Were the actions of the British Crown in erecting New Zealand as a separate British colony legally valid and effective?
Captain Hobson's assertion of sovereignty in May 1840 had already been considered (here) along with an assessment of its legal effect (here). Captain Hobson's subsequent proclamation in erecting new Zealand as a separate colony in its own right has been discussed (here).
The timeline of events is on page 224 of the Te Raki Stage 2 Report. On page 227 the Waitangi Tribunal considers the legal implications of New Zealand becoming a separate colony and how it impacts on the obligations of the Crown under the Treaty.
This report is very important as it represents the latest findings of the Tribunal - December 2022 - following up the Stage 1 report of 2014. Its findings were publicised in the media on the Report's release because of the newsworthy recommendations that Crown land should be returned to iwi because of ongoing breaches of the Treaty.
However, buried in the 1,845 pages of the Report are findings of the Tribunal which cast a different light on the Treaty claims and the veracity of the various Treaty slogans that are now in vogue, and have even infiltrated into Cabinet papers and government policy.
One of the Treaty slogans maintains that sovereignty has never been ceded by Maori to the Crown. That is based on the Te Raki Stage 1 report finding that the sovereignty was not ceded under the Treaty.
The co-governance slogan arose because of Tribunal's finding in the earlier report that Article 2 mandated "a relationship in which they (rangatira) and the Governor were to be equal, while having different roles and different spheres of influence". Maori chiefs were to exercise rangatiratanga over Maori whilst the Crown exercised kawanatanga over the settlers in a type of apartheid arrangement.
While the findings and recommendations of the Tribunal - a commission of inquiry, not a court of law - are not binding in law, they have been endorsed by activists in the street, in the courts, and in the government. It is therefore important that the latest findings of the Tribunal should be publicly aired so that the earlier slogans can be modified accordingly.
These are extracts from the Stage 2 Report (2022) relating to the erection of New Zealand as a colony in its own right.
The Tribunal places a lot of reliance on the views of Dr Matthew Palmer (now Justice Palmer) in his study the Treaty of Waitangi:
But Dr Palmer argued that the status of the treaty at British law was quite different from that accorded it in British government policy and at international law. It was sufficient for British courts that the British Crown had asserted its sovereignty over New Zealand. The courts ‘would not second-guess the executive branch of government in exercising the Queen’s prerogative, or Parliament in conferring statutory powers, in defining the territory over which Britain did or did not have sovereignty’. Thus, although the treaty was a ‘necessary precondition, in terms of policy and international law, to the British acquisition of sovereignty’, Dr Palmer wrote (and this was evident in Hobson’s proclamation), in British law, it was not the basis for the Queen’s assertion of sovereignty:
“As far as imperial British law was concerned, the legal authority for Britain exercising sovereign power in New Zealand rested on the royal assertion of sovereignty. This was achieved by the Charter of 16 November 1840 that was issued by the Queen in the form of Letters Patent under the authority of the New South Wales Continuance Act passed on 7 August 1840 Neither the Act, nor the Charter nor even the accompanying Royal Instructions to Hobson as Governor referred to the Treaty of Waitangi. As far as British law was concerned, once sovereignty was asserted by the executive, in accordance with a British statute, that was sufficient authority for the exercise of such sovereignty.” (Page 239)
The Tribunal comments (p239):
These pronouncements clarify the position at British law. Despite all the political emphasis on
securing Māori consent to British sovereignty, in the end the treaty was not
considered part of the constitutional process by which the British Crown
asserted its sovereignty. It was, we
might say, written out of the official British script at that point. Adams described the treaty as a
‘constitutional and legal nullity’. He
added, ‘It seems that Britain had it both ways.
If the conditions of a fair cession had not been fulfilled it did not
matter: sovereignty had been asserted, and anyway it was up to the British
Government to decide whether the conditions had been fulfilled!’
The Treaty of Waitangi reflected years of imperial practice. But not many treaties led to the establishment of a Crown Colony. We have outlined these steps in some detail because they highlight the gulf between Te Raki Māori and British understandings of the treaty. Te Raki leaders waited to see how the Crown would engage with them on the basis of their new agreement. The British, however, declared sovereignty over the whole country and then at once began to establish their own government according to their own protocols without further reference to Te Raki chiefs. With great speed – despite their huge distance from London, and despite the very small number of officials who initially arrived in New Zealand representing Her Majesty’s government – they announced that the islands were British.
The treaty had served its purpose and was not to be called on once the acquisition of sovereignty had been completed. After all, as Dr Palmer pointed out, this acknowledgement that the basis of British sovereignty lay in the treaty was not mentioned in the charter erecting a government in New Zealand, or in the official instructions sent to the first Governor. These were the instruments issued under the Royal prerogative for the government of New Zealand by the British Crown. And it is clear that the treaty was ultimately irrelevant to the process when it came to the next stage of asserting the Crown’s authority over New Zealand. Constitutionally, the exercise of the prerogative was purely a matter for the sovereign. And on that basis only, the Crown issued instructions for the establishment of a colonial Government in New Zealand, and the Governor oversaw that establishment on the ground.
Dr Palmer has referred to the British acquisition of
sovereignty as ‘a fact of raw political power’, and it is hard to disagree with
this assessment.
At page 282 the Tribunal summarised its findings:
Accordingly, we find that the Crown acted inconsistently with the guarantees in article 2 of te Tiriti and in breach of te mātāpono o te tino rangatiratanga and te mātāpono o te houruatanga (the principle of partnership) by:
- Proclaiming sovereignty over the northern island of New Zealand and over all New Zealand in May 1840 by virtue of cession by the chiefs, and publishing and thereby confirming the proclamations in October 1840, despite the fact that this was not what Te Raki rangatira had agreed to or expected; nor did the proclamations reflect the treaty agreement reached between Te Raki rangatira and the Crown’s representative about their respective spheres of authority.
- Subsequently appointing Hobson as Governor and instructing him to establish Crown Colony government in New Zealand, on the basis of the incomplete and therefore misleading information he supplied about the extent of Māori consent, without having considered the terms and significance of the treaty, in particular the text in te reo, and its obligations to Te Raki Māori from the outset.
In
its Conclusions at page 1807 the Tribunal states:
The Crown declared sovereignty over the North Island and then all the islands of New Zealand in two proclamations issued by the Queen’s representative Captain Hobson in May 1840. The London Gazette published the proclamations that October. These steps are accepted in international law as marking the establishment of British sovereignty in this country. [Confirmed by the Court of Appeal in New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 at 671, 690 (CA)] As a result the rest of the world no longer recognised the independent authority of the rangatira and iwi of Aotearoa New Zealand. It was clear from the wording of the May proclamations that the British considered a ‘cession’ of sovereignty to have taken place.
Summary of the Tribunal's findings
- The assertion of sovereignty and the erection of New Zealand as a separate colony by the British Crown were valid in international law and in the law of New Zealand (because of the Court of Appeal’s decision.)
- The Crown had breached its obligations to Maori under the Treaty and other verbal undertakings by asserting sovereignty without consultation with Maori, and overriding the tino rangatiratanga of the chiefs granted under Article 2.
- The Treaty remains a binding agreement between Maori and the Crown. The Crown should settle the grievances of Maori arising out of its breaches of the Treaty as detailed in the Report (page 1831).
In our view, a crucial first step will be for the Crown to recognise the agreement in te Tiriti as described in our stage 1 report, and our conclusion that the Crown did not acquire sovereignty through an informed cession by the rangatira who signed te Tiriti at Waitangi, Waimate, and Māngungu.
This step is vitally important in the Tribunal's view of the situation. By recognising that sovereignty was not ceded in the Treaty, the Crown would be acknowledging that tino rangatiratanga was guaranteed to the chiefs. It then follows that the guarantee of tino rangatiratanga was breached by Captain Hobson's subsequent assertion of sovereignty and compensation should be paid for the grievances that arose from that breach.
This is how the Tribunal's website sums up its recommendations
The report ends with a number of recommendations to support the Crown and Te Raki Māori in future Treaty settlement negotiations. The Tribunal recommended that the Crown acknowledge the Treaty agreement it entered into with Te Raki rangatira in 1840 and that it apologise for its Treaty breaches. It also recommended that the Crown return all Crown-owned land in the district to Te Raki Māori; that it provide economic compensation; and that it enter into discussions with Te Raki Māori to determine appropriate constitutional processes and institutions at the national, iwi, and hapū levels to recognise, respect, and give effect to their Treaty rights.
Taken as a whole, the Tribunal's position is:
- The Treaty did not cede sovereignty to the British Crown.
- Hobson’s subsequent assertions of sovereignty in 1840 and 1841 were valid in international law and New Zealand law.
- However, the Treaty represents an agreement between Maori and the British Crown and the tino rangatiratanga of rangatira (guaranteed in the Treaty) and was breached by the assertion of sovereignty and subsequent acts of sovereignty by the Crown.
- Compensation and an apology should be forthcoming.
- Effect should be given to treaty Rights.
Present position
Was sovereignty ceded to the British Crown under the Treaty?
The Tribunal maintains that sovereignty was not ceded.
The courts have held that sovereignty was ceded under the Treaty.
Was sovereignty ceded to the British Crown in 1840/1841?
The December 2022 Stage 2 report of the Te Raki claim shows there is now an alignment of of the views of the Tribunal and the courts on this point. They both agree that sovereignty over New Zealand was legally asserted by the British Crown in 1840/1841 either through Hobson's assertion of sovereignty in May 1840, or the erection of New Zealand as a separate colony effected in May 1841.
The Tribunal claims that by asserting sovereignty the Crown breached the terms of Article 2 of the Treaty and should pay compensation. However, if the sovereignty was subsequently asserted legally then the Treaty was superseded and is of no legal effect.
If sovereignty was legally asserted by the Crown then all arguments about partnership and co-governance are groundless.
Common ground
There can be little doubt that in law the British Crown's unconditional assertions of sovereignty had the effect of negating the Treaty and its articles.
Even if they didn't, the Treaty and its Articles have not been adopted into New Zealand legislation, so they are not enforceable.
Despite the legal situation, it appears that the Tribunal is suggesting that the Treaty is still binding between the Maori and the British Crown because it was a solemn undertaking between two parties. It is a matter of "honour" rather than the cold letter of the law.
There may be common ground here. The Third Labour government set up the Waitangi Tribunal in 1975 to facilitate the processing of claims for breaches of the Treaty. It accepted for the first time that the New Zealand Crown was responsible for breaches of the Treaty. Rather than basing claims on breaches of the Treaty itself, the Tribunal acted as a a commission of inquiry and based its recommendations on the "principles of the Treaty". These principles did not exist but the sentiment behind them is that they represented the "spirit" of the Treaty, the essence of what the two parties had agreed to in good faith.
In 1986 the Fourth Labour government gave the courts the opportunity to express their views on the "principles of the Treaty" by including Treaty clauses in legislation affecting Crown entities. The courts duly obliged. They came up with the principles of honesty, good faith, reasonableness etc. The relationship between the parties was likened to being a fiduciary one that was akin to a partnership. There was an occasional suggestion that the relationship relied on the "honour of the Crown".
It seems therefore that there is common ground for the parties to agree that, despite the legal situation, there was an agreement between the Crown and Maori that has to be honoured.
The difficulty is that the agreement to be honoured - the Treaty - has two versions that conflict with each other in fundamental ways, and the meaning of certain Maori words is disputed.
So, once the legal situation is settled, how do we reach an arrangement of "honour" so that the differences can be put aside and we a can move ahead as a united country?
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