Lords of the Land: Indigenous Property Rights and the Jurisprudence of Empire

ISBN : 9780199568659

Mark Hickford
552 Pages
163 x 240 mm
Pub date
Dec 2011
Oxford Studies in Modern Legal History
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The recognition and allocation of indigenous property rights have long posed complex questions for the imperial powers of the mid-nineteenth century and their modern successors. Recognizing rights of property raises questions about pre-existing indigenous authority and power over land that continue to trouble the people and governments of settler states. Through focusing on the settlement of New Zealand during the critical period of the 1830s through to the early 1860s, this book offers a fresh assessment of the histories of indigenous property rights and the jurisprudence of empire. It shows how native title became not only a key construct for relations between Empire and tribes, but how it acted more broadly as a constitutional frame within which discourses of political authority formed and were contested at the heart of Empire and the colonial peripheries. Native title thus becomes another episode in imperial political history in which increasingly fierce and highly polemical contestation burst into violence. Native title explodes as a form of civil war that lays the foundation (by Maori ever after challenged) for revised constitutional orders. Lords of the Land considers histories of indigenous property rights not only as the stuff of entwined streams of a law of nations and constitutional theory but also as exemplars of the politics of negotiability - engaging relations of struggle and ambition for power, together with the openness and limits of incoming settler polities towards indigenous polities and laws. This study is an examination of rights as instruments of analysis and political discourse, constructed and contested in and through time. Anchored in the striking experiences of New Zealand and the politics of trans-oceanic empire, it tells a tale of indigenous political autonomy and how the vocabularies of property rights mediated relations between empire and the indigenous political communities found in newly settled lands.


1. Preliminaries: Overture - Forging Native Title in an Empire of Variations, 1837-1862
2. An Empire of Variations: Problems of Settlement and the Property Rights of Indigenous Populations
3. Incredulity from a Distance: Disputing the Content of Indigenous Proprietary Entitlements, 1840-1844
4. 'Vague Native Rights to Land': Constitutionalism, Native Title, and Pursuing Settling Spaces, 1844-1853
5. Extricating 'Native Title from its Present Entanglement' - Recognising Diversity and the Problem of a Liberal Constitution
6. Exploring the Dynamics and Consequences of 'Occasional Association'
7. 'Tribunals Independent of a Prince': 1859-1862 Exploring the Dynamics and Consequences of 'Occasional Association' part II
8. Conclusions: Constitutional Design and the Treaty of Waitangi: Balanced Constitutions, Native Title, and the Normativity of Political Constitutionalism

About the author: 

Mark Hickford is currently in the Prime Minister's Advisory Group at the Department of the Prime Minister and Cabinet in New Zealand, and an Adjunct Lecturer at Victoria University of Wellington. He is 2008 New Zealand Law Foundation International Research Fellow and a Crown Counsel. Dr Hickford holds a doctorate from Oxford and is a barrister and solicitor of the High Court of New Zealand. From 2002-2010 he was a Crown Counsel specializing in public law, the Treaty of Waitangi, Crown-Maori relations, and Natural Resources Law and he also served as a senior consultant to the New Zealand Law Commission from 2007 to 2008. Specializing in the history of law and empire, he has authored chapters and articles on the questions of indigenous property rights and the history of law and political thought, including contributions to the Journal of Imperial and Commonwealth History and the History of Political Thought.

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