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Last Updated: 22 August 2023
Maori Land Boards
83
Māori Land Boards: Experts at being Defendants
1900–1950
R. P. Boast1
As is widely known, the leading case on the status of the Treaty of Waitangi, notwithstanding the developments of recent times, still remains the Privy Council’s decision in Te Heuheu Tukino v Aotea District Māori Land Board (1940).2 In Te Heuheu Tukino the Privy Council famously ruled that the Treaty has no enforceable status in the New Zealand Courts. This case, its status, its analysis, historical context and its consequences open many pathways into the history of the Treaty of Waitangi in New Zealand law. This article is the first of a series of studies of the case, its historical context, of its analysis of the law and the decision’s (on the whole, dire) consequences. This first article, however, is concerned with only a straightforward and preliminary issue: what kind of entity was the defendant? The plaintiff, Hoani Te Heuheu Tukino, was a nationally known figure and paramount chief of the Ngāti Tūwharetoa iwi of the Taupō region. Why he began the proceedings that ended in the Privy Council is a very long story indeed, which will be explored on other occasions (it would take more than one article to do so).This article is about the defendant, the Aotea District Māori Land Board. What, exactly, is a “Māori Land Board”? One wonders whether those who expound this all-important case in public law lectures actually know, or see this as an important question. Evidently, judging by the summary of the facts by Viscount Simon LC as printed in the New Zealand Law Reports, or in the very full recital of the facts prefacing the reports of the Supreme Court and Court of Appeal judgments in the same case,3 these Boards had something to do with railway lines, forests and Māori land in the central North Island (or something like that!). The main purpose of this article is to explain what Māori Land Boards were and what they did. The decision in Te Heuheu Tukino v Aotea District Māori Land Board was certainly not the only time the Aotea District Māori Land Board was sued. Nor was it the only Māori Land Board; there were five more of them: Tokerau, Waikato-Maniapoto, Tairawhiti, Ikaroa, and Waiariki. Here I will explore why these boards were set up, what it was they were supposed to do, what they actually did, why they were so important,
and CA) 108–11.
84 Otago Law Review (2021) Vol 17 No 1
and why indeed they had to become expert at being defendants. To the relief of the Māori people they were abolished in 1952,4 but as will be seen, even their abolition could not occur without enormous difficulty, bitterness, expense, litigation, legislation, and general angst.
The Land Boards were a 20th century phenomenon and did not appear until 1904; (their predecessors, the Māori Land Councils, were called into being by statute in 1900). The Boards were not originally part of the Māori land system that began with the first Native Lands Acts of 1862 and 1865. The Māori Land Boards and their shortcomings have often been analysed by the Waitangi Tribunal at length.5 Despite the chaos they caused, the Boards were originally designed to be helpful: they were established as a solution to the problems caused by the Native Land Court and the system of Māori land tenure that the Native Lands Acts had caused, a system that had created a category of land, unique to this country, that we know today as Māori freehold land.
By around 1930 the “Māori land problem” as it was known, was seen, as was indeed the case, as integrally connected with the Māori Land Boards. By 1930 no one could see a way of untying the Gordian knot of the problems of Māori land tenure, or indeed, even of finding a way of cutting the knot. The knot, it must be added, had nothing to do with Māori “communalism”, whatever that may be, as was widely thought at the time. The complexity arose not from Māori social organisation, which had always functioned quite effectively and continues to do so. The Māori land system has arisen wholly and completely from statute. (The idea that in Polynesian society, including Māori society of course, all land was held communally or that there was no concept of private ownership has long been repudiated by anthropologists, indeed at least since 1910, but that is another story.)
Māori land tenure, as it operates in New Zealand today, is not a customary or communal system, but a statutory one. It has little to do with Māori or Polynesian customary law, or, indeed even less, with the Common Law of native or aboriginal title. The latter, while fascinating to jurists, has never been of much practical importance in New Zealand. The Māori land problem was created by New Zealand’s own legislature, characterised above all for its astounding flair for the prolific production of statutes.
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Nor will expounding the principles of the Treaty of Waitangi take us very far. It could easily be shown that the legislation setting up the Māori Land Boards was contrary to the principles of the Treaty of Waitangi, but that is so banal a conclusion that it contributes nothing to understanding what Land Boards did and why they became such a problem. The reality is that Māori customary law and the Common Law of Native Title have long both been buried under a huge landslide of statutory sludge. Understanding the Māori Land Boards is a legal-historical problem and can be grasped only by a legal-historical analytical narrative, which is what this article seeks to provide. By definition this is a statutory story.
Māori land law may be statutory but it was not, and indeed still is not, a rational structure. Rather, it was a disorganised heap of particulars. The edifice was characterised by no logical structure or by any noble or inspiring ideals: nor was it even the product of any consistently applied cunning or malevolent aspirations. It was merely layer upon layer of statute, each layer a response to the one immediately before it, constantly patched, chipped away at, and filled in. The massive codifying 1909 Native Lands Act, a more thoughtful effort than most, did not change the basic character of the edifice.6 The law was like this because, firstly, Māori land law was (obviously) about land, a subject about which a very politicised and land-obsessed legislature was ready to enact statutes at any moment. The stream of statute became a veritable torrent by around 1900. The law could not make sense because its components had discordant objectives. The prime objective was to ensure that enough Māori land would be made available to keep the Māori land market ticking over; another, no less important, was to privilege the state in the Māori land market over the private sector; and a third objective, pursued without thinking too hard about it, was to do something to save the Māori people from themselves. At the core of the system lay the Native Lands Acts (1862–1865), repeatedly amended and re-enacted, and the Native Land Court first created in 1862. By 1900 the original foundation of statute had become so massive and buried beneath so many layers of statute that very little of the original structure built in 1862–1865 could be discerned. In 1900 two more statutes, by no means the last, were pasted over the existing edifice, the Māori Councils Act 1900 and the Māori Land Administration Act 1900. The former is marginal to our story, the latter is at its heart.
86 Otago Law Review (2021) Vol 17 No 1
What I also hope to convey here is the sheer messiness, legal complexity, and politicisation of the Māori land story. The Māori Land Boards story is just a single chapter of a very long narrative. If the reader becomes impatient with a bewildering series of debates, inquiries, and Māori Land Bills, that is simply what the historical reality was. Few would want to excavate its complexities today. But the weight and burden of the system was also a contemporary reality for Māori people, who had no choice but to live with it. By the twentieth century, the problem for Māori was no longer that of the state wanting to take their land; rather, it was the legal and administrative puzzle that entangled what land remained in Māori hands. The story of Māori land in the twentieth century is utterly prosaic and undramatic – but also very important. It requires much patience and effort to understand. The complexity of the story is not made any easier to fathom by the inadequacies of New Zealand’s system of law reporting, which has clearly under-reported cases relating to Māori land. To begin with, decisions of the Native/Māori Land and Appellate Courts were not reported at all, and fully-reported decisions of a robust selection of decisions of these courts did not become available until the publication of a three-volume edition of Native Land Court cases edited by this author was published recently (2013, 2015, and 2017).7 But there is also reason to believe that many important decisions of the ordinary courts relating to Māori land matters, even at the Court of Appeal level, were never included in the New Zealand Law Reports or the Gazette Law Reports. Indeed much of the caselaw relating to the Māori Land Boards discussed in this article has had to be reconstructed from the newspapers. The implications of this problem are obviously rather serious.
II Origins: The Māori Lands Administration Act 1900
The Māori Lands Administration Act, enacted by a Radical-Liberal government on 20 October 1900, was in part a well-intended political response to Māori anxieties about their growing risk of landlessness. In the Waitangi Tribunal’s view, the principal context of the Māori Land Administration Act was “the Crown’s extensive [Māori] land purchasing policy as administered by the Liberal government”.8 It was designed to accommodate Māori desires to retain control over their remaining– and much-reduced – lands. The Māori Land Administration Bill had
Maori Land Boards 87
significant Māori support, but it had a difficult progress through the House due not so much to the concerns of some Māori politicians but rather because of the hostility of the conservative opposition. The Act was a compromise between government policy and the opinions of the Kotahitanga (‘Unity’) Māori parliamentary movement, a compromise mediated principally by Sir James Carroll (Timi Kara), the Native Minister in the Liberal Government. Carroll, part-Māori himself, was not seeking to thwart Māori aspirations but rather to find a balance between Māori needs and the endless demands from Pākehā and from conservative politicians that there be a continuous flow of Crown-granted Māori land available for the private sector to buy.9 The Preamble to the Act set out a mish-mash of confused and conflicting objectives:
WHEREAS the chiefs and other leading Māoris of New Zealand, by petition to Her Majesty and to the Parliament of New Zealand, urged that the residue (about five million acres) of the Māori land now remaining in the possession of the Māori owners should be reserved for their use and benefit in such wise as to protect them from the risk of being left landless: And whereas it is expedient, in the interests both of the Māoris and Europeans of the colony, that provision should be made for the better settlement and utilisation of large areas of Māori land at present lying unoccupied and unproductive, and for the encouragement and protection of the Māoris in efforts of industry and self-help: And whereas it is necessary also to make provision for the prevention, by the better administration of Māori lands, of useless and expensive dissensions and litigation...
The Māori Lands Administration Act established Māori Land Councils (these were distinct from Māori Councils set up under the Māori Councils Act, also enacted in 1900 as part of a single legislative package masterminded by Carroll). The Māori Land Councils lasted from 1900 to 1905, and their direct successors, the Māori Land Boards, from 1906 to 1952. There was one Māori Land Council for each Māori Land District, each chaired by a President appointed by the Governor. There were three members appointed by the Crown, one of whom had to be Māori, and two to three elected Māori members.10 The Māori Land Districts themselves came into being from 1906–1908. The Councils had Māori majorities: either 3 out of 5, or 4 out of 7 of the members were required to be Māori.11
80. On Carroll’s Māori land policies see RP Boast, The Native Land Court: Volume 2, above n 7, at 15–71.
88 Otago Law Review (2021) Vol 17 No 1
One purpose of the Māori Land Councils, as mentioned, was to prevent Māori from becoming landless. The Councils had a number of responsibilities, one of which was to take over some of the functions of the Native Land Court with respect to the “ascertainment of ownership, partition, succession, the definition of relative interests, and the appointment of trustees for Native owners under disability”.12 The Act also provided for the formation of papatupu block committees – papatupu land is land that has not been investigated by the Native Land Court and thus not Crown-granted to its Māori owners – and provided a mechanism by which the owners could – in theory – investigate the title to it themselves.13
But if the legislation was in some ways protective, it was also designed to ensure that the flow of land into Pākehā possession did not dry up. The Land Councils were designed to control the alienation of the lands voluntarily vested in the Councils by Māori, the legislation placing a heavy emphasis on alienation by lease. The Land Councils had no role to play in Crown purchasing of Māori land, because (the continuing of old purchases aside) there were not supposed to be any, the Crown having promised to desist from land purchasing for the time being in 1899. Such sales were controlled under s 117 of the Native Land Court Act 1894, requiring the approval of the Land Court.14 There is no need to review these statutory provisions here, because Crown purchasing of Māori land is a distinct narrative, proper to itself, and stands to one side of the system of vesting Māori land in the Land Boards. It is the vesting process which is the principal focus of this article.
The Land Councils were meant to be self-funding. As ever, the government wanted to spend the minimum amount possible on Māori land administration. The Councils had a wide range of complex functions to perform, but were to be hopelessly underfunded, as indeed were their successor institutions, the Māori Land Boards.15 The Councils, and then the Boards, were supposed to pay their own way out of the income they received from leasing vested lands, but that took a long time to become operative. Whether they ever really ran surpluses is uncertain.
As a good Liberal progressive, ie left-wing by the standards of the day, Carroll especially wanted to stop Māori from selling to the private sector. If they sold, it should, in his view and in the view of his Liberal Party colleagues, be only be to the state. The Māori Land Administration
15 At 36.
Maori Land Boards 89
Act 1900 was anti private-sector. Liberal politicians were not “liberal” in the sense conveyed by the word “neoliberalism”. They were, rather, progressives who believed in an enlightened state that stood up for “the people” and which protected them from the Liberal Party’s bête noir, the “money power”. Essentially the legislation worked around the idea that Māori should keep their lands and alienate them only by lease and that the Councils/Boards would help Māori as land managers. Māori, supposedly, lost nothing; they could either have their land set aside for their own use, or could lease it, hold the reversion, and be paid the rent by the Council. This idea could only have come up in the political context of the day, at a time when the Liberal government and its supporters was committed to alienation of Crown land only by lease, and so logically – to the Liberal Party, but not at all logically as far as their conservative opponents were concerned – that was how Māori land should be alienated as well.
Political conservatives and their farmer supporters, however, were anything but enamoured of holding land by Crown lease, or indeed any other kind of lease. Should the Liberals lose office and be replaced by a farmer-backed conservative government (committed to the freehold as a sine qua non), as indeed was soon to happen, then Carroll’s grand plan would be in serious trouble. It could only work if the dominant form of grant was a leasehold estate. But the freehold v leasehold dispute, making political relations between Liberals and their supporters on the one hand conservatives and their (typically farmer) supporters on the other was polarising and toxic and dependent on the uncertainties of electoral politics. Urban progressives favoured leaseholds, conservative farmers, obsessed with secure titles and access to mortgage finance, were resolute for the freehold, and expected their political allies in the conservative Reform Party, the parliamentary opposition, to be resolute for it too – as indeed they were.
Liberals liked leaseholds and were obsessed about the risk of land being monopolised by a rural gentry allied with the “money power”. The Māori Land Administration Act, very revealingly, contained a provision obviously designed to prevent land aggregation in the hands of wealthy private purchasers. To the Liberals, the “money power” and “land monopolists” were one and the same, and equally unwelcome in the populist semi-republic under the Southern Cross the Liberals ruled (they were no admirers of “the Crown” either). Section 26 of the 1900 Act deserves careful study:
26. Purchaser or lessee to make declaration: (1.) It shall not be lawful for any European to acquire, for himself or on behalf of any person, either by purchase, lease, or gift, any Māori land, unless previous to the execution of the instrument of acquisition he has deposited with the Council a
90 Otago Law Review (2021) Vol 17 No 1
declaration in form required by “The Land Act, 1892”, declaring that he is acquiring the land for his own use, and that, including the land to be acquired, he does not hold or own more than six hundred and forty acres of first-class or two thousand acres of second-class land.
Large landowners, as I read this provision, were not allowed to buy Māori land. This says a lot about the Liberal government and the kinds of anti-aggregationalist and pro-smallholder policies it espoused. It was an article of faith to the Liberal Party that those who benefited from the acquisition of Māori land should never be large landowners. Those people, in the opinion of Liberal politicians, had their grip on far too much land as it was. Large landowners and political conservatives were, needless to say, not of that opinion.
General restrictive provisions such as s 26 aside, the core idea of the legislation was that the Councils would take control of Māori land in their respective regions and manage it on behalf of the owners. Section 28 gave Māori the option of transferring control of their land to their local Māori Land Council (we can put to one side the obvious question as to why they would want to for the time being):16
28. Māoris may convey land in trust to Council: Any Māori or Māoris, whether incorporated or otherwise, owning Māori land may transfer the same, or any definite part thereof, by way of trust to the Council, upon such terms as to leasing, cutting up, managing, improving, and raising money upon the same as may be set forth in writing between the owners and the Council; and the Council is hereby authorised and empowered to accept such trust:
Vesting, as can be seen, could be of both unincorporated or incorporated land and was in trust. What then? The Council had a number of powers with respect to the land.17 It could make parts of it inalienable “as may be required for [the owners’] occupation and support”, set apart reserves for burial-grounds and so forth, and could even set apart “reserves for the protection of native birds, or the conservation of timber and fuel for the future use of the Māori owners”. The balance, not required for the owners, the Council could lease. The Councils could borrow money on the security of the land, but only from state lending agencies such as the Public Trust Office and so forth, and not from private banks.18 The Minister of Lands could also lend money to the Councils at the same rates of interest and the same security margins as provided in the Advances to Settlers Act. The Councils could in essence set areas aside,
Maori Land Boards 91
borrow money from the state, and lease land to settlers. The Councils were regulatory bodies too: most types of alienations of Māori land, whether by lease or sale, required Board approval.19
Could the vesting system ever have worked? It possibly could have, but it was dependent on three things. Firstly, Māori would have to be willing to hand over control of their lands to a local Māori Land Council. Secondly, Pākehā wanting to establish farms would have to be content with owning their land on leasehold tenure from a Māori Land Council and paying rent for it, rather than owning the freehold. (Radical Liberals, as noted, believed in leasehold tenures rather than freeholds, and so this was not a problem for them, but whether would-be dairy farmers felt the same way remained to be seen.) Thirdly, the Councils would have to actually be able to carry out their demanding functions in terms of arranging leases, creating reserves and providing for these areas to be surveyed off, and arrange mortgages. They had to be real, not paper, actually existing, entities, possessing at the very minimum actual office premises and an actual staff. But this, inevitably, was not to be. Statutes are all very well. The Māori Land Administration Act could only have worked with an elaborate infrastructure – in the real world, as opposed to a torrent of wordy provisions. The Act looked very much like another example of statutory wishful-thinking, and so it was to prove.In short: Māori handed their land over to Councils (aka Boards). The Boards leased them out, and collected the rents, and paid the rents out to Māori. The Boards also decided certain other things related to Māori land, but receiving and leasing were the main functions. Land placed in Council/Board control was ‘vested’ in them. Hence, we have a special category of Māori land: Māori vested land (‘vested’ in a Board). Most Māori land was not vested: if it was not, it was theirs to manage, lease, subdivide, or sell privately, as Māori freehold land. But quite large areas were vested, willingly, or as will be seen, sometimes compulsorily. So three parties came into being with respect to “vested lands”: (a) the Māori owners, who had “vested” their lands but retained title; the Boards, which managed leases, received rents, docked administration expenses, and paid the rent on to the owners; and (b), the lessees, those leasing from the Boards, usually Pākehā farmers, who desperate for land, and unable to gain a freehold anywhere, grudgingly farmed land on a Māori Land Council/Board lease as it was better than nothing. As far as they were concerned, they were tenants of the Boards on long-term leases, not of Māori. If it seems simple enough, there was a lurking menace. The leases, as noted, were long-term, sometimes as long as fifty years. (Short-term leases would never have been of any interest to back-blocks settlers).
92 Otago Law Review (2021) Vol 17 No 1
Long leases, then, with three parties in play: owners (Māori); lessees (mostly Pākehā); and the Boards (administrators). In the background was the state, committed in a vague kind of way to protecting Māori interests, and after 1912 in very precise ways, to pleasing the Pākehā electorate and on bringing land into agricultural production.
III Māori Land Councils: Commencement of the system
The Liberal government also lost little time in setting up the new Māori Land Councils, albeit there were some difficulties over Māori Land District boundaries in the central North Island and the King Country. The elections to the Land Councils began almost immediately, and there was at first a reasonable level of Māori interest and goodwill towards the new bodies. On 27 April 1901 the election of the Māori members of the Ikaroa Council, for example, took place at Waipawa, and the occasion seemed to be a promising one.20 By the end of 1901 the new Councils (five in total) were set up all over the country. It is quite wrong to imagine the “Councils” as large institutions with busy secretarial staff and bustling offices. To a large degree they were judicial, or semi-judicial bodies, meeting from time to time to work their through the files. Significantly, some of the Councils were presided over by Native Land Court judges from the start. By 1903 the President of the Aotea District Māori Land Council, for example, was Judge Butler of the Native Land Court,21 and Judge Scannell was President of the Waiariki Council. Others were presided over by Magistrates: WA Barton SM presided over the Tairawhiti Board, EC Blomfield, a magistrate based at Russell, presided over the Tokerau Council, and WP James, SM, based at Masterton, over the Ikaroa Council. The “Councils” were basically pluralism in action, and for those who were Native Land Court judges land council work would have meant additional responsibilities and probably a bit more salary. We are still dealing with a very small state by our standards. Statutory existence and real existence are not at all the same thing. Hesitatingly, Māori from around the country handed over blocks of land to the Councils to manage on their behalf.It seemed at first that the experiment of the Councils was progressing satisfactorily. In Northland the Tokerau Māori Land Council was reported in 1901 to be making “good progress with its work”.22 By mid-1902 the
Zealand, Vol XXXIX, Issue 12123, 20 November 1902) at 7.
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Ikaroa Māori Land Council, responsible for the lower North Island and for the South Island, was a reasonably busy institution, but it was busy primarily as an administrative tribunal or a judicial body and spent its time presiding over hearings and listening to barristers and on occasion getting bogged down in the complexities of the legislation. The Wanganui Chronicle of 28 June 1902 gives us a snapshot of a sittings of the Ikaroa Council at the Wairarapa town of Masterton:23
MASTERTON, June 17. The Te Ikaroa Māori Land Council held a sitting yesterday, Mr. James, S.M., presiding. Twenty land transfer cases were dealt with, nine applications being granted and two refused. Nine were adjourned sine die.
But early 1903, when Carroll’s great experiment had barely begun, there was already growing criticism of the Māori Land Councils. Pro- government newspapers, such as John Ballance’s old paper, the staunchly Liberal Wanganui Herald, countering the criticisms, tried hard to present an optimistic picture, claiming that much land was being vested and would soon become available for settlement, claiming also that the community-based Māori Councils were progressing well in their tasks of managing public health, sanitation and liquor licensing.24 On 2 September 1903 the Bay of Plenty Times noted the transfer of 20,000 acres of land near Rotorua to the Waiariki (Rotorua) Māori Land Council:25
A block of 20,000 acres of Native Lands, contiguous to Rotorua, is now in process of Transfer to the Waiariki Māori Land Council. On Saturday last the President of the Council attended a meeting in Tama Te Kapua [sic: Tamatekapua], the carved house at Ohinemutu, to receive proposals regarding the manner of cutting up the lands. The meeting was a representative one.
Once a reasonable amount of land had been vested, the Boards moved on to cutting up vested blocks and leasing them out, which was what the system was meant to achieve. By as early as April 1903, for example, leasehold sections started to become available in the Whanganui Valley.26
Despite the growing dissatisfaction emanating from some parts of the Māori world and from right-wingers in the House of Representatives, Carroll was not easily discouraged and tried hard to convince himself
September 1903) at 2.
94 Otago Law Review (2021) Vol 17 No 1
and others that his great legislative experiment was working well. In June 1903 Carroll met with a reporter from the Wellington Post who asked him about progress with the new legislation. Carroll emphasised that large areas had been vested in the Aotea board and were already under survey. Carroll was up-beat, as of course he had to be:27
The Minister said there were now more than 200,000 acres in the hands of the Aotea Land Council, whose jurisdiction extends right up the West Coast of the North Island. There are several survey parties out on the Ohotu block, near Wanganui, some 15,000 acres of which will be open for tender on the 15th of this month. From there the survey parties will proceed to cut up other blocks and prepare them for submission to the public. The work is being carried on as speedily as possible, and as all the land has been formally transferred to the Council, and all the preliminary work has been done, the surveying is all that remains, and that is being done as fast as possible. In the King Country, Mr Carroll continued, we are completing the deeds of transfer to the Council of about 40,000 acres.
However Carroll was well aware of the difficulties of the situation and had no illusions. He felt his Bill had been badly mangled in the House of Representatives, hampering its effectiveness, and complained that as a result he had to tinker with amendments to make sure the statute actually worked:28
Speaking on the subject of the Act29 generally, Mr Carroll said he had difficulties to contend with all along. “First of all,” he said. “there was the trouble of getting the legislation through Parliament. I only succeeded in 1900, and then the fight was so disastrous that I only got my Bill through in a very mutilated form. I was unable to do any work under for a year, and I had to bring in an amending Bill in 1901. Even then I could not get all I wanted, and there will have to be further amendments made before the system works smoothly. I am now engaged in drafting a Bill giving increased facilities to committees in carrying on their work, and making them less unwieldy. Then I had to gain the confidence of the natives as a body throughout the colony. Interviews and discussions had to take place. I had to remove all the Māori prejudices, both inherent and instigated, and I had to fight against Māori experts and practitioners under the old regime.
What must have driven Carroll forward was that he remained optimistic that a scheme could be devised that Māori would have enough land left to provide for their future while the settler community
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and political conservatives would be mollified by the opportunity to acquire leasehold grants from the Boards. Carroll’s tragedy was one of trying to please everyone, and to balance the interests of land-hungry settlers and Māori owners according to a rationally-designed national scheme, but in fact these were irreconcilable goals. His grand design was to be undermined from both directions; Māori on the one hand and political conservatives on the other. Ironically it was mostly the political representatives of Pākehā farmers, whose interests Carroll was trying to take into account, that inflicted far more damage on Carroll’s grand design than Māori ever did. It must have seemed to Carroll that nothing would placate the conservative opposition unless Māori had been turned into landless rural labourers or sharecroppers and all the remaining Māori land in the country was owned in freehold by Pākehā farmers. He had no intention of conceding that to them. If Māori were helping to undermine the plan by refusing to vest land in the Boards, then then they might have to be forced to, for their own good.
IV Compulsory vesting
Problems with the Land Councils soon proliferated in all directions. One issue was that Pākehā tenants complained that the rents demanded by the Councils were too high. Would-be lessees in the King Country, for example, objected to the “very large annual rents”.30 The new system was constantly attacked in parliament by the conservative opposition, who were probably hopeful that it would fail in any case, and the debates were widely noted in the newspapers. Conservatives wanted private sector control of the Māori land market and, as noted, wanted farmers to have freehold, not leasehold, titles. Prominent in the debates was William Herries, opposition spokesman on Māori affairs, who pressed for a reduction of the vote on Māori land administration on the grounds that it served no purpose; others argued that the money should be spent by the Lands Department and the Public Trustee rather than handed to the Councils. Herries, who was the MP for Tauranga, was a died-in-the-wool Tory conservative from England whose whole policy orientation leaned towards supporting Pākehā farmers at every turn, shown by Herries’ strong support for the freehold side of the freehold v leasehold debate, a polarising debate which plagued contemporary politics and took up huge amounts of parliamentary time. Farmers and their supporters agitated constantly for Crown leaseholds to be converted to freehold Crown grants, and Herries was their spokesman.
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Carroll must have been discouraged that New Zealand’s political conservatives were not willing to give the new Land Council legislation any breathing space. To Carroll’s further vexation, the Councils were also criticised by Māori parliamentarians, notably by Henare Kaihau (Western Māori), who regarded the Councils as ineffectual and the whole scheme as paternalist interference.31 Kaihau, who was from Ngati Te Ata of the lower Waikato, was expressing views which were consistent with entrenched Waikato Māori opinion, which tended to be extremely wary of any policy that deprived the Waikato tribes of control over their remaining lands. Kaihau also pointed out in the House that Māori in many areas were declining to place their land under Land Council control. Herries and his colleagues, no friends of Henare Kaihau, said the same. Herries, ironically, made a huge fuss in the House about Henare Kaihau being a member of the Waikato-Maniapoto Council, complaining that Members of Parliament were not supposed to be members of the Councils (there were no actual allegations of any improper behaviour by Kaihau). Carroll, no doubt wearily, pointed out that he had asked Mr Kaihau to resign and that Kaihau had also lost interest in the Councils, but Herries continued to fulminate.32
By mid-1904 the political confusion over Māori land policy could hardly have been greater, with both the Liberal government and the conservative opposition at cross-purposes with each other and amongst themselves. Some MPs deplored compulsory vesting, others made sweeping attacks on the Boards, and others pressed for racial equality (usually coded language for “free sale on the private market”), and others pressed the case for continued government purchasing; and always there was the colossal freehold v leasehold debate raging in the background. A parliamentary debate of 20 August 1904 reveals the baffling confusion of policy and opinion. On this occasion Herries continued to complain about Henare Kaihau; the Leader of the Opposition (Massey) said that expenditure on Māori affairs was costing too much, other MPs complained about land being “locked up” by the government, and others harped on the importance of close settlement.33 The Councils, designed to balance settler needs for land and Māori rights were denounced by one MP as a “sinful waste of money”, while at the same time pointing out that once Māori handed land over to a Land Council they would never get it back.34
Zealand, Vol LXI, Issue 11955, 6 August 1904) at 8.
Zealand, Vol XXXV, Issue 199, 20 August 1904) at 3.
Evening Post (New Zealand, Vol LXVIII, Issue 44, 20 August 1904) at 2.
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Carroll, who must have been feeling rather beleaguered, tried to remain optimistic, and in February 1904 he was reported as advising that the vesting of the 20,000 acres at Rotorua was progressing well (but was admittedly still not complete).35 But even Carroll was soon forced to concede that Councils were too unwieldy and that progress had been slow. In some areas, nevertheless, reasonably large areas had been vested in the Māori Land Councils, and Māori in Whanganui, Northland and the East Coast Māori had tried hard to make them work. The Herald reported in May 1906 that the Tokerau Board was meeting to deal with a large number of applications to lease Māori land.36
It is important to understand that taking a lease from a Māori Land Council was just one of a number of ways in which Pākehā would-be settlers could gain possession of land for farming. For the most part control of land for settlement was carried out not by the Boards, basically minor players in the massive tenurial transformation that was going on, but rather by the Department of Lands. Settlers could buy freehold directly from the Department of Lands or take a lease in perpetuity from the state. The Department of Lands, of course, only had Crown land to sell to private buyers (usually on ballots) because Māori title to it had first been extinguished via the Native Land Court and the Crown purchasing system.
Pivotally, as the Land Councils continued to meet and deliberate on applications to lease vested lands, the Crown purchasing system of Māori land was at this time continuing unabated all around the country. Of course Pākehā wanting to obtain land for settlement did not have to buy it from the government after the government had extinguished the native title. Pākehā could of course buy directly from Māori too, once the latter had obtained legal title either as a Crown grant or a Memorial of Title order by the Land Court (the latter now being registrable under the Land Transfer Act). Māori, as Crown grantees, could sell, and private buyers could buy – in theory. Private purchasers had to meet that the requirements of the Native Land Acts, however, and buying multiply- owned land was a challenging and expensive process. Some private purchasers, especially the large land companies, were willing and able to go it alone, must most people hoping to establish new farms preferred to leave the task of purchasing directly from owners to the Crown and its land purchase officers and to buy or lease from the state once the latter had done the hard work purchasing. Now back-blocks settlers had a
XLIII, Issue 13180, 18 May 1906) at 5.
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new option handed to them by Carroll: they could apply to lease from
one of the Land Boards.
Confronted by a growing problem of Māori reluctance to vest land in the new Councils, Carroll, probably reluctantly, drifted into a policy of compulsory vesting. The first partial step in this direction had arisen in 1903 the context of Native townships.37 The next step towards compulsion came with the Native Rating Act of 1904. The Act made all Māori freehold land rateable, usually at half of the usual rate. Defaulters might find their land compulsorily vested in a Land Council. That was better than some existing options, such as Councils suing Māori landowners for arrears of rates, but now meant that having one’s land vested in Land Council control had not only become compulsory in some situations: vesting in a Board was becoming a sanction, a punishment.
V The Land Councils become Boards: Māori Land Settlement Act 1905
Just five years after the massive legislative rollout of 1899–1900, the Liberal government was introducing another long and complicated Māori land Bill into the House; this was the Māori Land Settlement Bill of 1905. With his 1905 Act, designed as a supplement to the 1900 Māori Land Administration Act, Carroll tried again with a variant on his rational balancing project. Carroll’s declared reason for abolishing the Land Councils was that the land Council process was too cumbersome. “It was frequently impossible,” Carroll wrote, “for the Councils to move for the reason that there were many owners to the titles, making concerted action difficult and in many cases impossible”.38 That is likely to have been only one of the reasons for Carroll shifting course. The Māori Land Settlement Act of 1905 gave the Boards expanded powers to declare land inalienable and set up the Stout-Ngata Commission, charged with the responsibility of identifying areas “not actually required” by their Māori owners. The new Bill was an attempt to carve up all Māori land on rational and scientific principles, and Carroll must have invested huge energy in drafting it (but it was a paper fantasy). The New Zealand public, and of course, Māori, now had another complex Māori Land Bill to digest.
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As Loveridge puts it, Carroll’s plan was that “idle” Māori lands could be compulsorily vested in a Land Board, but “based on a systematic inventory and appraisal of Māori lands in the North Island”.39 The objectives of the Bill in providing for the precise demarcation of areas of Māori-owned land not actually “required” by then was well-meant but hopelessly unrealistic. What could “required” mean, and why should anyone risk losing their own land because an external authority deems it to be “not actually required”? Lands “not actually required” by their Māori owners could be vested in the Boards and made alienable by lease for a period of up to fifty years. Probably the real reason for this step was that not enough land was being vested voluntarily by Māori in the Māori Land Councils set up by the Māori Land Administration Act. The Māori Land Councils were also simplified, stripped of their elective membership, and renamed “Boards” rather than “Councils”. The Boards had just two members, both appointed, one of whom had to be Māori,40 presided over by a President, who was also appointed, who typically would be a Native Land Court judge. “Reserves” could be made for Māori within the leased areas in a block and the areas available for lease to Pākehā were to be classified in a way to prevent aggregation of best-quality land. It sounded fair and even enlightened, on the face of it, but implementation of this array of complex objectives was to be another story. On paper it looked like a rational, even scientific, system of land allocation which protected the interests of all. It was, however, doomed.
The Māori Land Settlement Act 1905 thus converted the Land Councils into new entities, Māori Land Boards. Section 3 of the Māori Land Settlement Act 1905 stated that “[a]ny Māori Land Board constituted under the provisions of this Act shall be the successor in office of the Council constituted for the same district under the provisions of the principal Act; and, on the appointment of any such Board, such Council shall cease to exist.” The 1905 Native Land Settlement Bill had been criticised in the House once again by Herries.41 Nothing was ever enough for Pākehā settlers and their conservative parliamentary friends.
There were already Land Boards (ie non Māori-related) in existence, which regulated a number of matters relating to alienations of Crown land (prevention of land aggregation, alterations to Crown leasehold grants, compensation for land takings for toads, and other matters, timber
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leases, and so forth).42 The intention was that the new Māori Land Boards would assume the same functions as the earlier Māori Land Councils, but the provision was poorly drafted and was soon causing enormous confusion, especially where there had been delays in setting up a Council, meaning that in some areas there were no predecessor entities for the Boards to succeed to.43 The Māori Land Councils and Boards throughout their history were subject to the malign influence of Murphy’s law: if anything could go wrong it unfailingly did. In 1905 the provisions relating to elections and guaranteeing Māori a significant level of representation vanished; instead each Board had a president, appointed by the Governor, and “two members, appointed by the Governor, of whom at least one shall be Māori”. The 1905 Act thus brought into being the Māori Land Boards, institutions that evolved into a kind of administrative arm of the Native Land Court as the latter’s functions were gradually increased after 1909. The Boards were to plague Māori for decades, and even their final dissolution in the early 1950s was to prove a very difficult problem.
Rather than rely on the general assumption, an assumption that most land-hungry settlers and conservative politicians agreed on, that Māori had more land that they actually needed, the government had decided to comprehensively collect data on just how much “unutilised” land there was. Hence the Stout-Ngata Commission, formally established in January 1907.44 The Commissioners had the arduous responsibility to tour the country, visit regions where there were “large areas of Native lands” and specify the areas that could be allocated for (a) individual occupation for the Māori owners; (b) communal occupation by the Māori owners;
(c) future occupation by the descendants of the current owners; (d) for settlement by Māori other than the current owners; (e) for settlement by
(New Zealand, Vol XLIII, Issue 13176, 14 May 1906) at 6.
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Europeans and “on what terms and conditions”. 45 The Commissioners, Stout and Ngata, made a valiant effort to carry out their task, and filed a sequence of detailed reports, which are a valuable record of the state of Māori lands at the time. The reports cannot be studied in depth here. The legislation was a massive effort; it was comprehensive; Stout and Ngata were capable men and good choices; they worked hard, travelled everywhere, and filed many lengthy reports.
The next step was yet another statute, the Native Land Settlement Act 1907, designed to put the findings of the Stout-Ngata Commission into effect (in a way).46 Stout and Ngata had identified a large area fit for “general settlement”, which was now duly vested in the Land Boards for sale and lease. So now, the Land Councils had become Boards, and as a result of the Stout-Ngata Commission and the 1907 Act they had, or should have had, much more land at their disposal. The Boards now had available land that had been voluntarily vested in them, land compulsorily vested for rating arrears, noxious weeds and so forth, and the land that was coming their way as a result of the Stout- Ngata Commission and the 1907 Act. Except – the last category did not exactly materialise. Not all of the land recommended as suitable for the purpose by Stout and Ngata was actually ever vested in the Boards. As well as providing for “Stout-Ngata” land to be vested in the Boards the 1907 Act had also allowed land to be vested in the Boards by Order- in-Council, but only a restricted area was vested in the Boards by this pathway too. Quite what happened in the aftermath of the Stout-Ngata Commission and quite why only limited areas were vested in the Boards is a bit mysterious.47 Certainly Carroll’s great plan of land allocation, managed settlement and leasing was only partially realised. Moreover the government was soon undermining its own vesting-leasing grand design by reverting to direct land purchasing in at least some regions, notably in the King Country.48
The Land Boards Begin
The newspapers begin carrying reports of Land Board (as opposed to Māori Land Council) meetings in 1905. It seems, however, that the “Land
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Councils” and the “Land Boards”, were in fact basically the same kinds of entities, ie basically administrative tribunals run on the cheap, both of which became embroiled in complex legal problems. The best way to grasp the operations and the limitations of the Boards is to form a clear impression of what they actually did. The Boards seem to have been quite busy institutions from the start, and do not seem to have differed in any important way from the former Land Councils. A description of the activities of the Aotea Board in December 1905 shows it processing a lot of paperwork:49
The above [Aotea] Board was sitting all last week at the Masonic Hall, the members present being Messrs. T.W. Fisher (President), R.C. Sim, Arohau [sic] Nikitini. And W.W. Hipango. Some 80 cases were set down for hearing., of which 67 were dealt with, the aggregate value of the lands being about £42,500. Of the 67 cases dealt with some 45 were disposed of, recommendations on consent being given as required, the balance being either refused or adjourned owing to papers being incomplete.
The fact that the Board president was also the local Native Land Court judge seems to have meant that various land applications were dealt with together, the judge changing roles from judge to president and switching back again. A report on a meeting on a meeting of the Ikaroa Board on 18 June 1907 also gives the impression that the “Boards” were basically just an add-on to the Native Land Court.50 These semi-regular, semi-judicial entities were obviously in no position to remodel the Māori Land system, but, as events were to prove, they were to prove very able to do a great deal of mischief. The mischief began in 1907 when the Boards, using standard-form agreements of lease that had been drafted for them, by whom is unknown, began granting leases of vested Māori land all over the country on fifty-year terms. The leases stipulated that lessees, mostly Pākehā farmers, would be paid compensation for improvements.
Moreover the whole vesting-leasing project seems to have been ill- conceived given that Board lessees found that they had difficulties obtaining mortgage finance (ie because the security of a Board lease was not appealing to private lenders). Farmers knew, as a contemporary newspaper put it (1909), that “all lending institutions favoured the freehold security, and leasehold securities were neglected”.51 That, of course, is always the case, at least with most leasehold estates. How
Issue 12880, 22 Sept 1909) at 4.
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serious this problem was in reality is difficult to know. Māori were hesitant about vesting, especially in the Waikato, but there is also evidence that many Māori were willing to try to make the new system operational, especially because if they did need to relinquish possession, Māori on the whole preferred to lease their lands rather than sell them.
It is always important to bear in mind the realities of party politics. Political conservatives were not really interested in vesting and leasing. The Liberals themselves were trying to juggle competing objectives of protecting Māori ownership to some extent and the constant political imperative to continue with direct Crown purchasing. The Native Land Act 1909, also a Liberal measure, harnessed the Māori Land Boards into the government land purchasing project. Part XIX of the massive 1909 Act dealt with Crown purchasing at length. The 1909 Act exempted the Crown from all restrictions on alienation (s 360) and established a new Native Land Purchasing Board. Even the Liberals did not quite believe in their own programme. Conservatives, for their part, actively loathed it, and once the conservative Reform government led by Massey was in power in 1912, even such protections as existed with respect to purchasing of Māori land under the 1909 Act were made inapplicable to the Crown. Under a long period of conservative government from 1912–1935, the main focus of government policy regarding Māori land was simply that of purchasing as much of it as possible. There was no real change of policy until 1929, when Sir Apirana Ngata’s Māori land development programme became operational. Meanwhile, land continued to be vested in the Land Boards, and the Boards continued to grant leases.
Becoming Defendants
In fact the Boards rapidly became one of the biggest curses and most intractable problems that the colonial state ever inflicted on Māori. The Boards achieved nothing of value, were a bureaucratic inconvenience for sellers and purchasers lessors and lessees alike, were incompetent, had no expert staff to speak of, and were constantly being sued by both Māori and Pākehā (at all levels of the legal hierarchy, not excluding the Privy Council). Once land had been vested, voluntarily or otherwise, owners were stripped of all control. The Boards, as Trustees, held all legal rights over vested blocks.52 The Boards could direct meetings of owners, but their sole function was to accept or refuse purchase offers.53 It would have been better if the Boards had never come into existence.
1913, s 109.
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An impossible situation had come into being: much land had been vested, some of which had been leased, but there were constant problems with defaulting tenants who were continuing to spend other money on improvements. As the Waitangi Tribunal has noted in its Rohe Potae report, “[u]nder the board’s management, and the Crown’s oversight, many of the vested properties returned little income to their owners for years or even decades, because they were unleased, or because rents were not paid, or because they were encumbered with development costs and debts”.54 Simply giving the land back to the owners had become too complex and would generate fierce lessee resistance, and thus, would never be countenanced by any pro-farmer conservative government. By as early 1910 the problem of the Māori Land Boards had become so intractable that no one could see an escape route from them, and the problems only got more complex as time went by. For Māori, they were a nightmare. There was no easy way to get land out of Board hands, but the rental incomes paid to owners were both erratic and often below market levels.
The law relating to the Māori Land Boards was the typical jumble of ad hoc statutory provisions that formed the horrendous edifice of statutory Māori land law. The Native Lands Acts and the Native Land Court were just parts of the larger edifice, and (surprising as this may seem) the Native Land Court was by no means the worst and most baffling part of the whole system). If asked to nominate the most intractable statutory land tenure nightmares for the long-suffering Māori people, my choices would be (a) the Taranaki reserves and (b) the Māori Land Boards. Or to put it another way, while the focus of historical inquiry into Treaty breaches tends to be on Māori land loss, in many ways the insufferable complexities that bore down on Māori landowners, those who had managed to salvage something from the wreckage, were an ever-present affliction that could never be fought clear of. By the 1920s everyone in New Zealand, Māori and Pākehā, was aware of the existence of the ‘Māori (or Native) land problem’, but there was no possibility of disentangling the various components of the problem and addressing them one by one. Many Māori must have longed to sell their lands to private purchasers for whatever they could get as an escape route, except that the avenue of private sale was itself blocked by yet other legal complexities and in particular the government’s tendency to prohibit Māori from selling to the private sector. The government did this because it was under constant political pressure to buy Māori land in order for it to be surveyed into freehold blocks to be sold to hopeful rural settlers.
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The Māori Land Boards are a classic illustration of that typical New Zealand institution, the imagined (or paper) agency, which exists on the statute book armed with an array of complicated and intersecting discretionary powers, but which in a corporeal sense exists only in a very shadowy way. Such imagined institutions do have a function, however: they allow the government to give the impression of doing something while spending the minimum amount of money. It seems that the “Boards” were merely an extension of the Native Land Court, or, more precisely, they were comprised of a handful of people who met irregularly to deal with a small number of applications which were processed on the spot, the meetings being in effect run by the local Native Land Court judge wearing his hat as board president and assisted by the judge’s staff, which in practice meant his clerk/registrar. How this small group of people were supposed to carry out the array of functions vested in the boards by the statutes is hard to fathom, this being even harder to see when it is remembered that the Native Land Court judges were busy people (the Court typically had huge backlogs of cases) whose own staff was miniscule and who were not provided with permanent courtrooms, permanent office spaces or any kind of library facilities. The wider problem was a simple one: the government was determined to spend as little as possible on the administration of Māori affairs. Certainly the boards met, usually fortnightly, and made their rulings on particular applications, but that was about all that happened.
Local newspapers took a certain amount of interest in board rulings, because of course their readership was largely made up of the local settler communities, communities that were naturally interested in anything to do with land tenure and the availability of land for sale or lease in their districts. Something else regarding the Boards also appears fairly regularly in the newspapers, that is how the Boards were faring in the courtroom. In fact the Boards were constantly being sued. That fact shows, in my opinion, not that the Boards were corrupt or ill-intentioned but that they were hopelessly understaffed and under-resourced, and so were frequently making mistakes. Why anyone would want to become a member of a Māori Land Board is also hard to imagine, except for the judge and his registrar, that is, because no doubt chairing board meetings and doing the paperwork were part of their respective jobs and (one guesses) were factored into their salary packages. Pluralist office-holding was not at all uncommon at that time, shown most tellingly, and most inappropriately, in the startling fact that the Chief Judge of the Native Land Court and the permanent head of the Native Department were the same person!
By 1907 the Boards had progressed to a settled system of approving
leases, which was regarded as a comparatively cheap and expeditious
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way for settlers to get leases of Māori land blocks, that is as compared with direct leases from owners (which needed Board approval anyway). According to an optimistic report in the Wanganui Chronicle (4 July 1907):55
We would again draw attention to the land placed on the market by the Aotea Land Board, to be offered by tender on the 15th instant. It appears to us that the bona fide settler, who is earnestly desirous of obtaining land, now has a golden opportunity...The areas range for small farms from 350 to 750 acres, all excellent grazing country, while the small grazing run areas are up to about 3000 acres, thus giving a large scope for selectors with proportionately large or small capital...There is no doubt that this is the chance for the bona fide intending settler.
Progress of this kind was what Carroll was hoping for. It seems, however, that as far as Pākehā, and especially Pākehā farmers were concerned, the Land Board system was meant, above all else, to be helpful to the “intending settler.” The ideological imperatives are clear; the Boards were there, above all, to help “small settlers” to easily get secure leases of Māori land (if the Boards could achieve that, as they apparently could, then they could be perceived as a success).56
Essentially the Boards were largely letting agencies. No one realised in 1907 that there was a slow time-bomb had begun to tick: the leases contained clauses guaranteeing compensation for improvements. Moreover, the Board were constantly confronted with intricate legal problems. Particularly puzzling were the land aggregation provisions of the statutes. In 1907 a case of leasehold land in the Hutt Valley resulted in a case that had to be sent to the Court of Appeal (Riddiford v Ikaroa District Māori Land Board). This case was not deemed important enough to be reported, and the only information available about it comes from the newspapers:57
The Appeal Court to-day heard the case of E.V. Riddiford, of the Hutt, sheep farmer, v. the Ikaroa District Māori Land Board. The question for consideration of the Court is whether the holding of leasehold land, is, under section 26 of the Māori Land Laws Administration Act, 1900, as amended by section 15 of the Māori Land Laws Amendment Act, 1903, a bar to the acquisition of further Māori Land or whether those sections refer only to freehold land. Mr Morison appeared for the plaintiff and Mr Levi for the defendant board. Mr Morison contended that as by section 16 of the Māori Land Settlement Act, 1905, plaintiff was authorised to acquire leases of Māori land up to 5000 acres, and as the lease acquired by
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him was of the same land which he already held, and the lease of which he had surrendered, plaintiff was entitled to have his lease approved. Judgment was reserved.
At the time of this vesting, land sales were booming, which left open the issue as to what might happen if land prices slumped, leaving lands in the hands of the Boards that they could not sell, while owners could not get them back out of Land Board jail. Costs of roading, surveys and the Board’s fees were deducted from the rents, usually amortized over 42 years, meaning of course that roading and survey costs (which might be astronomical) were thrown back on the owners. So many things could wrong with such an arrangement! No Māori owners in their right minds should ever have vested their lands in a Board, and many declined (very reasonably) to do so, but sometimes land was vested compulsorily, for non-payment of rates, noxious weeds, etc., essentially a kind of confiscation. If anyone is puzzled by Māori reluctance to vest unless they were made to, ask any Pākehā landowner today how he or she would feel about having their property taken off them and vested in a Board in return for a fixed rental income, the rent being reduced to pay the Board’s and other sundry costs? But at this stage, everything seemed to be going well: 58
The Aotea Board itself is satisfied with the eagerness with which the public applied for these [vested] lands, and are taking early steps to have the balance of their trust lands surveyed and brought into the market, so as to allow selectors to prepare for next season’s bushfalling. The Whanganui “Chronicle” of Saturday last, commenting on the success of the leasing, said: “We congratulate the Board and its officers on the result of their efforts, which must result in permanent benefit to our town and district.”
Ominously, the District Māori Land Boards continued to find themselves having to preside over complex and contested hearings at which competing parties represented by senior counsel. A new problem was beginning to take shape. The Boards were having to deal with difficult legal problems relating to valuable resources. Whether Board members were expecting to find themselves in such challenging circumstances may be doubted. The Aotea (Whanganui region) Board in particular was to face many challenges and was to become entangled in litigation at the Appellate level, principally over forestry problems. Anyone who served on a District Māori Land Board did so at their peril.
It so happened that the Aotea Board controlled extensive areas of valuable native forest, and to a greater extent than the other Boards found itself having to venture into the competitive and risky field of forestry
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leases and licences. It was this area which was eventually to land the Aotea Board in a sea of troubles. By as early as 1908 the Aotea Board was finding itself in difficulties with forestry leases and complex commercial arrangements between private sector companies and Māori landowners:59
The Aotea Land Board was occupied all day hearing an application by Gammon and Co. for timber-cutting rights over blocks situated between Raetihi and Ohakune. Mr Skerrett appeared in support of the application which was opposed by Messrs C.B. Morrison and Borlase, who appeared for Messrs Proud and Abbott, who had obtained consent to a lease of portion of the land affected.
Forestry matters aside, the Boards spent most of their time dealing
with applications for ordinary leases of vested lands.60
As the full implications of the vesting system and its legal problems slowly became clear, Māori learned that vesting could be highly coercive. It began to dawn on Māori that land they had vested was no longer their own in any meaningful sense, and they might find that any attempts on their part to regain control could result in actions for trespass. This was no less the case with compulsory vestings. One case, Pauro Marino v Aotea DMLB (1911) (unreported) related to the Māori Land Settlement Amendment Act 1906 which allowed Māori land to be compulsorily vested in a Board where the land “in the opinion of the Native Minister, has not been properly cleared of noxious weeds within the meaning of ‘The Noxious Weeds Act, 1900’.” The block in issue was Morikau No 1 (Whanganui).
The unfortunate plaintiff, Pauro Marino, presumably a former owner, had gone on to the land after it had been compulsorily vested because of its “noxious weeds” problem. That meant that he was a trespasser (he depastured sheep belonging to him on the land, which had of course been taken away from him). The Board brought proceedings against Mr Marino and obtained an injunction against him; Marino challenged this on the basis that the vesting was illegal. The case is an illustration of the highly coercive nature of the legislation: owners could become trespassers on their own land. Vesting, especially compulsory vesting, began to look more and more like a new form of confiscation.
The only report I have found of this case is once again in a newspaper:61
Issue 12817, 4 October 1911) at 7.
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The Appeal Court today was engaged on an appeal against the judgment of Mr Justice Sim in the case of Pauro Marino v Aotea District Māori Land Board. Judge Sim, in the Supreme Court, granted an injunction to restrain the appellant from trespassing on land which was by an Order-in- Council vested in the respondent Board under the Māori Land Settlement Amendment Act 1906.
The case turns upon the title to some native land (Morikau No. 1 Block) and depends upon the validity of the Order-in-Council vesting the land in the Board. Appellant claims to be entitled, as a native interested in the block, to live on the land and to depasture his sheep thereon. Later. The Appeal Court dismissed the appeal of Paoro Maurino v. The Aotea Land Board, holding the title of the Board to be legal, and that the appellant was a trespasser.
This case also demonstrates a different kind of legal problem that the harried Land Boards had to be deal with, ie that owners of vested lands, desperate to escape from the consequences of vesting, voluntarily or otherwise, might seek to challenge the legality of the initial vesting by way of judicial review proceedings. Such a case would try the patience and resources of the former owner, the Board, and also of the Supreme Court, which might be forced by such a case into the legal labyrinth of the Native Lands Acts in order to come to grips with the precise nature of the plaintiff’s title. New-look “vesting” was beginning to look like old- style confiscation. Owners were still owners, but ownership had become stripped of its content. In the Waitangi Tribunal’s view, Māori “regarded vesting as bringing them no benefit and considerable harm, denying them incomes and access to their lands for years or even decades, and leading almost inevitably to alienation”.62 Moreover, while both lessors and lessees had much to complain of, the government, especially the farmer-friendly conservative regime of 1912–1935, tended to be much more attentive to the needs of lessees.
To be fair, however, the Boards did at times intervene paternalistically in the affairs of individual Māori people in order to protect them from themselves. But there is evidence that Māori people could find this very annoying. In 1912 the Ikaroa Board refused to allow a Māori woman to sell her land at Otaki on the grounds she would probably waste the money. The lady concerned, obviously highly displeased, took action the ordinary Courts to have the Board’s ruling quashed.63
Zealand, Vol XXXIV, Issue 8032, 10 Feb 1912) at 5.
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VII Forestry and the West Taupo forests affair
I have mentioned earlier that the Māori Land Boards fairly often found themselves being sued. But of all the Land Board cases, none approached the complexity and constitutional significance of the West Taupo forests affair. Despite this case’s constitutional and historical significance the only full study of its background that I am aware of is an (as it happens, excellent) LLB (Hons) Victoria University of Wellington Research Paper by the late Campbell Duncan completed in 1994.64At the heart of the Te Heuheu case was an argument about parliamentary sovereignty, whether parliament had power to override the Treaty of Waitangi. More immediately, the case was about s 14 of the Māori Purposes Act 1935, “Aotea District Māori Land Board to pay to Egmont Box Co Ltd, in discharge of obligations a sum approved by the Prime Minister”. This extraordinary provision settled a long-standing legal dispute by directing the Aotea Board to pay a large amount of cash to a private company, the payment to be made out of the Board’s assets (which of course, belonged to Māori). The recipient company (the payee), the Egmont Box Company was in fact a co-operatively owned company owned by a number of Taranaki dairy co-operatives, these latter being owned in turn by Taranaki dairy farmers, probably not irrelevantly an important National Party political constituency. (Bundled together the dairy co-ops eventually merged with a public agency to become the mighty dairy company Fonterra (2001) New Zealand’s biggest company and one of the world’s largest dairy companies.) To speak plainly, Māori owners were forced to pay money to a private company owned by dairy co-ops which now have now metamorphosed over a long period into Fonterra. Or, looked at another way, s 14 was a state-mandated handout by Māori landowners to Taranaki dairy farmers in the middle of the Depression. Presumably the government did not settle the case itself out of its taxation income because in essence the Depression had bankrupted the state. State income had plummeted. Why not, then, it was presumably thought, settle the case out of assets that belonged to someone else? Essentially the state confiscated Māori assets to make a large payment to the business sector. Māori, and their legal advisers, were outraged. The owners sued the Board on the very reasonable grounds that the former had been negligent vis-à-vis the owners by failing to take any steps to ascertain whether it (the Board) had any liability to pay the
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Egmont Box Company anything; the Board argued in reply that it had been obliged to make the payment by statute. Counsel for the plaintiffs, Martin Hampson, audaciously argued that the 1935 statute was invalid as contrary to the Treaty of Waitangi, the Treaty being recognised by s 72 of the New Zealand Constitution Act 1852, meaning that imposing the charge on the owners to pay out the Egmont Box Company was a breach of the Constitution Act. Given that the New Zealand Constitution Amendment Act of 1857 allowed the New Zealand parliament to alter, suspend or repeal all or any of the provisions of the Constitution Act (save certain exceptions, which did not include s 72), Hampson was forced to further argue that any repeal of the Constitution Act had to be express. Much of the argument turned on whether the Board had any antecedent liability as a Trustee or for any other reason irrespective of s 14 of the 1935 Act. This technical and complex argument, brilliantly developed by Hampson, had to proceed on the basis that the Tongariro Timber Company was a real entity that had ever intended to build a real railway and fell actual trees. Failing in the Supreme Court and Court of Appeal, the plaintiffs appealed to the Privy Council, Hampson making his way to London via the Pacific and the U-boat infested Atlantic to argue the appeal personally before the Privy Council in the middle of the Blitz. Following the failure of the Appeal, Hampson made the long journey home in the same perilous wartime conditions, dying shortly after he got back.Behind s 14 of the 1935 Act lies a very involved history going back to an agreement made in 1906 between the owners of Māori land blocks in the ‘west Taupo’ area and the Tongariro Taupo Timber Company. Over the years there had been a battery of statutory interventions in the affairs of the Tongariro Timber Company. These were s 37 of the Māori Land Laws Amendment Act 1908, s 19 of the Native Land Amendment and Native Land Claims Adjustment Act 1915, s 29 of the Native Land Amendment and Native Land Claims Adjustment Act 1929, parade of legislative interventions reaching their apotheosis with s 14 of the 1935 Act. The owners had agreed that the company could mill timber on their lands (essentially the company was granted a licence on their behalf by the Board), in return for which the Tongariro Company would pay royalties to the Board which the Board in turn was to pay to the owners. Such arrangements were not uncommon. But this one was different: the company took on an extra obligation; it agreed to build a railway line. The railway, or “tramway” would connect the forest blocks to the North Island main trunk, itself not to be completed until 1908. The anticipated completion of the main trunk was presumably one of the main reasons for the branch railway idea. (Or perhaps that fact gave the railway idea a degree of plausibility). But there is of course a reason why railways in
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New Zealand have mainly been constructed by the state: New Zealand companies lack the skills and capital to build railway lines in a large and mountainous country. The Tongariro Company took on a project that was beyond its capacities, although it had at least the capacities to extract the timber and damage the forests, and, one assumes, to pay the royalties or at least some of them. Possibly the royalties were discounted on the basis that what the owners, who are usually assumed to be mainly Tūwharetoa (but were they?) really wanted to get was their railway line.
But even to put matters this way is misleading, because it assumes that there was a real plan to build a real railway, all the way from Mokai to the main trunk somewhere near Taumaranui. Ngāti Tūwharetoa thought there really might be a railway one day. But, it seems, that the whole “tramway” scheme was fictitious and a scam. There never was, never could be, never was intended to be, any railway. The whole project was another example of that fine New Zealand corporate art form, a property speculation. Ngāti Tūwharetoa’s land and money was handed over to, to put it bluntly, a conspiracy of speculators. Whether the Board, or government, or officials were in on the scam, is, as it is usually delicately put “unclear”. It was “unclear” then, and is even more “unclear” now. In fact there is nothing much that is clear about the Tongariro Timber Company, the Egmont Box Company, and the Aotea District Māori Land Board. This is a matter for further exploration. The most important thing to grasp is that the Aotea Māori Land Board’s assets were not its own: they were Māori assets, placed in the Board either involuntarily or by agreement. Whether the Privy Council really understood that is something else that is “unclear”. Hampson, closely linked to the Te Heuheu family of Ngāti Tūwharetoa , would certainly have known the truth, but there had been no obvious way to prove that the railway-and-royalties scheme was fraudulent or to make that fact relevant to the core argument about the 1935 statute. (There was no political responsibility for the 1935 statute either, because the National Government that had been responsible for it was no longer in power. In fact the timing of the legislation, is, as is usual say, is “interesting”, as National lost the election to Labour in November 1935, the 1935 Act being enacted at the end of October.
VIII The Land Boards’ Death Agony: Vested Lands and Compensation for Improvements
Nearly 52 years after their establishment in 1900, the Māori Land Administration Act 1952 (“An Act to amend the Māori Land Act 1931”) got rid of the Boards by the simple expedient of abolishing the seven Māori Land Districts in existence at that time, together with their associated Boards. The legislation divided the powers, duties, assets and
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liabilities of the Boards between the Māori Trustee and the Department of Māori Affairs. The Department had at that time only recently been massively reconstructed in 1952. The now-eliminated Boards were unlamented. As Loveridge puts it: 65
When the Māori Land Boards disappeared in the great Māori Affairs Department reconstruction of 1952, few rose in their defence. Fewer still, it would seem, mourned their passing.
Dr Loveridge is absolutely right: no-one mourned the departure of the Boards, or would have had any reason to, but there were certainly some issues relating to the process of the winding-up of the Boards during and after 1950. The Vested Lands Commission of 1950 had very narrow terms of reference, focusing strictly on the payment of compensation to the lessees (not the lessors) of lands vested in the Boards and ignoring the other issues arising from the long and chaotic history of the Boards. The Commission’s terms of reference directed it to focus on the issue of compensation to lessees for improvements, not, admittedly, an insignificant problem but only one of the vast array of historical issues that may be said to have arisen over the long and turbulent history of vested lands and the Māori Land Boards.
Compensation for lessees’ improvements was a burning issue for the National Party’s farming supporters of course. There were some Māori lessees who had their concerns about compensation for improvements too, but for Māori the real issues related to compensation and redress to owners and lessors (not lessees) for long years of chaotic and negligent management by the over-committed and under-resourced Boards.
The political context of this inquiry was important. After long years in the political wilderness the National Party won the General Election of 1949 and set about turning the country into a conservative direction and implementing policies favoured by its supporters from the farming sector, dairy farmers being seen with special favour by the government. Despite posing as rugged individualists, in fact dairy farmers have long been cosseted and supported by conservative governments. The National Government, as GV and SM Butterworth have noted in their historical study of the Māori Trustee office, “was heavily preoccupied with getting every hectare of land into production”.66 Moreover, the government was “under pressure from local bodies complaining of unpaid rates, rabbits and weeds on lands that had lain neglected during the depression
Wellington, 1991) 58.
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and the war”.67 “This explains” if it does not excuse”, add GV and SM Butterworth, “the frequently heavy-handed approach to Māori land which generated a great deal of resentment and odium around the head of the Māori Trustee, the usual instrument of this policy.”68
Although the urgency of the compensation for improvements matter in Land Board leases had become a particular issue by around 1950, it was not as if the issue was completely novel. There had been much disputation over compensation for improvements in Board leases for decades, at times leading to significant litigation. Also, the terms of reference for the Royal Commission on Native Leases (MacCormick Commission) of 1929 had required the commissioners to take into account the position of lessors and lessees of Māori land leases in the King Country with regard to compensation for improvements.69 There really was no excuse for the Boards or for government to have been, as it were, sitting on their hands with respect to this festering problem. As long ago as 1935 there had been an important legal case in the King Country about how compensation for improvements was to be calculated. The lessees (of course) wanted this calculated over the entire term of the leases (fifty years for many Board leases, some WCSR leases perhaps even longer, meaning that the cost of improvements on determination could be astronomical). This case, Crocker v Native Trustee70 had attracted some media attention at the time. The precise issue was not that of compensation when the leases fell in, this being some time off when Crocker was decided, but rather the calculation of the rents. The case concerned a West Coast settlement reserve block, and so the lease was controlled not by a Board but by the Native Trustee (as successor to the Public Trustee), but surely this and other cases (no less than 40 blocks were affected by the decision in Crocker) ought to have focused attention on the problem much earlier than a few years before the time when large numbers of Board leases were due to determine? The Crocker decision was analysed with commendable clarity by the King Country Chronicle in July 1935, rightly guessing that the issue would have been interesting to its readership:71
A decision of vital interest to settlers in the King Country was given by Mr. Justice Blair in the Supreme Court on Thursday in the case of Gwendoline Crocker, holder of a lease under the West Coast Settlement Reserves Act, who applied for a renewal of the lease, bringing on a dispute with the Native Trustee as to the interpretation of the renewal clause. Mr. Justice Blair ruled that the interpretation contended for by the Native Trustee
Country Chronicle (New Zealand, Vol XXIX, Issue 4722, 20 July 1935) at 4.
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is the correct one. The effect is that the for the renewal term the rent will be increased to the extent of 5 per cent. on the value of all improvements effected by the first tenant of the first of the land during the first 21 years of his occupancy.
The problem of compensation for improvements was not confined to Land Board leases. It arose in another class of leases, one so complex that the particular problems associated with them would need another article to explain, the leases in question being confined to Taranaki and known as West Coast Settlement blocks (WSCR). These lands derived from the aftermath of the Taranaki confiscation of the 1860s, resulting in certain reserve lands being set aside for Māori. The “reserves”, were not in fact in Māori possession but rather had been leased to Pākehā dairy farmers on long leases. In Taranaki the leases had been managed not by a Land Board, but rather by the Public Trustee, and then in turn by the Native Trustee (today the Māori Trustee). These WCSR leases in Taranaki also guaranteed compensation for improvements. The issue of compensation for improvements was perplexing. If a Board or WCSR lease (if Board leases were problematic the situation with WCSR leases could only have been described as insane) provided for compensation for improvements, then that could cause massive problems when the lease fell in, the Māori lessor often being unable to finance payment for improvements and placed at risk of losing the land as the only way of covering the debt. On the other hand, if the leases provided no compensation for improvements, then the rents would typically be lower (less income for the owners), and, moreover, the tenant seeing that there would be no compensation for improvements, would naturally not make any, particularly not during the last years of the lease. But that meant that the land deteriorated, rents fell, and at the end of the lease the land might well be degraded and growing little beyond blackberry and gorse by that stage. The hapless Māori landowner of the now half-ruined land might well be at the same time being hounded by the local county council for rates debts or dragged into the Land Court to fight off applications for charging orders. (These combinations of circumstances, I must add, were not remote or hypothetical but only too common.) It is easy to say that it often made sense for Māori to lease out their lands, whether on their own behalf or via the Land Boards, but in fact the problems relating to long-term leases of Māori freehold were nigh-insuperable. Leasing was no panacea. Long-term leases of Māori land, whether managed by the Public Trustee in Taranaki or by the Land Boards in other regions, had often evolved step by step into quasi-freeholds, bought and sold as such, in fact possessed by Pākehā farmers, nominally owned by Māori, with the Land Boards or the Public Trustee in between. Developing the land in Māori landownership into modern farms, as Sir Apirana Ngata could
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see, was a far better option for Māori than leasing, provided the state might make low-interest loans, as, under Ngata’s prodding as Native Minister, it finally did in 1929.
One catalyst for the problem of compensation for improvements coming to a head was the old bogey, the “failure to pay native rates”. In 1950 EB Corbett, Minister of Māori Affairs in the new National government, the nation readjusting to conservative rule after 14 years of a Labour government, actually claimed that without paying compensation for improvements Māori were not able to pay rates. The strange logic of this was that without providing for compensation for improvements the land would deteriorate (which was true as far as it went), meaning that Māori could not pay their rates bills. Paying compensation for improvements meant Māori landowners would be able to pay their rates bills (apparently):72
Local body members will welcome the statement by the Minister of Māori Affairs, Mr E.B. Corbett, that the present situation with regard to native leases and the payment of native rates cannot be allowed to continue. Failure to pay native rates has long been a serious problem to many county councils. Waitomo’s experience is an example. In ten years the council has written off £56,000 and the burden of maintaining roads and other amenities has fallen upon other ratepayers.
Deterioration of considerable areas of native land is one of the prime causes of the failure to pay rates. It also causes a heavy loss of vital production and creates a nuisance in that weeds from neglected lands spread on to other property with various consequences. The obvious approach to the rating problem is to begin with the causes of land deterioration, one of which is clearly discernible. It is the lack of provision in the leases for the payment for improvements on the expiry of the lease.
Over many years it has been noticed that when native leases approach the expiry date land suffers a measure of neglect for the simple reason that the lessee will receive no compensation for any improvements he brings about. Further, if the lessee maintains the land in the first-class condition until the end of the term he will have to pay a higher rental, if the lease is renewed, because of the improvements he has made. Here is one of the most prolific causes of land deterioration and the inability of the native owners to pay rates.
As can be seen Corbett suffered from all the stock prejudices: Māori were not paying their share of rates, their land was covered with noxious weeds, etc. Corbett combining this with the traditional conservative government emphasis on increasing the intensification and expansion of farming: New Zealand as England’s farm-at-a-distance. The
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remedy for all these problems was requiring more Māori lessors to pay compensation for improvements. Also, typically, Corbett seems to have no understanding of the Māori side of the picture when it came to paying rates, overlooking the obvious fact that improvements would increase capital values and increase the rates burden. Māori farmers did not have deep pockets, as everyone knew, and how could they pay both rates and compensation for improvements (while, of course, repaying government loans)? (Which might have increased the rates.) There was no obvious way out of the issue. It was time then, for another committee of inquiry while politicians scratched their heads.
Another factor bringing the issue to a head was litigation in the ordinary courts. In 1943 the Court of Appeal had held that certain lessees from the Tokerau Board had not been entitled to compensation for improvements (Tokerau District Māori Land Board v Leach). (The case is, as far as I am able to ascertain, is unreported.73) According, however, to the Auckland Star:74
The Court of Appeal to-day delivered judgment in cases between the Tokerau District Māori Land Board and Harold Philip McLeod and Trophina Clementina Leach (heard March 26 to 29). The Court found that respondent in each case was not entitled to compensation for improvements at the expiration of the renewed term of 25 years. In view of this decision the further question of whether the board had power to grant a second term of 25 years with right of compensation was not required to be decided. The order of the Supreme Court was varied accordingly.
To add to all the problems about compensation for improvements, apparently at least some lessees were not entitled to it anyway.
IX Proceedings of the Vested Lands Commission, 1950
The decision to establish a Royal Commission on the vested lands arose from a very practical and looming problem: most of the Land Board leases (the longest-term leases) were due to expire in 1957. This was because the leases mainly began in 1907 using standard-form lease documents, the leases to determine in fifty years’ time. As Butterworth explains, however, there was another group of problematic leases in
Vol LXXIV, Issue 165, 14 July 1943) at 4.
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the Whanganui area, leases for two terms of 21 years each which had of course already expired, but which had been temporarily extended to 21 June 1950.75 These facts had by 1950 or so certainly concentrated attention on the problem of payment of compensation for improvements, but even so there was really no reason why other issues relating to the vested lands and the Boards could not have been examined as well. It was not as if Māori did not have anything to complain about when it came to the Māori Land Boards, after all. The Vested Lands Commission, however, was mainly about the compensation for improvements issue. Moreover, it seemed important to ensure that “this extremely difficult land was not left to revert to noxious weeds and erosion”.76 Māori complaints about decades of chaotic mismanagement by the Boards went unheard.
The Vested Lands Commission opened its proceedings in Whangarei in July 1950 and then proceeded to Te Kuiti. The Commission next opened its East Coast proceedings in Gisborne on 7 November 1950.77 The Commissioners Judge DJ Daglish, HM Christie and R Ormsby were all present. At the opening of the sessions counsel for the Tairawhiti Board. K.G. Scott, appeared and declared that the board would honour any valid contracts it had entered into – as if it had a choice about that!:78
Counsel said that where there was a valid contract the board would honour that contract and would not seek to evade it. It would do its utmost to meet the responsibility lying upon it.
This was, be it said, not much of a concession: the Tairawhiti Board agreed to be bound by contracts it was legally bound by. Valid contracts were by definition enforceable ones and if the Board did not honour them it was liable to be sued for damages and specific performance: the Board’s concession was merely a recognition of reality. The Board’s lawyer declared that relationships between the Board and the lessees were very good; maybe they were, but this somewhat begs the question of the much more fraught issue of the relations between the Boards and Māori owners (the lessors):79
He added that relations between the board and lessees of vested Māori lands were extremely good, and such differences as did exist were capable of settlement between the parties. Therefore, there would be no need to refer to the commission any of these minor matters.
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There had been times when relationships between the Boards and the Māori owners had not been at all “good”, in fact; quite often owners had brought legal proceedings against the Boards, even proceedings in the Privy Council. Māori owners must have found the suggestion that the Boards had good relations with the lessees unsurprising and grimly amusing. Of course the Boards and the lessees had good relations! Relations between the Boards and the owners were rather less cosy.
Other points that came up at this first hearing reveal only too clearly the horrendous complications of the issue of compensation for improvements with respect to Land Board leases, this issue, to repeat, being just one of a thicket of problems arising out of the law relating to the Boards and to vested lands. The Board’s lawyer argued, for instance, that it was up to lessees to establish their rights to compensation, and puzzled the commissioners by telling them that “the mere existence of a compensation clause in an original lease was not conclusive evidence of entitlement on the part of a present occupant of the leasehold”. Maybe he meant that the original lease could be overlain by informal leases to third parties and it was the third parties that had made the improvements; the Commissioners inquired whether this meant that the interpretation of the leases was in issue, and Scott (counsel for the Tairawhiti Board) said it did. At this same occasion, the Board’s lawyer pointed out to the Commissioners that many lessees were in possession “on sufferance”, whether by the sufferance of the Boards or the owners is unclear, but in any event “not by a formal transfer of rights approved by the Māori Land Court”. Often either owners or the Boards, one assumes, had simply allowed informal tenants to move in, pay rent and make improvements. Perhaps owners themselves had indeed done that on occasion, fed up with the neglectful oversight of the Boards and desperate for at least some rent, and of course it is more than possible that struggling tenant farmers would have sublet from time to time or for years even, with or without Board approval or that of the owners. Probably informal agreements between owners and lessees (and sub-tenants sometimes) without anyone bothering to involve the Board and all ignoring the existing lease were not uncommon as all parties struggled to make a living on backblocks rural land in the King Country or the East Coast.
The other issue addressed in this session of the inquiry was the real pivot of the issue: Māori lessors usually had no money to pay for improvements. The Tairawhiti Board’s lawyer described “the principal difficulty” as “arising from the difficulty found by lessors in finding finance to pay the compensation”.80 The term “finance” is important:
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while obviously owners did not have pots of cash under their beds to pay for improvements, the real problem was probably that they were unable to borrow to finance the debt that would be incurred in paying off the compensation: they might already be mortgaged, or were in debt to the state, and of course there would be all the usual problems involved in trying to borrow from trading banks on the security of Māori freehold land. The Board’s lawyer explained what usually happened in that, all too common, eventuality: either the Māori lessor would go into receivership, the receiver being the Board itself, or alternatively, the lease would be renewed and the compensation paid off by means of rent reductions (at least I think that is what is meant):81
The normal development, he said, was an application to the Māori Land Court for a receivership, the Māori Land Board itself being nominated as a receiver. From the lessees’ point of view this was unsatisfactory only because there was no provision for payment of interest on the sum due during the period of receivership. An alternative solution was to renew the leasehold tenure for a period sufficient to work off the liability for compensation under the original leasehold terms.
That one of the functions of the Court at this time was to vest Māori land blocks in a Board as a receiver may not be widely realised. It seems, too, that lessees expected to receive interest on amounts due and owing for compensation for improvements.
But there was yet another problem, the failure of the Boards (the Aotea Board being the most culpable) to build up funds to pay the compensation when the leases, as was inevitable, came to be determined. It was the Boards which were the receivers of the rent after all. Why did they not build up sinking funds? One can only assume that the Boards were so thinly stretched and under-funded they could not afford to, and of course any payments into a sinking fund would have had to be deducted from the sums paid by the Boards to the Māori owners, who were probably resentful of the low returns they were getting as it was. For whatever reason, the Boards took as their text “sufficient unto the day is the evil thereof”.82 The failure of the Boards to set up sinking funds was almost certainly negligent.83
It is tempting to throw one’s hands up in the air to exclaim, as it were, “what a mess!” – as many seemed to have done at the time – and leave it at that, but some further points have to be made. It has to remembered that these leases were not normal leases, because the owners, by having their
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land vested (often compulsorily) had been stripped of their autonomy as owners. So it had been the Boards, not the owners, which had set the rents, collected them (or not) and held them, and which had executed the clauses in the leases relating to compensation for improvements, perhaps in situations where owners, left to their own devices, would never have agreed to that. In fact standard leases of Māori land to runholders, ie where Māori were in charge of their own properties, tended to be on the basis of no compensation for improvements (meaning, of course, that the capital value of the lease was reduced as was the rent, but perhaps this was more realistic). This practice is described, and criticised, by Guthrie-Smith in his classic work Tutira. Why the Boards had issued leases on the basis of compensation for improvements, presumably as a way of making the leases more marketable and increasing the rentals (and thus helping the Boards stay afloat) is another of the all too many vexed issues surrounding the Boards.
As the hearings of the Vested Lands Commission continued at Gisborne, the complexity of the issue of compensation for improvements became all the more obvious and challenging, turning into a philosophical or even a jurisprudential debate about the sanctity of contract (although as is often the case in the course of arguments about the sanctity of contracts, highly material issues were in play, in this instance the disinclination of lessees to allow Māori owners any respite from having to pay them compensation for lease agreements negotiated on their (the owners’) behalf by the Boards.) Probably the fairest solution might have been for the State to pay the compensation, since the Boards themselves, the true authors of the problems, had no resources to pay compensation any more than the owners did. The National government, however, wanted to find a compromise solution which exempted the state from having to pay anyone while leaving lessees with a solution that would be acceptable to them.
Another complexity, raised here by one of the lawyers acting for lessees, was the claim that the Board had been in the position of a trustee when it signed the lease contracts with the improvements clauses, and therefore, so it was said, the cost of compensation should fall on the Boards. That of course did not follow at all: how could the Boards be trustees for lessees? If they had fiduciary obligations to anyone that could only be to owners whose lands had been vested in Board management. It can be rejoined that there are other ways to analyse the legal nature of the relationship between the Boards and the owners, but even if the argument was correct the Boards had no money to pay compensation any more than the owners did, as already noted. If the Boards were trustees, then the compensation clauses might have been in breach of trust with respect to the owners, meaning that it was the owners who needed to be compensated by the
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Boards rather than the lessees. Or it might be said that the Boards were the agents of the owners, and if so it might be further argued that the compensation clauses were outside the scope of the actual or ostensible authority of the principals (the owners) and were therefore void, or void as against those entering into contracts with the principal. Another argument would be that the Boards were in fact Crown entities, so the loss should fall on the state.
One of the lawyers for the lessees, a Mr GJ Jeune, claimed that the boards had always consulted with the Māori beneficial owners when fixing the terms of the leases, and that it “could not be said that the leasehold terms were not known to beneficiary owners”. That may have been true in some sense, but the issue is whether the beneficial owners actually had a choice in the matter, or really any degree of control at all. Moreover, nor always did the Boards themselves; the Crown had played an important role in fixing the provisions of the Land Board leases, often as a consequence of political pressure by farming organisations.
Some other, rather serious (if complicated) issues came up in the course of these discussions. First, lessors (ie the Māori beneficial owners) argued that where a block was divided between Māori freehold land and vested land, Māori were able to get higher rents from the land in MF title than they were paid by the Board: ie that Board rents were low, below market levels. The response of counsel for the lessees to this point was that this failed to take into account improvements: ie the owners of Māori freehold land would have had to pay for their own improvements, whereas in the vested areas the lessees paid for the improvements and so the income in the hands of the beneficial owners was “pure profit”. Perhaps there was something in this, but probably owners were right to be unsure about whether vested lands were leased out at market levels. Owners also argued that block committees paid higher rentals than owners received from the Boards. This may sound like an uninteresting point, but in fact, if correct, the implications are astounding: ie that Māori when, in effect, renting Māori land, had to pay higher rents than they received from the Boards when the latter leased the same or equivalent land to third parties. Whose interests were the Boards serving? Counsel for lessees, when addressing that point, raised the issue of improvements: “but it was not shown what improvements were on this land”. Counsel for the lessees argued further that while he agreed that “Māori land should go back to the Māoris for their own use” and that “anyone knowing the success with which some blocks were handled would agree that the land was the natural background and endowment of the race” he backed out of this easy concession by claiming that Māori land needed to be partitioned in order to create economic holdings – but that this could not be done until the leases had expired (ie Māori owners should delay partitioning until
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leases had fallen in). Buried in this tit-for-tat debate is thus an important point: it was difficult for owners to get lands partitioned when it was vested in the Boards, because of course that would impact on leases arranged by the Boards which would have been intended to function with respect to existing Māori freehold boundaries and owners’ lists. Probably, in reality Māori owners’ options in the case of Board leases were limited, or were expected to be limited, to waiting until the leases had run out: leased blocks could not be partitioned.
Any suggestion of a reconsideration of the leasehold terms was anathema to the lessees: “it was late in the day to initiate discussion on the possible variation of the leasehold terms” according to O’Malley, one of the lawyers acting for lessees. Increasing the (often low) rent so that an owner might be able to finance compensation for improvements? (Unthinkable!) Counsel for the Board made the very good point, moreover, that there had been times when the rents had been reduced at the request of the lessees or had been “ordered by a State tribunal such as the Mortgagors’ and Lessees’ Rehabilitation Commission” whatever that may have been. These “relaxations in the terms of the leases had been sought by the lessees, and had been in force for a good many years”. The sub-text here seems to be was that over the years lessees had applied for and had gained rent reductions for their benefit, but were now uncompromising over compensation for improvements: the suggestion being that the lessees wanted it all their own way.
The Boards’ barrister suggested that given current market conditions
– things were good for farmers in the 1950s – the rents could now be increased, giving the owners some level of resources to pay for the improvements. He suggested too that entitlement to compensation should be assessed against all reductions of and remissions of rent, a suggestion that the Board’s lawyer said he had been particularly asked to make by the Māori owners. This eminently fair suggestion was greeted with surprise by the Commission and with horror and derision for the lawyers representing lessees. Judge Daglish “indicated that this was the first occasion on which this occasion had been raised before the commission”, the implication being that taking rent reductions into account was somehow startling or unthinkable. One of the lawyers for the lessees said that “he was not surprised to hear that it was for the first time” and claimed that if this heretical suggestion was given effect to “it would give a special advantage to Māori landowners over all other lessors in the community and strip from the lessees of vested lands all the benefits they had received from relief legislation”. Well, he would say that! (If anyone was getting “stripped”, it was the Māori owners.) Lessees thought themselves entitled to existing rentals and full compensation for improvements when the leases ran out. Where the owners were supposed
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to get the money from was not their concern, as long as they (the lessees) were paid out somehow. (That is to assume that getting paid was their main concern; in fact some may have been banking on the owners being unable to pay compensation and so opening a pathway for a lessee to get the freehold).
For there is also the possibility that loading the properties with improvements had been a deliberate strategy on the part of (at least some) lessees to ensure that the owners never got their lands back. There were some who thought this was exactly what had been going on. As long ago as 1936 a very well-informed commentator on Māori affairs in the Auckland Star, who we know only as “JC” had pointed out the compensation for improvements problem and had suggested that in some circumstances this had been deliberate. He referred to reserve lands in Taranaki “leased by the Government to white farmers at rentals remarkably low, and so loaded with improvements when the long leases do fall in that the Māori owner cannot possibly finance it and so loses the opportunity to regain his land”.84
There is indeed a clear instance of state intervention to provide a mechanism for decreasing rents to help out the lessees in hard times. The Royal Commission on Native Land Leases (MacCormick Commission) of 1929 – the date, the opening year of the Great Depression, should be noted – had as one of its tasks “whether there should be any statutory provision for increasing or decreasing the rentals of the said lands [Board leases of Māori lands in the King Country] when the exigency of the case seems to require it”.85 Typically those preaching the sanctity of contracts do so when it suits them and then support interference with contracts and the market when that is helpful. The consistent message of farming organisations and the National Party, in reality, was (and often still is) – farmers are special. Reductions had at times been facilitated by statute, as with s 30 of the Native Land Amendment and Native Land Claims Adjustment Act 1930, an outcome of the MacCormick Commission of 1929. Sanctity of contract was a rather flexible doctrine apparently! Evidently compensation for improvements is more sacrosanct than paying the agreed rents.
(New Zealand, Vol LXVII, Issue 82, 6 April 1936) at 6.
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Counsel for the lessees claimed, in fact, that it was the Māori owners, who needed to be taught to respect the sanctity of contracts, who were the privileged ones:86
Any relaxation of the conditions for improvements would be in breach of the well-established sanctity of contracts, it was stated. This view was submitted by Mr. R. Wilson, counsel for lessees in an East Coast block. He urged that the commission should only recommend a variation in the leasehold terms only if it were shown conclusively that a gross injustice would be done by their continued operation. Māori landowners already had much in their favour, said Mr. Wilson, and if they now gained a relaxation of terms which they did not like, serious injustice would be done to the lessors [sic: lessees?]. Neither the Māori Land Board nor the owners of blocks had pressed vigorously for variations, he pointed out.
When counsel for one of the Boards suggested that compensation for improvements should be adjusted to take account of reductions in rent over the terms of the leases, he was met with feigned incredulity and pained surprise:
Judge Daglish indicated that this had been the first occasion on which this issue had been raised before the commission. Mr. Wilson, speaking for the group of lessee’s counsel, said he was not surprised to hear that it was the first time. If Mr. Scott’s suggestion was given effect to it would give a special advantage to Māori landowners over all other lessors in the community and would strip from the lessees of vested Māori lands all the benefits they had received from relief legislation.
I am uncertain what became of the report of the Vested Lands Commission, which as far as I can tell is not published in the AJHRs. The main outcome of the inquiry was new legislation, the Māori Vested Lands Administration Act 1954. The draft legislation had been circulated to Māori representatives for comment, but the consultation process was confused, lessees being of the opinion that the proposed compensation was not enough and the Māori lessors seeing it as far too generous and probably unaffordable.87 By this time the Land Boards had disappeared and their functions had been allocated to the Māori Trustee.
The statute’s Long Title was “An Act to provide for the administration of certain land vested in the Māori Trustee and certain other Māori land subject to leases conferring on the leases rights to compensation for improvements”. The Act provided for a complex system of arbitration
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and deferred payments by which owners could discharge their debts to their tenants over time. The new legislation worked by giving the Māori Trustee new powers to settle the outstanding compensation unpaid at the termination of a lease by paying out of accumulated rents, resuming control of the land, or re-leasing the land. The problem was given to the Māori Trustee for officials to manage on a case-by-case basis as they thought best. If all else failed, the land could be sold. If the Māori Trustee Office decided to resume control of the land and there was not enough money set aside for compensation the debt was payable from the Māori Trustee’s general fund and charged on the land.88 The Waitangi Tribunal has found that the provisions of the 1954 legislation relating to consultation between owners and the Māori Trustee in implementing these various options were generally inadequate.89
The key point is that lessees got most of what they wanted, the owners had to pay, and the Land Boards, to general relief, were gone from the scene. The state had allowed the Boards to escape liability to owners for an appalling failure to provide for compensation by the brutal expedient of terminating them. It may be said that few historical narratives so richly illustrate the perils of compensation improvements clauses in long-term leases as does the story of the effects of such clauses in leases managed by the Māori Land Boards.
Legacies
The legal history relating to Māori land is full of complex narratives akin to the story of the Māori Land Boards that has been traversed here. Other strands of story are just as long and complicated, for example the problem of rating of Māori land, the history of the Crown purchasing system, and – the most intricate of all – the management of Māori reserved lands in Taranaki by, first, the Public Trustee and then by the Native/Māori trustee. Such complex narratives are abundant; they are everywhere. Lying behind the deceptive tranquillity of remote Māori land blocks in the North Island interior are long histories of statutes, investigations, petitions, Land Court reinvestigations, and sheer trouble. The more Parliament legislated, the worse things became. I am not saying that for rhetorical effect, or at least not entirely: it was actually the case. A kind of vague general impression that the Crown was prone to breaching the principles of the Treaty of Waitangi and that the Māori land law was a mess, is not a sufficient foundation for understanding Māori land law, whether in the past or as it operates today; nor does parsing judicial pronouncements in New Zealand’s handful of common-law native title
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cases achieve anything. The reality for Māori was the imposed statutory system, and that system has to studied and grasped, a task as grinding and irksome for the student as it was for Māori afflicted by it.
If the story of the Māori Land Boards as narrated in this article is ended where it began, with the Privy Council’s decision in Hoani v Te Heuheu Tukino v Aotea District Māori Land Board (1941)90 then at least we have achieved a level of understanding of what the latter organisation was. Moreover, it may now have become clear why Māori were so outraged that the Aotea Board which managed, indifferently, so much Māori land, was directed to make a pay-out to a company owned by a consortium of Taranaki dairy farmers. The legislature directed by statute a Land Board to pay off an indebted company. The Board’s funds did not belong to it, the money was Māori money. Māori property was stolen by the state from Māori landowners and handed over to National Party-voting dairy farmers in Taranaki. The Court of Appeal and the Judicial Committee of the Privy Council allowed the government to get away with it. It was as simple as that.
Thomas Piketty91 has taught us to understand the relationship between ideology and inequality, and argues that ideologies are typically developed and deployed in order to legitimise inequality and oppression, whether in colonial societies in the past or in hypercapitalist America of the present. Arguing that Māori landowners were the privileged party with regard to Land Board leases and the shock and horror following the suggestion that allowing a modest increase in rent would permit Māori landowners to finance compensation for improvements is a typical example. The ideology in play was a construct of Māori as privileged and cossetted by the state, who “unfairly” did not pay rates, whereas it was farmers, dairy farmers especially, who have been cossetted by the state throughout New Zealand’s 20th-century history. The cossetting was ideological too, arising from a politically conservative stance that New Zealand’s proper role in the world was as Britain’s farm-at-a-distance, a vision that was not so much neo-liberal as neo-colonialist.92
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