Native Lands Act 1865
The Native Land Court became a permanent and formal court of record when the Native Lands Act 1862 was replaced by the Native Lands Act 1865. This act was designed by Francis Dart Fenton, who became the first chief judge of the Native Land Court. In December 1864 a new system of Native Land Courts covering the entire colony was introduced. In each of these courts judgements were made by a presiding judge and two Māori assessors.
Francis Fenton, the first chief judge of the Native Land Court, spoke Māori fluently and published his writings on traditional Māori history. After the first auctions of Rotorua land in 1880, the Bay of Plenty Times reported that ‘a disturbance was observable at one end of the room … it was Fenton, the Chief Judge … in an ecstasy of delight performing a haka with two old Rotorua savages, one a hunchback. The ecstasy of the trio arose from the success of the Rotorua scheme, and the prospect of manipulating [£]2,700 odd per annum.’1
The 1865 act was very similar to the 1862 act it replaced. However, the new law stated that land titles issued by the court could list no more than 10 owners. If the land block was larger than 5,000 acres (2,023 hectares) its title could theoretically be issued in the name of the tribe, but in practice this apparently never occurred. By mid-1872 the Native Land Courts had issued titles to more than 2 million hectares of land, almost all of it in the Auckland, Wellington and Hawke’s Bay districts. All of this land was sold under the 10-owners rule.
Following the New Zealand wars of the 1860s, the Native Land Court was involved in the confiscation of Māori land. The courts were given specific powers to investigate the claims of ‘rebel’ and ‘non-rebel’ landowners. Land owned by ‘rebels’ was deemed to be Crown land.
In an 1867 test case, Chief Judge Fenton set a precedent for making succession orders in the Native Land Court. Ihāka Takaanini, a rangatira of Papakura, had died in 1864 intestate (without making a will). His three children disputed with tribal representatives over ownership of a block of his land. Fenton ruled that in cases of intestacy an undivided share in Māori freehold land would pass to the grantee’s children in equal shares.
‘Te kōti tango whenua’
The Native Land Court became known as ‘te kōti tango whenua’ (the land-taking court) because it provided the means for transferring most of the land belonging to Māori out of their ownership. The term ‘te kōti tango whenua’ was first used in 1867 by a Crown agent, Captain Reginald Biggs, who encouraged tribal owners in the East Coast region to place large blocks of land before the court. Although historians disagree about the precise role of the Native Land Court in the alienation of Māori land, it undoubtedly brought profound changes to Māori society.
By 1873 the development of European settlement in the North Island was lagging behind the South Island, due to the ravages of warfare and the lack of gold rushes and ensuing economic benefits. The Crown chose to promote further settlement – and hoped to avoid the chaos that resulted from uncontrolled private land sales – by returning to buying land directly from Māori. The existing Māori land law had given rise to a repudiation movement by Hawke’s Bay chiefs who wished to cancel sales, return the money and reclaim the land. A commission of enquiry was held into forced sales in the Hawke’s Bay area, where Māori sellers had been paid with goods, or by settlement of earlier debts, instead of cash. The findings of this commission resulted in legislation entirely revising the system of Māori land sales.
Native Lands Act 1873
The Native Lands Act 1873 laid the pattern for the system of Māori land tenure in use today. The act abolished the 10-owner rule and required the Native Land Court to list all the owners of a block in a memorial of title, as ‘tenants in common’. Those individual owners could pass their shares on to their successors, and if they died without making a will, their shares were divided equally among their children. Under this system, Māori land titles inevitably became crowded with numerous owners.
Under the 1873 act it became more difficult and expensive to buy Māori land since all sellers first had to be identified. If necessary a block was split into portions representing those willing to sell and the ‘non-sellers’. Donald McLean, the native minister primarily responsible for the act, expected it would help Māori retain their land, but in practice the eagerness of the buyers overwhelmed the reluctance of the sellers.