‘Vague Native Rights to Land’: British Imperial Policy on Native Title and Custom in New Zealand, 1837–53

Abstract

What is often referred to as a common law doctrine of aboriginal or customary title neither underpinned imperial policies towards Māori property rights in the 1830s and 1840s nor was it viewed as a settled or broadly accepted legal doctrine. Rather, critics of imperial policies applying to New Zealand deployed these legal sources in order to challenge and influence the workings of imperial policy on British settlement within New Zealand. The particular emphasis of such policy was on disciplining the extent of such settlement and providing a land fund from crown grants. Imperial policy-makers did not endorse these legal sources despite their use in the decision of the New Zealand Supreme Court in Regina v Symonds (1847). In this context, there was no consensual legal view or approach as to the nature or content of indigenous property rights. Ultimately, in the face of disagreement, diverse views of the nature and extent of Māori property rights persisted. The perceived non-justiciability of such rights meant that political spaces rather than the courts were of ongoing significance to characterising and debating such rights.