Buying the Land, Selling the Land

Buying the Land, Selling the Land

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Winner of the Montana New Zealand Book Award for History 2009

This book is a study of Crown Maori land policy and practice in the period 1869-1929, from the establishment of the Native Land Court power until the cessation by Gordon Coates of large-scale Crown purchasing. In the intervening period virtually the main function of the Native Department was to purchase Maori land, and, to the extent that the New Zealand state had a Maori policy, the focus was on acquisition of Maori land in the interests of closer settlement. Locked into complex legal structures which prevented them from turning their assets into capital and thus increasing their value, many Maori took the only realistic option available, and sold.

The story the book tells is in many ways a bleak and grim one of a tidal wave of Crown purchasing crashing over a people who were in very difficult circumstances. Yet it is important to recognise that government purchasing of Maori land was in its own way driven by genuine, if blinkered, idealism. This book is also something of a reaction to the “the-Crown-has-been-very-naughty” school of New Zealand history. Much of the book is devoted to an examination of government purchasing policy. Many of the most idealistic and impressive politicians that New Zealand has produced, including Sir Donald McLean, John Ballance, and John McKenzie were strong advocates of expanded and state-controlled land purchasing. It is as important to understand their motives as it is to attempt to gauge the social and economic effects of purchasing on the Maori people.

Praise for Buying the Land

Richard Boast has completed a book which will foster the far-reaching reappraisal under way of the relationship between Maori and the Crown.
Terry Hearn OTAGO DAILY TIMES

Boast deserves a medal for writing this book.
Paerau Warbrick POLITICAL SCIENCE JOURNAL vol 60,no. 2, Dec 2008

Richard Boast is an Associate Professor of Law at Victoria University and currently teaches property law, legal history and energy and resources law. Richard also practises in the area of Maori and Treaty litigation and represents several iwi groups in inquiries currently being heard by the Waitangi Tribunal.

From: Buying the Land, Selling the Land, by Richard Boast

Chapter 1: Introduction

In March 1923 Eriata Pokai wrote to the Native Department imploring the Government to buy his land. Eriata, not otherwise known to history, lived at the Maori village of Puketapu near the town of Napier. He had heard from someone that the Native Department planned to buy the large Maori-owned Tarawera block in inland Hawke’s Bay, and it so happened that Eriata was one of the block’s many owners. The Government’s proposed purchase was welcome news as it meant the possibility of a cash windfall for many poor and desperate people. Citing from the official translation on the file – prepared by an official translator for the benefit of ministers of the Crown and officials who could not read Maori – Eriata’s letter eloquently reveals both his anxiety to sell and his desperate economic plight:1

I am anxious to sell my interests in Tarawera to the Crown, in order that I might have means to provide for myself and my family. On previous occasions I have pointed out that our existence was no better than that enjoyed by the lower animals, hence my anxiety to get the Government to agree to buy and pay the purchase money to me.

I regret very much there is no schooling; there is no food; there is no way to obtain what is necessary for our maintenance, I have no money of our own to sustain us … I would therefore most strongly invoke your assistance, by drawing to your attention my desire to sell my interest in Tarawera. I feel most deeply the miserable position my children are in [E tino nui rawa ana toku pouri mo aku tamariki.] Our present condition is worse than ever.

But there were difficulties with the purchasing process. Purchases of this kind, as we shall see in a later chapter, proceeded at a leisurely pace and in a highly bureaucratic manner. Six months later the Government had still not purchased his share and Eriata had become even more desperate. He again wrote to the Native Department:2

At present when out of work, this [selling land] is the only channel offering by which I can obtain food for my wife and family. I am failing in health. I have done both heavy and light work … The greatest hardship I am suffering from now is that we have no food and no clothes. I have been the poorest man in this pah for three years. My children are not now attending school and I am sad on that account.

It then turned out that Eriata’s shares were located in a subdivision of the Tarawera block which the Government did not want to buy. The land was so steep, densely forested and isolated that developing it was beyond the resources of the State. It was in fact commonplace for owners to be unaware exactly how many shares they had, or which subdivisions they were in. No money was forthcoming, and eventually the Native Department was to inform Eriata that the Government had no intention of acquiring his shares. The files do not record what became of Eriata and his family. One can be certain, however, that the continued possession of his undivided shares in Tarawera was of no comfort or assistance to him.

Today, Crown purchasing of Maori land is perceived as a grievance and a road to dispossession and poverty. Eriata Pokai, however, trapped in his own historical circumstances, had a different grievance: that the Government did not purchase his land. Selling his interests in Tarawera was an escape route from poverty as far as he was concerned.

This small but significant episode serves as an instructive opening to this study. The first thing to note is Eriata’s willingness to sell his land. In fact it is he who took the initiative in contacting officials of the Native Department and in continuing to badger them. The second is the poverty in which Eriata Pokai and his family were immured. His letters reveal underemployment, poor health and poverty at a very basic level, so much so that his family lacked food and clothing. In Eriata’s case, at least, poverty had caused land selling, or attempted land selling, rather than the reverse. It seems, too, that this was not the first occasion on which Eriata had turned to land selling as a solution for his financial difficulties: when out of work, land selling had been ‘the only channel offering’ by which he could feed and clothe his children. The land itself, Tarawera, Eriata did not care about particularly, at least not compared with his pressing material needs and those of his family. Perhaps he had never seen it – it was many miles away, midway between Napier and Taupo, mountainous and still largely covered in dense temperate rainforest.

This book is in part an attempt to discover how typical Eriata Pokai’s circumstances were, and thus the extent to which poverty was a cause, rather than the result, of land alienation. It focuses on Crown land buying and Maori land selling – both sides of the equation being equally important – in the years between 1869, when the Fox–Vogel–McLean Government took office, and 1921, when Gordon Coates ended the standardised Crown purchasing system. The intervening period is a crucial one in many respects. It was the period of the ascendancy of the Native Land Court, of the Maori parliamentary movements of the 1890s, of the emergence of the Ringatu and Ratana faiths and, above all, of systematic, relentless and dislocating Crown purchasing of undivided interests in Maori freehold land. It is on the latter phenomenon that this study is concentrated. While the Native Land Court is considered in some detail, in perhaps a slightly revisionist manner, it is placed in the context where, I believe, it belongs: as background to dispossession by purchasing.

Behind these processes, bearing down on Eriata Pokai, lay an even bigger and broader historical phenomenon, the ‘great land rush’, whereby peoples of mainly Anglo-Saxon origin seized control of the temperate lands of the Americas, Canada, Australia – and New Zealand – in the eighteenth and nineteenth centuries. This transformation, so important in world history, has recently been analysed in a brilliant study by John C Weaver, a Canadian historian, who has noted both the rapacity of the process and the extent to which it was mediated by law in a colonising culture in which respect for law was deeply culturally entrenched and the ideology of property was highly developed.3 In similar vein, Alan Ward has written that settlers ‘believed, naturally enough, that the wealth and power of British society, indeed the primary liberties of British citizens, depended heavily on individual rights to property, especially land, and the permanent improvements which could be built on land in registered title’.4 Simple acquisitiveness, legal doctrines and conceptions of property rights operated in complex ways; greed could subvert legal protections, but the land hunger of settlers was at the same time mediated and restrained by legal protections set in place by governments and by the living traditions of the common law.5 We thus see Eriata Pokai left holding certain defined property rights which derived in their turn from the cultural values of the peoples of the British Isles, rights which had in their turn been continually reshaped by colonial statutes over a process which had lasted for decades.

In part this book is concerned with the relationship between economics and law. However it departs in a number of ways from the usual emphases of law and economics studies. Reflecting an American emphasis on the priority of case law, most historical accounts of the economic consequences of law focus on the courts and judicial opinions rather than on statutes. As New Zealand lacks a tradition of judicial review of statutes, and given the general importance of legislation as an expression of state policy, such an emphasis is I believe inappropriate for the sub-discipline of New Zealand legal history. Historical studies of the relationships between law and economics tend to focus on the way in which the law was remodelled by the courts in order to bring about goals perceived to be desirable in economic terms.6 In the following pages this emphasis is reversed; much more significant is the way in which Maori economic options were structured and constrained by the law. Moreover the ‘law’ which really mattered in colonial New Zealand emanated less from the courts than from the colonial legislature. In the crucial area of land law it was statute which really mattered, not case law. Nor was this unique as the same is equally true of other nineteenth-century colonial societies. Statute law proliferated in volume as well as in terms of the length and complexity of individual statutes. One historian has noted that by 1900 New South Wales had over 100 statutes which dealt with land and land transactions.7 New Zealand was not far behind. The Native Lands Acts and their amendments were a famously intricate jungle in their own right, not finally cleared and rationalised until the Liberal Government’s massive Native Lands Act of 1909, the parent of the current Act.

The law relating to indigenous land tenure in New Zealand was created by the legislature, with the ordinary courts playing only a very secondary role. The main originating statutes were the Native Lands Acts of 1862, 1865 and 1873. The economic and social consequences of this legislation were far-reaching. The Native Lands Acts radically restructured the system of Maori land tenure, converting it from a variant of Polynesian customary tenure to one deriving from English feudal tenure based on freehold grants. The Native Lands Acts also structured and underpinned the system of Crown purchasing of Maori land which is the central focus of this study. The Native Lands Acts were, however, but one part of an elaborate statutory edifice of real property statutes enacted in colonial New Zealand. These statutes fall into three principal clusters. First, there were the statutes, already mentioned, which dealt with Maori lands and the jurisdiction of the Native Land Court: the Native Lands Acts, their successors and their various supplementary enactments dealing with Maori land purchasing, Maori equitable owners, reserve lands and so forth. Second, there were the various Land Acts, statutes that dealt with the administration and alienation of Crown lands, of which the best-known is McKenzie’s Land Act of 1892 which introduced a variety of new tenures dear to the hearts of radical Liberals and which provided for the protection of public rights in minerals and access to the countryside. Last, but very definitely not least, there was another group of key statutes which dealt the the national surveying system and with registration and state guarantee of land titles, beginning with the Land Transfer Act of 1870. Even today statutes in these key areas structure the country’s land law, the current versions being the Te Ture Whenua Maori/ Maori Land Act 1993, the Land Act 1948, and the Land Transfer Act 1952. Administering and allocating Crown lands is no longer of much significance or interest as little Crown land is now available for grant; in the nineteenth century, however, alienation of Crown lands was a subject which transfixed public attention, just as it did in Australia, South Africa and Canada. In the United States attention was equally riveted on the disposition of the American equivalent of Crown lands, the public domain lands acquired by purchase and cessions from other powers and from extinguishment of original Indian title by the Federal Government. To most colonial New Zealanders, acquisition of land from Maori was far less interesting a subject than how the land was to be alienated and disposed of to settlers. The attention of politicians tended to be transfixed by the latter rather than by the former.

The acquisition of Maori land by the State since the Treaty of Waitangi in 1840 falls into two main phases. The first is the so-called pre-emption era which lasted from 1840 to 1860 and which was at its height between 1846 and 1857. At that time only the Crown, as a matter of law, could acquire land in Maori ownership. The doctrine of pre-emption derives from imperial constitutional law. It is reflected in Article II of the Treaty of Waitangi and was translated into statute in New Zealand at virtually the first opportunity. One effect of the pre-emption rule was that the Government could buy land cheaply and sell it dear, financing the British settlement of the country from the balance.8 While pre-emption remained in force individual settlers and speculators could not buy or even lease land owned by Maori. All purchasing was done by Crown officials or agents, who bought large blocks of land from Maori by deed, paying a cash price and setting aside reserves. By use of this device about two-thirds of the country, including virtually the entire South Island, had been alienated by the early 1860s. The pre-emption deeds have been much studied and now form the subject of a substantial literature,9 although it is fair to say that the processes by which the land was Crown granted to settlers, and the variations in practice amongst the various provincial governments after 1852, have not attracted anything like the same degree of attention and remain poorly understood.

The first phase of Crown purchasing of Maori land ended with the Native Lands Acts of 1862–5. The legislation was predicated on the withdrawal of the State from the Maori land market, a priority abandoned in its turn in 1869. The second phase of Crown purchasing, from 1869 to 1921, has been greatly neglected, and this book is the first to attempt to deal with it comprehensively. The second purchasing era is different in kind from the first in two significant ways. First, as already stated, the 1862–73 Native Lands Acts revolutionised Maori land tenure, converting it from a customary tenure governed by Maori customary law to a kind of freehold grant governed by the common law and statute. Second, when the Native Lands Act 1862 abolished pre-emption the Crown lost its monopoly rights of purchase. Provided the Maori owners had a title from the Court and a Crown grant, they could sell their land to whomever they liked. The Crown withdrew from purchasing and turned the role over to the private sector. The policy was a failure, and after 1869 the colonial Government returned to land purchasing on a large scale. But purchasing now had to operate in a legal and political environment very different from that prevailing before the enactment of the Native Lands Acts. The Native Department had to reckon both with the existence of the Native Land Court and with the fact that the Crown no longer had a monopoly. It had to compete with private buyers.

The Native Lands Acts, then, were a decisive turning point. When the colonial State returned to land purchasing after 1869, purchasing techniques had to be redesigned to cope with new circumstances which did not exist during the pre-emption era. The interaction between the imperatives of government policy and the new legal structures formed by the Native Lands Acts created the highly distinctive and socially damaging Crown purchasing system analysed in this study. For this reason chapter 2 of this book discusses the Native Lands Acts and their interaction with the Government’s confiscation policies in some detail.

The government land-purchasing system described in this book affected only the North Island. The South Island was alienated earlier, under the former pre-emptive system. One sequence of deeds in the South Island dealt with the lands of the Ngai Tahu people, who occupied most of the South Island, and a second sequence with the lands of various iwi of the more densely settled northern South Island regions of what is now Marlborough and Nelson (Ngati Toa, Ngati Rarua, Ngati Koata, Ngati Awa, Rangitane, Ngati Kuia). By the time the Native Lands Acts were enacted, nothing remained of Maori title to the island except a number of comparatively small reserved areas, or a few places, such as Rangitoto ki te Tonga (D’Urville Island), which had been excluded from the purchase deeds. There were, of course, a number of pre-emptive purchases in the North Island as well, and substantial areas in the Wellington region, Hawke’s Bay and Northland had been acquired by the colonial Government before 1862 and Crown granted to settlers. But most of the North Island was still held under Maori customary title when the first Native Lands Act was enacted in 1862.

The reader should be warned that the post-1869 Crown purchasing process is humdrum, routine and tedious in the highest degree (which perhaps explains why no one has wanted to write about it before). It lacks totally the high drama of the pre-emptive purchases of the 1840s and 1850s and the wars and confiscations of the 1860s. In studying the post-1869 Crown purchasing system we are confronted with a system which was grinding and bureaucratic; strictly routine business as far as the Native Department was concerned, and difficult for Maori to counter precisely because of its very pervasiveness. Yet the fact that the system is somewhat monotonous and unexciting is no measure of its importance. By 1869 Maori landholdings, if much reduced, were still substantial. Much of the North Island bush frontier was still in their hands. By use of the system described in this book the Government was able to prise the last great Maori estates out of their control. It is obviously important to understand how this was done. A substantial part of this book will be concerned with analysing the system as process and technique, examining the various stages in purchasing and attempting to generalise about the system based on a wide range of examples.

The history of Maori land alienation is bound up with the history of New Zealand farming and the North Island agricultural frontier. Despite the obvious significance of farming to the national economy, scholarly histories of rural New Zealand are surprisingly rare. Academic historians, with some famous exceptions, have tended to focus attention much more on national politics, political biographies, cities, trade unions and the working class than on sheep and cattle farming, dairying, land policies, the provision of credit for rural development and the advance of pastoral settlement. Jim Gardner, expressing perhaps a quintessential Canterbury University viewpoint, has blamed this on the Department of History at the University of Auckland dominating New Zealand academic historiography, which ‘set the tone and direction of historical debate for many years, mostly in urban-dominated politics’.10 Rural and farming history has largely been left to enthusiastic local historians. Here New Zealand is singularly fortunate; there can indeed be no rural district which lacks its local history, usually commissioned by local authorities and written by local enthusiasts. These are books which are sometimes lacking in scholarly trappings and which sometimes are rather prone to listing the composition of every rabbit board, road board and drainage board in the history of the district, but which nevertheless preserve a wealth of fascinating local detail.11 This material has been gratefully drawn on in this book. This literature does not, however, compensate for the lack of a developed academic tradition of studying New Zealand rural history.

The North Island agricultural frontier, of course, was a part of a much bigger world which extended far beyond the shores of New Zealand. In his famous book on the relationship between Chicago and the American West, William Cronon has described how the great city colonised its vast hinterland, transforming it in every way and leading to consequences still felt today. Those consequences included ‘large-scale deforestation, threats of species extinction, unsustainable exploitation of natural resources, [and] widespread destruction of habitat’.12 These are words which can apply with equal force to the North Island bush frontier. In New Zealand – and Australia – the equivalent of Chicago was of course London and the manufacturing cities of the British Isles, from which capital and manufactures flowed outwards to the colonies and on which converged the imperial trade routes and shipping lines bringing to the metropolis the wool, cheese, butter and frozen-meat exports of Argentina, Australia, Canada and New Zealand. If local politicians cherished myths of rural and national independence and sturdy yeomen, the reality was in fact one of imperial trade and capital investment. Anyone who visits any of the excellent local museums found in virtually every New Zealand country town need only look at the rusting farming machinery on display – harvesters, tractors, separators, pumps and so on – and observe where it was made for the connections to become plain: mute testaments not only to laborious human endeavour but also to an imperial economy and Britain’s long-faded industrial might.

This book has a number of subsidiary objectives. One is to explode a myth. The myth is that possession of land equals wealth and wellbeing. This is just not so. Maori were poor and were forced into dependence on rural wage-labouring whether – and this is the point to be stressed – they owned land or not. Ownership of land did not necessarily equate to wealth and health in colonial New Zealand. Without capital to develop it, I will argue – it is hardly an original or profound point – land can just as much be a burden and a curse as a blessing. This is not meant to downplay the cultural and spiritual values of land and landholding; indeed such issues are of vital importance, both to Maori and Pakeha. This is, however, well recognised and I hope I may be forgiven for placing a certain emphasis on the economic and material as opposed to the cultural and spiritual dimensions of land owning. This is not meant to nail any particular ideological colours to the mast, but simply to inject a note of economic realism into a historiographical debate.

British immigrants to New Zealand came from a culture which placed strong emphasis on clear property rights, particularly so in the case of land. The need for clear rights as a basis for generating access to credit was well understood. Tenurial confusion can make land, in effect, worthless – in an economic sense. New Zealand’s British colonial forebears were certainly right about this. Owning land and natural resources is no guarantee of wealth and wellbeing. In most of the Pacific Island states, for example, much of the land is still held on customary title. Some of these countries, such as the Solomon Islands, Papua New Guinea and Vanuatu, are very well endowed with natural resources. Yet the reality is not wealth, but grinding poverty for most of the people. New Zealand is different, not just because it was a colony of settlement, but because it created first-and third-world economies in the same country, and side by side. This persisted until World War Two, when it was followed by the implementation of radically different policies for the Maori people. Before then a complex legal and economic transformation took place. Maori certainly were dispossessed of much of their land. But that is only one aspect of the transformation. Another dimension is the ‘tenurial revolution’, which decisively changed Maori land tenure but which failed to do so in a way which secured to Maori the full benefits of clear titles. The titles conferred by the colonial State were ‘clear’ in that they allowed individual Maori to part with their lands, but were for other purposes practically useless; indeed they were costly and destructive.

A second subsidiary objective, adapting Edward Thompson’s famous phrase,13 is to rescue rural nineteenth-century Maori people from the ‘enormous condescension of posterity’. Maori land purchasing was often tenaciously resisted both by community leaders and by others whose names are now remembered only within their own families. This resistance often took the form of letters and petitions, preserved in vast quantities in Native Department files. By using some of these documents, this book aspires to let these tenacious non-sellers speak for themselves. It also aspires, by the same token, to allow those who decided to sell to speak for themselves as well. Is Matene Mita – who wanted to sell his land in order to establish a billiards saloon in Rotorua – more deserving of the condescension of posterity than a diehard non-seller such as Hami Tutu of Tangoio? As Nicholas Thomas has emphasised, ‘historians and anthropologists must be wary of romanticizing or normalizing resistance’:14

[The] impulse of oppositional history presupposes that a militant stance is generally the most worthy or the most historically consequential; it withholds historic significance from those who were not engaged in some kind of resistance; it may obscure quite crucial questions concerning the reasons why particular regimes were actively supported or complied with by people who were not members of an elite.

A worthy caution, of course, provided that it does not lead to the opposite error of normalising compliance.

To let Maori speak for themselves as much as possible, some sections of this book are composed of what may seem to be excessive quotation from letters, many of which are indeed set out in full. This appeared to be the only way to convey the complexities and nuances of land alienation from a Maori perspective. The originals of the letters are invariably in Maori and I have used the official translations on the Native Department files. One day, perhaps, some scholar with the necessary skills may tackle the Maori originals and explore the shifts in world view that they exemplify based on a thorough grasp of the nuances and structures of the Maori language. Careful examination of routine literature such as letters, petitions and the like can reveal important cultural shifts. Such work has already been embarked on by specialists in the history of Amerindian peoples in post-colonial Spanish America, by Lockhart in the case of the Nahua peoples of the Valley of Mexico,15 Restall on the Yucatec Maya,16 and Terraciano on Oaxaca.17 Such feats of linguistic brilliance and methodological sophistication are beyond me, although this book does to a degree reflect the emphasis placed by Lockhart and his colleagues on day-to-day documentation written in the indigenous languages.18 One point that can be disposed of here, however, is the objection that reliance on Maori written materials is to itself distort the realities of an oral culture. One often sees Maori culture described as ‘oral’ – and, it is implied, non-Maori culture as founded on writing. Writing is un-Maori, we must suppose; writing quintessentially European. For a start this is to privilege certain kinds of texts, or scripts, at the expense of others. The carvings and paintings on the inside of the whare whakairo are in fact a kind of script – certainly their meaning had to be taught by oral instruction to adepts, but that is of course true of all scripts.19 Maori did also use simple inscriptions as mnemonic devices, although they did not evolve a phonetic script. Moreover, it is easy to exaggerate the extent to which European culture, especially nineteenth-century British culture on a remote frontier in the South Pacific, was founded on writing. It too was an oral culture in many respects. Lastly, by the 1890s Maori had been a written language, in the European sense, for over sixty years.20 In the same way that the Nahua or Quechua peoples took to writing in their own languages using Latin script following the Spanish conquests of Mexico and Peru in the sixteenth century,21 Maori swiftly took to writing and, indeed, publishing, in their own language. The amount of literature, to say nothing of ordinary correspondence, written in the Maori language is vast. As early as the 1840s ‘Maori were constantly sending letters to each other’.22 Maori wrote and read Maori newspapers, wrote manuscript histories in Maori and wrote letters in Maori to one another and to government officials in vast quantities, such letters of course forming a primary source for this book. The introduction of the Native Land Court and of the Crown purchasing system caused a further multiplication of documents. Bradford Haami has pointed out that one effect of the Land Court process was that it ‘stimulated a great volume of Maori writing – transcribed oral testimonies, letters, petitions – containing genealogies and histories that were used to prove rights to land’.23 Overall, rates of literacy may well have compared favourably with the Pakeha population. The full emergence of Maori as a modern literary language was stymied by the well meant but misguided insistence of the New Zealand State that literacy meant not literacy as such, but only literacy in English. The campaign against Maori was a campaign not against illiteracy but against the Maori language, fuelled by many of the same prejudices and errors that led to similar crusades against Irish and Welsh in the British Isles. In truth, there is no connection between modernity and the retention of non-international ‘traditional’ languages, as is shown by such examples as Finland, Iceland or Korea.

How reliable is all this documentation? No document can be taken on its face value of course. While writing this book I have been troubled by the possibility that some of those writing to the Government may have been over-dramatising their poverty to win sympathy and induce the Government to buy their land. Yet there is so much other evidence of Maori poverty during this period there seemed to be little reason to be unnecessarily sceptical of Maori assertions of sickness and poverty in correspondence with the Native Department. The possibility that Maori might use poverty and deprivation as a means of winning sympathy and persuading the Government to buy their land is intriguing in itself, of course. It has to be admitted: we do not always know how reliable the documentation is. Maybe some people did exaggerate their poverty and ill-health. Most of the correspondence I have read strikes me as heartfelt and genuine.

Chapter 2 of this book deals with the legal developments of the 1860s, especially the Native Lands Acts and the Native Land Court, which revolutionised Maori land tenure and created the framework for the developments that followed. The chapter also covers the confiscations of the 1860s, although in less detail. In the case of both the Land Court and confiscation an attempt is made to survey overseas parallels. New Zealand’s tenurial revolution was not unique, although it certainly did develop a number of highly idiosyncratic features, perhaps the most notable being its sheer legal complexity.

Chapters 3 and 4 are narratives that set out the various shifts, and continuities, in Maori land policy from 1869 until 1921, from the advent of the Fox–Vogel Government to Gordon Coates becoming Native Minister. Chapter 3 deals with the Fox–Vogel, Grey, Hall, Stout–Vogel and Atkinson ministries, chapter 4 with the famous Liberal ministry of 1891–1912 and the Reform Government led by Massey which succeeded it. When I first began this project I had in mind a comparatively brief analytical study, but it soon became apparent that this would mean little without an extended political narrative. There being no narrative history of Maori land policy in this period, I have had to write it myself. In so doing I have tried hard to avoid blurring the differences between regimes; it really is important to grasp the different approaches of the various ministries and the policies and backgrounds of the native ministers.

Chapter 5 is an extended discussion of the socioeconomic background to Maori land alienation, giving prominence to some neglected themes including regional variations and the particular problems posed for Maori by the expanding dairy industry, the real motor of economic growth in late nineteenth-and early twentieth-century New Zealand. Chapter 6 is an analysis of the Crown purchasing process, and in many respects is the core of the book. Chapters 7 and 8 are case studies. Chapter 7 considers the complex fate of two key blocks in detail, the Tongariro blocks which became the core of Tongariro National Park, and the Tutira block in Hawke’s Bay, famous as the location of Guthrie-Smith’s great pioneering classic book of environmental history.24 Chapter 8 is a regional case study (of the Gisborne area). Chapter 9 attempts to grapple with the complex question of why Maori sold land. Chapter 10 considers the opposite phenomenon: ‘non-selling’ (as it was styled). Some owners would not sell, despite all blandishments and pressures. Why did they not? This, it will be seen, is not as easy to explain as might be thought.

The reader must learn to lose the preconceptions of the present day. For the Crown to buy Maori land for settlement nowadays has almost come to be seen as ipso facto wrongful in itself, but this is plainly absurd. Land had to be made available for settlement. The Government simply could not leave most of the North Island in Maori ownership. If, however, these comments might lead the reader to assume that Maori have nothing to complain of, this is, as will be seen, very definitely not my stance.

1 . Eriata Pokai, Puketapu, to H H Kingi, Registrar, Native Department, Wellington, 15 March 1923, MA-MLP 1, 1913/17. The original letter is in Maori, written in a beautiful copperplate hand.

2 . Eriata Pokai to R M Jones, 11 August 1923, MA-MLP 1, 1913/17.

3 . See generally John C Weaver The Great Land Rush and the Making of the Modern World, McGill-Queen’s University Press, Montreal and Kingston, 2003. Other important comparative treatments are Peter Karsten, Between Law and Custom, Cambridge University Press, Cambridge, 2002, and Paul McHugh Aboriginal Societies and the Common Law Oxford University Press, Oxford, 2004.

4 . Alan Ward Ngati Pikiao Lands: Loss of Tribal Ownership and Control,, Wai 1200 Doc#A9, 19.

5 . This book focuses much more on statute law than on the traditions of the Common Law. The latter has been magisterially treated by McHugh in his Aboriginal Societies and the Common Law. I would not want to deny the importance of the common law foundations so thoroughly charted by McHugh. It seems to me, however, that practically it was statute law that counted for more in New Zealand in the period covered by this book. Statutes, too, have their own precedents and genealogies.

6 . Most famously by Morton Horwitz in The Transformation of American Law, 1780–1860, Harvard University Press, Cambridge (Mass), 1977.

7 . Weaver, Great Land Rush, 64.

8 . The economic and political dimensions of pre-emption have been particularly emphasised by Peter Adams: see Peter Adams Fatal Necessity: British Intervention in New Zealand 1830–1847 (Auckland University Press/Oxford University Press, Auckland, 1977), 194–201. Adams goes so far as to argue that ‘the need to provide an emigration fund was the real reason for the pre-emption provision in the Treaty of Waitangi’ (at 195). Without wishing to deny the importance of the emigration fund – this being a principal reason for provincial concern about some aspects of the 1862 Native Lands Bill – Adams overlooks the constitutional and legal aspects of pre-emption and the extent to which it was standard practice. As far as I am aware all British colonies were based on Crown pre-emption; that is, only the Crown could extinguish native title. In an attenuated form this is still the law in Australia, New Zealand, Canada and the United States.

9 . See Angela Ballara, ‘The Pursuit of Mana? A Re-evaluation of the Process of Land Alienation by the Maori, 1840–1890’, Journal of the Polynesian Society, vol 91, 1982, 519; Harry C Evison, Te Wai Pounamu: The Greenstone Island: A History of Southern Maori during the European Colonization of New Zealand, Aoraki Press, Wellington, 1993, and the same author’s The Long Dispute: Maori Land Rights and European Colonisation in Southern New Zealand Canterbury University Press, Christchurch, 1997; Ann Parsonson, ‘The Pursuit of Mana’ in W H Oliver and B R Williams (eds) The Oxford History of New Zealand 1st ed, Oxford University Press, Auckland, 1981, 140; Waitangi Tribunal, Ngai Tahu Report Wai 27 (1991); and Alan Ward, An Unsettled History: Treaty Claims in New Zealand Today, Bridget Williams Books, Wellington, 1999, 86–124.

10 . W J Gardner A Pastoral Kingdom Divided: Cheviot 1889–94 (Bridget Williams Books, Wellington, 1992) xi.

11 . There are of course some accounts of local and rural history which are works of real scholarship and classics of New Zealand historiography: some which stand out are Rollo Arnold, Settler Kaponga, 1881–1914: A Frontier Fragment of the Western World (Victoria University Press, Wellington, 1997); A G Bagnall, Wairarapa: An Historical Excursion (Hedley’s Bookshop, Masterton (NZ), 1976); W J Gardner, The Amuri: A County History (Culverden (NZ), 1956), and A Pastoral Kingdom Divided; Bill Oliver and Jane Thomson, Challenge and Response: A Study of the Development of the Gisborne East Coast Region (East Coast Development Research Association, Gisborne, 1971); Evelyn Stokes, A History of Tauranga County, Dunmore Press, Palmerston North, 1980.

12 . William Cronon, Nature’s Metropolis: Chicago and the Great West, Norton, New York, 1991, xv.

13 . E H Thompson, The Making of the English Working Class, Vintage Books, New York, 1966, 12.

14 . Nicholas Thomas, In Oceania: Visions, Artifacts, Histories, Duke University Press, Durham (NC) and London, 1997, 29.

15 . James Lockhart, The Nahuas after the Conquest: A Social and Cultural History of the Indians of Central Mexico, Sixteenth through Eighteenth Centuries, Stanford University Press, Stanford, 1992. Lockhart explicitly focuses on the ‘mundane documentation in Nahuatl’ (i.e. wills, legal records and so on), a source ‘more difficult and potentially richer’ than documents in Spanish. Using documentation in the indigenous languages has required in turn ‘a New Philology to render them understandable and available and put them in their true context’ (at 7). The evolution of Lockhart’s ideas can be traced in his Of Things of the Indies: Essays Old and New in Early Latin American History, Stanford University Press, Stanford, 1999.

16 . Matthew Restall, The Maya World: Yucatec Culture and Society 1550–1850, Stanford University Press, Stanford, 1997. See also Victoria Bricker, The Indian Christ, the Indian King: The Historical Substrate of Maya Myth and Ritual, University of Texas Press, Austin, 1981. Key historiographical articles are Eric Van Young, ‘The New Cultural History Comes to Old Mexico’, Hispanic American Historical Review, vol 79, no 2, 1999, 211–47; Matthew Restall, ‘A History of the New Philology and the New Philology in History’, Latin American Research Review, vol 38, no 1, 2003, 113–34.

17 . Kevin Terraciano, The Mixtecs of Colonial Oaxaca, Stanford University Press, San Francisco, 2001. Taking his cue from Lockhart, Terraciano’s massively detailed account reconstructs the history of the colonial Mixtecs by relying on archival material, and particularly on material in the indigenous language, rather on the staple fare of colonial chroniclers writing in Spanish. While Terraciano has little to say about the Spanish conquest of the region or its ecclesiastical history, the philological emphasis of the Lockhart school is exemplified by lengthy chapters on writing and language during the colonial period. Other chapters of the book deal with such issues as ‘communities’, ‘social relations’, ‘sacred relations’ and ‘ethnicity’. No one has tried to write a history of nineteenth-century Maori in the same way, but it would be perfectly possible for a scholar of the right historiographical and linguistic abilities to do so, given that the amount of documentation in Maori is far more substantial than that available in the Ñudzahui language of the Mixtecs.

18 . In any case I have my doubts about some of the emphases of the ‘New Philology’ of Lockhart, Restall and Terraciano; on reading their admittedly brilliant and powerful books it sometimes seems as if the most important effects of the colonial process are perceived as shifts in Maya or Nahuatl vocabulary and grammar, seen rather too much at the expense of the social, demographic, political and economic consequences of Spanish colonialism so thoroughly described in the older works of Charles Gibson The Aztecs under Spanish Rule, Stanford University Press, Stanford, 1964, and Nancy Farriss Maya Society under Colonial Rule: The Collective Enterprise of Survival, Princeton University Press, Princeton, 1984. For similar reflections, see Robert Patch’s review of Terraciano’s Mixtecs of Colonial Oaxaca, in Hispanic American Historical Review, vol 84 (2004), 528–30.

19 . For a brilliant consideration of indigenous scripts and texts and the tendency to privilege some types of scripts (Western, notably) at the expense of others see Gordon Brotherston Book of the Fourth World: Reading the Native Americas through their Literature, Cambridge University Press, Cambridge and New York, 1992, 40–81. There is sometimes an unjustified tendency to see phoneticisation as a cultural advance, so that the Maya people, who evolved a phonetic script, are perceived as more ‘advanced’ than other great Mesoamerican cultures such as the Nahuas who developed a script based on glyphs which carried meaning independently of pronunciation.

20 . See generally Bradford Haami, Pūtea Whakairo: Māori and the Written Word, Huia, Wellington, 2004.

21 . See Miguel León-Porhilla, Toltecayotl: aspectos de la cultura nàhutal, Fondo de Cultura Económica, Mexico City, 1980; Literaturas Indígenas de México, Editorial Mapfre and Fondo de Cultura Económica, Mexico City, 1992.

22 . Haami, Pūtea Whakairo, 23.

23 . Ibid., 21.

24 . Herbert Guthrie-Smith, Tutira: The Story of a New Zealand Sheep Station, Blackwood, Edinburgh and London, 3rd ed, 1951 [1921].

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