Ahi kā – the fires of occupation
Customarily, rights to land and its resources were held by iwi or hapū, and individuals derived their rights from membership of these groups. The rights were sustained through continued occupation or use. It could include seasonal visits and temporary encampments.
According to Douglas Sinclair: ‘If a woman left her fireside to marry outside the tribe it was said that her fire had become an unstable ahi tere. If she or her children returned, then the ancestral fire was regarded as rekindled. By this act the claim had been restored. If the fire was not rekindled by grandchildren, then the claim was considered to have become cold, ahi mataotao.’1
This principle of occupation is called ahi kā – ‘keeping the fires burning’. If a group or individual abandoned an area of land, their claim to it weakened over three or more generations until it could be considered extinguished.
Traditional claims to land
An iwi would base its claim to land upon a take (right) supported by occupation. These take included:
- take taunaha or take kite – land discovered
- take raupatu – land taken by conquest
- take tukua – land gifted
- take tīpuna – an ancestral right validated by reciting whakapapa.
Identifying occupation rights
Customary ways of identifying occupation rights included:
- tūāhu – sacred mounds or stones erected on first settlement
- tohu – signs marking human occupation, such as markings on trees and rocks, burial sites of umbilical cords (iho) of chiefly children and burial sites of bones
- knowledge and evidence of eeling, fishing, hunting and gathering sites
- ātete – evidence of successful defence of resources against challengers.
The Old Land Claims Commission heard 1,200 claims concerning pre-treaty purchases. The claimants included: two brothers who claimed 1.3 million hectares including all of what is now Auckland; an Australian who had never been to New Zealand who claimed 8.1 million hectares in the South Island; and the New Zealand Company which claimed all land between New Plymouth and Christchurch.
Land Claims Ordinance 1841
Many of the early laws affecting Māori dealt with the ownership and sale of Māori land. The Land Claims Ordinance 1841 established the Native Protectorate Department to prevent settlers fraudulently taking land from Māori. It also created the Old Land Claims Commission to investigate purchases of land from Māori before the Treaty of Waitangi was signed in 1840.
The Crown dismissed many of the more extravagant pre-treaty land claims by settlers, and radically reduced the area of land sold under other claims. However, another feature of the 1841 ordinance was that it allowed the Crown to keep the difference between land claimed and land awarded to European buyers.
Willoughby Shortland, the colonial secretary, argued that this policy did not conflict with the Treaty of Waitangi. He was among a number of settlers who asserted that Māori rights to land guaranteed by the Treaty only extended to land that was obviously used by them for housing or cultivation.
Native Land Purchase Ordinance 1846
From 1840 the European demand for land increased dramatically as settler numbers swelled. Under Article Two of the Treaty of Waitangi, only the Crown could buy land from Māori.
Governor Robert FitzRoy relaxed this rule in 1844, allowing direct purchases by settlers. However, under the Native Land Purchase Ordinance 1846 Governor George Grey stopped such direct sales and Native Land Purchase Commission agents, working for the Crown, purchased as much Māori land as possible. The strategies they employed to convince the sellers were often dubious, and included:
- targeting the weaker members of tribes
- forcing sales under threat of military action
- purchasing from individuals rather than the groups who owned land rights collectively
- purchasing from non-owners
- promising reserves for Māori on tracts of land that they sold, then not providing them, or providing rerserves that were smaller than promised or were on unsuitable land.
Fingers in many pies
Thomas Russell was a founder of the Bank of New Zealand. Frederick Whitaker was the bank’s solicitor. Both men were also ministers in the colonial government when their bank arranged a £3 million loan from Britain to finance the New Zealand wars and the development of confiscated Māori lands. The New Zealander newspaper reported that ‘Mr Whitaker the bank solicitor advised the bank to consult with Mr Whitaker the Premier, who very civilly referred Mr Whitaker the bank solicitor to Mr Whitaker the Attorney-General, and Mr Whitaker the Attorney-General gave Mr Whitaker [the post of] the Acting Minister of War during the absence of Mr Russell of the firm of Whitaker and Russell.’
New Zealand Settlements Act 1863
Under the New Zealand Settlements Act 1863 the land of any tribe ‘engaged in rebellion’ against the government could be confiscated.
Altogether 1.3 million hectares of Māori land was confiscated, often on an inconsistent basis. The middle and lower Waikato Kingitanga tribes lost nearly all their land while Ngāti Maniapoto, who had been active combatants during the Taranaki and the Waikato wars, lost very little. The difference was because the fertile Waikato lands were better suited for European settlement.
The compensation courts
Māori who claimed their land had been unfairly confiscated could take their case within six months to a compensation court. Sometimes, by the time the court found in favour of the Māori claimants, their confiscated land had been sold. The court might then award barren or marginal land in compensation. Other wrongfully confiscated land was returned to people who were not its former owners.
In total, about 530,000 hectares of confiscated land was returned by the compensation court. It was returned under individual title, which broke down tribal solidarity over later land sales. ‘Gunpoint’ sales also took place when armed settlers forced Māori to sell their individual titles. One Matamata settler obtained 20,000 hectares this way.