In Hobson's assertion of sovereignty I quoted from the Waitangi Tribunal's 2022 report on Stage 2 of the Te Raki claim (December 2022) which recounts the events following the signing of the Treaty at Waitangi on 6 February 1840 and Captain Hobson's assertion of sovereignty just a few months later.
I now consider the legal effects of Captain Hobson's assertion of sovereignty.
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The importance of the dates
Did Hobson assert sovereignty before the Treaty was signed? If he did then the Crown already had sovereignty when the Treaty was signed.
The Waitangi Tribunal's 2022 report on Stage 2 (December 2022) of the Te Raki claim sets out the timeline:
Captain Hobson's view (Page 221 of the Te Raki report)
By this time, we note, Hobson had reconsidered his view of the significance of the various treaty signings. He no longer referred to the Waitangi and Hokianga signings as completing the Queen’s sovereignty ‘over the northern districts’. In his letter of authorisation to Major Bunbury of 25 April, on the eve of Bunbury’s departure to the south with a copy of te Tiriti, Hobson stated:
The treaty which forms the base of all my proceedings was signed at Waitangi on the 6th February 1840, by 52 chiefs, 26 of whom were of the confederation, and formed a majority of those who signed the Declaration of Independence. This instrument I consider to be de facto the treaty, and all the signatures that are subsequently obtained are merely testimonials of adherence to the terms of that original document.
This decision is reflected in the wording of his first proclamation (cited earlier) : the treaty (incorrectly) dated 5 February was ‘made and executed’ by himself, as the Queen’s representative, on the one part, and the Chiefs of the Confederation (who are particularly mentioned) and independent chiefs, not members of the Confederation, on the other. The treaty was stated to have been ‘further ratified and confirmed by the adherence of the principal Chiefs of this Island [the North Island]’.
The treaty entered into at Waitangi was, in Hobson’s view, the document of Māori cession. Later, we consider the significance of this further. Hobson further explained to the Colonial Office that his proclamations had been issued over both islands as a response to the emergency that had arisen in Port Nicholson. He had decided to proclaim sovereignty over the South Island on the grounds of discovery without waiting for the report of Major Bunbury. In any case, he added, the proclamation over the southern islands on grounds of discovery was justified by the ‘uncivilized state of the natives’ there.
At the time, Hobson was not aware that Henry Williams had secured signatures to the treaty at Port Nicholson and Queen Charlotte Sound. Bunbury had yet to travel down the east coast of the South Island, where he would secure signatures from principal Ngāi Tahu chiefs at Ōnuku (Akaroa), Ruapuke Island, and Ōtākou, and from Ngāti Toa at Cloudy Bay before proclaiming sovereignty over ‘Tavai Poenammoo’ (the South Island) at Cloudy Bay on 17 June 1840 by right of cession from the ‘several independent native chiefs’.
It was some time before Hobson received news of all the treaty signings. It was 15 October 1840 before he made a comprehensive report on the treaty to the Colonial Office, to which he attached certified copies of the English and Māori texts and a list of 512 signatories. He did not mention the fact that a number of key senior chiefs had refused to sign : the ariki Te Wherowhero of Waikato, the ariki Mananui Te Heuheu of Ngāti Tūwharetoa ; and also Taraia Ngakuti Tumuhuia of Thames, and Hori Kingi Tupaea of Tauranga. Te Arawa and Ngāti Tūwharetoa leaders generally would not sign. No meetings were held from Whanganui to Mōkau, and most of the Hawke’s Bay and Wairarapa rangatira were not given a chance to sign ; nor were Tūhoe leaders. Nor did Hobson mention that not all chiefs in Te Raki had signed.
In any case, the Colonial Office had already published Hobson’s proclamations officially in the London Gazette on 2 October 1840. The Secretary of State for War and the Colonies, Lord John Russell, replied to Hobson’s letter of 25 May 1840 on 10 November 1840, approving the steps he had taken : ‘As far as it has been possible to form a judgment, your proceedings appear to have entitled you to the entire approbation of Her Majesty’s Government.’
In short, Hobson's view was that the Treaty was signed at Waitangi on 6 February 1840. The subsequent signatures merely ratified and confirmed the signing.
The expert's view (Page 223)
The Crown's expert witness [assisting the Waitangi Tribunal hearing, Dr McHugh] argued that Crown officials never regarded the Crown’s acquisition of sovereignty as happening at a single moment ; rather, the Crown acquired sovereignty through a process spread over several months. Moreover, it was a process that involved at least two ‘jurisdictional communities or constituencies’: British settlers and Māori. Hobson was most concerned about the newly arrived New Zealand Company settlers at Port Nicholson, and his proclamations were primarily directed at them. Bunbury was not called back from his signature-gathering mission, Dr McHugh added, indicating that even though Crown sovereignty might now ‘technically’ have been established, ‘British officials remained sincerely committed to meeting the self-imposed condition precedent of Māori consent even if those consents that remained outstanding had now become matters of form rather than actual necessity’. Nor did officials (including Hobson) regard the proclamations as ‘impairing the foundations of British sovereignty’ on grounds of Māori consent, even if they were ‘somewhat premature’.
At page 223 of the Te Raki report, the Waitangi Tribunal unequivocally states that the Treaty was signed on 6 February 1840 and that the assertion of sovereignty became effective on 2 October 1840:
The 21 May 1840 proclamations, and their gazetting on 2 October, are accepted in colonial and international law as marking the establishment of British sovereignty over New Zealand.
The court's view
In support of this position the Tribunal cites (at page 223) the comments in the Court of Appeal in the 1987 case, New Zealand Maori Council v Attorney General (the Lands case). Richardson J stated:
It now seems widely accepted as a matter of colonial law and international law that those proclamations [of 21 May 1840] approved by the Crown and the gazetting of the acquisition of New Zealand by the Crown in the London Gazette on 2 October 1840 authoritatively established Crown sovereignty over New Zealand.
In the same case, Somers J acknowledged the dispute as to whether sovereignty was ceded under the Treaty and added:
But notwithstanding that feature I am of opinion that the question of sovereignty in New Zealand is not in doubt. On 21 May 1840 Captain Hobson proclaimed the 'full sovereignty of the Queen over the whole of the North Island' by virtue of the rights and powers ceded to the Crown by the Treaty of Waitangi, and over the South Island and Stewart Island on the grounds of discovery. These proclamations were approved in London and published in the' London Gazette of 2 October 1840. The sovereignty of the Crown was then beyond dispute and the subsequent legislative history of New Zealand clearly evidences that. Sovereignty in New Zealand resides in Parliament.
The Waitangi Tribunal's Guide to the Treaty of Waitangi (He Tirohanga o Kawa kē te Tiriti o Waitangi contains (at page 37) a section headed Events which established the British Crown’s sovereignty over New Zealand. In that section the Tribunal refers to Richardson J's comments in the Lands case. It also refers to a High Court judgment of Justice Durie, also the Chairperson of the Waitangi Tribunal, who stated:
[The Treaty of Waitangi] was no doubt an extremely important document in underpinning the decision of the Crown to annex New Zealand and giving it some moral validity to do so and assisting the Crown at that time to stand out against what were then rival interests from other Governments and in particular a Government of France. However, the Treaty of Waitangi while underpinning the Government’s decision to annex New Zealand is not in fact the basis in law on which the Government has legal authority. Its authority arises from the Proclamation of Sovereignty. Even given the dispute over the language used in the respective texts of the Treaty, and the uncertainty surrounding the events by which British authority was established, it is generally thought that by building on the sovereignty proclaimed in May 1840, Parliament gained full powers to make law for New Zealand.
The Tribunal ends by adding:
Even given the dispute over the language used in the respective texts of the Treaty, and the uncertainty surrounding the events by which British authority was established, it is generally thought that by building on the sovereignty proclaimed in May 1840, Parliament gained full powers to make law for New Zealand.
In fact the courts of New Zealand and the Waitangi Tribunal are at one in agreeing that, without any doubt, sovereignty was lawfully asserted by Captain Hobson on behalf of the the British Crown in 1840.
Tricky situation
The Tribunal's conclusion that the Treaty was "signed" before sovereignty was asserted by Captain Hobson avoided a very tricky situation. If British sovereignty had been asserted before the Treaty was signed then there would have been no sovereignty to cede in the Treaty. The Treaty would have been a nullity.
Stage 1 report of 2014
The findings of the Tribunal are very important because they are the basis of two fundamental misconceptions about the Treaty.
The Tribunal concluded at page 529 that:
The rangatira who signed te Tiriti o Waitangi in February 1840 did not cede their sovereignty to Britain. That is, they did not cede authority to make and enforce law over their people or their territories.
The rangatira agreed to share power and authority with Britain. They agreed to the Governor having authority to control British subjects in New Zealand, and thereby keep the peace and protect Māori interests.
The rangatira consented to the treaty on the basis that they and the Governor were to be equals, though they were to have different roles and different spheres of influence. The detail of how this relationship would work in practice, especially where the Māori and European populations intermingled, remained to be negotiated over time on a case-by-case basis.
Though Britain went into the treaty negotiation intending to acquire sovereignty, and therefore the power to make and enforce law over both Māori and Pākehā, it did not explain this to the rangatira. Rather, in the explanations of the texts and in the verbal assurances given by Hobson and his agents, it sought the power to control British subjects and thereby to protect Māori. That is the essence of what the rangatira agreed to.
At page 527 the Tribunal stated:
In this inquiry, we have been able to give thorough consideration to all the perspectives presented to us. We have reached the conclusion that Bay of Islands and Hokianga Māori did not cede sovereignty in February 1840.
However, the Tribunal went on to make a very important point:
In drawing this conclusion, we say nothing about how and when the Crown acquired the sovereignty that it exercises today. Our point is simply that the Crown did not acquire that sovereignty through an informed cession by the rangatira who signed te Tiriti at Waitangi, Waimate, and Mangungu.
The Tribunal left it to the Stage 2 consideration of the claim to resolve how the sovereignty of today had in fact been ceded, and the effect that had on the Te Raki claim.
Misunderstanding of the conclusions of the Tribunal
It is probably likely that the conclusions of the Tribunal in its Part 1 report, released in 2014, gave rise to the popular view that the the Treaty did not cede sovereignty at all and that it created a type of co-governance. This has become somewhat of a battle-cry for those supporting a more Maori focus on the Treaty.
That interpretation of the conclusion is misleading on two counts:
- The type of governance that the Tribunal considered arose from the Treaty consisted of two completely separate governments running side by side. The chiefs exercised tino rangatiratanga over their people, while the Crown exercised kawanatanga over the settlers. How this relationship worked where the two intermingled was to be negotiated over time on a case-by-case basis.
- It did not involve the Crown and the chiefs exercising power in a joint sharing of governance, which is the current understanding of co-governance. The two races had two distinctly separate forms of government, more like apartheid.
- The sovereignty issue was misconstrued. The Stage 1 report (2014) did not state that sovereignty had not been ceded, which is the common misconception. It stated that sovereignty had not been ceded in the Treaty. In the fine print of the report on Stage 1, referred to above, it acknowledged that sovereignty had in fact been ceded, but it was left to the Stage 2 report to consider how and when it was ceded. The December 2022 Stage 2 report explains clearly that sovereignty was ceded in law by Hobson's assertion of sovereignty a few months after the signing of the Treaty.
Te Raki Stage 2 findings
The December 2022 Stage 2 report explains clearly, as set out above, that sovereignty was ceded in law by Hobson's assertion of sovereignty a few months after the signing of the Treaty.
The acceptance that the Treaty was signed before the assertion of sovereignty also fitted in nicely with the arguments to support the claim before the Tribunal.
One of the conclusions of the Tribunal in the Te Raki claim part 2 was that the Crown had breached Article 2 of the Treaty. Having argued that the chiefs were granted tino rangatiratanga under Article 2 of the the Treaty on 6 February 1840, the Tribunal went on to argue that the Crown had then breached the Treaty by asserting sovereignty over the whole of New Zealand in May/October 1840, without permission from the chiefs, thus destroying their tino rangatiratanga. This conclusion is shown on page 1807 of the Te Raki Stage 2 report:
With Respect to this Early Period of Interaction between the Rangatiratanga and Kāwanatanga Spheres of Authority, and the Northern War, We Made the Following Findings:
In respect of the proclamation of sovereignty and the establishment of a Crown Colony government, we find that the Crown acted inconsistently with the guarantees in Article 2 of the treaty 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.
Failing to acknowledge the significance of the treaty and of Te Raki Māori agreement to it in any of the Crown’s acts of state asserting sovereignty over New Zealand.
These actions, in the absence of informed Te Raki Māori consent to the Crown’s plans for the governance of New Zealand, were also inconsistent with the Crown’s duty of good faith conduct, and thus breached te mātāpono o te houruatanga me te mātāpono o te whakaaronui tetahi ki tetahi/the principles of partnership and of mutual recognition and respect.
The Tribunal therefore recommended the transfer of Crown land to Maori to compensate for the breach of article 2 of the Treaty by the assertion of sovereignty and the subsequent exercise of sovereignty.
Conclusion
The courts of New Zealand accept that sovereignty was acquired in 1840 most probably through cession in the Treaty, but certainly by Hobson's assertion of sovereignty in the same year.
The Waitangi Tribunal takes the view that sovereignty was not ceded in the Treaty, but that it was definitely acquired by the Crown by assertion a few months later.
Those who still assert that sovereignty was not ceded, need to reconsider their stance. Both the courts and the Waitangi Tribunal accept that sovereignty of New Zealand was acquired by the Crown in 1840.
If sovereignty was acquired by the Crown through assertion then it was absolute in nature with no conditions attached. This is confirmed by the Tribunal's recommendation that the rangatira are entitled to compensation for the Crown's actions in negating the tino rangatiratanga that it guaranteed in the Treaty by asserting absolute sovereignty a few months later. That means that the Treaty and its Articles were superseded by the assertion of sovereignty and have no further legal significance.
Co-governance/partnership
Any claim that the Treaty created either a partnership or co-governance between the Crown and Maori cannot be supported because:
- Co-governance or partnership was not part of the Treaty. The tino rangatiratanga/kawanatanga relationship between the chiefs and the Crown, proposed by the Waitangi Tribunal in part 1 of the Te Raki claim, was for separate governments.
- The Waitangi Tribunal and the courts agree that sovereignty was unconditionally asserted by the Crown in 1840 and that the Crown has been the sovereign of New Zealand since that date.
- The Waitangi Tribunal argues in the Te Raki report part 2 that the Crown acted in breach of the Treaty by asserting sovereignty, thereby depriving the chiefs of their Tino rangatiratanga. This is only a recommendation to the Crown.
Effectively, the Treaty only exists as an agreement of "honour" between two races in respect of the formation of a new country.
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