April 2016 Māori Law Review

Book review – The Native Land Court – a historical study, cases and commentary – volume 2

The Native Land Court – A Historical Study, Cases and Commentary, (Vol. 2: 1888-1909)

Richard Boast

Thomson Reuters, Wellington, 2015 (xv + 1145 pages, ISBN 978-0-86472-921-7)

Reviewed by Dr Carwyn Jones, Faculty of Law, Victoria University of Wellington.

Discussion

The first volume of Professor Richard Boast’s series, The Native Land Court – A Historical Study, Cases and Commentary, covers the period from the enactment of the Native Lands Act 1862 through to 1887, the year that the Native Land Court completed a series of key cases relating to the largest land blocks ever dealt with by the Court. This second volume picks up the story from 1888 and brings it through to the passing of the Native Land Act in 1909, taking in along the way numerous key developments in law, policy, and practice relating to Māori land tenure.

As with Volume 1, this second volume reports on important decisions of the Native Land Court (and associated courts). One hundred and five cases are reported in Volume 2. This collection of reports is a wonderful resource. Simply having these important judgments collected in an accessible form would, by itself, be incredibly useful for anyone wishing to better understand the development of Māori land law. However, following the same format as the first volume in the series, the reports contained in this volume do not merely collect and reproduce the judgments of the court. Each judgment is preceded by notes that provide historical and legal context, explanations of the significance of the case, information about any secondary literature that relates to the case, and any relevant points about the original judgment text. This contextual and background material significantly enhances the reader’s experience, enabling a much deeper understanding of these cases than the bare text of the judgments would provide.

And the case reports are only part of the book. Again following the format of Volume 1, the volume is divided into two parts. The case reports appear in Part Two – ‘Selected Decisions of the Native Land Court and Associated Courts’.  However, Part One – ‘Introduction: The Native Land Court and Associated Courts 1887-1909’ – is made up of ten chapters and could almost stand as a book in its own right as an insightful historical analysis of the development of Māori land law in this period.

Chapter 1 deals with the legal structure in 1887 and very much picks up from where Volume 1 of the series finished. That volume concluded with a chapter entitled ‘Introduction to Legislative Changes 1873-1894’. Where that chapter was a genuine introduction, with brief notes on the 1880, 1886, and 1894 Acts, the first chapter in Volume 2 deals with the legislative developments from 1886 onwards in some detail.

Chapters 2 and 3 address the political and other influences on relevant legal developments from 1887-1900 and then from 1900-1909 respectively. These chapters examine the political ideology that prevailed at this time in New Zealand society in general and in the governing Liberal Party in particular. The central role of key people (such as James Carroll, Robert Stout, John Salmond, and Apirana Ngata) in relevant legislative developments is explored in these chapters.

Chapters 4-6 turn to more directly examine the operation of the Native Land Court and the Validation Court, a specialist court created to determine whether certain transactions should be validated even though they had not complied with legal requirements.

Chapters 7-9 provide in-depth case studies of the Court’s operation in the King Country, the East Coast, and in relation to Te Urewera during this period. Each of these chapters illustrates significant aspects of the operation of the Court in regions with distinctive histories of Māori-Crown relations.

Chapter 10 returns to some of the larger themes of tenurial change and places the New Zealand experience amongst international developments, providing an enlightening comparative perspective.

One aspect of the operation of the Native Land Court discussed in Part 1 that I found particularly interesting was the detailed examination of the application of what has become known as ‘the 1840 rule’. The 1840 rule was stated in 1866 Oakura judgment of the Compensation Court by Chief Judge Fenton as follows:[1]

Having found it absolutely necessary to fix some point of time at which the titles as far as this Court is concerned must be regarded as settled, we have decided that that point of time must be the establishment of the British Government in 1840, and all persons who are proved to have been the actual owners or possessors of land at that time must be regarded as the owners or possessors of those lands now.

The 1840 rule has been the subject of repeated criticism by historians as an example of the application by the Native Land Court of a rigid rule which distorts the tikanga that underpins customary title. The modern received wisdom has essentially been that the 1840 rule artificially froze Māori title at a single point in time. Boast challenges that received wisdom. In fact, the section of the book that deals with this issue has the heading “Was there an 1840 rule?”. Ultimately, Boast concludes that the 1840 rule did exist and informed the Native Land Court’s decisions. However, through his examination of judgments of the Court, Boast persuasively makes the case that it was not applied as rigidly as others have suggested and its existence did not prevent the Court from recognising some changes to title which took place after 1840:

In short, there was an 1840 rule. However, even in Fenton’s initial formulation of it, the “1840 rule” was not very rigid and did not prevent the Court from recognising the interests of former individual “exiles” who had returned after 1840. The rule was not particularly important in the Court’s day-to-day practice, did not prevent the recognition of post-1840 gifts, did not exclude uncontested resettlement of former territories, and by the 1890s was being interpreted in the context of a felt need to be flexible and to avoid injustices in particular cases. (at 137)

This close examination of the application of the 1840 rule reveals a much more nuanced approach than has perhaps been generally appreciated. Nevertheless, the book does not appear to explore whether a rule based on a cut-off date was in fact the best policy setting. Boast’s assessment is that “the Court had to have some kind of cut-off date, and it is hard to see what other cut-off date it could have chosen than the accession of British sovereignty” (at 126). But did there have to be a cut-off date? This book does not enter the fray, leaving other authors to explore alternative approaches. For instance, the Court might have assessed who were the customary owners at the time the application came before the Court. This need not replace one arbitrary point in time with another. I do not see any reason why it would not have been possible, in the late 19th century, for the Court to assess whether customary title holders had changed since 1840 in accordance with tikanga Māori. As David Williams has pointed out, the Native Land Act 1865 directed the Court to ascertain who according to native custom are interested in the land, not who was interested in the land in 1840.[2] I understand that the Court would have been concerned not to sanction post-1840 violence associated with conflict over land. This is not an issue that Boast explores in this book, although I would argue that a more sophisticated engagement with tikanga Māori on the part of the Court would have been the best way to address those concerns.

As in Volume 1 and some of his other earlier work, Boast is also at pains to address criticisms that have been levelled at the Native Land Court, particularly criticism that comes from a late 20th or early 21st century vantage point. In a review of Volume 1, I noted that I am somewhat uneasy about the way Boast frames these issues:[3]

However, focusing on the Court’s jurisprudence does not require one to remain neutral about the Court and one worry that I have about the analysis of the Native Land Court in this book is Professor Boast’s statement that “it is more important to understand [the Court] than to denounce it” (at 16). On one level this is obviously a very reasonable position to adopt. My concern is that it does seem to hint at a false dichotomy – that understanding the Court and denouncing it are mutually exclusive.

This same kind of framing is present in this most recent volume. As an example of the kind of reflex demonisation of the Court of which he says historians and legal historians have been guilty, Boast points to the criticism that the Court insisted that evidence presented in Court be the sole means of ascertaining title. One of the problems of this approach that has been identified by scholars such as Alan Ward and David Williams is that it meant that the Court could not initiate its own proceedings and that determination of title could rely on the evidence of a small number of individuals, often at the expense of a much larger group of customary owners. In response, Boast usefully provides examples to show that the Court did not operate in an overly legalistic way, often behaving in a more informal or inquisitorial way than has generally been presented by historians and Waitangi Tribunal reports. This is exactly the kind of case-based analysis that helps us to better understand the Court and Māori land law.

But Boast appears to suggest that all of this should lead us to seeing the Native Land Court in a more positive light and, in doing so, somewhat over-eggs the pudding. Boast explicitly states that “it is important not to caricature the criticism” but then appears to do precisely that:

I do not believe that Professor Ward, Professor Williams, or the Waitangi Tribunal really mean to suggest that it would have been better if the Native Land Court had made its decisions on matters personally known to the judges but not given in evidence, or that the Court should have based decisions on articles in the Transactions of the New Zealand Institute  or the Journal of the Polynesian Society. Their point is rather that adherence to this rule, in combination with certain other factors, made the Native Land Court a most unsuitable process for the determination of Māori customary titles. . . Indeed, the gravamen of the criticism, if I can put it that way, is that the Native Land Court should never have been set up in the first place. . . Perhaps this is correct . . . Deploring the establishment of the Native Land Court is irrelevant to the purpose of this book (and its predecessor), which is focused on the Court’s decisions and actions. (p 112)

The criticisms presented by David Williams and Alan Ward are not so much directed at arguing that adjudicative mechanisms such as a court to determine interests in land should never have been set up but more about explaining the legal mechanisms that led to rapid Māori land loss and how the institutions that were established did not reflect the sophistication of the customary system of tenure they were addressing. Alan Ward pointed out “The system facilitated neither corporate group enterprise nor the development of land by individuals, and it persisted for a century. The Crown is clearly responsible for shaping it.”[4] David Williams concludes his 1999 book on the Native Land Court by highlighting the “corrosive impact” of the Court and noting his hope that recognising the injustice of this impact will allow processes of reconciliation and transitional justice to take place.[5]  Their criticisms are made against the backdrop of a now considerable scholarship detailing the Court’s deleterious effects on Māori land tenure and the work of the Waitangi Tribunal which aims to address Crown action that is in breach of Treaty principles. This is also the context within which Professor Boast’s book sits – and he would be the first to acknowledge that the Waitangi Tribunal’s processes has generated a great deal of the precursor materials from which he has been able to craft this book. While deploring the establishment of the Native Land Court may not be relevant to Boast’s book, reflecting the context of large-scale Māori land loss most certainly is. It is clear from Boast’s discussion of the cases and from his work as both an academic and participant in Treaty claims processes that he is aware of and sensitive to that context - few people would have a better understanding of the nature and scale of Māori land loss in this period than Boast. And yet, by disavowing any kind of value judgment, Boast’s understandable attempts to re-balance our views of Native Land Court judges away from the popular perception of them as two-dimensional historical villains, and his efforts to inject more nuance and sophistication into analysis of decisions of the Court, comes across as slightly apologist. I am certain that this is not Professor Boast’s intention but I was left wondering whether he has fully appreciated that no study of the Court can now be divorced from the backdrop of both large-scale Māori land loss and the more recent processes of Treaty of Waitangi claims and settlements. That context demands to be acknowledged in one way or another.

While that framing does concern me, this volume, like its predecessor is a magnificent resource. Good, accessible, case reports are fundamental to the robust development of any field of law, as Boast makes clear - and those of us involved with the Māori Law Review are well-aware. This volume makes another substantial contribution to the accessibility of a vitally important part of the New Zealand legal landscape. The research and scholarship that underpins this volume is impressive and Boast’s command of the material is obvious. For a book that contains a vast amount of technical legal detail, it is highly readable. As with Volume 1, I suspect that anyone with an interest in New Zealand legal history will find this volume both engaging and valuable. It deserves to be widely read.

Notes

See (2013) December Māori LR for a book review by Professor David V Williams of Volume 1 in this series.

[1] See Boast, (Vol 1 NLC14).

[2] David V Williams ‘Te Kooti Tango Whenua – The Native Land Court 1864-1909 (Huia, Wellington, 1999) at 185.

[3] Carwyn Jones ‘Book Review: The Native Land Court – A Historical Study, Cases and Commentary, Vol. 1 - 1862-1887’  (2014) 26 NZULR 145, at 147.

[4] Alan Ward An Unsettled History: Treaty Claims in New Zealand Today (Bridget Williams Books, Wellington, 1999) at 140.

[5] David V Williams ‘Te Kooti Tango Whenua – The Native Land Court 1864-1909 (Huia, Wellington, 1999) at 245.