Big corporations greedy and bad. • Land reform projects in poor countries are often nothing more or less than the disguised imposition of the neoliberal agenda of privatisation and weakening the public sector. o When they are not disguised subsidies of private corporations domiciled in donor countries.

LECTURE NOTES Richard Boast Aspects of the evolution of the law irt • Maori land court and maori tenures • Loss of maori owned land • NZ wars, land confiscations in waikato and taranaki in 1860s • Parehaka • 1865 Maori land court Maori Land Court • Historians, lawyers, maori experts • Juridistiction from law - definited in statute • WT a baby by comparison, MLC existed a lot longer o 1862-65 as Native Land Court Freehold land v customary land • Freehold - native land court MADE this category of land - 12% of our land • Customary - originating ctegory - 1840 all of aotearoa was maori customary land TOW reserved to cornw the right of corwn preemption • Only cornw can extingiush moari customary title • NT has to be extinguished and then the land can be granted • Can do by o Purchase o Confiscation like waikato and taranaki o Native/Maori Land Court Tribunal • Retrospective or presentism conduct? o Usual focus of the court •

No teaching of tikanga or principles or common law rules from Mabo

The real story has been statutory • Law as it has been felt has been statutory in Maori experience The crown is mythologising - not just the crowns fault that all this bad shit happened ...