Legislation Notes
![handle is hein.journals/auck7 and id is 739 raw text is: LEGISLATION NOTES
TE TURE WHENUA MAORI ACT 1993
The Maori Affairs Bill was introduced into Parliament in 1978 and enacted fifteen
years later, making it the longest running Bill in the history of New Zealand.
There is something offensive in the way Te Ture Whenua Maori Act 1993 (the
Act) classifies Tangata Whenua ofAotearoa (the First People of New Zealand)
as the preferred classes of alienees.I It diminishes the importance of Whakapapa
(genealogy) - the basis of Maori social, political, and legal structures - the
essence of being Maori. This classification does not accurately reflect the relation-
ship Maori have to either the land or to each other. Instead, it reflects English
concepts of land tenure relating to selling, transferring, leasing, or mortgaging
land. This conflict of terminology and ideology exemplifies the inherent difficulty
the courts face in trying to recognise traditional Maori concepts of land, in a way
which is acceptable to Maori. The new alienation provisions of the Act, ss 145-
150, give rise to a metaphorical eternal triangle: protection of Maori land in Maori
hands, giving recognition to Pakeha (English) law, and at the same time allowing
the Maori Land Court (the Court) to continue its judicial paternalism.
To any Maori landowner, this Act could well represent a continuation, albeit
refined, of Dickensian policies which originated in the Native Land Act 1862. For
many, it is a bitter irony that a succession of Native Land Acts which have been
responsible for reducing the Maori estate to less than three million of the original
66 million acres, has finally resulted in an Act which seeks to protect what little
land is left in Maori hands. For these people, the Act is at least 150 years too late.
Kaupapa
The kaupapa (philosophy) of the Act is to ensure that owners of Maori freehold
land (multiple-owned land held under the Act) retain it, so that it can be passed on
to future generations. It is as well to remind ourselves that Maori have their roots
in New Zealand and nowhere else. In the past, Maori have sought recognition of
this from the various courts by consistently arguing that their use and control of
their land be viewed differently from, but not as less than, ownership in Pakeha
legal terms. The inability of the Courts to understand tikanga Maori (Maori
custom) has resulted in the limited success of such arguments. Whether this
continues under the new Act remains to be seen.
There are certainly safeguards within the Act aimed at ensuring the retention of
land in Maori hands. The Hon Doug Kidd, the Minister of Maori Affairs, stated
that the kaupapa of the Act is:2
[T]o ensure that [the] process of alienation does not continue .... [The Government has] moved
away from alienation and 'bleaching' of Maori land, through the era of paternalism, to empowering
owners in respect of their land .... Previous Government policies relating to Maori land have led to
chronic fragmentation, but that need no longer paralyse future use and development.
I Section 4. This term defines descent groups with Whakapapa links to Maori land that is to be
transferred, sold, leased, or mortgaged.
2 Hon D Kidd, Ministerial Address - Revitalisation of the Treaty - Reversing the Negative Trend in
Maori Development and Participation, Speech to the Conference of the Institute for International
Research (18 March 1993) p3, 4, and 5.](ViewImageLocal?handle=hein.journals/auck7&div=54&collection=&method=preview&ext=.png&size=3)
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