Māori Status in New Zealand Law · Part 03 · 1852
Why did the colonial constitution still contemplate Māori law governing Māori?
Section 71 of the New Zealand Constitution Act 1852 matters because the colonial constitutional framework expressly contemplated districts in which Māori laws, customs and usages could govern Māori dealings with one another.
British subjecthood did not immediately translate into a legal record in which Māori custom disappeared.
Section 71 of the New Zealand Constitution Act 1852 contemplated the maintenance of the laws, customs and usages of the aboriginal or native inhabitants for their government in relations and dealings with each other. It authorised the Crown, by Letters Patent, to make provision for particular districts where those laws and customs could operate even where they differed from English or colonial law.
Te Ara records that the broad section 71 mechanism was never implemented. That matters. The section is evidence of what the constitutional instrument contemplated, not proof that a functioning nationwide autonomous Māori jurisdiction was established under it.
What section 71 supports
Colonial constitutional law itself recognised that Māori laws, customs and usages existed as a distinct normative order and could be maintained for Māori self-government in defined contexts.
What it does not support
It does not prove that the Crown accepted He Wakaputanga as the source of section 71 authority, nor that the contemplated districts were actually constituted.
The provision also helps prevent a false binary. The legal history is not simply “Māori law existed, then British law replaced it overnight”. The record contains periods of recognition, attempted accommodation, assertion of Crown supremacy, special Māori legislation and later assimilation.
Evidence update: did section 71 survive in Britain?
The New Zealand and United Kingdom repeal questions must be answered separately. Section 26 of New Zealand's Constitution Act 1986 caused the 1852 Act to cease having effect as part of New Zealand law from 1 January 1987. The United Kingdom Parliament subsequently repealed the whole of the 1852 Act through the Statute Law (Repeals) Act 1989, section 1 and Schedule 1, Part VI. That UK schedule expressly includes the 1852 Act (15 & 16 Vict. c.72).
Section 71 therefore cannot be invoked as a presently operative statutory power in either jurisdiction. Its repeal does not, merely by itself, resolve the separate questions of customary rights, historical Crown undertakings or the meaning of He Wakaputanga and Te Tiriti. Nor does the historical existence of section 71 automatically preserve its former statutory mechanism.
The linked research distinguishes the historical Crown relationship, the two repeals, contemporary hapū mandates and the different remedies that may be sought.
The next step is therefore to ask what happened when colonial law stopped merely recognising customary interests and built machinery to translate them into Crown-recognised titles.
Imperial statute text1891 parliamentary reproduction of Constitution Act 1852, s 71.
Historical analysisTe Ara — Māori traditional law and legislation.
New Zealand repealConstitution Act 1986, sections 1 and 26.
United Kingdom repealStatute Law (Repeals) Act 1989, Schedule 1, Part VI.