Note
This article was originally posted under the title The Sovereignty Conundrum - Executive Summary. However, the response to the article has suggested that the factual and legal analysis not only identified the conundrum as to whether sovereignty was ceded under the Treaty or asserted by the Crown subsequently, but that it also provides a solution to the conundrum. It is clear that "full sovereignty" was acquired in law by the Crown by Lieutenant-Governor Hobson's assertion of sovereignty just after the signing of the Treaty in 1840, and that the Treaty was superseded.
Accordingly, I have renamed the article The Sovereignty Solution, but I have retained the link to the old title for the time being for those who only have that link.
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New Zealand is a constitutional monarchy. Under the Constitution Act 1986 the Head of State is King Charles III who is termed “the Sovereign in Right of New Zealand”. Absolute sovereignty in New Zealand is vested in the Crown in Parliament.
How did the British Crown, which subsequently became the New Zealand Crown, acquire sovereignty over New Zealand?
And how can demands for “co-governance” between the Crown and Maori, whatever it means, be reconciled with the fact that the Crown has full sovereignty over New Zealand?
Executive summary
- The Waitangi Tribunal in its 2014 report on Stage 1 of the Te Raki claim by Northland hapu concluded that article 1 of the Treaty granted the Crown kawanatanga (governorship) over the settlers, and that article 2 of the Treaty granted the rangatira (chiefs) tino rangatiratanga over Maori. There were to be two separate governments. Issues arising when the two separate populations intermingled were “to be negotiated over time on a case by case basis”. This appears to be the basis for the “co-governance” slogan. However, the slogan ignored the fact that the arrangement advanced by the Tribunal was for two separate governments; a type of apartheid, and not shared governance.
- The Tribunal also concluded that sovereignty was not ceded by rangatira to the Crown in the Treaty. “Sovereignty was not ceded by the Treaty” has become a Treaty slogan. However, it ignored the fine print of the report. The Tribunal acknowledged that the Crown has sovereignty today but did not state how and when that sovereignty was acquired. That issue was to be decided in Stage 2 of the Te Raki claim.
- In the Stage 2 Te Raki report of December 2022 the Tribunal considered legal authorities and concluded that the Crown had legally asserted “full sovereignty” over New Zealand through the proclamations of Lieutenant-Governor Hobson on 21 May 1840 and the Gazetting of the proclamations in London on 2 October 1840. New Zealand became part of the colony of New South Wales. The Tribunal also concluded that any arrangement in the Treaty for separate governments was superseded by the Crown’s assertion of sovereignty.
- The Stage 2 report also considered the legal authorities regarding the Letters Patent and Charter of Queen Victoria and the subsequent proclamation of Lieutenant-Governor Hobson, and concluded that in law New Zealand was erected as a separate colony of the British Crown on 3 May 1841.
- It is not widely known that it has been accepted by our Court of Appeal and the Privy Council that the obligations and rights under the Treaty are not binding in New Zealand law because they have not been incorporated into New Zealand legislation. That means that the various versions of the Treaty and the many translations have no weight in law. It is a blunt fact of law that the Crown acquired full sovereignty in 1840 through Hobson’s assertion of sovereignty, established a government, and the subsequent rights of all New Zealanders arise from the exercise of that sovereignty and not from the Treaty.
- The Treaty must be seen as a blue print or heads of agreement that provided a basic outline of how two peoples were to come together in one new country. Effectively, in law, the Treaty was spent once sovereignty was acquired in 1840.
https://thetreatyfacts.blogspot.com/p/the-sovereignty-solution.html
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