1. What in a pre-legal society might be referred to as “Customary Title.” This is not ownership at all, merely a temporary right of use or occupation, lasting only until extinguished by superior force.
2. Legal ownership. This means the ability to exclude others by the force of law. The underlying requirement is a universally recognised, settled form of civil government that protects property owners against violent dispossession, and provides for ongoing security of tenure, i.e. “time without end in the land.”
Former Auckland University Professor of Maori Studies, Dr Ranginui Walker, has stated: “On the eve of the signing of the Treaty of Waitangi, there was not one inch of land in New Zealand without its Maori owners.”
Prior to the signing of the Treaty of Waitangi in February 1840, there was no such thing as a collective “Maori.” Nor was there any settled form of civil government. The functional social unit of pre-European Maori society was the hapu, or sub-tribe. Each hapu was in a Hobbesian state of nature (“War of every man against every man”) with every other hapu, rendering life “nasty, brutish and short.”
In his book Maori Land Tenure: Studies of a Changing Institution (1977), Sir Hugh Kawharu sets out to fabricate a universally recognised body of Maori property rights pre-dating the Treaty of Waitangi. By implication, these were rudely subsumed by white-settler governments, who substituted their own Eurocentric notions of property ownership. This now widely accepted thesis is arrant nonsense designed to fudge or remove the fact that “Customary Title” is in practical terms no title at all.
Within the hapu-controlled estate, whanau groups sometimes enjoyed the exclusive rights of occupancy or usufruct that Kawharu has identified, but the only universally accepted concept of land ownership BETWEEN hapu was "Te rau o te patu" or "The Law of the Club."
This means that before 1840, though various Maori tribes were effectively the sole occupants of New Zealand, they were never owners. In the absence of a settled form of civil government, hapu merely used or occupied land only until someone else came along and took it off them.
Article I of the Treaty of Waitangi (the assumption of national sovereignty by the Crown) modified this position; also Article II, which purported to convert this ephemeral “Customary Title” into permanent legal ownership.
However, the Treaty was never meant to convey to Maori ownership of the entire land area of New Zealand. It was intended to secure the various hapu in a legal (as opposed to “Customary Title”) ownership of land that they actually used or occupied as at February 1840.
In practice, this meant ownership of land identifiably occupied and cultivated. It is ludicrous to propose that someone would expend more energy foraging for food than it would provide once found. So at a most generous assessment, such ownership might stretch to include perhaps one day’s hunting and gathering range around a Maori settlement.
The North Island in 1840 was home to an estimated 100, 000 Maori. Ernest Dieffenbach, a German-born naturalist who travelled throughout the North Island in 1844, reported that "even in the areas of greatest Maori habitation, there are huge tracts of land, even up to hundreds of miles, between the various tribes [hapu]."
The South Island lay practically deserted. Edward Shortland's 1846 census found some 2, 500 Ngai Tahu, resident at several coastal locations. To suggest that 2, 500 people [a] lived on; [b] cultivated; or [c] hunted and gathered over more than 13 million hectares of land is arrant nonsense.
Even in the North Island, aside from the immediate areas around a Maori settlement, the "waste lands" were uninhabited, unimproved, uncultivated, and untrod by human feet, other than those of an occasional war party or traveller. Since the forcible exclusion of other groups was in practical terms impossible, the “waste lands” had no “Customary Title” owners to become legal owners under Article II of the Treaty.
The mischievous notion that Maori “owned” land and associated resources they neither used nor occupied was a fiction propounded in the 1840s and 1850s by the missionaries. They were well aware that the Crown had little money for land purchasing. The missionary agenda was to keep secular, worldly Pakeha confined to areas already settled, thus ensuring missionaries remained the only European influence in the all-Maori hinterlands they sought to Christianise.
The Crown was obliged to accept this misinformation because it had a mere handful of troops available to enforce its edicts against 100, 000 well-armed and potentially warlike Maori. Once Maori learned that the Treaty supposedly gave them title to the entire land area of New Zealand, each hapu became an instant "owner" of huge tracts of "waste land" adjoining its settlement(s). Naturally, this created multiple competing “ownership” claims.
To convey a clear title to subsequent purchasers and ensure incoming settlers went unmolested, the Crown was obliged to extinguish this Maori "ownership" by paying all purported claimants. In many early land purchases the Crown paid out anyone asserting a right to be paid.
The Native [now Maori] Land Court was originally set up to deal with these competing claims to the “waste lands.” "Ownership" was typically awarded to whoever could spin the most convincing whakapapa about how his remote ancestor had travelled over the land 500 years before naming natural features after parts of his body.
Had the missionaries not queered the pitch for the Crown, the "waste lands" and appurtenant rights would have simply been assumed by all to be vested in the Crown, to be held, managed, onsold, or otherwise used for the benefit of ALL New Zealanders, irrespective of race.
"Appurtenant rights" of course include those associated with the foreshore and seabed, which in any event fall outside the scope of any rights purportedly reserved to "Maori" under the Treaty.
The English Treaty version at Article II refers to "fisheries." This is simply the right for Maori to go fishing and gather shellfish. Since Article III conveys to individual Maori “all the rights and privileges of British Subjects,” the Crown holding the seabed and foreshore in public ownership clearly fulfils these requirements.
Correctly interpreted, the Treaty establishes no exclusive rights for today’s mixed-blooded New Zealanders whose Maori ancestors signed the Treaty to control any of New Zealand's foreshore and seabed, let alone clip the ticket for activities not in contemplation at the time that the Treaty was signed.
Corporate Iwi claims to seabed and foreshore are already being mounted on the basis of maps such as those accessed via the links below below:
As the foregoing discussion demonstrates, this “Map of Europe” approach with its arbitrarily drawn “frontiers” is yet another trougher-fabricated nonsense.
Since Maori owned nothing in 1840, the foreshore and seabed are resources that should rightly remain vested in public ownership for the benefit of ALL New Zealanders, not passed to self-identified, self-interested, minority groups.