The New Zealand Land Commission was a 19th-century government inquiry into the validity of claims to land purchases by European settlers from the New Zealand Māori people made prior to 1840, when New Zealand was part of the Australian colony of New South Wales. The inquiry was designed to determine who owned what land, in order to formalise and regulate land ownership in the new colony. The commission carried out its work in two distinct sections—a three-man inquiry to examine purchases in general throughout New Zealand, and a one-man inquiry run by English lawyer William Spain to investigate just those purchases claimed by the New Zealand Company. The commissions were to advise the Governor of which claims were accepted, with the expectation that landowners would then be awarded a Crown grant to their property.
The first inquiry ran from January 1841 to September 1844, and investigated more than 1000 claims throughout the country, with the majority of them in the Bay of Islands, Auckland and Kaipara regions. It allowed just under half of those claims, although concerns remained that in many cases there were doubts that Māori who had sold land had the right to do so.
Spain conducted his hearings between May 1842 and August 1844 in the areas in which the New Zealand Company had bought land—Wellington and Porirua, Manawatu, Wanganui, Taranaki and Nelson. Spain initially encountered, but overcame, attempts by the New Zealand Company's principal agent, William Wakefield, to obstruct his work and finally concluded that the company had made valid purchases in only two of the areas it claimed—Manawatu and New Plymouth. Under instructions from London, Spain sought to identify lands that were in the "actual occupation and enjoyment" of Māori, believing that uncultivated lands were not truly owned by Māori. Subsequently, where it was found sales had not been conducted properly Spain opted to transfer the land to Crown ownership rather than return it to the original Māori owners. In September 1842, after just three months of hearings, Spain ceased his exhaustive investigation into the background and validity of sales and switched his efforts to arbitrating amounts of compensation that would be paid to Māori for the loss of their land. Māori had no input in the negotiations.
Spain's decision on the New Plymouth claims came close to sparking Māori violence against settlers and was overturned by Governor Robert FitzRoy, creating a long-running feud between the pair that lasted until Spain's departure from New Zealand.
It took more than two decades to resolve the question of European land titles to pre-annexation purchases. A variety of methods were used, including new legislation, another land commission, land exchanges with Māori, land purchases and military action to oust Māori from some areas.
First land commission The Treaty of Waitangi, which in its English language version transferred sovereignty over New Zealand to the British Crown, was first signed at Waitangi on 6 February 1840.
Three months later New South Wales Governor George Gipps introduced to the New South Wales Legislative Council the New Zealand Land Claims Bill to establish a New Zealand Land Commission, which would investigate the validity of all purchases of land in New Zealand from Māori. The legislation was passed on 4 August 1840 and in late September Gipps appointed three commissioners—a lawyer, Francis Fisher, and two New South Wales military officers, retired colonel Edward Godfrey and Captain Mathew Richmond, who was a former British Resident of the Ionian Islands. Neither Godfrey nor Richmond, who carried out the bulk of the commission's work, had any legal training. They were instructed not to investigate any derivative claim—sales in which land had not been bought directly from Māori—nor any sales by non-British nationals. In September 1840 the Governor also exempted all New Zealand Company purchases from the inquiry, after receiving a deputation from settlers in Wellington who were worried they would lose their homes if the New Zealand Company's purchases were found to be deficient.
Their public hearings inquiry began in January 1841 at Russell in the Bay of Islands, with the commissioners assisted by an interpreter, a surveyor and the Protector of Aborigines, who acted as an advocate and counsel for Māori witnesses. In June, with New Zealand by then a separate colony,New Zealand became a colony separate from that of New South Wales on 3 May 1841. their powers were transferred to a New Zealand statute. They continued through to September 1844, holding a total of 1049 inquiries into land sales, most of them in the Bay of Islands, Auckland and Kaipara regions, as well as Waikato and North Taranaki. In 1843 hearings were also conducted in the South Island and Stewart Island, examining purchases in Banks Peninsula and Otago.
The commissioners found that the claimants fell into four basic categories—speculators, church missionaries, settlers and derivative purchasers—with most sales made after 1836 and reaching a peak in 1839. The size of land purchases made by individuals ranged from small pieces of less than an acre to several tracts of over 1 million acres each, with Church Missionary Society purchases among the biggest. Payment had been made with cash and a wide variety of goods including clothes, blankets, tools and guns.
By early 1842 it was apparent to the commissioners that Māori who had accepted payment in money or goods had had no intention of total alienation of all the land within the vast general boundaries outlined in some of the deeds. Godfrey and Richmond had no hesitation in dismissing as utterly unintelligible, to Māori or European, some of the pretentious deeds drawn up in pseudo-legalistic English. In many cases the commissioners accepted the evidence of Māori over that of the claimants. They found boundaries to be inadequately described in most deeds, the acreages grossly exaggerated, the claims overlapped, with Māori usually having little idea of area or boundaries in English terms.
The commissioners allowed 490 claims; most of those disallowed were greater than 1000 acres, with 241 disallowed because the claimants failed to appear at the hearings. The commissioners commonly reduced land boundaries or recommended the addition of Māori reserves. Chief Protector George Clarke noted that of the 490 claims the commissioners allowed: "All that has been ascertained is that various Europeans have made purchases from certain natives, but whether those natives had a right to sell or how that right was acquired, is still, in the majority of cases, quite a matter of doubt."
Fisher resigned from the commission on 25 June 1841 after being provisionally appointed as Attorney-General; in July 1843 Richmond also left when he was appointed Chief Police Magistrate of the Southern District.
William Spain's land commission Spain had worked as an attorney in London before his appointment as New Zealand Land Commissioner and was an active supporter of the Liberal Party. George Clarke Jnr, a clerk in the Native Department who served as a translator during the land claim commission hearings, described him as "a man of solid intelligence, but with a good deal of legal pedantry about him. He was somewhat slow in thinking, very wooden in his apprehension of ways of dealing with new emergencies, steady and rather plodding in his ways, thoroughly honest in intention, and utterly immovable in threats, though he may have been softened by flattery."George Clarke Jnr, Notes on an Early Life in New Zealand, 1903, pg 47.
His appointment followed the signing of an agreement in November 1840 between the Colonial Office and the New Zealand Company that awarded the company a royal charter of incorporation. The company would be given a Crown grant to land in defined areas of the country, including Wellington and New Plymouth, but abandon claim to the 20 million acres it claimed to have bought during the 1839 expedition of the company vessel, Tory. On 3 December the British Government told the company that a commission would be set up to investigate all the company's New Zealand land titles, after which bona fide purchases would be confirmed with a Crown grant.
British Colonial Secretary Lord John Russell selected Spain to fill the role of commissioner, to take effect from 20 January 1841, believing that having a British rather than a local government appointee would be seen as more impartial. Spain was given a fixed annual salary of £2000, which equalled that of the Chief Justice and made the pair the second-highest paid public officials in New Zealand, behind the Governor. Among his instructions, Russell directed that the commissioner and Governor define on the map land that was in the "actual occupation and enjoyment" of Māori; certain areas were to be made inalienable for Māori use and occupation, with the balance, described as "waste land", to become Crown land. Historian Alan Ward noted: "Russell’s view that uncultivated lands were not truly owned by Māori, strongly influenced official attitudes at this time."
Spain left London in mid-April, but suffered shipwreck on the voyage and did not arrive in New Zealand until 8 December 1841. Some confusion surrounded his role: Russell had intended that Spain be the sole land commissioner, but Spain—possibly on discovering two other commissioners were already at work—told Hobson he would supervise their work. Hobson rejected the proposal, insisting the task was so vast it would require them all to be engaged in inquiries around the country. He directed Spain to proceed immediately to Wellington to investigate the New Zealand Company purchases that were defined in an agreement Hobson had made with the company in September 1841. In that agreement the Crown indicated its acceptance of certain earlier land purchases—110,000 acres at Port Nicholson, Porirua and Manawatu, 50,000 acres at Wanganui and 50,000 acres (later lifted to 60,000 acres) at New Plymouth—with the guarantee conditional on the company proving it had fairly extinguished the Māori title. Spain's task, then, was to first establish who had actually held the title to the lands before they were sold to the company, a difficult task in itself, and then find whether the sales were legitimate. Under instructions from Colonial Secretary Lord Stanley to Governor Robert FitzRoy, any land deemed to be in excess of a valid claim should be retained by the Crown. Stanley, who succeeded Russell in August 1841, explained: "The excess is vested in the sovereign as representing and protecting the interest of society at large ... for the purposes of sale and settlement."
Hobson appointed George Clarke, then aged 19, as the commission's interpreter and Sub-Protector of Aborigines (his father George Clarke Senior had been appointed Chief Protector in May 1841); his duty was to look after Māori interests during the investigations. At the outset his interrogation of witnesses was exhaustive, with lengthy evidence taken and recorded in both Māori and English.
Port Nicholson