Extricating ‘Native Title from its Present Entanglement’—Recognizing Diversity and the Problem of a Liberal Constitution

‘Vague Native Rights to Land’: British Imperial Policy on Native Title and Custom in New Zealand, 1837–53

“…The extent to which such common law sources might subsequently have influenced specific policy decisions in the later nineteenth century and beyond is a different matter worthy of careful mapping and analysis in its own right. 7 The Colonial Office preferred a policy process governing the interaction between expanding settlement and pre-existing Māori occupation based on disciplining the extent of settlement and collecting 'custom' from Māori sources about the nature of Māori occupation. 8 These two aspects of imperial policy proved so effective that colonial New Zealand was in danger of financial and political failure by 1845.…”

“…Whether that perception remained intact and what the legal efficacy and content of that common law might be in practice (if applicable at all) could be the subject of dispute in the later nineteenth century. 10 It is erroneous to suggest, however, as some commentators such as Hackshaw have implied, that imperial policy reflected, or was informed by, a concept of aboriginal title at common law that drew on principles of the law of nations dating back to Vittoria in the sixteenth century. 11 As presently understood judicially, the doctrine of aboriginal title at common law essentially provides that the rights of an indigenous population in or to land remain undisturbed by an incoming claimant of sovereignty, such as the imperial crown of Britain.…”