Copyright is owned by the Author of the thesis. Permission is given for a copy to be downloaded by an individual for the purpose of research and private study only. The thesis may not be reproduced elsewhere without the permission of the Author. NGA KOOTI WHENUA THE DYNAMICS OF A COLONIAL ENCOUNTER Grant Young A thesis presented in fulfilment of the requirements for the degree of Doctor of Philosophy in History, Massey University, Albany February 2003 ii ABSTRACT The Native Land Court was created to establish certain, stable and alienable title to Maori land but it struggled to do so and was regularly re-invented from 1862 to 1928 to deal with crises which undermined its role in meeting the demands of colonial politicians for land. Inside the courtroom, Maori asserted and argued complex claims to land, continuing a long tradition of negotiating relationships between distinct tribal and kinship groups. To deal with these claims and establish a settled title, the Court was forced to navigate a path through particular disputes to individual pieces of land rather than impose its own conceptualisation of customary rights. This thesis concludes that Maori customary rights to land cannot be generalised as a model of abstract rules. Rather they were a practical application of tribal political and civil rights negotiated in particular circumstances, both geographically and historically. Maori customary rights to land were fundamentally about relationships, how people interacted with each other over access to resources and land. This thesis also concludes that the Court demonstrates in the colonial context, power was never absolutely in the hands of imperial authorities. The process of alienating Maori from their land did not occur easily or quickly - colonisation was a haphazard process which occurred over many decades. Five discourses on Maori customary rights to land are examined. They are that of historians, the political discourse surrounding the Court from its establishment through to 1928, that of Maori claimants asserting rights to land in the Court and of judges and assessors attempting to resolve disputed claims to land, �md the bureaucratic discourse which emerged after 1928. The major sources used are parliamentary debates, official and unofficial published papers, manuscript collections of particular individuals and the Court's minute books. A sampling process has been applied to the minute books to make this material manageable using specific criteria designed to ensure, among other things, geographical and chronological diversity. This thesis marks a first attempt to discuss the Court by taking a systematic approach to its minute books and one which recognises both the volume and complexity of the material available. iii CONTENTS Abstract 11 Acknowledgments IV Abbreviations V Introduction 6 PART ONE: HISTORIES 1. Approaching the Native Land Court 15 PART TWO: POLITICS Introduction 33 2. William Lee Rees and a Nineteenth-Century Show-Trial 37 3. Grey, Mclean and Crown Pre-Emption 51 4. Establishing the Native Land Court and Early Refonn 72 5. Marginalised: Strangling Settlement and Speculation 90 6. Crisis: Liberals and the Re-Invention offhe Court 106 7. Judicial Bureaucracy and the Administration of Custom 128 PART THREE: VOICES Introduction 148 8. Judge Nonnan Smith: Imposing Order 159 9. Pakeha Judges and Maori Assessors 169 10. Battles and Wars 192 11. A Landscape of Many Voices 211 12. Making Sense of Many Voices 228 13. Rehearings, Appeals, Petitions: is there an End? 249 Conclusion: Relationships and Authenticity 275 Appendix 282 Bibliography 287 iv ACKNOWLEDGMENTS Over any project of this length, substantial debts accumulate. These brief comments will not repay these debts, but at least they can be recognised. First, and most importantly, I would like to express my gratitude to Michael Belgrave for his substantial and ongoing advice and support. He has been so much more than just a chief supervisor or even mentor. Without his constant enthusiasm and willingness to debate issues at any time, this project would have been a much more isolating and less stimulating experience. The second significant debt to accrue is that to the librarians and archivists who provided patient and efficient service in response to constant demands and, at times, bizarre requests. The two institutions I have relied on most heavily are the library at Massey University, Albany, and Archives New Zealand Auckland regional office and they deserve special mention. I would like to thank, in particular, Sharyn Bonham, Patricia Kay, Erica Marsden and Joy Oehlers at Massey. At Archives, Harvey Brahne, Natalie Clay, Wendy Goldsmith, Narelle Scollay, Mark Stoddart and others, were tolerant, efficient and cheerful in response to my endless requests for minute books and files. Staff at the Alexander Turnbull Library, the National Library, the Macmillan Brown Library at the University of Canterbury and Archives New Zealand, Wellington, are also due my thanks. In the School of Social and Cultural Studies at Massey University, Albany, I would like to express my gratitude to Kerry Howe for reading the drafts and providing thoughtful feedback. Other staff, particularly Adam Claasen and Mary Paul, engaged in lively conversations. I would also like to thank Ann Parsonson of the University of Canterbury for her willingness to discuss my work. Tracy Tulloch has regularly and generously provided wise and experienced counsel at times when the world seemed to . be falling apart. Discussions with Hazel Petrie and Richard Nightingale, fellow voyagers in New Zealand history, have always been productive. I have tremendous respect for Paul Majurey, David Taipari and the Marutuahu Claims Committee, whose enthusiasm for New Zealand history was inspiring. Finally, I would like to thank my friends and family for their continued interest and encouragement, especially Barbara Batt, Stephanie and Michael Chapman, Anna Deason, Lyn Hatrick, Micah Officer, Stacey Raines and Clare Robinson. Gavin and Kim Lack housed me during my sojourn in Christchurch. Near and far, they have all nevertheless provided encouragement and support. Over the last ten years, my parents have consistently provided an environment, both financial and emotional, in which I could work productively. Brian Kelly died in July 2002 and Murray West died suddenly in May 2003. I valued both immensely for their friendship and admired their humanity and their generosity. I will never forget all that they did for me or what they meant to me. v ABBREVIATIONS ATL Alexander Tumbull Library AJHR Appendix to the Journals of the Ho use of Representatives BPP Irish University Press Series of British ParliamentaryPa pers. Co lonies:Ne w Zealand NZLR New Zealand Law Reports NZPD N�w Zealand ParliamentaryDebat es NA Archives New Zealand PP Parliamentary Papers on New Zealand, Massey University Library, Albany. INTRODUCTION 'In the [Native Land] Courts,' wrote Sir Apirana Ngata in 1940, 'where exultant descendants of conquering ancestors gloated over the humiliation of their foes, old ! wounds are reopened with far-reaching results.' He went on: 'I know of many large areas sold hurriedly to place theissue beyond doubt and as a final taunt to the enemy. I have listened patiently to a, large number of petitions to Parliament, where the gravamen of the complaint was not so much the defeat in Court, but �e removal of a dishonour foisted on the memory of revered ancestors by unscrupulous enemy witnesses.' Many decades after the original hearing, 'aggrieved communities' still petitioned Parliament for rehearings. Old disputes and conflicts were not forgotten; they were, as Ngata observed, simply maintained in new environments. This thesis is about competing claims to land and the resolution of disputes where they arose. Both are examined through the complex institutional site of colonial exchange known as the Native Land Court. The particular focus is on the way in which Maori customary rights to land have been negotiated and definedin and around the Court. Rather than attempting to define a model of these rights, this thesis characterises them as a metaphor for complex patterns of interaction between tribes and kinship groups, and between Maori and Pakeha, over land.2 These patterns revolve around an ongoing process of negotiating relationships involving land among Maori, not just in the Court but over . many generations. The way Maori claimants asserted their rights together with attempts by historians, colonial politicians, and the Court itself to come to terms with customary rights are the primary focus of this thesis. It seeks to establish two fundamental points. The first arises out of the distinction between Maori customary rights to land as a model or as a metaphor. As a model, those rights are fixed and clearly defined as four abstract take. As a metaphor, those rights are about relationships and the actions of Maori in the Court show these relationships had a long history and rights to land were the product of continuous I Apirana T. Ngata, 'Maori Land Settlement,' in The Maori People Today, I.L.G. Sutherland (ed.), Wellington: New Zealand Institute of International Affairs and the New Zealand Council fo r Educational Research, 1940, pp. 133-134. 2 For an interesting discussion of the significance of the metaphor/model distinction, see Greg Dening, Islands and Beaches: Discourse on a Silent Land, Ma rquesas, 1774-1880, Carlton: Melbourne University Press, 1980, pp.86-94. 6 INTRODUCTION 7 negotiatioh. Rather than being