Maori Social Identification and Colonial Extinguishments of Customary Rights in New Zealand

Maori social identity as the indigenous people of Aotearoa New Zealand is inextricably interwoven with land and Maori customary relationships to land. The efforts of colonial governments to individualise Maori land tenure often led to litigation in which Maori plaintiffs asserted, contrary to the claims of the Crown, that their customary rights remained unextinguished. New Zealand colonial governments, however, expressed a strong preference to deal with the customary entitlements of Maori as non-justiciable matters to be defined by the executive and legislature rather than by court rulings. It was not uncommon, therefore, for Maori litigants to win procedural vindications of their customary rights only to see their due process expectations over-ruled by an Act of Parliament. In a 1901 ruling, Nireaha Tamaki v. Baker, the Privy Council decided that the colonial courts did have jurisdiction to inquire whether all Maori customary rights had been extinguished prior to the issuance of a Crown grant. The Land Titles Protection Act 1902, in order to protect land titles in the Colony from 'frivolous' attacks launched by Maori, over-ruled the Privy Council. Other efforts to persuade the colonial courts to recognise continuing customary rights were unsuccessful and further resort to the Privy Council in Wallis v. Solicitor-General in 1903 again affirmed the role of courts in such matters. Parliament nevertheless continued to close off any avenues for further judicial inquiry into the extinguishment of customary rights. The Native Land Act 1909 codified the denial of opportunities for Maori to test the 'conscience of the Crown' in court proceedings.