F O V ACHESON AND MAORI CUSTOMARY LAW

R P Boast*

Frank Acheson,1 Judge of the Wanganui and later of the Tai Tokerau Divisions of the Native Land Court, was a remarkable individual and one of the Victoria Law Faculty's more unusual graduates. Acheson was born at Riverton, Southland, and his LLB was obtained at Otago University, but in 1912 he and his wife Flora moved to Wellington. Acheson worked as a civil servant while studying for his LLM at Victoria University College, which he obtained in 1913.

It was in 1913, after the conferment of his LLM, that Frank Acheson wrote the long essay for the Jacob Joseph Scholarship at Victoria University from which this reprint is taken. This essay was written before Acheson began his career in the Native Department. Acheson seems in fact to have been drawn to working in the Native Department because he was intellectually interested in Maori customary law, rather than the other way round. Exactly why, and how, Acheson became fascinated by Maori customary law is something of a mystery (it seems an unusual avocation for a Southlander educated at the University of Otago). However for a short period before moving to Wellington Acheson had lived in Wanganui, and it may be that it was the obvious Maori presence in that city, so different from the towns and cities of Otago and Southland, which awakened an interest which was to absorb him for the rest of his life.

The Jacob Joseph Scholarship essay is 94 pages long and comprises eight chapters.2 The first two, the introduction, and "The Strong Arm" are reprinted here. The remaining chapters are detailed studies of five areas of Maori custom: ohaaki (verbal wills), adoptions, captivity, vassalage and gifts. These discussions are mainly illustrated with references from the minute books of the Native Land Court. The first two chapters are of particular jurisprudential and historical interest, for it is here that Acheson challenges the intellectually ascendant legal positivism of the day.

Acheson does not himself use the term "Maori customary law", and he in fact denies that Maori had "laws" at all ("strictly so called"). But in his insistence that Maori society was not governed by "the strong arm" but in fact by a comprehensive system of customary practice, Acheson comes very close to the position of contemporary legal anthropologists. If Maori customs were not laws, in an Austinian sense at least, they certainly came very close to it. What Maori law lacked, Acheson noted, was the Austinian requirement of being "posited" as a generalising command by a sovereign:

"Their customs or rules with regard to land may not have been given to them by a determinate superior, individual or composite, to whom they rendered habitual obedience. Nevertheless, comparing the two states of civilisation, the customs of the Maoris were as much enforced in New Zealand as were the laws of our own nation in England during the early days of the race."
As the above passage shows, Acheson places the emphasis on enforcement rather than on the commands of an all-powerful sovereign. Maori had, he says, "no all-powerful Prince". But the customs were enforced "by such means as existed", chiefly "the general opinion of the tribe, as expressed in the meetings of the elders or through the mouth of a chief".

The dominant note of Acheson's essay is that Maori custom deserves to be taken seriously as a body of jurisprudence and is worthy of respectful study. How unusual and idiosyncratic a stance that was in New Zealand in 1913 now requires an effort of the imagination to grasp. The orthodox view is shown by the fate of an enquiry to the University of New Zealand made by Judge Gilfedder of the Native Land Court in 1916. Gilfedder wanted to know whether the Senate would receive a thesis on Maori law for the degree of Doctor of Laws. Although Professors Hight and Macmillan Brown supported the proposal, it was rejected by the Chancellor on the basis that Maori law and custom did not come within the meaning of the word "law" as used in the University statute:3

"He [the Chancellor] added that all the lawyers on the law committee - the Hon J A Tole and Messrs von Haast and Ostler - quite concurred in that view. Maori law was merely folk law, or tribal law, or custom. It was held by many, indeed, that there was no Maori law till Judge Fenton made it."

Acheson is now mainly known for his later career as a judge of the Native Land Court. After working as a land purchase officer in the Native Department he became a judge of the Court in 1919 at the early age of 32. From 1919-24 he was judge of the Aotea Division of the Court, based at Wanganui. In 1924 he became judge of the Tai Tokerau (Northland) Division, where he was judge until 1943. Acheson's name is now especially associated with the far North, where he is still remembered by many Maori people today. Acheson was friendly with many Maori community leaders, including Te Puea Herangi of Waikato, the Te Heu Heu family of Tuwharetoa, and especially with Northland leaders such as Whina Cooper and Eru Ihaka.

Acheson's judicial decisions are buried in the minute books of the Native Land Court, which never has (and still does not) publish its decisions. An examination of Acheson's judgments reveals, however, that his interest in Maori customary law remained strong. Perhaps this is most pronounced in his judgment in the Lake Omapere case of 1929 where Acheson accepted unhesitangly that Maori iwi owned lake beds under Maori customary law and that the Land Court should accordingly issue titles to lake beds.4 To Acheson Maori title to all land was presumed and the Crown had to prove lawful extinguishment of Native title, which is essentially the modern law, but which was confused at the time by Crown reliance on prerogative claims to the foreshore and lakebeds and by a sense that Maori rights to land were only cognisable when recognised in statute. Acheson was also very willing to allow Maori claims to areas of foreshore,5 and combined this willingness with an attitude towards government policies and actions which was scathingly critical, to put it mildly.

Above all, however, Acheson was an activist judge. He was shocked by the poverty and isolation of the Maori communities of Northland. Even before Sir Apirana Ngata's legislation of 1929, which greatly expanded the powers and functions of Maori Land Boards and the Native Land Court, Acheson had become involved in a number of elaborate development projects designed to benefit the destitute Maori communities of Te Aupouri. It was these projects, especially the elaborate and costly scheme to develop dairy-farming on Maori freehold at Te Kao, which was ultimately to prove his undoing.

While working as a judge Acheson continued to write and publish. In 1922 he published a reworked version of a chapter of the 1913 essay in the Journal of Comparative Legislation and International Law.6 In 1931 he published an article on "Maori Land Customs and Education" in a collection of essays edited by P.M. Jackson.7 The 1931 article is a condensation of the 1913 essay, as the following passage makes clear:8

"[A]lthough the Maoris had not studied and digested Austin's Lectures on Jurisprudence, nevertheless they knew that, if a man's ancestors had lived on a certain piece of land for many generations and had cultivated it, that man had a claim to the land, and a claim which the other members of the tribe, from the chief downward, would respect. It mattered not to the Maoris whether it was binding Native Custom or the power of a mighty Prince which maintained them in their rights to land – it was sufficient for them to know that for many generations the rights of their fathers had been respected, and that so the rights of their descendants would, in the ordinary course of events, be respected in days to come."

Acheson ventured into other fields of literature as well, and in 1930 he published a novel, Plume of the Arawas. It sold well and can still be found in second-hand bookshops. The novel is a romantic adventure story, and is saturated with Acheson's romanticised and highly-coloured vision of pre-European Maori life.9

Acheson was politically conservative and had little time for the Labour Party and the Labour Native Affairs Ministers, Frank Langstone and H G R Mason. Acheson was committed to the Treaty of Waitangi as a constititutional text (in fact he said that he could take "judicial notice" of the Treaty) and was deeply involved in the preparations for the 1940 commerations held at Waitangi. Acheson's last years as a judge were clouded by growing official disquiet at his pro-Maori stance and with an unfortunate feud with his registrar. The particular issue was the financing of the Te Kao dairy scheme, but this was merely symptomatic of disagreements at a much deeper level. In 1943 he was compulsorily retired by Mason and returned to Southland where he died in 1948.

In retrospect Acheson seems something of a tragic figure. New Zealand society was inhospitable to someone of his interests and enthusiasms. He seems to have felt much more at home in Maori society than in the company of Pakeha New Zealanders, and had little intellectual support for his views on Maori customary law from academics and lawyers. He was cut off from new developments in anthropology and jurisprudence in the United States which took decades to percolate through New Zealand's provincial Anglocentrism. As a judge Acheson faced the hostility of his own registrar, and in the foreshore and other cases determined opposition from the Crown. Maori appearing in the Court were too poor to afford lawyers of their own, and Acheson was rarely able to gain much assistance from sympathetic counsel. In court his main antagonist was the formidable Crown Solicitor at Auckland, Sir Vincent Meredith, who regarded Acheson as "very pro-Maori",10 and who routinely appealed Acheson's rulings to the Maori Appellate Court.

After his death Acheson was for many years a forgotten figure. With the Waitangi Tribunal investigations into the Orakei, Te Roroa, and Muriwhenua Lands claims the importance of Acheson's work at last began to receive long-overdue recognition. It is hoped that this publication of a sample of Acheson's early writing will also help to restore Acheson to his proper prominence. His essay shows also that the development of New Zealand jurisprudence is not necessarily as simplistic and narrowly positivist as is sometimes assumed.

* Senior Lecturer in Law, Victoria University of Wellington.
1 For fuller biographical details see J Acheson and R P Boast, "Acheson, Frank Oswald Victor: Clerk, land purchase officer, land court judge, writer", Dictionary of New Zealand Biography, vol 4, Auckland, 1998, 1-3.
2 The full title of the essay is "The Ancient Maori System of Land Tenures (Some Few Aspects Of): Being a Thesis written for the Jacob Joseph Scholarship, 1913, Victoria University College, Wellington".
3 "Suggested Thesis discussed by Senate", New Zealand Times, 4 February 1916 (my thanks to John Acheson for this reference).
4 Lake Omapere Case (1929) Bay Islands MB 253.
5 On the Northland foreshore cases see R.P. Boast, "In re Ninety Mile Beach Revisited : The Native Land Court and the Foreshore in New Zealand Legal History" (1993) 23 VUWLR 145. This gives full references to Acheson's foreshore decisions which are now difficult to locate. Some of Acheson's decisions are known only through the accident of newspaper publication, as in the case of his Lake Tangonge decision, reported in the New Zealand Herald, 9 March 1933 (the decision was presumably oral only, and is not recorded in the Northland Minute Books of the Native Land Court). In Tangonge, saved from limbo by mere luck, Acheson (a) states that "the native title to papatupu [uninvestigated] land must be taken into account unless it could be shown that it was extinguished"; and (b) that the Treaty of Waitangi had been recognised by imperial statutes and by the Land Claims Ordinance of 1841 and that as a result "it was the duty of the Court to take judicial notice of the Treaty of Waitangi". No modern Court has in fact gone as far as Acheson on the latter point.
6 F O V Acheson, "Adoption among the Maoris of New Zealand", (1922) 4 Journal of Comparative Legislation and International Law, (3rd) 60-70.
7 F O V Acheson, "Maori Land Customs and Education: Their Inter-Relation", in P M Jackson (ed), Maori and Education: Or the Education of Natives in New Zealand and its Dependencies, Ferguson & Osborn, Wellington, 1931, 133-143.
8 Above n 7, 138.
9 Michael King has noted Acheson's "romantic idealisation of Maori life" in Plume of the Arawas : see Michael King, Whina (Penguin Books, Auckland, 1991) 128.
10 Sir Vincent Meredith's autobiography, A Long Brief: Experiences of a Crown Solicitor, (Collins, Auckland, 1966. At 30, obviously referring to Acheson, Meredith he writes that "some matters in connection with the ownership of Maori land necessitated going to the most outlandish places. These were generally heard before a Maori land court judge who was very pro-Maori, and insisted that the hearing should be heard amongst the people - that is, on the particular spot which was the subject of dispute."

THE ANCIENT MAORI SYSTEM OF LAND TENURES (SOME NEW ASPECTS)

F O V Acheson*

A thesis written for the Jacob University Joseph Scholarship 1913, Victoria University College, Wellington, New Zealand.

I INTRODUCTION

Did the Maoris really have a definite system of land tenures, or was their only law that of the "Strong Arm", ie, Force?

This is the question which faces everyone who attempts to gain an accurate knowledge of rights to land among the Maoris; and quite a large body of authority has at various times supported the contention that the Natives of New Zealand, prior to the proclaiming of the sovereignty of the Queen, recognised only the doctrine that "Might is Right".

Of infinitely greater weight, however, is the definite recognition of Maori land customs by the British Government, as in the Treaty of Waitangi, the recognition by successive Governors in their proclamations to the Natives, by the New Zealand Legislature in numerous Acts, and by the Native Land Courts in numbers of recorded decisions. These have one and all taken it for granted that the Maoris did have a system of land tenures, a system very incomplete, no doubt, but still one worthy to be considered a body of Native custom, having more or less binding effect among the tribes.

No one will contend, of course, that this system of land tenures was as elaborate and as universally adhered to as are those of the civilised nations of today. We cannot say that the Natives of New Zealand, in respect of their rights to land, ever obeyed "laws" strictly so called. They did, however, through many generations and under varying conditions, respect and obey many well-recognised customs relating to land, and a perusal of the evidence hereinafter submitted will indicate that these "customs" are well entitled to be considered a definite system of land tenures.

Only a very brief acquaintance with the Native Land Court cases is necessary to give one some insight into the way the Native regards his interests in land. Continually we find the Maori referring to the "custom" of his tribe, the "custom" which has been observed for many generations by his ancestors, the "custom" which has been respected by strangers or by other members of the tribe. On all possible occasions the Maori would refer to such and such a "custom" of his tribe as proving his claims to land. He did not claim land as having a moral right thereto, but he claimed it as being entitled under some definite custom of the tribe. On occasion, the arrogance of some powerful chief might cause a well-known custom to be ignored, but the custom would survive the chief, and the temporary suspension would only cause it to be more highly treasured by the rank and file of his people.

The "customs" of the Maoris with regard to their land were definite, and they received almost universal respect. They were not mere rules of convenience or mere habits of conduct. There is indeed a world of difference between a binding custom and a course of habit. As one great writer has put it:1

"Custom must not be confounded with mere frequency or even habit of conduct. In any state or other society in which customary law is admitted, custom as a part of the law means the conduct which is enforced as well as the strict or loose nature of what the society allows - not always very well, even in the case of national law in the ruder stages of national existence - and which is followed as well from fear of such enforcement as from the persuasion that the received rule requires such conduct to be followed. In other words, custom is that line of conduct which the society has consented to regard as obligatory."

These words of Professor Westlake are strikingly applicable to the Maori customs with regard to land. The Maoris of New Zealand were split up into a large number of tribes, the customs of which were in most cases identical and in others remarkably similar in character. The love of the Maori for his land was intense, and the customs relating to land were as jealously maintained and as strictly enforced as the loose nature of Maori society allowed. The Maori followed the custom partly from fear of the wrath of the tribe or of the chief, and partly from the persuasion that the customs of his ancestors must be respected and obeyed. The tribes as a whole, and the individual members thereof, showed by their conduct that they considered such customs to be binding upon them.

What more could one expect in such a state of civilisation as the Maoris had attained to? Yet we find men like Resident Busby, the representative of the Crown prior to the establishment of the Colony, declaring that: 2

"their only law was that of the 'Strong Arm', and that the Natives, down to the Treaty of Waitangi, had no conception of the existence of a right implying an obligation on the part of others to respect that right."

We must not judge the customs of the Maoris, however, by the highest standard. Their customs or rules with regard to land may not have been given to them by a determinate superior, individual or composite, to whom they rendered habitual obedience. Nevertheless, comparing the two states of civilisation, the customs of the Maoris were as much enforced in New Zealand as were the laws of our own nation in England during the early days of the race.

This one thing also we must bear in mind, that the Maoris had no literature to assist them in building up a system of law, the art of writing being quite unknown, and they had thus to depend altogether on their famous gift of storing up tradition, handing down minute details for generation after generation in that wonderfully accurate manner which has been the admiration of all observers.

The Maoris had no all-powerful Prince willing and able to enforce due obedience to their customs, but the customs were enforced by such means as existed, chief of these being the general opinion of the tribe, as expressed in the meetings of the elders or through the mouth of the chief. That these customs should have been observed for several centuries speaks volumes for the power available in their behalf.

It must not be supposed that the Natives of New Zealand simply followed their customs as a matter of convenience. Rights in land were to them of paramount importance, and, even if a certain custom conflicted with their interests, they almost invariably respected it as being the custom of the tribe. For instance, it was the custom for a "tamaiti whangai" or adopted child to share in the landed rights of a deceased person on equal terms with the children of the body.3

Again, it was frequently the case that a deceased Native left an "Ohaki" or verbal Maori Will, disposing of his interests in land in a certain manner.4 In these cases, persons who would otherwise have received the whole of the deceased's interests in land, found themselves sharing the land with others, but they knew the customs of their tribe and so made no demur.

Writing on International Law, Professor Westlake has said:5

"The best evidence for the consent which makes international law, is the practice of states appearing in their actions, in the treaties they conclude, and in the judgements of their prize and other courts, so far as in all these ways they have proceeded on general principles and not with a view to particular circumstances, and so far as the actions and judgements of their courts have not been encountered by resistance or protests from other states. Even protest and resistance may be too feeble to prevent general consent being concluded from a widely extended practice."

The Maoris had no prize or other Courts, and they had no written treaties (prior to the coming of the Europeans), but they had the traditions of their fathers by which they might know how their people had acted in days gone by. These traditions they found to disclose a settled course of action based on certain general principles, and these principles did not vary according to the particular circumstances of the time. Thus their traditions showed that the rights of a free member of their tribe were as much respected as the rights of the chief himself. Similarly a powerful tribe could no more obtain a title to territory by conquest alone, without use and occupation, than could the weakest tribe in the country.
Occasionally, without doubt, the traditions would hew that here and there a custom had met with resistance and protest, or even with temporary suspension, but do not these things occur in the best-regulated of societies? Even in our own day, we have seen the power of the law defied for a time by a powerful section of the community, yet the law remains though temporarily set at nought. So it was with the customs of the Maoris. The occasional resistance to their customs was too feeble and too temporary in its effect to prevent general consent being concluded from a widely extended practice.

All authorities are agreed as to the passionate love of the Maori for the lands of his ancestors. At all times he was ready to fight, and, if need be, to die in defence of his rights.6 Under the most trying conditions he would seek to maintain his claims, and this from no sordid motive or lust for pecuniary gain. In one place7 Resident Busby has stated that the result of his seven years' experience as British Resident was

"a conviction that the Natives had no idea of property in land such as exists in the minds of people where it has been the subject of legislation."

The Resident was right. The Maoris had no such idea of property until after the coming of the Europeans, but they had an idea of property infinitely higher, for it was based on sheer love for their land, coupled with the knowledge that land provided food for them, protection from their enemies, and gave them a certain amount of "mana" or prestige. How much higher was the Maori view of landed rights in those days than are our own today.

It cannot be denied that the enforcement of rights to land among the Natives of New Zealand was often left to the person whose rights had been infringed. A tribe would not as a rule bother itself about trivial disputes between individual natives, but the power to enforce customary rights was always there, ready to be exercised by the common consent of the community through the agency of the chief or of the elders. In all primitive communities we find the same state of things. Men are allowed to exercise a certain amount of self-help, provided the interests of the community as a whole are not thereby endangered.

In this connection the words of a great authority on international law are of interest. He says: 8

"It is moreover not true to say that municipal law is invariably enforced by a determinate authority. There are stages of social organisation in which public opinion, which is the ultimate sanction of all law, whether municipal or international, is often able only to say to the individual that, when the law is broken to his hurt, he may himself exact redress if he can. When the early Tetonic societies allowed a person, upon whom a certain kind of legal injury had been inflicted, to seize the cattle of the wrongdoer and keep them till he obtained satisfaction, or when they told him to refer a quarrel involving legal questions to the issue of trial by combat, they showed much the same powerlessness to enforce law directly that is usually shown by the community of states. Even at a far more advanced point of development there is probably always some law which can only be supposed by a violent fiction to be enforced by a determinate authority. Evidently the Courts give effect to a custom because it is already regarded as having the effect of law; and during the time that it has existed, before appeal has been made to the courts, it must have been imposed upon unwilling persons by the strength of public opinion alone."

The fact is that the rights of all communities are, in the last resort, maintained by the physical force of the community. The mode of enforcing a right amongst the Maoris differed greatly from that employed among civilised nations of today, but it differed only in degree of effectiveness and in manner of operation. The Maori did not have courts or legislatures to assist him, but he could have his grievances discussed at one of the frequent general meetings of his tribe, or he could seek the aid of the chief, whose power as the mouthpiece of his people was usually very great. Should these then fail him, he might then exercise some form of self-help, provided his "arm" was strong and his actions did not conflict with tribal policy or with the safety of the iwi (tribe) or hapu (sub-tribe).