Native title materialized from the common law idea that occupants have interests in places they hold. Rival interests could not be settled at law, as they did not originate in a Crown patent but in mere occupancy. When the Crown recognized native title, it had to be cleared by formal process and compensation prior to issuing patents. For distinct local reasons, the Crown did not recognize native title in Australia and British Columbia. Whether or not administrators and jurists acknowledged native title, its existence as a principle has proven intrinsic to relations among colonizers, the Crown and its successors, and indigenous peoples. Questions follow. Who among indigenes had authority to cede interests in particular locales? Who comprised the Crown or sovereign state? Was property law well comprehended by all parties?
Native title acquired exceptional intricacy in New Zealand, partly on account of the Treaty of Waitangi (1840). That treaty recognized Māori interests in resources, but also declared that the Crown had pre-emptive authority to quiet native title. Underlying difficulties with sorting interests and the tensions created by a convolutedly balanced treaty were compounded on the ground by episodes of armed resistance from certain Māori iwi. At mid-century, rugged terrain, Māori numbers, and Māori proficiency at bush warfare meant that in much of Aotearoa they were “lords of the land.” Imperial policy makers nevertheless presumed dominion; the colonial state attempted to reconcile Crown sovereignty and Māori effective control (25). Hickford writes astutely about the colonial state growing in concert with its assertions of dominion over Māori, aspiring to draw Māori into the colonial state, and struggling to manage settler appetite for land.
Applying the concept of native title produced kaleidoscopic debates in common law jurisdictions, but New Zealand's kaleidoscope (my metaphor; Hickford has us gaze through windows) eventually held abundant pieces. Hickford traces their manufacture to Westminster politicians, British essayists, imperial administrators, colonial politicians, lawyers, pamphlet writers, and Māori leaders. The opening of legal studies to diverse sources beyond leading cases, he explains, contributes to moves in legal history to accent the parochial and the contested (3). Hickford shakes the native title kaleidoscope at historical moments, producing a succession of ever more intricate images in parochial settings. His is a history of ideas penned by gentlemen, not a study of greed and dirty dealings by men on the make.
Initially, the New Zealand kaleidoscope had limited pieces; there were abstract suppositions about native title prior to serious colonization. There was “no conversational engagement with Māori” (107). Once the Colonial Office began to investigate pre-Waitangi transactions, pieces multiplied, were shaken, and a different pattern appeared. Men on the spot and at Westminster began to discuss Māori claims to occupation and encountered rival claimants. Who actually held the native title (153)? After settlers had a firm presence, the pieces multiplied once again as the newcomers disputed whether the occupation needed to affirm native title required substantial markers such as “dwellings, fortified sites, and cultivations, or whether…claims…of the claimant group were sufficient” (242). Māori collective interests as opposed to settlers' conception of individualized rights presented further complexity arising from settlers' increased familiarity with Māori. Native title inevitably became entangled in clashes of opinion about who governed the compound relations between settlers and Māori, among Māori, and among settlers interpreting Māori practices.
Hickford's prediction is that the kaleidoscope will show new patterns. He believes it should do so, as the country's constitutionalism “was and remains pre-eminently political rather than juristic” (33). In terms of native title, “there can be no permanent closure, and why should there be” (39)? In recent years, however, politicians have occasionally promised swift and definitive claims processes or sought to contain them. Hickford's contrary position, informed by history, may prove correct. In view of his assertion about constitutionalism, it is paradoxical that a good number of New Zealand politicians and commentators presume that juristic remedies, as they understand them, are interminable and believe that politics offers closure. Will any government accept his assessment?
The book ends with a pamphlet campaign in the early 1860s following a notorious land transaction in the Taranaki district. In effect, this climactic moment of hair-splitting led to recognition that Māori had no common rules about possession (414). “An institutional experiment was required” to resolve the messiness that had overtaken the clearing of native title (425). That enduring experiment was the Native Land Court, established to hear Māori claims of interests and issue documents affirming occupation antecedent to a patent.
Hickford's exhaustive research, intellectual suppleness, and sly preaching merit respect. But who will read this book? Its virtues might have reached a wider readership after skillful editing. Because of syntactic arabesques curling to the horizon, this book captures the truth in the adage that less can be more. A strong editorial hand could have halved it without damage. A clever author with worthwhile ideas can be forgiven for taking readership for granted, but not a venerable publisher.
