Traditional Māori society did not have a concept of absolute ownership of land. Whānau (extended families) and hapū (sub-tribes) could have different rights to the same piece of land. One group may have the right to catch birds in a clump of trees, another to fish in the water nearby, and yet another to grow crops on the surrounding land. Exclusive boundaries were rare, and rights were constantly being renegotiated.
Early European settlers
Early settlers such as missionaries, whalers and traders were hungry for land. Often a Māori chief would allow Europeans to settle on a piece of land in exchange for goods, but did not imagine that this meant granting them absolute ownership. Instead Māori saw it as a transfer of particular rights, while their own rights remained untouched. Māori were keen to attract Europeans for trade, and land transactions were common.
In the late 1830s some Māori realised that, to the settlers, these transactions meant absolute and sole ownership. During this period the number of ‘sales’ rapidly increased because settlers and investors feared that such purchases might no longer be available once New Zealand became a British colony. By early 1840, on the eve of the Treaty of Waitangi, Europeans claimed to own more than 66 million acres (27 million hectares) – more than the total area of the country.
Treaty of Waitangi and the Land Claims Commission
Under the second article of the Treaty of Waitangi, Māori were guaranteed ‘the full, exclusive and undisturbed possession of their lands and estates’, and only the Crown could purchase land from them. The Crown set up a land commission to investigate previous land transactions. No title of ownership would be valid unless granted or confirmed as genuine or fair by the Crown.
Land Claims Commissioners Edward Godfrey and Matthew Richmond looked into 1,100 claims in the north of the country, covering 2.2 million acres (890,000 hectares). Their report of 1862 deemed that 500,000 acres (202,000 hectares) had been genuinely sold, and about half of this was granted to settlers.
New Zealand Company settlements
Further south, the New Zealand Company claimed that in late 1839 it had purchased about 20 million acres (8 million hectares) in Wellington, Nelson and New Plymouth from Te Āti Awa, Ngāti Toa, Rangitāne and other tribes. Land commissioner William Spain investigated these claims and found that Māori had never thought the sales meant giving up their continued use of the lands. He also discovered conflicting rights among the Māori claimants. The commission ordered that Māori give up their claims in return for more payments.
The naturalist Ernst Dieffenbach observed that Māori and settlers had different ideas about what land ownership meant. Witnessing the 1839 purchases around Cook Strait he wrote, ‘the natives had no further idea of the nature of the transaction than that they gave the purchaser permission to make use of a certain district’. 1
Before 1844 the Crown held pre-emption rights to the land, meaning that if a landowner wished to sell, they would first have to offer it to the Crown. Crown pre-emption was lifted from 1844 to 1846, and Māori could sell land direct to settlers. This included a major purchase of Ōtākou (Otago) by the New Zealand Company and significant sales in Auckland.
When Governor George Grey restored Crown pre-emption, he investigated these purchases. In the resulting case the Supreme Court ruled that the Crown had legal title to all land in New Zealand. Customary use was not enough to establish ownership; instead, Māori would need a Crown title.
The court also viewed all land not cultivated by Māori as ‘waste land’ that belonged to the Crown. Grey did not enforce this ruling, but it influenced attitudes. He encouraged mass purchase of Māori land, and Māori were advised to gain Crown title.
As Māori came to realise the absolute nature of land ownership in European eyes, they began to question past sales. In particular, they challenged sales by individual chiefs of land that was traditionally used by groups.
By 1862 most of the South Island, and about one-quarter of the North Island – including large areas of the Wairarapa, Hawke’s Bay and Auckland – had been purchased by the Crown. Another 3.5 million acres (1.4 million hectares) were confiscated in the New Zealand wars of the 1860s.
Native Lands Acts
The 1862 and 1865 Native Lands Acts recognised that Māori had rights to uncultivated land, but only if these were specified in a certificate of title. Native land courts were set up to decide which individuals or communities should be recognised as owners and given certificates, bringing Māori landholding into absolute ownership. Once given title, many Māori then sold their land to Pākehā. By 1939 only about 3.5 million acres (1.4 million hectares) of land remained in Māori title.