“Why do things happen the way they do?” In comparative Indigenous law and politics, this question is often asked of the fact that some colonial regimes entered treaties and others did not. Scholars frequently point to factors like the distinctive policies or legal regimes of different European powers, the influence of humanitarian or other attitudes to colonial “others,” local exigencies and incentives related to trade or military strategy, and the capacities, intentions, and existing legalities of Indigenous parties. With respect to Australia and New Zealand, both claimed for the British by Captain James Cook and overseen by the same Colonial Office, but where officials only entered into a treaty—the 1840 Treaty of Waitangi—with Maori in New Zealand, the differentials are harder to parse.
In Bain Attwood’s latest book Empire and the Making of Native Title: Sovereignty, Property and Indigenous People—examining the period from 1770 to 1850 in the territories that became Australia and New Zealand—he certainly considers many of the factors above. However, he sets himself against a number of simplifications they might court. Instead of attributing a single voice or intention to British actors, there are multiple players—including imperial and colonial officials, missionaries and humanitarian societies, landholding settlers, entrepreneurs, and colonial companies—with individual personalities and proclivities, vying with and against each other in complex political tussles. Rather than representing the unfolding of a grand imperial plan with a pre-formed concept of native title in tow, these actors’ agendas and strategies are often improvised and opportunistic. And contemporary legal principles or norms that might appear determinative in retrospect and with positivistic assumptions may not have been followed or even well-understood by colonial agents, but rather offered a shifting set of argumentative resources. Attwood’s self-described attention to historical traces (the inadvertent record) rather than sources (the self-conscious official record) allows us to notice how historical actors mobilized ideas about native title and Indigenous sovereignty in a range of different communicative and persuasive speech acts, instead of simply how these ideas were formally defined.
Attwood’s nuanced attention to archival detail, and the messiness and happenstance it reveals, makes this less a work of causal explanation, then, and more a revelation of the minutiae of political negotiation that only subsequently stabilize into concepts like native title. In his account, native title was, to British actors, an inconsequential sideshow to their struggles for jurisdiction and economic self-interest, not an end in itself. Nevertheless, historically contingent differences in the instrumentalization of native title in the nineteenth century have become enormously consequential in the present, as the relative strength of Maori claims based on the Treaty of Waitangi demonstrates. The weighty disciplinary issue emerging from the book is thus the tension between juridical history—where precedent narrates a linear development between foundational events and present action in order to justify it—and the “invariably complex, occasionally incoherent, sometimes mundane, frequently base and seldom constant” nature of historical forces documented by historians like Attwood.
University of California Press