December 2013 Māori Law Review
The Native Land Court: A Historical Study, Cases and Commentary, 1862-1887
Thomson Reuters, Wellington, 2013 (xiii + 1407 pages, ISBN 978-0-86472-765-7).
Reviewed by Professor David V Williams, Faculty of Law, University of Auckland
A yawning gap in the availability of case law and jurisprudence of deep significance to the past, present and future of the Aotearoa New Zealand legal system is on the way to being filled. The New Zealand Law Foundation’s foresight and generosity should be praised for its support of Victoria University of Wellington’s Lost Cases Project. Thomson Reuters are to be commended for being willing to undertake publication of what will become a multiple volume compilation of the leading cases of the Native Land Court, the Compensation Court, other associated courts and (after 1947) the Māori Land Court. Above all, though, readers of the Māori Law Review owe an immense debt of gratitude to Professor Richard Boast for authoring this magnificent first volume on leading cases from the period 1862-1887. This is a volume of law reports for 135 leading cases from that period. More than that, this is a scholarly analysis of the origins and early operations of the Native Land Court. More than that again, this is a law report series with in depth commentary on each one of those 135 leading cases.
There has been a good deal of discussion by ethno-historians and interested parties of the evidence of Māori recorded in the Minute Books of the Native Land Court. There have been numbers of books and many scores of research reports about the court – many in the genre of ‘advocacy history’ and focussed on the jurisdiction of the Waitangi Tribunal to inquire into claims by Māori against the Crown. There have been lengthy analyses of Land Court operations and their consequences for Māori in numerous reports by the Waitangi Tribunal itself. Despite this, in Boast’s view ‘the Native Land Court is still the most important and most difficult substantive historiographical issue confronting the Tribunal.’ [p 5] Until now, though, in relation to the Land Court there has been no attempt to take seriously what all lawyers and legal scholars in a common law legal system might expect – factual reporting of the court’s leading cases and commentary on the precise implications of particular legal precedents. Boast’s standpoint is that his book ‘is intended primarily as a contribution to New Zealand legal history, not to “Maori history” or ethnohistory. … [The] Court’s actual decisions are significant in their own right.’ [p 5]
In undertaking this work Boast is aware that few authors have had anything good to say about the Native Land Court or its decisions. Yet he is willing to write: ‘As it happens, I am neither “pro” nor “anti” the Native Land Court, although I admit to believing that it is more important to understand it than to denounce it.’ [p 16] He bolsters this position with wide-ranging references to works of history on globalisation and structural economic and cultural change, especially from the Latin American experience, which few of us focussed on Crown/Māori history in New Zealand have engaged with - whether we be writers of the ‘advocacy’ or the ‘history in context’ approaches. There will be more that a fuller book review might say about such matters. Right now, readers of this Maori Law Review issue need to know what the massive volume contains. It is my hope that you will decide for yourself that this is a crucially important book that should be bought by many individuals, firms and institutions so that it is as widely available as possible for lawyers, academics and students of law.
Part One is an ‘Introduction.’ Really it is a whole book in its own right comprising 243 pages. It outlines and comments on the origins and operations of the Native Land Court and the less well known but highly important Compensation Court that laid down important precedents from confiscated land districts that were applied in Land Court operations in the whole country. In part this begins to fill one of the biggest gaps in our knowledge of legal history – what happened to the lands in the Waikato district?
Chapter 4 is an important analysis of the Land Court’s early years. It elucidates, as no-one has managed before, the intricacies of the 10-owner rule, the 1867 Amendment Act and the notorious Hawke’s Bay transactions that led to William Richmond’s 1873 report.
Ensuing chapters deal with the court after 1873, the judges, assessors and other officers of the court, the processes of hearing and pertinent cases from superior courts.
At many points there are invaluable tables of information.
Part Two is over 1000 pages of text. It consists of 135 leading cases and includes the full text of judgments. Each case has a detailed ‘historical and legal introduction’ that includes scholarly analysis and references to many excellent research reports prepared in recent years that here receive the credit they do deserve and yet seldom obtain.
Many of the most important and least accessible judgments of the Native Land Court concerning huge districts - such as the 1886 Rohepotae case on 1.6 million acres in the ‘King Country’ – are carefully discussed.
The volume ends with an appendix of the key statutes and a bibliography that includes those many valuable research reports that are discussed by the author.
In two words – ‘Buy it.’