week eleven - māori land law Flashcards
how was land in nz owned prior to the arrival of the Europeans
held as Maori customary land, owned communally
what is rahui
balancing out tapu land (where there was death war) through not using an area for a time period, karakia etc. to respect the people that died there and balance out the area of land where something happened to make it safe - noa
what is aboriginal title
indigenous land rights or indigenous peoples persist after assumption of sovereignty
what is native title
the bundle of rights which include the process of descendants who lay claim to such rights in their relationship to land and succession process recognised
what case affirms in NZ Maori customary law and its part in NZ’s common law
Re Lundon & Whitaker
why did the Crown have to acquire the land under the treaty
because there was existing Maori customary title - when there’s a title in place and the Crown wants to establish a colony, they have to deal with that existing title first
how was maori customary land extinguished
legislation - Imperial Waste Lands Act, Constitution Act, Land Act, Native Lands Act
concept of eminent domain - imperium/state sovereignty which means self claimed right to govern
what is the highest form of tenure
fee simple estate - it does not permit full title of that particular parcel of land but just the greatest benefit to the owner for enjoyment and use of the land
what were the methods for extinguishment of Maori land
- crown purchase (used to acquire the land in the South Island)
- new zealand settlements act (acquire land in the North Island, because of Maori Land Wars)
- native land court (used to identify ownership of Maori Customary land to move communally owned land to create individual titles recognisable by British law)
what were the features of the Native Land Court
- Crown waived its general pre-emptive rights to waive customary title - the court could reverse everything to allow Maori to be able to sell to whoever they wanted if they got a court order stating their ownership
- maori customary title could be converted to a crown grant for it to be sold to new arrivals in the country, including the 3 step process
what was the maori land courts three step process
- court conducts investigation of title to a block and determines its owners (max 10)
- once the land court made a decision, they would issue a certificate of title to the Maori Land owners identified
- maori land owners produced their certificate to the governor, who would issue a grant grant to the land. they were then have a freehold title and could sell, lease, farm or raise money on the land.
what is the exception to the doctrine of tenure
common law protection of Maori land
what efforts did the Crown employ to deal with Maori customary interest
- investigation and ratification of pre-1840 transactions between Maori and settlers
- direct Crown purchasing
- confiscation
- conversion through the native land court
- public works takings
what occured during the confiscation of Maori land
- war in Taranaki between government and Maori forces when the government extinguished customary rights over a block of land at Waitara in the face of protests from a prominent local chief and his followers
- government confiscated millions of acres from Maori hapu and iwi under the NZ Settlements Act 1863
- this legislation simply deemed the confiscated lands to be Crown lands
what power of conversion of land was given to the Native Land Court
power to determine the nature of the Maori customary interest in any land and to convert that interest into a fee simple interest, which Pakeha settlers could then directly purchase from those Maori to whom it had been awarded
what were the four major foundations for claims to rights over land in front of the Native Land Court
- discovery
- take tūpuna (ancestry)
- take raupatu (armed conquest)
- take tuku (gift)
what happened to land in the 19th century under the Native Land Court
large blocks were vested in just 10 owners. through subsequent generations, land became fragmented by divided shares
what plauged efforts by Maori to retain and develop Maori freehold land in the 20th Century
individualisation and fragmentation
what has the Waitangi Tribunal argued about public works taking of Maori land
the treaty guarantee of tino rangatiratanga required the compulsory acquisition of Maori land for a public work should only occur in exceptional circumstances and as a last resort in the national interest
common law provides there is or isn’t ownership to running water
isn’t
what did the Foreshore and Seabed Act 2004 do
vested in the Crown all of the foreshore and seabed which might be subject to an application to the Maori Land Court for a customary title order, while reserving to Maori the ability to claim ‘ancestral connection’ and ‘customary rights’ orders before the Maori land court
what was the Foreshore and Seabed Act 2004 replaced with
Marine and Coastal Area (Takutai Moana) Act 2011
what are the 6 statuses the Maori Land Court can declare any parcel of land has
maori customary land, maori freehold land, general land, general land owned by Maori, crown land, crown land reserved for maori
can the Maori Land Court declare what status any parcel of land has
yes
what is Maori customary land
land that is held in accordance with tikanga Maori, property that was in existence at the time the Crown colony government was established in 1840.
once the MLC finds this type of land, there is a separate application required for the court to determine the individual owners and vest the land in them as Maori freehold land
what is maori freehold land
land where the customary interest has been converted to a fee simple interest after an investigation by the MLC, and the land has not subsequently been sold or otherwise changed it status
what two statuses of land typically make up ‘Maori land’
maori customary land + maori freehold land
what is general land
land in private freehold title - the bulk of privately owned land in NZ
