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New Zealand Māori Land Legislation Manual |
Last Updated: 29 September 2020
6
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Citation:
Date of Assent: Commencement:
Repeal:
Amendments:
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23 December, 1846
Superseded by 1852, 15
& 16 Vict. cap 72 Additional Instructions – 22 December,
1847
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Type of Legislation: Imperial
Subject: Alienation of Maori Land
Status of Land
Waste Lands
Relevant Sections: Chapter 13: On settlement of the Waste lands of the colony.
9: No claim shall be admitted in the Land Court on behalf of Aboriginal inhabitants unless the claimants have occupation of the land and have been accustomed to use it for the convenience and sustenance of life.
11: Land belonging to Aboriginal Natives in common as tribes shall only be alienated (by either lease or sale) to the Crown. Provided that this shall not apply to land held by Natives in severalty or under any title known to the law of England.
Chapter 14: Aborigines of New Zealand.
Commentary and Cross Reference continued next page
7
Royal Instructions of 1846 continued
Commentary: These Instructions were subsequent to the Charter of 1846 setting up the administration of the colony on a new basis. They contain significant sections on Waste lands and Aboriginal title which are important as illustrating Colonial Office thinking although in fact they were never implemented.
In the dispatch accompanying the Instructions Earl Grey expressed the Colonial Office view on the nature of Maori land tenure. He believed that land ownership was dependent on the productive use of land and that therefore all New Zealand land which was not occupied by Maori or used for agriculture was not owned by Maori and could therefore not be purchased from them. This meant that "From the moment that British Dominion was proclaimed in New Zealand, all lands, not actually occupied in the sense in which alone occupation can give a right of possession, ought to have been considered as the property of the Crown". Although Earl Grey then acknowledged that these principles had not been operated on in the past, he wrote that Gov. Grey should "look at them as the foundation of the policy which, so far as is in your power, you are to pursue". Earl Grey then instructed that exercising the Crown right of pre-emption was the "foundation on which systematic colonisation must be based" as it prevented the sale of large tracts of lands to individuals who could then interfere with the Crown's sale of lands and the associated profit which should be used for public works etc. In reply, Gov. Grey wrote that Maori did not see land ownership as dependent on active occupation and that to try to force Maori to surrender land to the Crown as "Waste lands" would encounter active resistance, whereas he considered that Maori were willing to sell their land to the Crown. Grey's reply, together with missionary petitions, convinced the Colonial Office that it would be forced to recognise that the Treaty of Waitangi guaranteed Maori ownership of all their lands, whether the Crown officials would consider them to be "occupied" or not. Grey proceeded to rely upon Crown pre-emption and the Native Land Purchase Ordinance 1846 to promote a land purchase system, supervised by Chief Land Purchase Officer Donald McLean, which remained in place until the establishment of the Native Land Court in 1862.
Cross Reference: BPP NZ5: 1847 [763] 68 - 70, 76 - 87 BPP NZ6: 1849 [1120] 22 - 26
Adams P Fatal Necessity
(AUP, Auckland, 1977) 176 - 193.
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