December 2013 Māori Law Review
Book Review – Lords of the Land – indigenous property rights and jurisprudence of empire
Overview
Lords of the Land – indigenous property rights and the jurisprudence of empire
Mark Hickford
Oxford University Press 2011 (523 pages, ISBN: 9780199568659, eISBN: 9780191731273)
Reviewed by Māmari Stephens, senior lecturer, Faculty of Law, Victoria University of Wellington.
Discussion
By the time the Constitutional Advisory Panel released its final report on the Constitutional review in early December, it was clear, that without the heft of a Royal Commission, the Panel’s job was always going to be difficult. With no evidence that the present government would act upon any recommendations, the Panel had to invite, corral, interpret and make sense of New Zealanders’ beliefs and aspirations about how we carry out the business of governing ourselves, within a limited frame of reference.
The resulting report is large, informative, and interesting, as much for what it says as for what it doesn’t (or cannot) say. One sentence of the Report struck me on my first reading: “During the Conversation the Panel heard many calls for more information, in particular about the history of how the current arrangements evolved.” (At p 18) Another striking part of the report to my eyes was Appendix E, a chronological list of constitutionally relevant developments that began in 1835 with the signing of the Declaration of Independence and ending with the 2011 referendum on the voting system. This kind of list (like the one put out by the Constitutional Arrangements Committee in 2005) seems to offer readers some assistance in how to make sense of our history and contributes to a reassuring notion that our constitution has evolved and any imperfections will be fixed by the further and better evolution of our constitutional institutions (Inquiry to Review New Zealand’s Existing Constitutional Arrangements, Report of the Constitutional Arrangements Committee (2005)). As former Governor General Dame Sylvia Cartwright put it in 2006, marking ten years of MMP; “We have come a long way and show increasing sureness of step.” (‘Our Constitutional Journey’.) The road is long, with many a winding turn, as the Hollies put it in He ain’t heavy, he’s my brother. “But”, the song goes on, “we’ll get there.”
Those of us who find such evolutionary approaches reassuring in the context of our constitutional history will find Mark Hickford’s book a difficult one, because he insists on reflecting an important truth about our legal history: it’s messy.
In brief, Lords of the Land sets out to employ the histories of indigenous property rights as a lens by which to identify a constitutional framework which undergirded New Zealand’s complex and contested discourses about political authority. While the book’s main focal point is New Zealand, significant material also deals with how the ideas of indigenous property rights and the jurisprudence of empire intersect and travel through countries such as Canada, South Africa, and Australia. The book covers quite a short period (mainly 1840-1862) as Hickford seeks to identify in that period some of the extraordinarily important roots of our constitutional thinking that remain with us still, even if few of us that contributed to the Constitutional Conversation knew it.
Hickford’s approach will not reassure lawyers or others who prefer, or yearn for, a tidy, reductionism in New Zealand’s legal history. Such reductionism would reveal our legal and political history to be coherent, giving rise to tidy, discoverable principles and institutions that can then be applied and used to assist us to solve modern problems. Or indeed, this approach might free us to concoct modern principles for modern times that pay courtesy, but not deference, to our past. Either way, certainty and tidiness would indeed be helpful, particularly in dealing with the relationships between Māori, the Crown and settlers as those three main groups in the 19th century shaped the basis of modern New Zealand.
Instead, one of the recurrent ideas in Hickford’s work is that New Zealand constitutionalism, for example, has been formed, not by the tidy and programmatic establishment of appropriate constitutional bodies and structures, but by messy, problematic and uncertain negotiations between Māori and Pākehā, such as those involved in concluding land purchase agreements, that have quite literally comprised ‘punctuated moments in conversations without end.’ (Lords of the Land at p 9.) Hickford supports this important idea by his insistence on earthing his analysis in the actual behaviours, interactions and practices of the people he writes about. At times this approach lends a certain relentlessness to the reader’s experience: most historical figures and ideas discussed in the text demand, and receive, thorough contextualisation. This approach means the book is difficult to read in a linear fashion. The font is small, there are almost no illustrations, and most pages feature only one or two paragraphs. These factors, along with the sheer complexity of the content, create density in the text that may be off-putting to a casual reader.
One important theme in this text is identifying how the anglophone world came to understand Māori in the late 18th and early-mid 19th centuries, under ‘stadial’ theory. This theory enabled the identification, perhaps even classification of indigenous peoples according to their predominant modes of subsistence living. Rather than hunters, or ‘wandering savages’, Māori became understood primarily as horticulturalists with occasional local variation.
This understanding, still developing even as late as 1860, served to underpin colonial notions of native title in New Zealand. In turn, in various parts of the Empire, those colonial and imperial conceptions of indigenous property rights determined the nature of the legal frameworks set up to translate or incorporate those very rights into a system that anglophones could themselves recognise. How (often very elite) theoretical understandings of indigenous property rights traversed the world in the 19th century and how those understandings manifested themselves in the real and contested reality of Crown/settler/Māori relations in this country is a central concern and organising principle of this book.
Early Crown officials and other important English figures wanted to incorporate Māori modes of authority and rights to land into a coherent and recognisable framework based on English legal norms. This desire led, in the mid–late 19th century, to the creation of what Hickford calls ‘moments of communicability’ between the Crown and Māori polities, or windows of ‘opportunity’ for Māori to cooperate with the Crown within a Crown-controlled framework. Almost invariably Māori rejected these moments, preferring instead to negotiate directly with the Crown on a case-by-case basis. Chapter 7 explores how purchase transactions created extraordinarily complex negotiations between parties but also profound thinking about political and legal power within Māoridom, as well as within colonial and imperial domains. The pre-eminent example of this dynamic is the Waitara purchase, ultimately a touchpaper for war, the implications of which remain until this day.
Lords of the Land thereby explores and underscores Māori political constitutionalism and agency in the development of indigenous property rights within the New Zealand context (After all, it was said that Māori saw themselves as “politically lords of the land as well as landlords” (Herman Merivale, 7 July 1857, cited in Lords of the Land at p 1). This in itself is critically important, revelatory even, and serves to right some of the imbalance in New Zealand legal historiography to date. Hickford deals primarily in English language sources, and I look forward to future scholarship that will engage with Hickford’s theses, offering some further Māori-derived input to this extraordinarily rich narrative.
Another important topic in the book is the nascent colonial state’s view of itself apart from its imperial roots, particularly in dealing with Native title issues. As a kind of complicated case-study this dynamic is explored in chaper 6, which deals in particular with the Sewell-promoted idea of creating a Native Council to deal with matters Māori, taking Native affairs out of the sole province of the governor. At one level this experimental proposal reflected the ongoing tension between the New Zealand government and the British Parliament to whom the governor was responsible. At another level this idea reflects colonial anxiety to ensure Māori polities were brought within a unified and institutionalised structure. Ultimately the measure failed, but the story of that failure is an important microcosm of the kinds of tensions at work in the early New Zealand colonial government.
There is much yet to be done to do justice to the rich constitutional history of New Zealand’s peoples. Lords of the Land is an important book that takes us some considerable distance down that path. It is not an easy book to read. But the effort creates rewards.
