John Salmond and Native Title in New Zealand: Developing a Crown Theory on the Treaty of Waitangi, 1910-1920 (original) (raw)
Related papers
The Journal of Imperial and Commonwealth History, 2010
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. I What is now characterised as the doctrine of aboriginal title at common law 2 did not underpin imperial policy on indigenous property rights in the 1830s and 1840s. Nor was it necessarily accepted as the law that ought to apply within colonial New Zealand at that time. During that period, several areas in Australasia-South Australia, New Zealand and Victoria-were added to the British Empire with a view to settlement-colonia in the proper sense. 3 The occupation of space was a central feature and concern of any settlement colony. Settlement by immigrants necessarily implied it. No settled legalistic view of extant aboriginal rights to land informed policy. 4 The Colonial Office's interaction with various interests pressing for substantive
HISTORY, LAW AND LAND: The Languages of Native Policy in New Zealand's General Assembly, 1858-62
2008
This thesis explores the languages of Native policy in New Zealand's General Assembly from 1858 to 1862. It argues, aligning with the scholarship of Peter Mandler and Duncan Bell, that a stadial discourse, which understood history as a progression from savage or barbarian states to those of civility, was the main paradigm in this period. Other discourses have received attention in New Zealand historiography, namely Locke and Vattel's labour theory of land and Wakefield's theory of systematic colonization; but some traditions have not been closely examined, including mid-Victorian Saxonism, the Burkean common law tradition, and the French discourse concerning national character. This thesis seeks to delineate these intellectual contexts that were both European and British, with reference to Imperial and colonial contexts. The thesis comprises a close reading of parliamentary addresses
46 Victoria University of Wellington Law Review, 2015
This article reflects upon themes and foundations of the contemporary legalism attending the resolution of aboriginal claims. It opens with a broad description of the historical foundation of that legalism in the imperial prerogative of the Crown and its continuance in the national constitutional systems of Canada and New Zealand. It then considers how that legalism, with its origination in the imperial prerogative and the ongoing comparative dimension associated with that origin, inhabits a recent local example, namely New Zealand's Marine and Coastal Area (Takutai Moana) Act 2011. The article shows how this provision reflects the general features of indigenous rights' jurisprudence as it has emerged over the past 30 years: it carries residual elements of the imperial prerogative and it has a comparative element, yet it is also a peculiarly New Zealand instance that marks a new step in the jurisprudence. This was a festschriften edition to Professor WH "Bill' Atkin whose contribution to the VUWLR has been immense. It was an honour to contribute to this recognition of Bill and Virginia.
The Treaty of Waitangi and the Relationship between Crown and Maori in New Zealand
Brooklyn Journal of International Law, 2002
The orthodox legitimacy of the Crown, in those countries that derive their constitutional principles from Great Britain, is the legitimacy of the inherited legal form. So long as government is conducted in accordance with the rule of law, and meets the aspirations of the majority of the population, the legitimacy of the government based on such a ground has been little questioned.
The Treaty of Waitangi settlement process in Māori legal history
2013
This dissertation is concerned with the ways in which Māori legal traditions have changed in response to the process of negotiated settlement of historical claims against the state. The settlements agreed between Māori groups and the state provide significant opportunities and challenges for Māori communities and, inevitably, force those communities to confront questions relating to the application of their own legal traditions to these changed, and still changing, circumstances. This dissertation focuses specifically on Māori legal traditions and post-settlement governance entities. However, the intention is not to simply record changes to Māori legal traditions, but to offer some assessment as to whether these changes and adaptations support, or alternatively detract from, the two key goals of the settlement process-reconciliation and Māori self-determination. I argue that where the settlement process is compelling Māori legal traditions to develop in a way that is contrary to reconciliation and Māori self-determination, then the settlement process itself ought to be adjusted. iv This dissertation studies the nature of changes to Māori legal traditions in the context of the Treaty settlement process, using a framework that can be applied to Māori legal traditions in other contexts. There are many more stories of Māori legal traditions that remain to be told, including stories that drill into the detail of specific legal traditions and create pathways between an appropriate philosophical framework and the practical operation of vibrant Māori legal systems. Those stories will be vital if we in Aotearoa/New Zealand are to move towards reconciliation and Māori self-determination. The story that runs through this dissertation is one of a settlement process that undermines those objectives because of the pressures it places on Māori legal traditions. But it need not be this way. If parties to the Treaty settlement process take the objectives of self-determination and reconciliation seriously, and pay careful attention to changes to Māori legal traditions that take place in the context of that process, a different story can be tolda story in which Treaty settlements signify, not the end of a Treaty relationship, but a new beginning. v
Aboriginal Title in New Zealand Courts
2 Canterbury Law Review, 1984
First of a brace written as audition pieces for Junior Research Fellowship round, 1983. This article plus its companion in the VUWLR and another soon after in Otago Law Review were cited by Justice Williamson in Te Weehi v Regional Fisheries Officer (1986) 1 N.Z.L.R. 682. This is the beginning of the legal road leading to New Zealand's Sea Fisheries Settlement with Maori and the Seabed and Foreshore controversy of early 2000s - where 'the trouble began,' as the Right Hon Michael Cullen once said to me.
The Nature of the Relationship of the Crown in New Zealand with Iwi Māori
The Nature of the Relationship of the Crown in New Zealand with Iwi Maori, 2007
This study investigates the nature of the relationship that the state in New Zealand, the Crown, has established with Māori as a tribally-based people. Despite the efforts of recent New Zealand Governments to address the history of Crown injustice to Māori, the relationship of the Crown with Iwi Māori continues to be fraught with contradictions and tension. It is the argument of the thesis that the tension exists because the Crown has imposed a social, political, and economic order that is inherently contradictory to the social, political, and economic order of the Māori tribal world. Overriding an order where relationships are negotiated and alliances built between autonomous groups, the Crown constituted itself as a government with single, undivided sovereignty, used its unilateral power to introduce policy and legislation that facilitated the dispossession of whānau and hapū of their resources and their authority in the land, and enshrined its own authority and capitalist social relations instead. The thesis is built round a critical reading of five Waitangi Tribunal reports, namely the
'Since Time Immemorial': A Story of Common Law, Jurisdiction, Native Title and the Case of Tanistry
32 Melbourne University Law Review, 2002
In the 10 th anniversary year of the decision in Mabo, this article offers one possible account of the relationship between native title and the common law The article provides a description of this relationship, based on an account of common law jurisdiction and the ways in which the common law historically used the concept ofjurisdiction in order to supplant other sites of adjudication and authority. The article traces the jurisdictional story of the common law,from its origins as one of many decentralised legal spaces, through the important first colonial context of Ireland,to the new settlement of New South Wales, and the first encounters with 'the natives'. It then examines the decisions in Mabo, Wik and others, and concludes that in 'recognising 'and constructing the interest of native title, the common law relied on the same techniques which characterised its earlier encounters with the 'other' in the English domestic and Irish colonial contexts. It is only by understanding the way in which native title has come to be at common law that we can explore its possibilities and limitations as a vehicle for justice.