ABC FACTORES DE NOTICIABILIDAD
3.4. Resultados de la entrevista a los miembros de la PAH de Valladolid
MƗori customary tenure comprised a complex system of overlapping and interlocking
rights of use and occupation, but with no right of alienation except in very special circumstances. Land was not a disposable commodity. It was not “owned”. It was inherited from the ancestors, and it was expected that it would be passed on to the descendants. Associated with rights of use and occupation was a strong sense of stewardship or trusteeship. Land rights were therefore inextricably bound up into the networks of kinship, ancestry and a social and political structure that acknowledged leadership in senior lines of descent, at iwi hapnj and whƗnau levels, and a decision making structure that emphasized consensus. The relationship between MƗori and
their land was not only the economic one of food, shelter and sustenance; there was also a spiritual and emotional quality of identity with place and ancestry.47
The MƗori Land Court Judge N F Smith considered the essential elements in his
opinion of customary MƗori land tenure48
. In his view the four main take of customary tenure were those of Discovery, Ancestry (take tipuna), Conquest (take raupatu) and Gift (take tuku). These four take will now be examined more closely.
statute. Legal positivism in fact describes the actual structure and functioning of the New Zealand legal system reasonably well. However, legal positivism is quite unable to account for non-official laws. Within a country such as New Zealand legal positivism has difficulty in recognizing non-official laws, of which there are a substantial number.38 An example of this can be found in religious communities within New Zealand, such as Moslems, Jews and Roman Catholics, who are governed to a varying degree by religious laws which are extremely developed, of great historic significance and are highly organised. The government does not enforce religious law in New Zealand. Individual Roman Catholics are free to open their lives to the rules of catholic canon law to whatever degree desired. To dispute canon law is not “law” for these grounds is to assume a particularly restricted vision of what may or may not be legal.39
It is interesting that many early visitors to New Zealand had no difficulty at all in seeing MƗori customs and practices as “law”. This may be partly because legal
positivism was not yet established in either England or New Zealand.
MƗori culture has as one of its expressions MƗori law (lore), which is integral to the culture and emanation of it and indeed, the observance of which is vital to individual wellbeing. Those who think of “MƗori law” (lore) in this way differentiate it from
legislation or statute, which is similarly an emanation of non-MƗori or Western culture, and which is therefore founded on the cultures and norms of English culture and the Judeo-Christian traditions. In this culturalist view all cultures are self- contained systems that are entitled to preserve their own cultural identity and cultural expressions such as their own languages and laws.40
In most situations MƗori customary law until recently has been simply invisible. This
is surprising, as the New Zealand Courts have accepted that MƗori customary law is
part of New Zealand common law. Further, New Zealand does have, like many countries, a specialist Court set up to give effect to customary law as it pertains to land, the MƗori Land Court. The fact that decisions of the MƗori Land Court were not
formally reported in published law reports and , indeed, still are not – has also helped to keep the subject of MƗori customary law invisible.41
Discovery
‘Title’ to land was for the most part acquired by discovery. Discovery was frequently submitted to the Native Land Court as justification of ownership if an ancestor discovered the land, appropriated it to his use, occupied it, and that such occupation has been continued by the descendants of that ancestor.
Ancestry or “Take Tupuna”
A right to land by ancestry involves a claim of descent from an ancestor whose right was recognised, or, in whom the right to occupy at one time rested. The lands of a tribe did not form one unbroken district over which all members of the tribe might wander. On the contrary, they were divided into a number of districts appertaining to the several sub-tribes. Each sub tribe consisted of the descendants of a common ancestor who was, in former times, the conqueror, or in any other way the recognised owner of the district.49
Conquest or “Take Raupatu”
A title by conquest usually became complete upon the material subjection of the conquered tribe. Mere raids, even if a raiding party was successful, were insufficient to support a title by conquest. As in the case of the other claims to land, the conquest must be shown to have been followed up by occupation of the conquered land and eventually a mutually agreed arrangement with the original tribe. Conquest was never absolute. Even after defeat, the original owners retained residual rights and even respect.
An allegation that land had been acquired by conquest invariably raises questions of the degree of the relative conquest. Whether there had been a complete conquest, and whether it had been followed up in such a manner as to justify finding in favour of the person who alleged it. These are the questions of fact which, in addition to occupation, the Court has to determine according to the evidence and the particular circumstances.50
On the issue of conquest or ‘take raupatu’, Smith set out a series of varying examples of title by conquest. These included total conquest that involved the extermination of the defeated followed by occupation or conquest followed by occupation but where
survivors of the defeated group were kept as slaves who could be permitted to occupy various portions of their former lands. Conquest followed by occupation where defeat was not total and the defeated group remained on the land to be tied to the victors by marriage, alliance or the like in exchange for some form of service was also given as an example along with conquest followed by occupation in which survivors of the defeated remained on the land perhaps hiding in the bush. They would thus retain a portion of their rights to their occupation rights or ahi kƗ.
Ballara51 provides some useful examples of “Take Raupatu” in traditional times. In the case of NgƗti Kahungunu, after battles and readjustments had successfully
established colonies at Wairoa, Nnjhaka, Ahuriri and Heretaunga, the highest ranking
men of the whole district exchanged women with each other, their tangata whenua neighbours and inland groups. Their children’s position was strengthened, from the conquering group they inherited mana over the people, and through their descent from the tangata whenua they inherited mana over the land.
In 1867, it was explained to the then native minister that NgƗti Te Rangi only claimed the Tauranga District by conquest. They did not destroy the original inhabitants, but allowed them to continue to occupy their lands, not as slaves, but subject to Ngai Te Rangi. Ngai Te Rangi chiefs married women of the conquered tribes, and Ngai Te Rangi women married their men.52
Gift or “Take Tuku”
The circumstances necessary to constitute a complete gift of land according to custom included the donor having had sufficient right to make it and that the gift must have been widely known and publicly agreed to, or understood without being stated openly by the tribe, along with the gift receiver or his direct descendants having continued to occupy the portion gifted.
Where the gift receiver died without issue, or, having issue, they or their descendants failed to occupy or perform any conditions attached to the gift, the land reverted to the donors.
Gifts were frequently made by one tribe to another for assistance rendered in times of warfare, or danger, or for the purpose of strengthening the donor tribe against possible invasion by alien tribes; in consequence of cementing family connections by marriages; in payment of a death or injury suffered by chiefs and others; as compensation by one tribe to another after a conflict where the two tribes have declared a cessation of hostilities. 53
Occupation
While occupation was usually a necessary precondition to maintaining customary rights, according to Smith there were different levels of occupation. They included those who showed complete and continuous occupation which commenced before 1840 and extended to the time of the investigation of title. Where the occupation was by virtue of ancestry possession for three generations was necessary. Where occupation arose out of conquest, it had to be demonstrated that the conqueror seized the land into their possession and retained it following such seizure. Another level of occupation outlined were those who had never personally occupied but whose near antecedence had undisputed occupation or whose rights had been kept in existence by relatives or those who had occupied at some former period but were no longer in personal occupation and finally those who were in occupation by right of ancestry but this permanent occupation was recent in its origin.
Smith also states that by the year 1895 the rules of native custom, with regard for commonly known tribal and hapnj differences throughout New Zealand, became more or less clearly defined. However, Judge Durie states that Smith’s text on MƗori land
law should be distinguished as it is primarily concerned with the statute laws that replaced customary tenure. Although an early chapter describes the original determination of Native title, purportedly according to custom, there are doubts about the anthropological accuracy of the early judicial opinion on which that particular chapter relies.54