Owning the Land: native title in NZ and Australia

The Albanese government has pledged “full support” for the Uluru Statement from the Heart and its calls for “Voice, Truth and Treaty”. In this context it is worth exploring why the New Zealand Maori got a treaty—the 1840 Treaty of Waitangi—but the Australian Aborigines did not.

This review appears in the latest Quadrant.
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Explaining this is the task of Bain Attwood’s recent book Empire and the Making of Native Title, which sets out to answer the question: “Why did the British government negotiate with Maori for the cession of sovereignty and title to land yet treat Aborigines as though they were neither sovereign nor owners of the land?” He does not wring his hands about language, speaking of “natives” and “savages” and uncultivated land as “waste” as the primary sources of the period invariably do.

Attwood downplays events commonly taken to be iconic such as Cook’s proclamation on Possession Island in 1770 and the signing of the Treaty of Waitangi (te Tiriti o Waitangi) in 1840. Instead, he argues that these performative acts have to be understood in terms of the broader historical and political context of their time. His fundamental argument is that sovereignty and rights of property in land were made in New Zealand (and not made in Australia) as a result of deeply historical processes that were “rarely linear in nature but halting, contingent and ultimately reliant on a large degree of chance”.

He places particular emphasis on historical traces (private correspondence and marginal comments) as distinct from published primary sources that are “on the record”. He downplays the importance of ideas and doctrines in divining the motivations and thoughts of various imperial agents. More important, he argues, were the goals people were trying to achieve in the matters at hand. There were long-running struggles between imperial, colonial, religious and commercial interests over what would be best for the natives. These historical forces, Attwood says, were “invariably complex, occasionally incoherent, sometimes mundane, frequently base and seldom constant”.

Native title in the Australasian colonies, he argues, was made over a process involving considerable political conflict that started in 1769 and culminated with Governor Grey’s purchases of vast tracts of New Zealand in the late 1840s. While Attwood does not explicitly say “native title is a social construct” it seems apt to characterise this thesis. He pushes back against the idea promoted by certain strains of what he calls “normative history” that the British Empire failed to recognise native title in 1788 and swindled the Maori with dodgy translations of “te Tiriti” in 1840.

Sovereignty and native title to land, Attwood points out, were the subject of enormous political debate in New Zealand in the 1840s and 1850s but barely discussed at all in Australia from 1788 to the 1820s. This is reflected by abundance of debate in New Zealand sources and sparsity in Australian ones. To a degree this is due to the fact that the Maori clearly practised agriculture and the Aborigines (as far as the early colonists were concerned) equally clearly did not. However, the most important differences were the historical circumstances surrounding the founding of each colony.

When Governor Phillip landed in Sydney Cove on January 26, 1788, he arrived with eleven ships carrying some 1500 souls. Most of his squadron were convict transports and storeships. Two, Sirius and Supply, were small warships. A Navy captain armed with cannon and marines, Phillip had orders to establish a penal settlement. There were no free settlers at all on the First Fleet. Thus at the inception, there were no white people with a primary interest in acquiring property. Convicts were put to work planting crops on government farms. The local Aborigines offered no serious military resistance and were soon decimated by a smallpox epidemic in 1789.

The aim of the farms was to enable the colony to become self-sufficient in food. Officers got the first land grants, followed by “ticket of leave” men. Matters of sovereignty and title were dealt with unilaterally. The natives were regarded as too primitive to have any conception of “property” as Europeans understood the term. They had nothing resembling government (that the British could perceive). There were no villages or forts. They appeared to be naked nomads close to the “state of nature” posited by the “stadial” theory of history then in vogue. Sovereignty was established by the rights of discovery (Cook’s charting) and occupation (settlement by the First Fleet). Until the 1830s, these views were taken as fact and little debated.

By contrast, when the Treaty of Waitangi was first signed by chiefs on the North Island in 1840, white people had been trading and settling in New Zealand for over two decades. Missionaries had been preaching, seeking to save the souls of the “savages” and bring them salvation. Many white settlers had bought land from Maori chiefs, who were willing to sell because they saw trade and technology as benefits that would come with white people. White settlers were naturally of the view that they owned what they had bought from Maori chiefs and said so clearly and distinctly in the colonial press.

Besides the existence of pre-colonial white settlers who had bought land and thus tangibly recognised title owned by natives, Attwood focuses on various other events in Australia that explain why the British eventually opted for a treaty in New Zealand.

First there was the war in Van Diemen’s Land that reached its peak in the late 1820s and early 1830s. This brought the natives to the brink of extinction. Governor Arthur was deeply troubled by this bloodshed (nowadays known as the Black War). He urged his superiors in the Colonial Office to encourage governors to make treaties with the Australian natives prior to land acquisition to prevent further “wars of extermination”.

Next was Batman’s treaty, an attempt by some wealthy settlers in Van Diemen’s Land to buy land from the Aborigines of Port Phillip Bay (adjacent to what is now Melbourne). This 1835 “treaty” was declared invalid by Governor Bourke of New South Wales on the advice of Chief Justice Forbes. The position was that the Crown had sovereignty and title over the colony. Therefore, the Aborigines had no title to sell.

Another influence on New Zealand was the experience of the South Australia Company, a collection of politically connected investors in London, vastly more influential than the Vandemonians who backed Batman. Their lobbying in London got an Act of Parliament passed in 1834 which gave them quasi-governmental authority to run the colony, which they duly founded in 1836.

One of the concessions they made to get their deal over the line with the Colonial Office was to appoint a “Protector of Aborigines” who would ensure any Aboriginal property rights were respected. The colony was to be funded by land sales to settlers. As Attwood shows, the Company were entirely confident that, on their Lockean view, there was no Aboriginal property in land in South Australia as Aborigines did not “mix their labour with the soil”. As a result, the colony was founded at Adelaide in 1836 and no land was bought from Aborigines in South Australia.

In New Zealand, things were different. The British had already recognised Maori independence through various acts. In 1817, the British had passed an extraterritorial law, the Murders Abroad Act, that permitted British courts to punish “murders or manslaughters not within His Majesty’s dominions” such as the islands of the South Pacific. This recognised New Zealand as “not British”. Later, the Admiralty encouraged Maori to have their trading ships fly a flag, so they would be recognised as legitimate visitors to British ports (such as Sydney). Again, the United Tribes of Maori flag, while obviously based on the British White Ensign, was not British. Further, British subjects had bought land from Maori sellers. Thus, the questions of sovereignty and land title needed to be negotiated.

This is what the Treaty of Waitangi explicitly did. It promised the protection of the Crown from other foreign powers such as the French and Americans. It also gave the Crown a monopoly on buying land from Maori sellers. All previous sales would be reviewed. Even so, the Lockean notion of land title being linked to working the soil (settled agriculture) remained in place.

Attwood shows there were considerable tensions between the New Zealand Company and the Colonial Office regarding the legitimacy of the firms’s pre-treaty land purchases from Maori chiefs. The treaty required prior land purchases to be assessed by a Land Commissioner. He had to check whether the tribe who sold the land actually got paid and whether those chiefs who were paid were actually representative of the people whose land was sold. If the transaction was verified as a “fair equivalent” for the land obtained, the Crown would issue a grant to establish title. Alas for the New Zealand Company, its local representative, William Wakefield, was frequently careless in checking to see if those claiming to own land were truly legitimate representatives of the people whose ancestral land was being sold.

During the 1840s, there was great debate as influential people supporting and opposing the Company did battle in the colonial and metropolitan press regarding the question of buying land from natives. There were reports of Select Committees, debates in the Commons, thunder in the Times and snark in the Spectator. The Company argued that the Waitangi Treaty gave the natives the rights of English subjects and so they could sell their land to anyone they liked. Maori chiefs soon twigged that the Crown would pay them a small price and sell the same land to settlers for a higher price later. They argued (with Company support) that they should be able to sell land to whoever they liked (namely the Company).

The Colonial Office balked at this. There were personal clashes and suspicions. Some Company men were dishonourable and duplicitous, but the Colonial Office was also reluctant to recognise native title over uncultivated land. This would contradict its long-asserted Lockean view that title in property was acquired by mixing labour with the soil. They held that the Treaty gave the Crown, not Maori chiefs, title over uncultivated “waste” land. There was much correspondence and debate on this point.

Tensions raised by land purchases (and their stalling due to Land Commission investigations) resulted in rebellions. The Battle of Ohaeawai in the Northland region in 1845 proved Maori forts could withstand British artillery as well as musketry. The defenders inflicted a humiliating defeat on British redcoats. As a result, in 1846, the British sent out a new governor, with more money and more redcoats. Governor Grey ignored the views of his superior Earl Grey (the Colonial Secretary, no relation) and pragmatically solved the problem of native title over “waste” land by buying it.

As Bishop Selwyn, the Bishop of New Zealand, put it: “We can buy it [land] for a farthing an acre; but millions of money and thousands of men will not enable us to take it.” In the early days of the Colony of New Zealand, Maori outnumbered white settlers ten to one. Unlike Aborigines, Maori had beaten redcoats supported by artillery. Yet money talked. Governor Grey bought more than half of New Zealand (32.5 million acres) for an average price of less than half a penny an acre.

Overall, Attwood’s book is meticulously researched and well worth reading as an antidote to simplistic “normative history” currently in vogue. In lieu of an activist thesis that the British ought to have recognised “native title” in 1788 but did not, he argues “native title” was made over decades. Attwood names books such as The Law of the Land by Henry Reynolds and The Treaty of Waitangi by Claudia Orange that “assume or argue that particular intellectual concepts, legal doctrines and moral precepts, determined or should have determined the manner in which the British Crown treated native sovereignty and property in land”. Such works, Attwood thinks, “have tended to resemble myth rather than history”.

Empire and the Making of Native Title: Sovereignty, Property and Indigenous People
by Bain Attwood
Cambridge University Press, 2020, 442 pages, $45.94

Sean Welsh has a PhD in philosophy from the University of Canterbury in Christchurch