''R v Symonds'' ''(The Queen v Symonds)'' incorporated the concept of
aboriginal title
Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism. The requirements of proof for the recognition of aboriginal title, ...
into
New Zealand law
The law of New Zealand uses the English common law system, inherited from being a part of the British Empire.
There are several sources of law, the primary ones being statutes enacted by the New Zealand Parliament and case law made by decisions ...
and upheld the government's pre-emptive right of purchase to
Māori
Māori or Maori can refer to:
Relating to the Māori people
* Māori people of New Zealand, or members of that group
* Māori language, the language of the Māori people of New Zealand
* Māori culture
* Cook Islanders, the Māori people of the C ...
land deriving from the common law and expressed in the
Treaty of Waitangi
The Treaty of Waitangi ( mi, Te Tiriti o Waitangi) is a document of central importance to the history, to the political constitution of the state, and to the national mythos of New Zealand. It has played a major role in the treatment of the M ...
. Although the
Native Lands Act 1862 waived Crown pre-emption, the notion of aboriginal title has been revived in the 20th century to deal with Māori property rights.
Background
Faced with a "virtually bankrupt colonial administration" Governor
Robert FitzRoy
Vice-Admiral Robert FitzRoy (5 July 1805 – 30 April 1865) was an English officer of the Royal Navy and a scientist. He achieved lasting fame as the captain of during Charles Darwin's famous voyage, FitzRoy's second expedition to Tierra de ...
had in 1843 waived the Crown's right of pre-emption to purchase Māori land, allowing settlers to directly buy land from Māori if they held certificates waiving the Crown's right.
Under what became known as the "penny-an-acre" proclamation, 90,000 acres were bought by settlers.
When Governor
George Grey
Sir George Grey, KCB (14 April 1812 – 19 September 1898) was a British soldier, explorer, colonial administrator and writer. He served in a succession of governing positions: Governor of South Australia, twice Governor of New Zealand, Go ...
took office in 1845, he decided to take a test case, with a claimant seeking a writ of
scire facias
In English law, a writ of ''scire facias'' (Latin, meaning literally "make known") was a writ founded upon some judicial record directing the sheriff to make the record known to a specified party, and requiring the defendant to show cause why th ...
to "justify his refusal to award Crown grants over land to persons whose claims were based on those certificates."
The
Attorney-General
In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general.
In some jurisdictions, attorneys general also have exec ...
,
William Swainson, appeared for
Jermyn Symonds
Captain John Jermyn Symonds (4 January 1816 – 3 January 1883) was a 19th-century Member of Parliament in Auckland, New Zealand. He purchased land for the New Zealand Company and was later a judge of the Native Land Court.
Biography
Symonds was ...
, and
Thomas Bartley appeared for Charles Hunter McIntosh. The case involved an island in the
Firth of Thames
The Firth of Thames ( mi, Tikapa Moana-o-Hauraki) is a large bay located in the north of the North Island of New Zealand. It is the firth of the rivers Waihou and Piako, the former of which was formerly named the Thames River, and the town o ...
that McIntosh had bought from
Māori
Māori or Maori can refer to:
Relating to the Māori people
* Māori people of New Zealand, or members of that group
* Māori language, the language of the Māori people of New Zealand
* Māori culture
* Cook Islanders, the Māori people of the C ...
, which he claimed extinguished all title that the Crown had. The same island was then conveyed by Grey as a Crown grant to Symonds.
The argument for the
plaintiff
A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the p ...
was that the
Māori language
Māori (), or ('the Māori language'), also known as ('the language'), is an Eastern Polynesian language spoken by the Māori people, the indigenous population of mainland New Zealand. Closely related to Cook Islands Māori, Tuamotuan, and ...
text of the Treaty of Waitangi only gave the Crown the right of first refusal and not pre-emption over Māori land.
As
David Williams has noted, "The essential political issue at stake in the Gipps/Wentworth debates and in ''The Queen v Symonds'' related to the extent of Crown control over the profits to be made in the process of extinguishing Māori title and making land available to incoming settlers."
Judgment
![Henry Samuel Chapman00](https://upload.wikimedia.org/wikipedia/commons/d/d6/Henry_Samuel_Chapman00.jpg)
The judges of the Supreme Court asserted the "paramount importance of the Crown's pre-emptive monopoly right to purchase lands from Māori".
In addition, Justice
Chapman held,
"Whatever may be the opinion of jurists as to the strength or weakness of the Native title, whatsoever may have been the past vague notions of the Natives of their country, whatever may be their present clearer and still growing conception of their dominion over land, it cannot be too solemnly asserted that it is entitled to be respected, that it cannot be extinguished (at least in times of peace) otherwise than by the free consent of the native occupiers."[''R v Symonds'' (1847) NZPCC 388]
Chief Justice
William Martin considered whether there was any authority for the Governor-General to issue the certificates and concluded that there was no express authority and that no authority could be implied as,
"The 2nd section of the Land Claims Ordinance of June 1841 (Sess. 1, No.2,) declares and enacts that "the sole and absolute right of pre-emption from the aboriginal inhabitants vest in and can only be exercised by her Majesty, her Heirs and Successors, and that all titles to land in the said colony which are held or claimed by virtue of purchases or gifts.... either mediately or immediately from the chiefs or other individuals ...shall be, absolutely null and void."
Significance
As a result of the case, one contemporary newspaper, ''
The Southern Cross'', estimated that three quarters of titles to land in the new colony were invalidated. Governor Grey introduced a new system of land acquisition for settlement whereby a government commission negotiated purchases from iwi and hapu at tribal meetings. However settlers who had bought land under waiver of pre-emption were allowed to obtain a Crown grant to their land if their purchase was in accord with FitzRoy's proclamation; or could seek a grant of the land they had purchased under the Land Claims Compensation Ordinance 1846; or could seek to have the land they purchased granted to them after investigation by a commissioner under a new set of regulations.
As a
Waitangi Tribunal
The Waitangi Tribunal (Māori: ''Te Rōpū Whakamana i te Tiriti o Waitangi'') is a New Zealand permanent commission of inquiry established under the Treaty of Waitangi Act 1975. It is charged with investigating and making recommendations on cla ...
report put it, "Despite the fact that FitzRoy had exceeded his 'lawful authority', settlers had been able to rely on the Government's clemency, or be taken to have a strict legal right as long as they had complied with the proclamations."
Tom Bennion, in ''New Zealand Land Law'' has noted that the
ratio
In mathematics, a ratio shows how many times one number contains another. For example, if there are eight oranges and six lemons in a bowl of fruit, then the ratio of oranges to lemons is eight to six (that is, 8:6, which is equivalent to the ...
of the case, "that Māori customary interests were to be solemnly respected and were not to be extinguished without the free consent of Māori", "remains one of the strongest assertions of aboriginal title in any of the jurisdictions in which it has been recognised". David Williams, has however been critical of the effect of the decision on the historical trajectory of colonisation, noting that for the colonial government, "Crown pre-emption was now seen more as a device to maintain Crown control over colonisation than to protect Māori interests."
The effect of the decision was undone in 1877 by the ruling of Justice
Prendergast in ''
Wi Parata v Bishop of Wellington
''Wi Parata v Bishop of Wellington'' was a New Zealand court case of 1877 which ruled that the Treaty of Waitangi was a "simple nullity" having been signed by "primitive barbarians".
In 1877 Wiremu "Wi" Parata a wealthy Māori farmer and memb ...
'' that the Treaty of Waitangi, ''"''could not transform the natives’ right of occupation into one of legal character since, so far as it purported to cede the sovereignty of New Zealand, it was a simple nullity for no body politic existed capable of making cession of sovereignty". However in the late nineteenth and early twentieth centuries courts frequently, "appealed to this case as the authority for holding that municipal Courts had no jurisdiction over any matter involving native title. They did so on the basis of isolated passages within ''The Queen v Symonds'' (1847) where Chapman J. had stated that municipal Courts could only recognise land titles deriving from the Crown."
The concept of aboriginal title has been resurrected within the common law in the wake of
Māori protest in the 1970s and
statutory recognition of the treaty. Reconciling the concept of aboriginal title, and the radical title of the Crown, was critical to the decision of the Court of Appeal in ''
Ngati Apa v Attorney-General
''Ngati Apa v Attorney-General'' was a landmark legal decision that sparked the New Zealand foreshore and seabed controversy. The case arose from an application by eight northern South Island iwi for orders declaring the foreshore and seabed o ...
,'' and as such ''R v Symonds'' provided a precedent for the ''Ngati Apa'' decision.
[''Ngati Apa v Attorney-General'' ]003 003, O03, 0O3, OO3 may refer to:
*003, fictional British 00 Agent
*003, former emergency telephone number for the Norwegian ambulance service (until 1986)
*1990 OO3, the asteroid 6131 Towen
* OO3 gauge model railway
*''O03 (O2)'' and other related ...
3 NZLR 643 at 0 1
References
{{DEFAULTSORT:R v Symonds
1847 in New Zealand law
1847 in case law
Treaty of Waitangi
High Court of New Zealand cases
Firth of Thames