Abstract
The Māori Land Court is a key institution in New Zealand’s legal system. It is the oldest court and is seen by some as the most important specialist court in New Zealand. The Court is at the centre of the Māori land tenure regime. However, the Court and Māori land legislation have been subject to constant change since the Court’s inception and particularly so as governments change over time. As legislative changes occur, so too does the role of the Court.
Ongoing tinkering with Māori land legislation and Māori dissatisfaction led to major change in 1993 with the introduction of Te Ture Whenua Māori Act 1993. Despite this watershed moment in the history of Māori land legislation and the Māori Land Court, reviews of the Act have continued to take place in 1998 and in 2015 to ensure its workability and to balance the tension between the retention principle and the occupation, development, and utilisation principle. Both review periods have enabled Māori landowners to contribute their views on the role of the Court. The judiciary have also advanced its views on several occasions and advocate that the Court is a distinctly Māori institution.
This thesis therefore investigated the role of the Māori Land Court in modern Aotearoa New Zealand’s legal system. The research draws on publicly available material since 1980 to understand how landowners, the judiciary and legislators conceive the role of the modern Māori Land Court. From my preliminary reading of sources three initial conceptions were identified: facilitator, protector and adjudicator. The research investigated these three conceptions both in a historical and contemporary context and considered how the Court performed these roles in response to the legislative regime that was set in place. The Court’s ‘land taking’ role was dominant in the early Native Land Court era and whilst protective measures were in place, these too could be circumvented to enable further alienation. The outcome of the Native Land Court’s adjudicative role, meant early judicial decisions continue to impact on the current work of the current Māori Land Court.
When Te Ture Whenua Māori Act 1993 Act was enacted, the Courts ‘promoter’ and ‘facilitator’ roles focussed on assisting Māori to retain their Māori land and to assist Māori to occupy, use and develop their land. These dual principles bring about their own tensions particularly in regard to owner autonomy. The combination of the preamble, ss 2 and 17 of the Act however provides a level of protection for Māori landowners. Under the 1993 Act and with recent legislative amendments, the Court has a number of tools available to assist in the resolution of issues that Māori landowners and their whānau face. In this thesis rather than the use of ‘adjudicator’, the term ‘problem solver’ is used to encompass those various mechanisms that the Court employs before they consider adjudication.
The research then investigated conceptions of the Court from the perspective of Māori landowners, trustees or their representatives and the judiciary. The insights from these key stakeholders presented both positive and negative conceptions of the Court drawn from their knowledge of the Court, their own personal experiences with the Court or those who worked within the Court. My research led to several more conceptions as a result of examining key stakeholder material, more than the initial three conceptions offered at the start of my thesis. Tikanga Māori continues to play an important role both in legislation and in how the judiciary assists Māori landowners and their whānau in the courtroom to discuss matters and to resolve issues. Tikanga Maori is one contributor to the conception of the Court as a distinctly Māori institution.
It is clear that the Court’s continued existence is debated whenever the legislation is being reviewed or reformed. The Court however remains a key institution within the legal system for Māori landowners and their whānau centred on Māori land, a taonga tuku iho. With this in mind, this thesis is offered as a starting point for further analysis and to compliment a design process and empirical research in future Māori land reform or Māori Land Court reform. The thesis can contribute to a larger national project aimed at realizing the Māori Land Court’s evolution as a distinctly Māori institution in modern Aotearoa.