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Since 1862, Indigenous land tenure in Aotearoa New Zealand has been regulated by statute law. The early Native Land Acts were aimed at alienating Māori from their land. A permanent Native Land Court was established in 1865 to identify who held customary title to land and to convert that title into fee simple, which could then be freely bought and sold. This process facilitated dispossession. The Native Land Court eventually became the Māori Land Court and since the enactment of Te Ture Whenua Māori/Māori Land Act, 1993 (TTWM), the legislative regime, rather than facilitating alienation, has placed significant constraints on the sale of Māori freehold land. Alongside the constraints on alienation, the TTWM provides for a range of statutory trusts particular to Māori freehold land and continues the significant supervisory powers of the Māori Land Court in the administration of Māori freehold land. A separate statutory regime now recognizes some limited customary rights in the coastal marine area. One further area that has a bearing on the nature of Māori land rights is the settlement of historical claims based on Crown breaches of Te Tiriti o Waitangi (the Treaty of Waitangi). Since the early 1990s, the Crown has been engaged in a systematic programme of direct negotiation with Māori groups to settle historical claims. These settlements usually involve the return of some Crown land to Māori. However, while this land is held for the collective benefit of the community, it is not usually returned as Māori freehold land, which would be subject to restrictions under TTWM, such as the constraints on the alienation of Māori freehold land. This chapter examines the impact of the current legislation for recognizing, reclaiming and governing Māori land and property rights and considers how well the law aligns with traditional Māori land tenure or otherwise meets the cultural imperatives of Māori communities in their relationships with whenua (land), with recommendations for advancing land as tāonga tuku iho (a treasure that connects current generations with their ancestors and future generations).
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