Lords of the land : indigenous property rights and the jurisprudence of empire / Mark Hickford.
2011
KUQ2562 .H53 2011 (Map It)
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Details
Author
Title
Lords of the land : indigenous property rights and the jurisprudence of empire / Mark Hickford.
Published
Oxford ; New York : Oxford University Press, 2011.
Call Number
KUQ2562 .H53 2011
ISBN
9780199568659 (cloth : alk. paper)
0199568650 (cloth : alk. paper)
0199568650 (cloth : alk. paper)
Description
xxiii, 523 pages : maps ; 24 cm.
System Control No.
(OCoLC)751732285
Bibliography, etc. Note
Includes bibliographical references (pages [463]-499) and index.
Record Appears in
Table of Contents
Preface and Acknowledgements
vii
List of Maps
xiii
List of Abbreviations
xv
Key Maori Terms
xvii
Table of Cases
xix
Table of Legislation and Bills
xxi
1.
Preliminaries
1
Overture---forging native title in an empire of variations, 1837 to 1862
1
Chapter outline
6
Three key ingredients---non-justiciability, conceptual incommensurability, or jurisdictional incommensurability: the pre-eminence of politics and political constitutionalism in the making of native title
10
The dynamism of native title---the politics of negotiability and the jurisprudence of empire
20
`Lords of the Land'---mid-nineteenth-century New Zealand was not a place for `Banal Constitutionalism'
31
Unravelling and reframing Maori constitutional and political thought on territorial rights
37
2.
An Empire of Variations: Problems of Settlement and the Property Rights of Indigenous Populations
40
Seeing native title through stadialism and ius gentium entwined
40
Trails of transmission to a particular colony and the relevance of empire
47
A New Zealand Association advocating `Systematic Colonization'
61
From Association to Company
82
A corporation acquiring territories
99
Several proclamations and a treaty
101
Conclusion: conversing with a corporation
107
3.
Incredulity from a Distance: Disputing the Content of Indigenous Proprietary Entitlements, 1840 to 1844
110
Disciplining `Adventurers Without Law': the uses of ius gentium, 1840 to 1844
116
Unsettling intelligence, `Disciplining Moments', and the extent of native title
139
Conclusion
162
4.
`Vague Native Rights to Land': Constitutionalism, Native Title, and Pursuing Settling Spaces, 1844-1853
164
Interrogating customs and sources of unease
175
Custom and its discontents, part I---Buller, Stanley, Hope, and Howick
180
Denouement: two Greys and the survival of `Occupancy', 1845-1853
193
Symonds contextualized
202
Placing the Treaty of Waitangi---native title and court decisions as a resource for colonial government disciplining subjects
203
Whither the Treaty of Waitangi? The conditionality of United States jurisprudence applied to New Zealand
207
Custom and its discontents, part II---Martin, Merivale, and the third Earl Grey
215
The Wesleyan Missionary Society, the incidents of native title, and living with abstract disagreement
221
The Aborigines' Protection Society---`Magisterial Jurisdiction' and `Territorial Jurisdiction'
228
Modus vivendi and proprietary rights---the politics of negotiability and living with indeterminacy
230
New Zealand's lost whig foundations---diversity and balance in a `Baroque' constitution
234
Institutional pluralism, constitutional adjustment, and native title---constitutions as process and negotiability
235
Native title illuminating British political debates about colonial constitutional design
239
Conclusions
242
5.
Extricating `Native Title from its Present Entanglement'---Recognizing Diversity and the Problem of a Liberal Constitution
244
A jurisprudence in the shadows---balanced constitutions and native title
245
Jurisdictional incommensurability, conceptual incommensurability, and non-justiciability---the electoral franchise and native title
249
Jurisdictional incommensurability continued---a board of inquiry in 1856
267
`They are all entangled or matted together'
269
Constitutional condominium or consociation---reconceiving Crown-Maori relations in colonial New Zealand
273
This `Tendency to Self-Organization'---colonial administration looking for inroads, intersections, and uptake
276
The philosophy and political economy of individualizing native title through Crown grants---1856-1860
283
How to transform native title---indigenous communities as vectors of, and volunteers for, change
286
The necessity for courts to investigate native title---`Negotiations and diplomatism will have no force, and no public support'
298
State-building and experimentation---the Native Territorial Rights Bill and the `Exclusive use and occupancy of any lands'
300
`No well-defined law' to guide and `Exclusive use and occupancy'
303
Fashioning statutory windows of communicability between indigenous custom and English law
320
`How to reconcile this work of civilization with the fair claims and rights of the natives is the problem which the Government has to solve'
324
Conclusions
327
6.
Exploring the Dynamics and Consequences of `Occasional Association'
329
The metaphor and problem of `Occasional association'
329
`Occasional negociation' and the metaphor of `Occasional Association'---an extended essay in two parts
330
pt. I
The Native Council Bill of 1860---an exceptional experiment in legislative design and imperial constitutionalism
334
Governing subjects as strangers and legislative design---double government, British South Asia, the Cape Colony, and New Zealand
353
pt. II
The Conditionality of the introduced colonial constitution---the revival and denouement of an imperial native council option
359
`The incorporation of the two races in one body politic'---letters patent and an imperial native council: native title, administering native districts, and the levers of imperial military assistance and funding
370
An imperial native council option confounded---the second cut
375
Conclusions---a study in failure
377
7.
`Tribunals Independent of a Prince', 1859-1862---Exploring the Dynamics and Consequences of `Occasional Association', Part II
380
`Whatever may be the true theory of native tenure'---of native title, mana, and seignorial rights
380
Negotiations for the acquisition of the Pekapeka block in Waitara, 1859 and 1860
381
Warring memoranda---setting the scene
385
Indigenous orders, the conditionality of the introduced colonial constitution, and the three sticks of law, the divine being, and the mana of New Zealand in disunion
390
Constitutional reflections---living with indeterminacy and disagreement
405
Communal or tribal rights, political autonomy, and rights of government as a parochial and trans-oceanic theme---the political constitutionalism of native title, New Zealand, Algeria, and the law of nations
407
`It seems agreed that native title is marvellously complex'
419
Casting Waitara as a constitutional moment---Martin's The Taranaki Question and a beginning to the warring of pamphlets
419
`A country without law and a prince'---the Treaty as an usher for rights-talk; individual and collective rights
433
Who interprets?---`Tribunals independent of the prince' and the meanings of the Treaty of Waitangi
439
The Native Land Court, 1861-1862: a `Title Sifted Through' a statutory tribunal
444
8.
Conclusions---Constitutional Design and the Treaty of Waitangi: Balanced Constitutions, Native Title, and the Normativity of Political Constitutionalism
450
Bibliography
463
Index
501