Juridical Encounters: Māori and the Colonial Courts, 1840-1852 (original) (raw)
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Shaunnagh Dorsett on Māori and colonial courts
History Australia, 2020
Shaunnagh Dorsett’s lucid and engaging account of the imposition of colonial law on M aori will be widely appreciated by legal scholars and historians of colonialism. Building on the ‘lost cases’ project with which she was centrally involved in New Zealand and that has recovered a trove of information on cases from higher courts in the nineteenth century, this book focuses on the ‘Crown Colony’ period. That is, the 12 years following annexation and before responsible government was established when colonial governors had considerable opportunity to experiment with laws and legal institutions. The study’s archive is the hundreds of cases, particularly from lower courts including those of resident magistrates, that dealt with a range of criminal and civil matters. M aori passed through these courts as they sued in civil suits, were called as witnesses, and were made subject to criminal law in the early years of the colony. Dorsett makes two large analytical claims. First, that concept...
Māori "Conversion" to the Rule of Law and Nineteenth-Century Imperial Loyalties
Missionaries were among the first Europeans to interact with the New Zealand Māori, bringing an evangelical message with a strict set of "laws" for Māori to follow. Māori, whose own religious beliefs required rigid observance to ritual, took time to convert to missionary Christianity but, like many Oceanic peoples, did so with fervour, regulating their daily lives according to the Laws of the missionaries’ God. With the advent of British rule in New Zealand in 1840, the Treaty of Waitangi gave Māori the same rights as British subjects, but also (in the Māori-language version) guaranteed tribal autonomy. As the British administration established itself, it slowly attempted to bring Māori under the authority of the Queen's Laws, using persuasion rather than force. This article, using Māori-language newspapers of the mid-nineteenth century, discusses how some Māori approached the question of Law in a similar way to how they had converted to Christianity. This was partly due to their own, now Christianised, worldview, but it was also due to how the colonial authorities presented the principles of Law to them.
2011
The construction of New Zealand as a colonial nation was not a conscious act or a single design but the result of cumulative actions (Moon 2006: 22). It started long before and continued well after the signing of the Treaty of Waitangi, and subsequent proclamations of sovereignty. 1 As Douzinas states: a space, terrain or collection of people becomes community when this space gathers itself in common. By gathering in common, the terrain becomes a territory, the collection, collectivity or community, the space of relationships, society. A community comes forth as polis, empire or state by circumscribing itself in its interiority and demarking its proper [essential characteristics] from an outside (2007: 22).
Metropolitan Theorising: Legal Frameworks, Protectorates and Models for Māori Governance 1837-1838
This article considers the little-known 1838 proposal by Robert Torrens for the establishment of a native government in New Zealand. In so doing, it joins recent literature which seeks to move away from doctrinal or juridical legal history through an exploration of the ways in which legal concepts were used in the first part of the nineteenth century by colonial actors as tools, deployed for political advantage, rather than in strict reliance on them as a particular legal form. In so doing, however, this article also contends that although legal concepts were often malleable and could be, and were, deployed in this way, those who relied on them were also bound by Imperial constitutional principles which, while often broad and ambiguous, nevertheless acted as limits on the deployment of these concepts.
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I examine the New Zealand Supreme Court's cases dealing with Maori legal issues between 2004 and 2014 from a critical, comparative and international perspective. I conclude that the Supreme Court cases illustrate: an increasing readiness to incorporate Maori customary law into New Zealand law, albeit in ways that do not challenge the sovereignty of Parliament; that Maori continue to lose on the facts even when legal principles appear to increasingly recognise their rights; that in some instances New Zealand law recognises Maori land rights to a greater extent than Canada; and a willingness to recognise the UN Declaration on the Rights of Indigenous Peoples.
Past Law, Present Histories, 2012
In 1843 the imperial parliament passed the Colonial Evidence Act. 1 Its purpose was to allow colonial legislatures to pass acts or ordinances to allow their indigenous inhabitants to give unsworn testimony before the courts. Unsworn testimony was testimony given by those who were not able to take the oath. At common law the rule was that evidence could only be given on oath, rendering those devoid of religious belief incompetent to testify. In British colonies, therefore, this rule resulted in most of the indigenous inhabitants being unable to give evidence before English courts. This was particularly problematic in the Australian colonies. The imperial Act of 1843 was the outcome of various ineffectual attempts to allow for such evidence by way of local act or ordinance, particularly in New South Wales and, more latterly, Western Australia. While some attention has been paid to the politics and processes of law reform concerning unsworn testimony in empire, and the ways in which such reforms formed part of broader disputes about the shape of colonial governments, 2 these discussions have almost entirely revolved around the Australian colonies. 3 New Zealand has received comparatively little attention. To the extent to which New Zealand has been considered, it has been in the context of the overall matrix of imperial reform and therefore much of the particular politics and processes of reform within New Zealand still await consideration. 4 Although New Zealand promptly took advantage of the imperial legislation and passed a local Ordinance under its auspices, the history of the interaction between Māori and the courts, and their ability to testify before them, prior to the passing of that Ordinance diverges significantly from that of the Australian colonies. The particular history of New Zealand in respect of unsworn testimony illustrates
The waters of the Maori: Maori law and state law
2017
For the origin, meaning and use of the term 'tikanga' see Richard Benton, Alex Frame, Paul Meredith Te Mātāpunenga. A Compendium of References to the Concepts and Institutions of Māori Customary Law Victoria University Press 2013 p 429. Note that 'tikanga' was used for 'rights' in the Treaty of Waitangi and in the 'fourth article' referred to by Colenso, 'ritenga' is used for 'custom'. Bishop Manuhuia Bennett regarded tikanga as 'doing things right, doing things the right way, and doing things for the right reasons.' See Matapunenga at 431.
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