What is it about?

This article shows how the Colonial Office in London resisted the use of United States jurisprudence on native or customary title for much of the 1840s. As a matter of policy it preferred local officials to investigate indigenous customs on the ground.

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Why is it important?

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. Officials in the Colonial Office, such James Stephen, or Viscount Stanley as a Secretary of State for colonies, tended to favour locally-sited inquiries and investigations into indigenous customs and laws in the field. From time to time, however, different holders of office might express differing views. 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.


'This article was developed as a companion piece to a separate article published in the History of Political Thought journal almost half a decade earlier in 2006. In this 2010 article, the aim was to reveal the United Kingdom Colonial Office's policy orientations on indigenous property rights in colonial New Zealand in the 1840s and its rejection of United States Supreme Court jurisprudence produced during the John Marshall's tenure as Chief Justice. That United States case law was deployed largely on behalf of New Zealand Company efforts to inflect or shape official imperial policy concerning indigenous proprietary rights. Certain senior British politicians aligned with such endeavours but a number of key figures, such as Viscount Stanley (secretary of state for colonies from 1841 until 1845), remained opposed. The article also examines the New Zealand Supreme Court's decision in Regina v Symonds (1847) and how it refrained from engaging with the argument of counsel based on the Treaty of Waitangi, with Justice Henry Chapman (himself associated with the New Zealand Company in preceding years) resorting to United States case law.'

Dr Mark Hickford
Victoria University of Wellington

Read the Original

This page is a summary of: ‘Vague Native Rights to Land’: British Imperial Policy on Native Title and Custom in New Zealand, 1837–53, The Journal of Imperial & Commonwealth History, May 2010, Taylor & Francis,
DOI: 10.1080/03086531003746802.
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