PORTALvol7no12010STRONGMAN&BARRETTgalleyFINAL
PORTAL Journal of Multidisciplinary International Studies, vol. 7, no. 1, January 2010.
ISSN: 1449-2490; http://epress.lib.uts.edu.au/ojs/index.php/portal
PORTAL is published under the auspices of UTSePress, Sydney, Australia.
Time-capsule: Explorations of Concepts of Time and Law in
Colonial New Zealand
Jonathan Barrett and Luke Strongman, The Open Polytechnic of New Zealand1
‘Law organizes and reproduces an essentially temporal myth.’ (Greenhouse 1989: 1631)
Introduction
The history of relations between Māori and Pākehā2 casts a shadow over contemporary
politics and lawmaking in Aotearoa New Zealand. For example, when in opposition, the
centre-right National Party sought to reduce the 2005 general election debate to a
‘Kiwi/iwi’ duality,3 effectively demonising the Labour-led government for its alleged
privileging of Māori over Pākehā interests. Paradoxically, the extinguishment of
indigenous customary rights via the Foreshore and Seabed Act 20044 led to a schism in
1 The authors wish to thank the anonymous reviewers whose comments greatly improved this article. Any
errors are solely attributable to the authors.
2 ‘Pākehā’ means ‘a non-Polynesian New Zealand-born New Zealander especially if pale-skinned’
(Orsman 1997: 567). King (1999: 10) argues that the term ‘simply denotes people and influences that
derive originally from Europe but which are no longer “European.” Pakeha is an indigenous expression to
describe New Zealand people and expressions of culture that are not Maori.’ In this article, the term will
be restricted to the meaning contemplated by King.
3 ‘Kiwi’ denotes a New Zealander and ‘probably originally applied to white males’ (Orsman 1997: 414).
While noting the possibility of Eurocentric categorising, iwi is usually translated as ‘people’ (Belgrave et
al 2005: 394), ‘tribe’ or ‘a people recognising a common eponymous ancestor’ (Orsman 1997: 375).
Māori may also be referred to as tangata whenua (people of the land or a given place) and Pākehā as
tangata tiriti (people of the Treaty).
4 In Attorney-General v Ngāti Apa (2003), the Court of Appeal (the then highest domestic court) held that
the jurisdiction of the Māori Land Court (Te Kooti Whenua Māori), which hears matters relating to Māori
land, extended to the foreshore and seabed. This decision indicated that some customary rights could
trump the Crown’s assumption of radical title to all land in New Zealand. In reaction, the Labour-led
government (1999-2008) enacted the Foreshore and Seabed Act that vested in the Crown full legal and
beneficial ownership of the public foreshore and seabed, to preserve it in perpetuity for the people of New
Zealand. See Boast (2005) for an analysis of the case and the legislative reaction. As part of the
Relationship and Confidence and Supply Agreement between the Māori Party and the National Party,
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left politics with the creation of the Māori Party. Issues of inter-cultural conflict linger
despite—or, perhaps, because of—the Treaty of Waitangi (‘the Treaty’), which in 1840
appeared to establish equitable grounds for relations between the British Crown and the
indigenous population by granting all rights of British subjects to Māori and
guaranteeing their ‘full exclusive and undisturbed possession of their Lands and Estates
Forests Fisheries and other properties’ (the Treaty 1840: art 2).5 The settlers’ means of
acquiring land is an obvious root cause of tension; but, we argue, concepts of time and
law in colonial New Zealand, particularly in relation to land, may also contribute to an
understanding of the contemporary relevance of persistent problems.6
Opening the ‘time-capsule’ throws light on why the equitable engagement promised by
the Treaty did not eventuate as the colonists failed to recognise tikanga Māori
(customary rights and duties) as part of New Zealand law. Eurocentric notions of time
were inextricably implicated in the process of colonisation and the complex
relationships involving the inhabitancy of space. The recognition of such an ‘originary
moment’ continues to provoke questions about understandings of time in contemporary
politics and lawmaking. Thus, rather than a balancing of minority indigenous rights
with Pākehā expectations, the Foreshore and Seabed Act can be read as an example of
how the continuing influence of European modernity signifies the absorption of the
indigenous culture into the same legal and temporal framework as the coloniser at the
same time as it re-inscribes political domination in terms of space.
Rather than trace lines of power structures implicit in such a discourse in the
Foucaultian sense, this article explores how colonial law and notions of time congruent
with tenets of Victorian anthropology could occlude indigenous interests. As Jonathan
Friedman notes, ‘[A]nthropology is born out of the ideological representation of the
center/periphery/margins structure of our civilization as an evolutionary relation
which was elected as the lead party of government in 2008, the Foreshore and Seabed Act has been
subject to a Ministerial Review. The review panel has recommended that ‘the Act must be repealed’
(Durie et al 2009: 152) but no decision has been made by the government.
5 In accordance with orthodox legal doctrine, the Treaty is an international treaty concluded between two
sovereign nations. While the principles of customary public international law are incorporated into the
common law, the provisions of a treaty only apply domestically (as opposed to between the countries
themselves) when the provisions are legislated (Joseph 2001: 61).
6 There is some evidence that this problem exists forward in time as well as retrospectively. In 2009 a
national debate ensued over the value of historic forestry settlements to some Māori iwi which are
challenged by the new requirements of the environmental Emissions Trading Scheme. The scheme has
the effect of imposing penalties and circumscriptions over future land use (See ‘Ngāi Tahu Settlement
Could Unravel Over ETS Restrictions’ 2009).
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between civilization and its less developed forerunners, a mistranslation of space into
time’ (Friedman 1994: 5). In a secondary sense, this exploration delineates how the
pathway to alternative histories from the postcolonial present might be redrawn by
revealing the mechanism of historical appropriation as based on the concept of spatio-
temporal occlusion. J.G.A. Pocock argues, ‘If we look at the paradigm of appropriation
from the state of nature, the two things we ought to notice are that it was constructed by
jurists and that the technology it presupposes is the heavy plough’ (2001: 42). But
Pocock omits the fourth dimension from the paradigm of appropriation in the
colonies—the ‘technologies of time’—which separated the appropriators and the
dispossessed in terms of spatio-temporal dislocation.
This article first outlines the dissonance between European and Māori conceptions of
time, revealing a disconnection ‘between the old ways and the new’ (Pearce 2003: 13).
Second, we consider the relationship between time and law. Third, we apply the
interlinked concepts of law and time to land. Finally, we consider how postcolonial
jurisprudence seeks to engage with historical problems in New Zealand, and air the
possibility of a counter history.
Conceptions of time
Henri Bergson recognised that notions of time are culturally specific. Developing
Kant’s (1781) idea that space is endowed with an existence independent of its content,
he postulated that time is a social construction involving the manipulation of the
phenomenality and materiality of space. Time and space are malleable because the
empirical experience of the physical world and abstract ideas coincide: ‘The empirical
or genetic explanations have thus taken up the problem of space at the very point where
Kant left it: Kant separated space from its contents: the empiricists ask how these
contents, which are taken out of space by thought, manage to get back again’ (Bergson
1889: 93). Bergson (95) further proposed that, given human differences and the
interpretation of culture-specific ‘local signs,’ simultaneous experiences of time are
never identical. Such dissonance arises from the ‘diversity of the organic elements
which they effect’ and brings into question the idea of time as a clear homogeneous
medium. Thus, the experience of time and space for the individual and in the social
sense are no more located ‘within human consciousness than without it’ and are
themselves a work of time and space.
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The application of English law to colonial contexts reflects externalised Eurocentric
concepts of time that are implicit in the regulation of physical culture and social
relations. Bergson (1889: 236) suggested how this function is achieved: ‘On the one
hand by getting everything ready for language, and on the other by showing us an
external world, quite distinct from ourselves, in the perception of which all minds have
a common share, [foreshadowing and preparing] the way for social life.’ Crucially, law
and time are conjoined inasmuch as the law satisfies the two criteria of being ‘language
based’ and ‘preparing the way for social life.’ Furthermore, by creating actionable title
and records (deeds or registries) that link specific parcels of land to specific individuals,
who then enjoy a comprehensive and permanent set of rights over that land, positive law
constructs a framework for spatio-temporal transaction and ownership.
At the time of initial engagement, like other indigenous peoples, Māori held different
conceptions of time to Europeans. Linda Tuhiwai Smith observes how ‘Western
observers were struck by the contrast in the way time was used (or rather, not used or
organized) by indigenous peoples’ (1999: 53). For example, a European trader in the
early colonial period, Joel Polack, reported ‘time was not accounted by a native as any
importance’ (1840: 104). Māori developed compendious, oral whakapapa (genealogies),
and so the ever presence of ancestors would have had the effect of compressing time
and constantly recycling and renewing distant events. Indeed, Michael Jackson observes
that pre-colonisation, ‘the Maori lived in a world in which the past was continually
recreated, in myth, ritual and art’ (2003: 46). But it is cyclical time—‘the times of
reproduction’ and ‘the unfolding cycle of the seasons, the turning of the earth; the time
in which our daily lives are set’ (Massey 1993: 144)—that would have principally
informed Māori practices and customs. In contrast, the Europeans had developed the
awesome cultural weapon of linear time. Contemplating this development in the context
of early colonial Australia, Stephen Muecke argues that ‘[T]he European settlement of
Australia occurred at precisely the time in history when the European Enlightenment in
the late eighteenth century created a new temporality via a major philosophical rupture
to usher in an age of European modernity and scientific rationalism that would put all
“primitive” superstition behind it’ (2004: 9).
Unlike cyclical time, the concept of linear time is independent of natural processes and
permits ideas of history as sequestered intervals (Greenhouse 1989: 1637). Linear time
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is an intellectual construct that enables measurement in noncyclical ways and also
contains ideas of singularity, uniqueness and supremacy. As Carol Greenhouse (1989)
suggests, in borrowing the notion of time in relation to eternity from the church, secular
temporal discourse located time as something independent from individual experience.
This experience also made the regulation of space, as well as of social order, possible by
the union of time and place. Similarly, notions of time facilitated the creation of
institutions by locating regularised temporal contractions in symbolic form. Thus,
secular institutions became timekeepers in society, regulating the social relationship
between law, time and space. Linear time is embodied in institutions, industrial
workshops, the state, courts and contracts, schools, even the church. Each becomes an
independent arbiter, keeper and regulator of time juxtaposed in contiguous social
landscapes. Time itself, like law, becomes a central construct of legitimacy.
Linear time also permits ideas of universal progress. Thus, Māori, because of their pre-
modern lifestyle, could be consigned to a ‘fictitious’ past—a ‘denial of coevalness,’
which Johannes Fabian refers to as the ‘allochronism of anthropology’ (2002: 32).
Conceiving global history in terms of universal progress, this allochronic logic
identified and constituted nineteenth-century ‘savages’ as ‘survivals,’ inhabitants of
more or less ancient stages of cultural development. Victorian colonial discourse, which
incorporated, inter alia, notions of time and religious doctrine, effectively relegated
Māori to a pre-modern past, and thereby justified European cultural ascendancy through
a claim to spatio-temporal legitimacy. This discourse was based on the excentric agency
of modernity and the rule of law. Linear time also acted to ‘seal off’ or separate the
‘object’ of Māori from the time of observation, rendering Māori culture as ‘frozen’ or
‘taken out of time’ (Thomas 1996: 2). At the same time, allochronism established a
‘civilised’ West as the pinnacle of universal human progress, an argument that helped
legitimise various imperialist projects (Bunzl 2002: xi-xii).
Allochronism arose from the hegemonic way in which Victorian anthropology viewed
its subject and consigned the myths of indigenous races to a temporal ahistoricity. This
narrative continuity irrupted between the different cultural typologies of Māori and
European cultures. Māori adapted their worldview to accommodate aspects of
Christianity and settler culture. For example, Ngāti Rangiwewehi iwi member Wiremu
Te Rangikaheke’s Nga Tama a Rangi (The Sons of Heaven), published in 1849, sought
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to record Māori creation myths, but did so with recognition of aspects and terminologies
borrowed from Christianity that demonstrate an adaptation to the settler worldview.
Conversely, European migrants sought to sanitise and commodify the epistemological
view of Māori myths and legends in publications such as George Grey’s Polynesian
Mythology (1854). Grey’s book was based on Te Rangikaheke’s writings, and, while
preserving Māori narratives for posterity, did so in the mode of Victorian ethnography
that accorded the narratives ahistorical status in contrast to the Christian historical view.
Christianity was thus co-opted as the discourse enabling Māori access to modernity, and
Christianity, in turn, became a sub-text of historical loss and occlusion. Furthermore,
pre- and post-conversion practices could be compared in a way that revealed traditions
as ‘uncivilised,’ if not ‘diabolical.’ Thus Richard Boast quotes Nopera Te Ngiha, a
rangatira (chief) of the Nga Toa iwi, admitting in 1868 ‘that before the advent of
Christianity Maori had kept slaves, but stressed that this was “in Satan’s time,” before
the coming of the Gospel’ (1998: 11).
Western temporal structures inevitably became the pre-eminent rationales of social
organisation in European colonies. Indeed, as Polack (1840: 105) observed, the extent to
which Māori adopted European time usage determined their level of incorporation into
the cash economy. The advent of literacy also played an important role. ‘Literacy
enabled legends to be “frozen,” to assume the authenticity of European-style history’
(Jackson 2003: 46) but in ‘freezing the past, literacy makes it more difficult to
assimilate the present into the past. Changes or recital become more obvious and are
less easy to mask. Literacy introduced new ideas to the Maori and produced an hiatus in
the continuity of traditional time’ (46). This also had an impact on customary law. As
David Williams notes, ‘Of course tikanga [customary law] had developed since the time
of European contact and, if allowed would continue to do so’ (2005: 375).
The social problems that underlie European expansionism may be overlooked in the
vigour of cultural transplantation. The utopian ideology of ‘escape’ and the sanctity of
new beginnings punctuate and eclipse the accommodation of social difference on the
part of the coloniser. The view that the indigenous people were ‘primitive’ contains a
double jeopardy, which brings the colonial culture fast against a past that European
modernity was supposed to have left behind. The discourse of religious salvation is
employed to mitigate the humanitarian effects of the changes implemented by the
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imposition of European law. Under this conception, the European ethnocentric
discourse held that, while the European pagan was already marked for salvation, the
native was not ready for civilization. However, in the colonial Māori context this view
was contradicted by prophets, such as Te Kooti Arikirangi Te Turuki and Te Whiti o
Rongomai, who, despite leading early guerrilla and passive opposition, melded Māori
religious views with Christianity and the bible. The subsequent teachings of the Ringatu
and Ratana faiths forged the belief that Māori could be likened to the lost tribe of Israel
and thus were eminently ‘civilisable.’7
Law and time
For current purposes, three aspects of the legal interpretation of spatio-temporal
inhabitancy are of pressing relevance: the first is the relationship between law and linear
time; the second is the way the law’s temporality constitutes ‘the other’; and the third
concerns the utopian aspects of time and law.
Law and linear time
In the Western conception, law gives linear time a path from the domain of public life to
the construction and regulation of social experience. Through a succession of
intersubjective, personal experiences, and public, performative functions, the individual
comes to understand the temporal nature of law—reversible (since prior decisions can
control present ones but also prior decisions can be reversed), infinite and linear—in
contrast to the irreversible, finite temporality of her own lifetime. Law expands
constantly in a linear framework, through precedent and the ordering of social events.
Temporality and legality are conceptually fused in the West through their mutual
implications of a total order in relation to which social life acquires meaning
(Greenhouse 1989: 1631). However, indigenous time is archetypically non-linear. As
Ingela Bergman suggests, for indigenous peoples, ‘[t]he revolution of the sun and moon,
reappearance of the seasons, and the cyclical death and revival of plants formed the
conceptualisation of time as being circular rather than linear. There was no beginning
and no end’ (2006: 153). However, the very possibility of law lies in memory and the
recognition of history as a linear construct. Thus, for Locke, who, like Kant, based his
reasoning on the principle of transcendental deduction, individual moral and legal
7 From the other side of the ethnographic discursive divide, Fabian (2002: 83) has argued for the posited
authenticity of a past as savage, tribal, peasant-like while serving to denounce an inauthentic present as
uprooted, evolved, and/or acculturated.
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accountability derives from the capacity to remember deeds of the past and to take
responsibility for them (Brunner 2006: 293). The individualised ‘ought’ of positive law
is no longer coterminous with the ‘is’ of the group under customary law.
For Greenhouse (1989: 1631), the law manifests a flexible symbolism as a means of
social control, which is by definition complete, yet its completeness does not preclude
change. Indeed, the law’s regulatory function should not be discounted from a
progressive political perspective. Law can enact a restorative form of social regulation
such as with bodies established to address historical grievances, for example, the
Waitangi Tribunal. Greenhouse (1989: 1631) also points out that the law’s legitimacy is
partly derived from an historical secularisation of the sacred quality of time that locates
the end of time outside of collective experience. Law manifests timelessness in that
legal systems may carry out some regulatory functions under the sign of justice. Justice,
like time, is, in part, a transcending ideal. If the endpoint of law in time is neither fixed
nor envisioned, symbolically it is coterminous with national life, which it interprets in
temporal terms.
Constitution of the other
Karl Popper argued that since no society can far-predict its future states of knowledge,
there can be neither a predictive science of human history nor an historical determinism.
Expressed in his notion of the ‘politics of time,’ for Popper (1945; 1963), ‘society’ in
the collective selects and orders the facts of history in a self-correcting manner. As
Muecke (2004: 1) suggests, ‘[t]hinking of cultures synchronically, rather than in terms
of competitive historical progress, means one has to consider how co-existing cultures,
in the same country, are related to each other structurally and how their values are
ordered.’ It follows, then, that the time-bearing notions those knowledge gains contain
may be malleable to regimes of discursive authority. In the dialectical constitution of a
cultural ‘other’ there is a need to recognise the concrete temporal, historical, and
political conditions by which such concepts are formed. Furthermore, law becomes a
body of rules in which terms of identity in space and time are rendered political. The
ideology implicit in both Victorian anthropology and law served to keep ‘the other’
outside time. Just as law is capable of enacting forms of separation, be this financial or
physical, in colonial New Zealand lawmaking, the empirical presence of the other turns
into theoretical absence which is reinscribed into a material absence. Paradoxically, then,
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the event of the Treaty’s signing established a precedent for diplomatic intervention that,
as Denis Walker notes, favoured the European construction of Māori as ‘other’ (1983).
The regulatory function of law acts as a system for temporal control by placing limits on
the pace at which the traffic of commerce and human flow is carried out in society.
Therefore much of colonial lawmaking served to disallow the cultural memory of the
colonised, to place it out of the bounds of law, to de-temporalise it, or to reinterpret it
only under the cultural system of the colonised. It may have been too difficult or
troublesome to seek to comprehend the Māori view of time and its relationship to the
inhabitancy of space during the process of colonisation. In their determination to occupy
the present, it seems the colonisers overlooked one of the principal characteristics of
law—its Lockean backward looking temporal logic—or rather they refused to
acknowledge this capacity in Māori culture. By retrospectively privileging the European
social system,8 colonial law disengaged Māori from their own spatial-temporal
understanding in a revolutionary way. Law, or rather the political force that impels it, is
thus sometimes one of revolution: this is true of the imposition of European law in
colonies or any other situation in which one set of beliefs are swept aside by another, or
in a situation whereby only one set of beliefs become legitimated when two or more are
in view. In New Zealand this ‘quiet revolution’ was asserted over tribal norms by the
The Treaty of Waitangi (Brookfield 2006: 18).
Utopianism
Jonathan Lamb identifies two themes that emerge in the cultural fabric of New Zealand
during the era of colonial legislation (1999: 80). One is a ‘Machiavellian’ theme,
illustrated by certain cases heard in the late nineteenth century in which the Treaty was
declared a ‘nullity’ in terms of ‘native rights,’ notably Wi Parata v Bishop of Wellington
(1877), or invoked to waive its pre-emptive right of purchasing land from Māori. (This
self-serving denial of the Treaty’s status as a pact between nations was broadly accepted
until a rekindling of Māori activism, exemplified by events such as the Bastion Point
occupation of 1977-78). The second theme is a ‘utopianism’ that impels society to
provide laws that idealise the relation between Pākehā and Māori in ‘Godzone,’9
8 The English Laws Act 1858 deemed the laws of England to have applied to New Zealand from 14
January 1840. As Durie (1996: 459) states, ‘[t]he advent of English law thus in fact pre-dated the Treaty
of Waitangi, the proclamation of sovereignty and effective settlement.’
9 The term is associated with a poem by Thomas Bracken written circa 1890, entitled ‘God’s Own
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premised on mutuality, fair play, and progressive social welfare legislation, which bind
the nation together.
Lamb’s analysis of Samuel Butler’s early colonial dystopic novel Erewhon (1872) is
illuminating in this context in the way it discusses the utopian ideas held by the
originator of the New Zealand Company, Edward Gibbon Wakefield, who brought
immigrants to settle in New Zealand around the time of the signing of the Treaty. As
Lamb (1999: 87) explains: ‘Lodged in a vista where space expands as time dwindles,
and beginning to think that self-knowledge accompanied by uncoerced sociable
tendencies might be preferable to the push and shove of the life-struggle, Butler is
acting as the beneficiary and exponent of a theory of colonialism inaugurated by
Wakefield.’ Time should not be necessary in utopia but spatial relationships make it so.
The Wakefieldian solution was to invest in colonies that might reproduce the social
advantages of the source country, in a space large enough to alleviate the effects of
competition. However, as Lamb (1999: 88) points out:
Wakefield was committing a circuit of illegal, or at least non-legal, transactions: he was
issuing stock in a company that had no tradeable asset but a speculative land-purchase; he
was acquiring land for trifles from Maori who were ignorant of the terms of European
sale; and he was arranging for settlement on land in New Zealand, which, even if it had
been fairly bought, had no basis in law, since the territory lay in a foreign country in
which the British Crown had declared no interest, and with which it had not yet signed a
treaty.
Arguably, Wakefield’s utopianism is oblivious to the Hobbesian idea of law as a
scientifically planned regulatory system which allows future-orientated, continuous
security: Hobbes’s social contract is a spatio-temporal negotiation between desires and
their realisation in which future satisfactions are contracted in a trade-off between the
attainment of desire and social control in the present.
When conceived of in this way, law is the instrument of utopianism. By moderating
harmful desires in the present, law may produce future happiness. However, the law was
also an instrument of division. Whilst a strong congruence may be claimed between the
politics and lawmaking, colonial ideology and a cultural experience of time, the notion
of a temporal horizon is not confined to European culture, though linear time may be
distinguished from organic or circular time. For Yacouba Konaté, the division between
Country,’ which referred to the sublime landscape of New Zealand and implied an element of Puritanism
towards it in the settlers’ minds. Richard Seddon, New Zealand’s premier between 1893 and 1906,
popularised the term (Orsman 1997: 300).
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past and future is substantiated by an ‘asymmetrical principle’ in which time may be
part of social design in which ‘it is necessary to depart from projects, from factual
programs, in order to detach virtually from the real present and introduce a discontinuity
while realising a series of retentions between present and past’ (1996: 149). So, thinking
about time involves a conceptual divisiveness that lends itself readily to legal
categorisations.
Such a mechanistic view sees law as an independent arbiter regulating human needs and
desire in social space (Brunner 2006: 305). Law primarily shapes futures but also
expresses historical consciousness. This is an empiricist secular temporal view that
regulates human action toward the future. It is also premised on the idea that the past is
equivocated; yet much of law conducted under secular time depends on reassessing past
wrongs, in effect, of reinterpreting history so that a different, more just view prevails.
This has been the essential task of postcolonial jurisprudence in New Zealand.
Māori land rights
The power of European nations to intercede in the temporal inhabitancies of colonial
space became juridified as the doctrines of an imperial common law were developed
during the eighteenth century. In the Anonymous (1722) decision (cited by Hepburn
2005: 5), the Privy Council held that, as a ‘birthright,’ English subjects carried the
English common law with them to any new and uninhabited territory they might settle,
thereby limiting the Crown’s ability to make different laws in such ‘settled’ colonies. In
contrast, the King could impose law by decree in any country conquered by Britain. As
a matter of practice, territories occupied by tribal people became treated as ‘settled.’
This lead to the paradoxical situation whereby New Zealand was treated by the Colonial
Office as unoccupied, notwithstanding the Treaty having been concluded by the Crown
and Māori occupiers of the land (McHugh 1991: 42). After 1840, New Zealand became
part of the common law community ‘in which tribal polities hardly qualified for
membership. To the extent that the common law spoke of tribal societies, it necessarily
occurred within the context of this exclusion. The tribal presence in common-law
speech acts was largely a passive one’ (McHugh 1999: 126-7). Any cognisance that
might be taken of Māori law would thereafter be interpreted through the prism of the
common law into which it was subsumed. Yet, as Edward Taihākurei Durie notes, ‘a
mono-legal regime had not been contemplated during the execution of the Treaty of
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Waitangi. On the contrary, Māori were specifically concerned that their own laws would
be respected’ (1996: 460).
The Treaty represented a watershed in legal fortunes. Before 1840, tikanga Māori was
‘the only cognisable law in New Zealand’ (Waitangi Tribunal 1997: 392), but post-
Treaty indigenous customary law was either ignored by the colonists or understood in
terms of the ill-fitting doctrines of the common law. Furthermore, governance was
negligible. Thus, according to R. J. Walker, ‘[i]n the first twenty years after the Treaty,
no resident magistrates were appointed in the native districts. Left out of the machinery
of Government, untouched by the promised law and order of the kāwanatanga
[governance], and finally outnumbers in their own land, the Māori turned to
nationalism’ (1989: 271). However, by this time, the interlocking co-ordinates of spatio-
temporal relations that informed settler land law had brought Māori experience of time
and place within its cartographic imprint. The Treaty effected the transition between
Māori kāwanatanga to European sovereignty through a fork in interpretation, which
saw claims to an indigenous law occluded at the same time as the instruments of a
British legal revolution were symbolically and practically instantiated in New Zealand
by the politics of population volume and human migration. To put the tsunami of
European settlement in perspective, ‘[t]he Maori population equalled the European in
New Zealand in 1858, but was less than a tenth of it by 1890, despite only a modest
absolute decline’ (Belich 2009: 553-54).
It seems that in early colonial New Zealand, Australia and Canada, native or aboriginal
title was for many years little more than a legal nicety, referring more to identity than to
any legal purchase an individual may lay claim to. This changed with the establishment
of the Waitangi Tribunal in New Zealand in 1975, with Mabo v Queensland (No 2)
(1992) in Australia, where no treaty existed, and in R v Van der Peet (1996) in Canada,
each of which development reaffirmed some concept of native title (Walters 2001: 137).
Land and the Treaty
Article 2 of the English version of the Treaty provides:
Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of
New Zealand and to the respective families and individuals thereof the full exclusive and
undisturbed possession of their Lands and Estates Forests Fisheries and other properties
which they may collectively or individually possess so long as it is their wish and desire to
retain the same in their possession; but the Chiefs of the United Tribes and the individual
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PORTAL, vol. 7, no. 1, January 2010. 13
Chiefs yield to Her Majesty the exclusive right of Preemption over such lands as the
proprietors thereof may be disposed to alienate at such prices as may be agreed upon
between the respective Proprietors and persons appointed by Her Majesty to treat with them
in that behalf.
Boast (2005: 370) explains that, ‘at the proclamation of the Crown’s sovereignty in May
1840 the Crown did not acquire full title to all land in the country; what it did acquire
was, rather, the sole right to extinguish Maori title [through pre-emption] and to issue
grants.’ 10 Māori could enjoy possession of the land they occupied, but could not
alienate the land by leasing or selling it, other than to the Crown. Technically, article 2
was unnecessary as it merely confirmed imperial common law (Boast 2005: 49).
However, problematically, many Māori entered into direct transactions with Pākehā
before and, indeed, after the signing of the Treaty. In response, the Land Claims
Ordinance 1841 was enacted, which provided that ‘all titles to land claimed by virtue of
pre-annexation purchases from Maori were null and void’ and provided for government
inquiries into claims. Additionally, the Land Purchase Ordinance 1846 prescribed
penalties for settlers who entered into land deals with Māori. The imperial common law
position, reiterated by the Treaty and legislation, embellished the Crown’s self-
perception of even-handed treatment. However, while the Treaty ostensibly granted all
rights of British subjects to Māori, those formal rights were in substance inferior in so
far as political sovereignty was non-justiciable except in the ‘haphazard’ incorporation
in common law and statute (McHugh 1991: 45).
By guaranteeing interests in land as they existed in 1840, an allochronism was created.
Whereas settlers enjoyed individual property rights and could engage in free market
exchanges, Māori interests in land were preserved in legal aspic as exotic curios, despite
the clear ability of customary law to evolve in order to take into account changing
circumstances. The long-term effects of this approach have been significant. Thus, until
recently, in aboriginal title discourse, common law courts have emphasised and
recognised the ‘native title of usufruct,’11 whereas ‘Government has unilaterally rejected
any possibility of Māori exclusive or ownership interests’ (Williams 2005: 381). Since
10 A more important point is made by Williams (1989: 83): while commentators commonly emphasise
how the Treaty affirmed the Crown’s right of pre-emption, the Treaty ‘was primarily about the
maintenance of Māori title to their lands—not its extinguishment.’
11 Justinian, the Roman jurisconsult, defined usufruct (ususfructus) as ‘the right to use and enjoy the
things of another, their substance remaining unimpaired’ (Thomas 1976: 203). The usufruct, as such, has
not been received into English land law.
Barrett and Strongman Time-capsule
PORTAL, vol. 7, no. 1, January 2010. 14
Māori were obliged to sell their land to the Crown under the Treaty, a monopsony
market was created in terms of which government could effectively determine the prices
paid for land. By 1860, ‘Māori title to nearly two-thirds of the country was
extinguished’ on this basis (Boast 2008: 26). Treatment of indigenous interests in this
way was of course remarkably convenient for the colonists. Private contracts between
Māori and settlers could endanger the peace of the colony because of uncertainties
about title to land and the meaning of contracts. Furthermore, serious disruption of
colonial development could result if Māori were permitted to lease on the open market,
as they would then be unlikely to sell their lands to the Crown. The rhetoric of the
civilising mission was thus pressed into service for colonial ends. As Ann Parsonson
puts it, ‘what was a legitimate source of income for a colonial gentleman was a ticket to
social degradation for Maori’ (2001: 177).
At the time of the New Zealand Wars12 in the 1860s and subsequent government
confiscations of land (raupatu), Crown policy on indigenous land holdings was reversed.
Despite the doctrines of imperial common law, article 2 of the Treaty and relevant
provisions of the Constitution Act 1852, the Natives Land Acts 1862-65 permitted
aboriginal title to be converted to feudal tenure,13 once entitlement to the land was
established by the Native Land Court. As Claudia Orange explains, a certificate from
the Native Land Court, validated by the Governor, could be exchanged for a Crown title,
whereupon customary title would be extinguished leaving Māori free to sell, lease or
exchange land (2004: 80). However, rather than distinguishing what belonged to the
tangata whenua (original people of the land), the effect of Native Land Court
adjudication may be seen as identifying for European settlement what did not belong
Māori. As Richard Dawson observes, ‘To the despair of chiefs and many other Māori,
the court became an effectual instrument—especially in its first thirty years of
operation—for colonists to acquire rights pertaining to “their” land’ (2001: 85).
Consequently, settlement and development of land in the North Island (Te Iki a Māui)
accelerated with a concomitant hastening of amalgamation and assimilation of Māori
12 As Sinclair (1957) indicates, these conflicts were historically referred to as the ‘Māori Wars’ but, more
recently, and particularly following the success of Belich (1986) and an ensuing television series, as the
‘New Zealand Wars.’ However, as Keenan (2002: 107) observes, ‘Of all issues that then weighed heavily
upon Maori, none was as important as the fate of the land. This is why Maori have viewed the wars as
“Nga Pakanga Whenua O Mua—the Land Wars.”’
13 Under English law, the Crown is assumed to hold radical title to all land. While a grant of freehold is
practically equivalent to ownership, technically, it is a form of tenancy (Megarry & Wade 1984: 12).
Barrett and Strongman Time-capsule
PORTAL, vol. 7, no. 1, January 2010. 15
into a colony, driven by ‘genuine, if blinkered, idealism’ (Boast 2008: xv). Boast (2004:
72) argues ‘no evidence [exists] that Māori regretted the demise of Crown pre-emption
and there is some evidence of Māori support for the right to sell on the free market.’
Nevertheless, in the light of the evidence of dispossession it caused, policy predicated
on the Crown exiting the Māori land market was abandoned by 1869 (Boast 2008: 6),
and, Crown pre-emption was formally reintroduced by the Native Land Court Act 1894.
In R v Symonds (1847), Judge Chapman held that native title was ‘entitled to be
respected’ and not extinguished without indigenous consent. However, English law (and
settler politics) determined how far native title was to be respected. Before 1865, Māori
had two options: to subsist or to sell their land to the Crown, but were precluded from
becoming landlords. After 1865, they were subject to the untrammelled ambitions of a
settler government and the irreversibility of free-market transactions. What was not
available was a legal system that recognised Māori customs as parallel law or which
equitably developed New Zealand common law as a synthesis of Māori and English
norms. In the first regard, although there were never separate courts of law and equity in
New Zealand, until 1873 the administration of common law and equitable jurisdictions
were separate in the United Kingdom. Even after merger of the administration, as
Patricia Loughlan notes, ‘There was no merger of equitable and common law rules and
principles, no joining of substantive legal and equitable doctrines and no alteration of
legal and equitable principles’ (1996: 21-22). In W. Ashburner’s famous metaphor, ‘the
two streams of jurisdiction, though they run in the same channel, run side by side and
do not mingle their waters’ (cited by Loughlan 1996: 22). There was, then, ample
precedent of English law accommodating distinctly different normative systems within
one overall framework of law and justice but only within the terms set by British
Parliament.
Differing conceptions of transactions
Māori may have sought to incorporate Europeans into their communities, out of
courtesy or to avoid conflict that might result in the alienation or appropriation of their
land. They may have welcomed cultural exchange. As Margaret Mutu explains, Māori
‘had decided that their people could benefit from the knowledge, skills and goods that
Europeans could offer’ (1999: 319). In land dealings made before 1840 and for some
time after, argues Alan Ward (1973: 29), Māori may have believed they were granting
Barrett and Strongman Time-capsule
PORTAL, vol. 7, no. 1, January 2010. 16
rights of occupancy, or may have included land ‘disputed with neighbouring hapu [sub-
tribe, extended family group]’ or ‘recently conquered and tenuously held.’ Māori
customary tenure was based on a different concept of inhabitancy from the individual
title of the common law. As Aileen Moreton-Robinson expresses the aboriginal
worldview, ‘Although the concept “property” commonly refers to things owned by
persons, or the rights of persons with respect to a thing, it is more than a relationship to
the tangible and material. It embraces metaphysical and intangible rights’ (2005: 126).
Waerete Norman explains that a claim to land ‘was fixed at the outset when people
bestowed their mana on the land by naming it after themselves or after some event
enhancing their mana [authority, prestige, pride, or status]’ whereas physical control
‘was secured by the process of “ahi kā” (keeping the fires of occupation burning)’
(1999: 200-1). According to McHugh (1991: 74) dispossession through migration could
take as many as three generations as the ‘fire became cold’ (ahi mātaotao).
The custom of tuku whenua was widely practised in pre-colonial New Zealand, in terms
of which, tribal leaders who held the mana whenua for the tribe could allocate lands for
a particular individual and his family for them to live on and use’ (Mutu 1999: 319).
‘The mana whenua (that is, very approximately, the spiritual power and authority for
the lands vested by the gods in a tribe, in particular, its chief) remained always in the
tribe’ (318, footnotes omitted). As Māori engaged with settlers, whom they might have
presumed to be sojourners, the practice of tuku whenua was extended in respect of land
‘for the use of a particular European and his descendants’ (318). After the Treaty and
the declaration of Crown pre-emption, Mutu (1999: 319) observes,
The nature of the land transactions changed in one essential respect. They were still tuku whenua,
but the agreements being entered into by the tribes were no longer with individual Europeans.
The tribes were now dealing with the Queen of England, the highest chief of all English chiefs,
and hence, also the paramount chief of all incoming settlers … There would have been no reason
to have any misgivings about entrusting a person of such high rank with lands for her subjects
for as long as she and her descendants were kings and queens of England.
Māori would not, then, have seen any inconsistency between their own continued access
and ‘radical title’ to land and the exercise of rights by a newcomer. Ironically, whereas
imperial common law has traditionally restricted aboriginal title to use-rights, this may
have been precisely the nature of the privileges Māori presumed they were extending to
Europeans.
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The arrangements hapū (sub-tribes or extended family group) initiated concerning land
highlighted the gulf between Māori concepts of the nature of their relations with settlers
and the latter’s perception of such relationships. From the Māori perspective,
transactions with early traders and missionaries were almost certainly personal, and,
later, Māori continued to believe that the government could not introduce a third party
to the land who had not been approved by them (Durie 1996: 461). But bad faith is not
required for inter-cultural misunderstanding to arise, as Durie (1996: 457) argues: ‘The
same transaction could be seen in different lights. Where Maori allocated land, the
settler imagined a purchase. Where vacant possession was thought to have been taken,
Maori continued on the land as before. While payment was seen as final, subsequent
tribute was in fact required. Where Pakeha saw friendship, Maori saw obligations.’ In
the terminology of contract, there was no consensus ad idem (meeting of the minds).
Being such fundamentally different systems, Māori custom and the common law would
necessarily conflict over spatio-temporal occupancy. Andrew Erueti characterises
English land law as ‘a body of clearly defined and simplified rules that facilitated the
private use of and enjoyment of land’ that ‘provided the title-holder with virtually all
rights in the land’ (2004: 42). In contrast, under Māori custom, ‘competing claims of
right coupled with the intricate system of overlapping and intersecting rights held by
members of different kinship groups makes it difficult to say who “owned” the land, or
waters of lakes, lagoons, rivers, and the open seas’ (43). Whatever, mutual
incomprehension prevailed initially, the consequences of settler individualism and
instrumentalism came to be recognised by Māori. Angeline Greensill quotes an 1873
prediction by Te Ataria of the Ngāti Kahungunu iwi:
The plains and the mountains are being removed from under our feet; the hundred pathways
of Heretaunga are being trampled by angry greedy people. Soon all we may have left will
be the sea and the beaches although even now Pakeha covet our fish, drain the waters that
feed the sea, and take away the rocks and sand…the ocean is in danger of being taken like
the rest of the whenua [land]. (2005: 159)
Time and the Treaty revisited
Contemplating colonial New Zealand law, it is easier to identify breaches of Māori land
rights, confiscations and fraudulent purchases, than to recognise policies that made
Māori culture victim of a worldview that incorporated social and symbolic measures
dissimilar from their own (Parsonson 2001: 173). Nevertheless, the effect of policies,
well-meaning or otherwise, was to deny Māori the right to deal with their land in a way
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consistent with (evolving) customary law. The bicultural and bilingual Waitangi
Tribunal (‘the Tribunal’), which was established in 1975 ‘to make recommendations on
claims relating to the practical application of the Treaty and to determine whether
certain matters are inconsistent with the principles of the Treaty’ (Long title of the
Treaty of Waitangi Act 1975), has investigated historical grievances and draws attention
to the kinds of assumptions that underlay the colonial governments’ Māori land policies.
The Tribunal seeks to interpret and redress identifiable instances of legal imbalance and
give new weight to the Māori worldview, the Māori custom and value system, and law
and policies.
Recent Treaty scholarship argues that Māori concepts of time were and are culture-
specific. While the Treaty continues to be seen by some commentators as a ‘developing
social contract’ between New Zealand peoples, which recognises the Treaty’s ‘timeless’
nature—not only as a compact between Māori and the Crown but also as a founding
document of colonisation which also looks forward to national cohesion—it has no
independent standing in domestic law. Postcolonial lawmakers are dependent on
contemporary interpretations of the Treaty for the settlement Acts of Parliament
following from the reparative justice procedures of the Tribunal hearings, consultation
process, deliberations and negotiations with the Crown. These interpretations, as Giselle
Byrnes has pointed out, often coalesce around Māori concepts of time (2006: 2).
Deliberations of the Tribunal almost always understand the Treaty, implicitly or
explicitly, as a forward-looking social agreement rather than a ‘synchronic’ historical
document.
According to Byrnes (2006: 3), following the Treaty of Waitangi Amendment Act 1985,
which expanded the Tribunal original remit to include claims from the signing of the
Treaty in 1840 to the present, the Tribunal has emphasised the timelessness of the
Treaty thereby permitting Māori to test orthodox assumptions regarding the nature of
change over time. In the context of the Tribunal’s interpretation of Allocation of Radio
Frequencies Report (1990), a diachronic view of Māori time is taken by the Tribunal
which acknowledges changes in relations through time and protection for many kinds of
material and taonga (treasures), such as haka (dances) and whakapapa (genealogies),
though it has yet to pronounce on intellectual property. The conclusion inferred from
this report is that the principles of the Treaty are understood to be ‘out of time’
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providing arguments for contingencies that could not have been envisaged at the Treaty
was concluded. Similarly, in the Muriwhenua Land Report (1997), the Tribunal asserted
that the canons of justice and protection should ‘apply to all ages’ (Byrnes 2006: 5).
However, it is not that, ‘the space between past and present is eliminated as they are
compressed into a single entity’; rather, Māori notions of time, although culturally
specific, are embedded in physical space rather than abstracted out of it in the
predominant European sense. For example, in The Whanganui River Report (1999),
Māori conceptions of the river resource as a tapuna awa (living ancestor) were
recognised. Inclusion of the flow of life in relationships between things in the
dimensions of tangata whenua (people of the land) is implicit in this culture-specific
interpretation of time.
There are, then, at least two separate histories or synchronicities that meet their
diachronic point in each enactment following the deliberations of the Tribunal—a
history of remembering that is also forward-looking, and one of forgetting that may or
may not involve a culture of assimilation. These narratives are defined by cultural and
political as well as sociological differences (Byrnes 2006: 2). The Tribunal interprets
the Treaty as functioning as a distributive contract that is suspended between enduring
cultural values and their demographic proportions. As M.P.K Sorrenson observes, ‘so
long as the Tribunal retains its retrospective jurisdiction to 1840, it will continue to
recover a hitherto largely submerged Māori history of loss of resources and mana,
supposedly protected by the Treaty. The Tribunal’s findings may not be palatable to
many New Zealanders, but it would be perilous to ignore them’ (1989: 177).
Conclusion
In the face of European settlement, ‘indigenous peoples did not stand idly by, give up or
become passive objects; instead they resisted, temporised, changed, adapted, tried to
exploit the European presence to get even with traditional enemies, adopted Christianity
and in some ways made it their own, changed their material culture, and even defined
and invented or reinvented themselves’ (Boast 2008:16). Nevertheless, time was
fractured, and Māori adaptation to European ways meant adoption of European concepts
of time. Colonial law created a division between the agents and beneficiaries of
modernity by regulating as far as possible the pace of Māori adoption of the newly
transplanted European culture. Being effectively outside of time meant the space of the
Barrett and Strongman Time-capsule
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tangata whenua (people of the land) could be occluded also (Durie 1996: 34). If Locke
foresaw the need to devise a political structure able to cope with the fallacies and
mistakes that result from human misadventure, it would seem fair to say that such a
structure was not established in colonial New Zealand. The frontier mentality of
settlement conflicted with the politics of nation formation and created the possibilities
for temporal disadvantage.
Could things have been different; was a result other than domination by colonial law
possible? To pose such questions is not to invite imaginative speculation but rather to
consider how the terms of the Treaty should have been actuated in relation to the
normative systems of indigenes and settlers. Ani Mikaere observes that ‘Tikanga Māori
was the first law of Aotearoa’ (2005: 153), and, for Durie (1996: 39) it is New
Zealand’s original lex situs (the law of the place property is situated). In his view, the
Treaty guaranteed Māori their own laws, just as the English were guaranteed theirs.
This is not a revisionist fancy. The English Laws Act 1858 provided that the laws of
England applied only ‘so far as applicable to the circumstances of New Zealand’;
indeed, measures were taken in the colony’s early years to accommodate notions of
collective responsibility—so alien to European individualism yet so natural to the Māori
sense of community (Patterson 1992). These measures had been abandoned by 1858, a
casualty of the feud between Attorney-General William Swainson and George Clarke (a
missionary appointed Chief Protector of Aborigines) over the establishment of Native
Districts. As Ward (1973: 61) notes, ‘The declaration of Native Districts would also
have involved a de facto acceptance of the Maori social system, and allowed Maori
people to adapt to the Western world, at a pace and manner more of their choosing.’
Furthermore, early laws provided the option for different regions to create locally
appropriate laws, although this opportunity was never taken up. There is also the
practical issue of recognition of law. Thus Belich (1996: 224) observes that ‘even in the
late 1860s, when the power balance had shifted considerably in favour of the Pakeha, a
great many Maori did not consider themselves obliged to obey Pakeha law when it did
not suit.’
There were, then, in the early colonial period two sets of laws involving different
peoples and different ontologies of time. It is likely that, at the signing of the Treaty,
these were intended—at least on the part of Māori—to co-exist, and indeed, it is
Barrett and Strongman Time-capsule
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plausible that they could have done so. In the event, the alien system prevailed when it
could have co-existed, and the concepts of transcendental symbolism, which united the
European experience of self in time and space under law, were denied to Māori
occupation of space. These temporal-spatial occlusions are not historical artefacts; they
remain crucial issues in contemporary New Zealand society and politics. As Jock
Brookfield observes, ‘The revival of Māori customary law, tikanga Māori, so far as that
is possible and so as that has now been changed for the better by the exercise and
impact of kāwanatanga [governance] is necessary for the much fuller legitimation of the
New Zealand legal system as a whole’ (2005: 360). The postcolonial jurisprudence of
the Tribunal has significantly contributed to realising this imperative. Williams (2005:
381) may not represent legal orthodoxy when he says ‘tikanga Māori are now clearly
acknowledged as the source of aboriginal title customary entitlements,’ but significant
‘steps have been made in honing New Zealand jurisprudence towards acknowledging
two sources of law’ and ‘a very real possibility for legal pluralism [now exists] within
the state legal system.’
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