Volume 95 1986 > Volume 95, No. 2 > Alienation rights in traditional Maori society: a comment, by A. Ward, p 259-266
ALIENATION RIGHTS IN TRADITIONAL MAORI SOCIETY: A COMMENT
Brent Layton's article “Alienation Rights in Traditional Maori Society: A Reconsideration” (Journal of the Polynesian Society, 93:423-40) raises issues of fundamental importance to our understanding of traditional Maori land tenure. In the article Layton challenges the “received wisdom” that while rights of use lay with individuals the right of alienation was “communal”. Instead, he cites published primary sources from the early colonial period which refer to various “sales” (or “purchases”) in which settlers or missionaries had to deal with a variety of individuals as such, rather than with a hapū as a collectivity. From this he suggests (while disclaiming to have proved the point conclusively) that traditionally “the individual or the group that possessed the right to use a resource, also possessed the right to decide on whether to dispose of that right voluntarily [i.e., without consulting others] to another individual or group” (p.437).
He is perfectly correct, I believe, in pointing out that a multiplicity of individual rights do not, ipso facto, amount to a collective or communal right — that indeed each individual right would normally need to be negotiated for. Dealing with a whole hapū, through its assembled leadership, for a cluster of such rights, could be effective, as a matter of convenience, but a chief or a few representatives could not validly alienate the various individual rights without consulting the several rightholders.
It is indeed often more useful to talk about the “ownership of rights of use in land” rather than “ownership of land”. Crocombe's (1964) classic study of Cook Islands land tenure describes a multiplicity of different kinds of rights, some held by individuals or groups beyond the group mainly occupying the land. But what about the transfer of those rights? Here I would suggest, against Layton, that there was a concept that the group who both occupied the land, and held a military pre-eminence over other groups also occupying the land — such that they were frequently receivers of tribute of one kind or another — did hold a kind of “sovereignty” approximating to allodial tenure, 1 or “ownership”, with an overriding control over the nature and extent of alienation.
The weakness in Layton's analysis is that he does not examine at all well what is meant by “alienate”, “sell”, “purchase” or “dispose of” land rights. Obviously these terms could cover a multitude of possibilities, and any accurate analysis of the issue must consider the questions “Alienate for how long?”, - 260 “Alienate to whom?” and “Alienate under what conditions?” Moreover, the possessor of a right cannot alienate more than he possesses. Consequently, the holder of a use-right could only alienate a use-right.
The evidence throughout Oceania suggests that to obtain and maintain secure occupancy and use of land, a person normally needed to have (a) established a claim through either male or female line (the emphasis varied from place to place), including affinal links, (b) continued in occupancy, (c) maintained reasonable working relations with the wider community occupying the land. Genealogical links, through two parents, four grandparents and possibly a spouse, opened a charter of possibilities, obviously not all of which could be fully operative at one time. Point (b) (the need for continued occupancy) is demonstrated by the well-known Maori concept of “keeping the fires alight on the land”. On the third point, oral tradition contains a number of accounts of people, including close kin, who were driven out of the community for anti-social behaviour. 2
Much the same conditions, I suggest, attached to early “sales” of land rights to Europeans. Traditionally the granting of land rights to total strangers seems to have been rare, but not unknown, as in cases of castaways, refugees or liberated captives. But in these cases the outsider was normally made part of the community, by a variety of devices, including giving of a spouse or bestowal of a name. The early European “purchasers” fitted into this broad framework. Chiefs would refer to the local settlers as “my Pakeha”, or “mokai”. The Pakeha would be protected but normally had to provide certain services, and could be physically discouraged from moving away. It was almost as if the chief and his household had acquired an adjunct to the household rather than “sold land rights”. Pacific history at large, including early New Zealand colonial history, is replete with stories of the breakdown of the initial relationship, as each party behaved according to the very different expectations of the arrangement. Even where a form of “purchase” had been gone through with one or more Maori leaders, the early trader or missionary was regularly berated, frequently driven out, sometimes killed, because his behaviour (inadvertently or otherwise) did not conform with community norms or expectations. The initial contract, from the indigenous point of view, seemed to have many of the characteristics of “tenancy on good behaviour” rather than sale.
Other kinds of rights which Pacific Island peoples, including Maori, continued to assert over land “sold” to settlers were (to the settlers’ irritation) the right to traverse it regularly, to gather timber and to fish in the waters on it. Early settlers in New Zealand frequently encountered objections to their fencing their sites. In these important respects the wider community, or sections of it, retained rights in the land, notwithstanding the original grant of a house site or garden land by one leading individual or household.
The concept of residual group rights, however, remains most critical in respect of alienation after the lifetime of the original grantee. The Maori assumption, in the case of early traders and missionaries, seems to have been that the land rights were taken up by the grantee and his natural heirs. In the case of early whalers and - 261 traders, who took Maori wives, the heirs in most cases considered themselves and were considered to be, part of the Maori community—as in the case of the Love, Warbrick, Tapsell and many other families to this day. The land rights thus remained with the community.
The case of missionaries was rather different: they had European wives and their children identified as Pakeha. Thus, the land sold or given for a mission station or school passed out of Maori hands and was put to other uses. But this was not really accepted by the Maori community; on the contrary, it has created a lasting sense of grievance. As Sir Paul Reeves is reported as stating recently: “There were marked differences between European and Maori conceptions of sale, gift or trust. A Maori gift was sometimes intended to create a continuing relationship and obligation. The gift was important and not to be swapped” (New Zealand Herald, August 5, 1985).
It will be necessary if we are to fully explore this subject, to examine Maori concepts of “sale” and “gift”— of what is meant by the terms hoko and homai for example, or of what Maori signatories might have understood by hokonga in the Maori version of the Treaty of Waitangi, or of what Heke meant when he said he was traditionally free to “sell” his land, and resented any Government restraint on this.
It is significant that Sir Paul groups sale and gift (along with “trust”) in a somewhat undifferentiated way. I expect that they did have basic elements in common, and that these did not include in either case the concept of total and permanent alienation of all the rights in the land (including the right of further disposition to strangers) without reference to the original donor or his kin. Expectations of some continued relationship, not only with the original donor or the purchaser but also with other members of the wider community would be expected. The land was not simply disposed of as a commodity. 3 Layton (1984:433) comes closest to recognition of this point —of the distinction between kinds of alienation—when he cites Hadfield as stating in 1860 that individual Maori rightholders “might exchange land among themselves, but no one could alienate [i.e., sell to a European or the government] without the consent of the tribe”. But he seems not to have realised the full significance of the distinction he has cited.
The settlers, of course, pushed their view of what was meant by “sale” or “purchase” — that is, total and permanent alienation of the right regardless of behaviour and regardless of absence — and the Maori became well aware of it in the 1840s. Their reactions varied. One of Donald McLean's purchases in the Wairarapa in the late 1840s ended with the Maori vendors making tangihanga over the land, clearly suggesting that to them the land was “dead” and gone forever. But a more widespread reaction was to challenge existing “sales” and to try to stop dealing with the Pakeha altogether. Many Maori hosts (perhaps a better term than “vendors”) took this view and settlers began to find their “purchases”, as they saw them, “repudiated”. This was widespread in the Wellington area, emanating not only from the chiefs who had not signed deeds (as Layton points out) but also from those who had, as the settlers began to treat the - 262 land in ways beyond the expectations of the chiefs who had “sold” them certain interests.
The difficulty, however, was to stop the individual Maori rightholders from continuing to transfer their use-rights, which under custom they were entitled to do within the limitations or conditions implied by custom, only to have them made subject to the settlers’ non-limited concepts of sale—that is, their claim to have purchased much more than a use-right. Moreover, some chiefs were starting to go along with the settler concept, and really try to sell land, for short-term advantage. As Sinclair and Sorrenson have shown, the Kingitanga was largely created to stop this process, by asserting a superior mana over the land to the mana of the particular chiefs.
A close reading of the evidence must also have regard to the way in which concepts about land rights were changing among the Maori themselves under the influence of settlement. The ultimate split between Maori about the acceptability or unacceptability of the new, evolved meaning of ‘selling’ interests in land came at Waitara in 1859-60. There the chief Teira was willing to sell (in the Government's sense) his interests on the south bank. Wiremu Kingi's objection was not so much (as Layton implies) that Teira was selling use-rights other than those of his family and that the Government was clumsily buying them. The officials had, in fact, noted that Kingi had use-rights in the block (obtained by Kingi from Teira's father in tribal council) and were proposing from the outset to excise them from the purchase if Kingi would only point them out. Kingi's objection was that of a senior chief, acting as trustee of the wider community interests, to the total and permanent nature of the alienation. That is why he could say to Parris in November 1859, “The land is theirs but I will not let them sell it” (Sinclair 1961:171). The use rights were “theirs” (i.e., belonged to Teira and his family), and Kingi might not have objected to a “sale” as understood in the pre-1840 Maori sense of it. (Indeed, he had himself signed such a deed of “sale”.) But by 1859 he knew well what the introduced law now meant by “sale” (i.e., perpetual alienation to a stranger) and he objected to it on behalf of the tribe.
As Sinclair has shown, the case was deliberately taken up by the Government, holding to the customary concept of each use-holder controlling the disposition of his own use-rights, but extending it to mean a kind of disposition such as custom had never known. As A. S. Atkinson noted in his journal, the night a delegation of Taranaki leaders had met Governor Gore Browne, Browne had resolved “not to allow the rights of chieftainship” to supervene in land dealings with “such as have a claim in the land in question”, i.e., the owners of use-rights (Scholefield 1960:362). But when Gore Browne and McLean convened the large assembly of chiefs at Kohimarama in 1860 they were disappointed; almost every one rejected the Government's condemnation of Kingi, knowing that Kingi was entitled to resist that kind of alienation. Thus was the traditional view reasserted. The point is important because Layton's suggestion about traditional tenure inadvertently comes very close to supporting the Government's view of what they were doing at Waitara in 1859.
In fact Governor Browne had already, in 1856, convened a Board of Inquiry - 263 under the Surveyor-General, C. W. Ligar, which went quite carefully into the question of traditional rights of alienation. The Board took evidence from ranking chiefs like Tamaiti Ngapora and from 30 of the most experienced missionaries, settlers and officials (including McLean). It concluded that title or claims to land lay basically with ‘tribes’ and, under the heading ‘Claims of Individual Natives to Land’, attempted fairly specific conclusions, as follows:
Each Native has a right in common with the whole tribe over the disposal of the land of the tribe, and has an individual right to such portions as he, or his parents may have regularly used for cultivations, for dwellings, for gathering edible berries, for snaring birds and rats, or as pig runs.
This individual claim does not amount to a right of disposal to Europeans as a general rule, but instances have occurred in the “Ngatewatua” tribe in the vicinity of Auckland where natives have sold land to Europeans under the waiver Crown's right of Pre-emption [sic], and since that time, to the Government itself. In all of which cases, no after claims have been raised, by other members of the tribe, but, this being a matter of arrangement and mutual concession of the members of the tribe, called forth by the peculiar circumstances of the case, does not apply to other tribes not yet brought under its influence.
Generally there is no such thing as an individual claim, clear and independent of, the tribal right.
The Chiefs exercise an influence in the disposal of the land, but have only an individual claim like the rest of the people to particular portions.
Though imprecise in many respects, this statement of principles by the people most involved in land transactions from even before 1840 is clearly against Layton's suggestion. [Votes and Proceedings, 1856:4]
I wish also to support the point made by Jean Guiart (1984:331) that our discussion of these matters does not get very far while “our vocabulary is entirely non-adapted”. Crocombe, Kawharu and others took important steps forward when they dissected the concept of “owning land” and showed its clumsiness in respect of indigenous Pacific tenures. Layton's suggestion that rights of “sale” or “alienation” or “disposal of” use-rights lay with the individual holders of those use-rights is not helpful unless we analyse “sale”, “alienation”, etc., also.
It is not surprising that early European observers were confused and made contradictory statements, but I believe that an examination of the transfers noted in the oral traditions and the early ethno-historical records, will show that transfers of land rights were conditional — that the transferee could take from individual household heads certain kinds of rights under certain conditions, but that a residual or overriding interest in the land lay with a wider group, which could include the more distant kin, or the heirs, of those who had transferred rights. Or, in more English property terms, the holder of a use-right could transfer only that right — a use-right — and no more, and even that was conditional. He certainly could not transfer (because he did not possess it), nor could - 264 the transferee take, an absolute right in perpetuity on the land.
That right remained with the controlling political group, which does, in that sense, tend to qualify for the term “owner”. The whole weight of familiar evidence, I suggest, about marriage, adoption and succession, as well as gift and ōhaki, and subsequently of early “sales”, shows that each hapū was strenuous to keep the great bulk of their interests in the land, which they physically or militarily controlled, in the occupancy and use of their own members. The difficulty (as the people of Vanuatu are discovering, having reasserted in their Independence Constitution that “perpetual title” lies only with indigenous customary groups) is to know which is the dominant group in respect of a particular tract of land. Groups moved about and occupancy sometimes ebbed and flowed; groups were not immutable but merged or split according to demographic flux; groups were sometimes conquerors and sometimes conquered; competing claims could be kept alive as long as memory allowed. But that is another question.
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1 “Held in absolute ownership . . . e.g. as opposed to the feudal system” (Oxford English Dictionary).
2 A classic illustration of the operation of these principles in a Bougainville society is provided by Eugene Ogan (1971). In this case Nilus was allowed to exercise rights in the land of his father's group, although the normal succession in this area was matrilineal. His land rights were constantly contested by the nearest matrilineal claimants and when his behavioural lapses were serious (he was caught in adultery and, on another occasion, accidentally killed a pig owned by one of the primary rightholders of the valley) became quite insecure. He was able to re-establish them by giving feasts and by success in the cash economy, in which he involved other member of the community.
3 See also Ogan (1971:84): “Primary rights did not include the right to alienate the tract [of land] by transferring rights in freehold or fee simple to a complete stranger outside the parish, i.e. outside the largest local group having more or less permanent political unity”.