Law and Politics in the Constitutional Delineation of Indigenous Property Rights in 1840s New Zealand

Abstract

This chapter discusses the deployment of European legal vocabularies, drawn from the common law and ius gentium, as means of framing indigenous forms of land-holding and tribal authority for the purposes of the colonization of New Zealand.1 I contend that policymakers and officials saw common law sources and those of ius gentium as inadequate insofar as incorporating Māori narratives as to the content and substance of indigenous customary property rights within New Zealand in a way that assuaged intra-European politics. These transposed genres were perceived as less than adept at formulating Māori land tenure and political authority within their own terms, with this sense of incommensurability being recognized by some among the colonizers as requiring adaptations of policy. How formulators of policy responded to others who said otherwise in the later 1840s reasserted the preeminence of local colonial administration, rather than nongovernmental actors, in commanding the material and intellectual resources for political negotiation at a number of points with ongoing Maori political autonomy. Deeds of purchase were used to neutralize not only the proprietary interests in territory that Maori polities might claim but also the normative indigenous authority or jurisdiction to determine how such resources might be allocated and to whom. The residuum of indigenous authority regarding the allocation of resources was to be addressed and silenced.2