Note
This article was originally posted under the title The Sovereignty Conundrum. 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Hobson's assertion of sovereignty just after the signing of the Treaty in 1840, and that the Treaty was superseded.
_________________
The core issue when discussing shared governance between Maori and the Crown is the issue of “sovereignty”. Sovereignty is defined as “supreme power and authority”. By its very nature it is absolute. It cannot be shared. There can be no co-governance. There can be no partnership.
New Zealand is currently 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”. Full sovereignty in New Zealand is vested in the Crown in Parliament.
How did the British Crown, and subsequently the New Zealand Crown, acquire sovereignty over New Zealand?
The information set out below about how sovereignty in New Zealand was acquired by the British Crown does not represent the author’s personal views. It is taken directly from the reports of the Waitangi Tribunal and from the judgments of New Zealand courts.
Clarification
It needs to be made clear that the Waitangi Tribunal is not a court of law but a commission of inquiry with rules of evidence that allow hearsay. Its sole role is limited under the Treaty of Waitangi Act 1975 to inquiring into claims for breaches of the principles of the Treaty of Waitangi and making recommendations to the Crown. Those recommendations may or may not be accepted by the Crown. The Tribunal's views on what constitute the principles of the Treaty or any conclusions that it reaches are not binding in law or in any way, and are only relevant to the claim before it. Those views can change from claim to claim. See here for more details:
https://thetreatyfacts.blogspot.com/p/the-treaty-of-waitangi-act-1975.html
I refer to the conclusions of the Tribunal in this document not because they are binding in law, but because their statutory limitations have been ignored and they are a principal source of the claim that co-governance is included in the Treaty. However, there are subsequent conclusions of the Tribunal which shed a very different light on its earlier co-governance conclusions. Those later conclusions have not been publicised but they are of immense importance. They are discussed below.
Did the ceding of kawanatanga to the Crown in article 1 equate to the ceding of sovereignty?
It depends on which authority you accept. The courts generally considered that sovereignty was ceded under the Treaty. The Court of Appeal (New Zealand’s highest court at that time) in the Land’s case, New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641, (1987) 6 NZAR 353 agreed that sovereignty was ceded to the Crown in the Treaty. The President of the Court, Sir Robin Cooke, side-stepped the differences between the texts and the shades of meaning, concentrated on the “spirit” of the Treaty, and summed up the situation:
In brief the basic terms of the bargain were that the Queen was to govern and the Maoris were to be her subjects; in return their chieftainships and possessions were to be protected, but sales of land to the Crown could be negotiated.
On the other hand, the 2001 version of the Waitangi Tribunal's Guide to the Principles Treaty of Waitangi referred to the Tribunal’s Maori Electoral Option Report (1994), and stated at page 51*:
The Tribunal considers that while sovereignty was ceded to the Crown, in agreeing to the Treaty the Crown accepted certain limitations in the exercise of its power – namely, the protection of the capacity of Maori to exercise rangatiratanga.
* He Tirohanga o Kawa ki te Tiriti o Waitangi (tpk.govt.nz) Download the report from this page)
In other words, the sovereignty ceded under the Treaty was of a limited nature because of the tino rangatiratanga granted to the chiefs. However, on page 14 the Tribunal hinted that the Treaty was a forerunner to the assumption of legal sovereignty:
The Treaty is a forward-looking document and, whatever its precise status in domestic and international law, it is clear that the British Crown saw the acquisition of substantial Mäori consent as a political prerequisite to the annexation of New Zealand as British territory. The Treaty is therefore an important part of the foundation upon which British assumption of legal sovereignty over New Zealand was based.
Te Raki Claim Stage 1 Report 2014
In 2014 the Waitangi Tribunal released Stage 1 of its report on the Te Raki claim for compensation for prejudice suffered by Northland hapu as a result of acts and omissions of the Crown that were inconsistent with the principles of the Treaty of Waitangi.
The Tribunal moved the goal posts on sovereignty and came up with a very different view on whether it was ceded in the Treaty. A brief Report Summary is at: Report on Stage 1 of the Te Paparahi o Te Raki Inquiry Released | Waitangi Tribunal (Part 1 and Part 2 of the report can be downloaded from the foot of this page.) The final Summary of Conclusions is at page 529 of Part 2 of the Report.
The Tribunal concluded:
• The rangatira [chiefs] 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 [Maori] or their territories. [In other words, the rangatira were to retain tino rangatiratanga over Maori.]
• 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 Maori 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 Maori and European populations intermingled, remained to be negotiated over time on a case-by-case basis.
It appears that this new interpretation of the Treaty by the Tribunal became the basis for the claim that the Treaty mandated “co-governance” between Maori and the Crown. However, a closer look shows that the arrangement advanced by the Tribunal was not for shared governance but for two completely separate governments with the rangatira ruling Maori (tino rangatiratanga) in article 2, and the Crown ruling settlers (kawanatanga) under article 1.
There was to be no sharing of power. No co-governance. It was to be a type of apartheid.
In respect of the sovereignty of the Crown, the Tribunal reached a very important conclusion in the Stage 1 report. Although the Tribunal concluded that sovereignty was not ceded to the Crown in the Treaty, on the summary page it summarised its position on sovereignty as follows:
“The Tribunal said nothing about how and when the Crown acquired the sovereignty that it exercises today."
This important acknowledgement by the Tribunal that the Crown had acquired sovereignty in some way has never been widely publicised. It clearly got lost in the 574 pages of the two parts of the report.
The conclusion that “sovereignty was not ceded to the Crown in the Treaty” became the battle-cry of the Treaty activists. But we heard nothing about the other conclusion of the Tribunal, namely that sovereignty had, in fact and in law, been acquired by the Crown at some later stage.
To find out how and when sovereignty was acquired by the Crown, in the opinion of the Tribunal, we had to wait a further 8 years for the report on Stage 2 of the Te Raki claim.
Te Raki Claim Stage 2 Report December 2022/2023
The Te Raki Claim Stage 2 Report was released pre-publication in December 2022. The final report was issued in December 2023.
https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_207129138/Te%20Raki%20Vol%201W.pdf
At page 1438 of the report, one of the Conclusions of 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. 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.
[References: New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 at 671, 690 (CA); Philip Joseph, Joseph on Constitutional and Administrative Law, 5th ed (Wellington: Thomson Reuters, 2021), pp 52–53]
The legal situation in respect of sovereignty is explained more fully in the body of the report at page 186:
https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_207129138/Te%20Raki%20Vol%201W.pdf
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. In the 1987 case, New Zealand Maori Council v Attorney-General (the Lands case), Judge Ivor Richardson stated in the Court of Appeal (New Zealand’s highest court at that time):
‘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.’
[New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 at 671]
The Tribunal also refers to the judgment of Somers J in the same case. He 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.
[New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 at 690 (CA)]
As the Court of Appeal was the highest court in the land at that time, its judgments are legally binding.
Guide to the Principles of the Treaty of Waitangi
https://www.tpk.govt.nz/en/o-matou-mohiotanga/crownmaori-relations/he-tirohanga-o-kawa-ki-te-tiriti-o-waitangi (Download the report from that page)
The 2001 Waitangi Tribunal's Guide to the Principles of the Treaty of Waitangi was referred to above where it accepted that sovereignty was ceded to the Crown in the Treaty, but it was of a limited nature.
Later in the guide, at page 37, in a section headed Events which established the British Crown’s sovereignty over New Zealand the Tribunal recounts Lieutenant-Governor Hobson’s actions following the signing of the Treaty in Waitangi and his proclamation of sovereignty on behalf of the British Crown on 21 May 1840 and states -
On 2 October 1840 the acquisition of New Zealand by the Crown was officially announced in the London Gazette.
The Tribunal then goes on to consider the legal effect of Hobson’s actions. It cited Richardson J's comments in the Lands case, referred to above. It also referred to a High Court judgment of Justice Eddie Durie, who also served as Chairman of the Waitangi Tribunal from 1980–2004. Justice Durie stated in Whiti Te Ra Kaihau v New Zealand Police (HC) [2000]:
[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.
[130 See also M W Manukau and Others v Attorney-General (HC) [2000] at 4.]
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.
[Keith, “The Treaty of Waitangi in the Courts” in New Zealand Universities Law Review (1990) at 41; see also Brookfield, Waitangi and Indigenous Rights: Revolution, Law and Legitimation (1999).]
In summary, both the New Zealand courts and the Waitangi Tribunal therefore agree that full sovereignty was acquired by the British Crown through Lieutenant–Governor Hobson’s proclamations and their subsequent gazetting, and that New Zealand became part of the British colony of New South Wales.
The Proclamations in the London Gazette of 2 October 1840 can be seen here:
https://www.thegazette.co.uk/London/issue/19900/page/2179
New Zealand becomes a British colony in its own right
That was not an end of the matter for the British Crown. Even before the Gazetting of Hobson’s assertion of sovereignty, the Crown set the wheels in motion for making New Zealand a British colony in its own right. The timeline is as follows:
7 August 1840: The British Parliament passed an Act enabling Queen Victoria by letters patent to lawfully erect any islands that were then, or might in future be, dependencies of the colony of New South Wales into a separate colony or colonies.
16 November 1840: Queen Victoria issued letters patent (under the New South Wales Continuance Act (UK)) known as the Charter. By the Charter, issued under the Great Seal of the United Kingdom, Queen Victoria erected the islands of New Zealand and other adjacent islands into a separate colony.
9 December 1840: Lord John Russell (the new Secretary of State for War and the Colonies) forwarded the above documents to Hobson and issued instructions, detailing the machinery of government to be set up in New Zealand.
3 May 1841: Captain Hobson issued a proclamation notifying and proclaiming the erection of New Zealand as a separate colony, and a second proclamation setting up the Government and Administration of New Zealand.
Legal situation in relation to the erection of New Zealand as a separate British colonyThe Waitangi Tribunal’s Stage 2 Te Raki report of December 2022 refers (at page 198) to the study The Treaty of Waitangi by Dr Matthew Palmer, now Justice Palmer (High Court):
“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.” [Palmer: The Treaty of Waitangi, p 75]
Tribunal releases report on Te Paparahi o Te Raki inquiry | Waitangi Tribunal (Download report from the foot of this page)
The Waitangi Tribunal also comments at page 198 :
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!’
[Adams, Fatal Necessity, pp 162, 163.]
At page 221 the Te Raki Stage 2 report states:
https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_207129138/Te%20Raki%20Vol%201W.pdf
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.
Co-governance – a final word
The use of the word “co-governance" to represent Maori aspirations of equal power with the Crown not only arises from an incorrect knowledge of the Waitangi Tribunal’s conclusions on sovereignty, it also arises from a misunderstanding of the current use of co-governance to describe shared management of certain natural assets. Examples are the Waikato River and the Urewera National Park. They only exist where the Crown has granted Maori certain rights, short of ownership, in a natural asset under a Treaty settlement and the joint management of the asset is shared by the Crown and Maori.
Chris Finlayson, former Treaty Settlement Minister for the National government, has suggested that such an arrangement should more accurately called “co-management”.
The problem is that co-governance sounds like co-government, with the expression being elevated to embrace a sharing of power at a national level in respects of assets such as natural water where Maori have no special rights. The response to that lies in the sovereignty of the Crown. In the Whales case of 1995, the Ngāi Tahu Māori Trust Board challenged the Director-General of Conservation over the allocation of an additional whale-watching licence at Kaikoura, section 4 of the Conservation Act 1987 requiring the Crown to “give effect’ to the principles of the Treaty”. Cooke P acknowledged the various interpretations of kawanatanga in Article 1 and added, somewhat tersely:
Clearly, whatever version or rendering is preferred, the first article must cover power in the Queen in Parliament to enact comprehensive legislation for the protection and conservation of the environment and natural resources. The rights and interests of everyone in New Zealand, Maori and Pakeha and all others alike, must be subject to that overriding authority.
The Treaty is not part of New Zealand law
The Crown’s assertion of sovereignty in 1840, its legal effect, and the consequence it has had in negating the provisions of the Treaty is one of the great unknowns in the realm of Treaty theories, myths and slogans. It sits alongside another fundamental but hidden truth, namely that the Treaty itself has never become part of New Zealand law.
As an international Treaty it is not binding in our domestic law. Although the Treaty was finally set out in the Schedule to the Treaty of Waitangi Act 1975, the rights and obligations under the Treaty were not adopted into New Zealand law. The Court of Appeal and Privy Council judgments on the matter are here:
https://thetreatyfacts.blogspot.com/p/the-articles-of-treaty-are-not-binding.html
Conclusion
It is surprising that the conclusion of the Waitangi Tribunal about the Crown acquiring full sovereignty through Captain’s Hobson’s proclamation and effectively negating the articles of the Treaty has been completely ignored. It may be that it got lost in the 1,857 pages of the Stage 2 Te Raki report. Or, more likely, it has been deliberately ignored because it completely undermines any claim of co-governance or partnership arising from the Treaty. It confirms that absolute sovereignty is vested in the Crown.
The realisation that the provisions of the Treaty itself are not binding in New Zealand law will also come as a surprise to nearly everyone in New Zealand. Obviously it has been kept secret because it means that all the various interpretations of the articles, and the consequential slogans, have no legal relevance.
The important point is that it is accepted law that the Crown successfully asserted “full sovereignty” over New Zealand in 1840 subsequent to the Treaty, and it still exercises that sovereignty today. The courts of New Zealand and the Waitangi Tribunal both accept that situation. The reality is that all the rights and obligations that all New Zealanders have today arise not from the Treaty but from Crown’s proclamation of sovereignty, and from the government of the Crown that was subsequently put in place.
* * * *
Footnote
The information provided above raises two other important issues:
• The role of the Treaty in New Zealand today. The Treaty was a transitional blueprint or a heads of agreement for how two peoples were to unite as one in a new nation. It was a simple agreement that set out the basic terms on which the new state would be founded. Once that agreement was reached it was necessary to implement the terms of the agreement. The first step was to vest sovereignty in the Crown through the Royal Charter of 1840. Once this was done and New Zealand was erected as a British colony in its own right, the colonial government was quickly established. At that point the provisions of the Treaty were effectively spent.
In the following years there were clearly breaches of some of the understandings in the Treaty especially in respect of the protection of property rights. Most of those issues have been resolved through the Waitangi Tribunal.
It is now a matter for New Zealanders to decide the role of the Treaty in New Zealand’s future. Its provisions may have been superseded by the Crown’s assertion of sovereignty, but the Treaty may still be seen as a matter of honour between two parties.
• The Treaty itself is not part of the law of New Zealand law. The two versions of the Treaty (Maori and English) are listed in the Schedule to the Treaty of Waitangi Act but as a reference only. The rights and obligations contained in the articles of the Treaty have not become part of the New Zealand legislation. Therefore they cannot be enforced by the courts.
The "principles of the Treaty" created by the Treaty of Waitangi Act 1975 have developed a significance way beyond their actual legal status. This issue is considered in depth at:
https://thetreatyfacts.blogspot.com/p/the-treaty-of-waitangi-act-1975.html
https://thetreatyfacts.blogspot.com/p/treaty-of-waitangi-acts-fundamental-flaw.html
https://thetreatyfacts.blogspot.com/p/the-questionable-role-of-courts-role-in.html
https://thetreatyfacts.blogspot.com/p/new-zealand-courts-have-totally.html
________________
