This chapter examines Norman Smith's four take. Both the texts in which he articulated his take and the background to those texts are discussed. It is argued that Smith's account of the Court's operation is highly problematic for two reasons. First, his antecedents are far from clear and secondly, other earlier accounts produced by judges define Maori customary rights to land in different ways. This analysis of
Smith is significant and is dealt with first because it is generally taken as the starting point for assessing the Court's approach to �aori customary rights to land. It will be argued later in Part Three that rather than ap
p
roaching these rights in a strictly defined way, the Court adopted strategies to deal with disputes where they arose and dealt with the claims argued in individual cases rather then attempting to apply some sort of legal abstraction.The Ngai Tahu decision of the Maori Appellate Court was a response to a question stated by the Waitangi Tribunal regarding the boundary between Ngai Tahu and its northern neighbours: Section 6A of the Treaty of Waitangi Act 1 975 was amended in 1 988 to give the Tribunal power to refer questions of rights of ownership and tribal boundaries for resolution by the Maori Appellate Court, 'according to customary law principles of "take" and occupation or use.' The issue to be determined was defined by the Court and the parties to the litigation as one of customary rights to land. Significantly, the Tribunal in its question defined these rights as an archaic and historical entity fixed in time. The boundary could be determined as at the dates of the Kaikoura and Arahura deeds of purchase and that was the boundary for all time.
I The decision is printed as an appendix to the Waitangi Tribunal 's Ngai Tahu report. See Appendix 4 in Waitangi Tribunal, The Ngai Tahu Report, 3 vols, Wellington: Brooker and Friend, 199 1 , pp. 1 122- 45.
ruDGE NORMAN SMITH ' 1 60
To do so, the Court first had to detennine what those take were and briefly stated it found four take.2 They were discovery, ancestry, conquest and gift, each of which had to be supported by some fonn of occupation. The Court found these take had been developed by Maori over many centuries and were absolute and unchanging. The one exception was the right through conquest which was limited by the Treaty of Waitangi. This meant that 'where an iwi have proven one of the customary take supported by occupation but were absent in 1 840 they could revive their ahi kaa as long as the re-occupation was peaceful and within three generations of their leaving the area.,3
In essence, to resolve the competing claims regarding the location of the boundary, the three judges, Heta Hingston, Hoeroa Marumaru and Andrew Spencer, reached for their Nonnan Smith. They recognised the importance of their decision as it was the first case to be detennined under the new legislation but at its most basic, the Ngai Tahu decision gave judicial authority to Smith's model of take. In contrast, this chapter fundamentally questions the suggestion that his model reflects the practice of the Native Land Court in the nineteenth and early twentieth centuries.
In 1 942 Nonnan Smith codified the rules used by judges of the Native Land Court to detennine according to Maori custom and usage who owned land held under customary title. Ironically, by then such codification did not really matter in tenns of the Court's practice. Its primary role was no longer the investigation of title to customary land as it had become part of a large and rapidly growing bureaucracy which administered the land remaining in Maori ownership. Applications for title investigations were received infrequently and the area of land affected was quite small. The model of take developed by Smith therefore was produced as an
abstraction rather than as· a product of the Court's practice.
Smith's first book,
Native Custom and Law Affecting Native Land,
was writtenwhen he was a Research O fficer at the Native D epartment in Wellington and published in 1 942 by the Maori Purposes Fund Board.4 He was part of the bureaucracy referred to above and the book was a direct response to the administrative imperatives of the Native Department. In the preface, he indicated that his intention was to identify what he called the 'rules of custom' which provided the basis for customary title to assist those concerned with the administration of Maori land.s These 'rules,' contained in the decisions of the Court, had been buried unpublished in the minute books and he wanted to make them available to the public, lawyers .and officials.
2 ibid. 3 ibid.
4 Norman Smith, Native Custom and Law Affecting Native Land, Wellington: Maori Purposes Fund Board, 1942.
ruDGE NORMAN SMITH 1 6 1
If in practice Smith's codification was of limited significance, it has had·a major impact on the way in which historians have considered the activities of. the Court. Historians and other scholars, such as Bryan Gilling, Ann Parsonson and David Williams, have used the four take developed by Smith to argue that the judges rigorously applied a narrowly defined series of rules which were totally alien to and
. destructive of Maori customary rights to land.6 The chief judge of the Maori Land
Court, loe Williams, has done the same. Smith's texts, consequently, require careful scrutiny.· His antecedents are difficult to determine for Smith does not provide any indication, other than statute or a few of the Court's decisions, of the authority on, which his views are based. Although he did acknowledge the assistance and authoritative knowledge of R.N. lones, a former chief judge of the Court, it is far from clear how Smith arrived at this particular model of take.
7
Smith's opening chapters in
Native Custom and Law
laid out a history oflegislation relating to Maori land and provided background to the ways in which Maori customary rights to land had been defined. Chapter Three, constituting about one third of the whole book, focused entirely on the question of investigation of title to customary land by the Native Land Court and is the subject of this chapter. The final three very brief chapters covered succession, adoption and marriage, examining the powers of the Court in each of these subjects as prescribed by legislation then in force.
In 1 960, Smith published a second book entitled
Maori Land Law.s
By thentwo major changes had occurred. The first, in 1 952, was Smith's appointment to the bench of the Maori Land Court. The second, the following year, was the enactment of the mammoth Maori Affairs Act 1 953. It would govern the administration of Maori
land, with some significant amendment, for forty years until 1 993. This legislation was the statutory embodiment of the substantial bureaucracy which managed Maori land through the Department of Maori Affairs. It was ambitious in its scope and formally marked a transition which had been occurring for nearly three decades: a shift in the function of the Court from the investigation of title to the administration of Maori land.
As a result, the new book was a technical legal manual which focused primarily on the new legislation. Over one third of the book was taken up with
6 See for example Bryan Gilling, 'Engine of Destruction? An Introduction to the History of the Maori Land Court,' Victoria University of Wellington Law Review, 24:2 (1994), pJ28; Ann Parsonson, 'He Whenua Te Utu,' PhD Thesis, University of Canterbury, 1978, Chapter 4: 'The Maori and his Land: the Establishment of a Claim,' and David V. Williams, 're Kooti Tango Whenua. ' The Native Land Court 1864-1909, Wellington: Huia, 1999, pp. 1 87-89. See also Chief Judge Joe Williams, 'Maori Land Court - a Separate Legal System?,' Te Pouwhenua, 8 (November 200 1 ), pA.
7 Smith, Native Custom and Law, p.v.
JUDGE NORMAN SMITH . 162