"The Evils of the System": A Counterfactual Analysis of Crown Intervention in Native Lease Agreements

Abstract

This paper addresses the incidence of native leasing arrangements and their impact on the Crown’s right of pre-emption in colonial New Zealand. The arrangements for pastoral leases between Māori landlords and settler tenants were inconsistent with both the administrative and economic purposes of pre-emption, although the Crown did not attempt to intervene or otherwise suppress the arrangements until 1846. This paper argues that whilst the ultimate method of intervention adopted by the Crown has been identified by the Waitangi Tribunal as being in breach of the Treaty of Waitangi, there were, in reality, no other causes of action that the Crown was likely to adopt.