The Treaty of Waitangi and the Relationship Between the Crown and Maori in New Zealand

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THE TREATY OF WAITANGI AND THE

RELATIONSHIP BETWEEN THE CROWN

AND MAORI IN NEW ZEALAND

Noel Cox

∗

I. INTRODUCTION

HE orthodox legitimacy of the Crown,

in those countries

that derive their constitutional principles from Great

Britain, is the legitimacy of the inherited legal form. So

long as government is conducted in accordance with the rule of

law, and meets the aspirations of the majority of the population,

the legitimacy of the government based on such a ground has

been little questioned.

This legitimacy alone, however, is not necessarily sufficient.

Nor does it alone explain the general acceptance of the current

regime in New Zealand. There exists a second, potentially po-

tent, source of legitimacy in New Zealand — the Treaty of Wai-

tangi (“Treaty”). As the moral, if not legal, authority for Euro-

pean settlement of New Zealand, this 1840 compact between

the Crown and Maori chiefs has become increasingly important

as a constitutional founding document for New Zealand.

As a

party to the Treaty, the Crown may have acquired a new and

significant source of legitimacy as the body with which the

Maori have a partnership. It is also a source of legitimacy that

∗ Lecturer in Law at the Auckland University of Technology. LL.M.

(Hons.), Ph.D. Barrister of the High Court of New Zealand, and of the Su-

preme Courts of Tasmania, New South Wales, South Australia, and the

Northern Territory. The author can be contacted at [email protected].

1. “The Crown” refers to the “[l]oose voluntary association of political

entities, nearly all of which give symbolic or actual allegiance to the British

crown, or did so at one time or another.” FUNK & WAGNALLS NEW

ENCYCLOPEDIA (2000), LEXIS, Nexis Library, Legal Reference. See also Noel

Cox, Republican Sentiment in the realms of the Queen: The New Zealand Per-

spective, 29 MANITOBA L.J. 121, 141 n.160 (2002) (“Crown is defined as ‘Her

majesty the Queen in right of New Zealand.’” (quoting the State-Owned En-

terprises Act, § 2 (1986) (N.Z.))).

2. Richard Mulgan, Can the Treaty of Waitangi Provide a Constitutional

Basis for New Zealand’s Political Future?, 41 POL. SCI. 51, 57 (1989). But see

Susan Pepperell, Right Time to Leave, Says Upton, WAIKATO TIMES, Dec. 13,

2000, at 1, available at 2000 WL 30349943 (quoting Simon Upton, Member of

Parliament, Address before the Parliament of New Zealand, Dec. 12, 2000).

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124 BROOK. J. INT’L L. [Vol. 28:1

belongs specifically to the Crown as a symbol of government.

The purpose of this article is to examine and assess this source

of legitimacy.

The first section of this article looks at the place of indigenous

peoples vis-à-vis the Crown. It will evaluate the nature of the

relationship established with the Crown during the course of

colonial expansion and its relevance for the native peoples to-

day. In particular it will examine the development of the con-

cept of fiduciary duty. The second section looks at the New Zea-

land situation, and specifically at the Treaty. This Treaty is

evaluated both as a source of legitimacy — as a direct agree-

ment between the Crown and Maori tribes — and as a possible

cause for questioning the legitimacy of the Government of New

Zealand, due to the Treaty’s partial fulfillment and lingering

uncertainties as to its meaning and application. The third sec-

tion looks at the Maori attitude toward the monarchy, and in

particular, the legitimacy derived from the Treaty. This section

seeks to bring together the concepts identified in the previous

sections and to identify some of the factors that Maori have con-

sidered important aspects of the Crown-Maori relationship.

Each section is important because it explains a possible source

of legitimacy. But contained within each are also dangers in-

herent in analyzing political structures that are founded in dis-

parate cultural histories, in this case the difference between the

culture of the indigenous Maori people and that of the Euro-

pean settlers (known to the Maori as “Pakeha”).

II. INDIGENOUS PEOPLES AND THE CROWN

The Crown has a special role as trustee for the indigenous

peoples of Canada, New Zealand, and to a lesser degree, Austra-

lia. In each country the Crown assumed, and still discharges,

certain responsibilities for what in New Zealand are called the

tangata whenua — the “people of the land.”

As such the Crown

occupies a symbolic place distinct from, yet linked with, the

3. Benedict Kingsbury, Competing Conceptual Approaches to Indigenous

Group Issues in New Zealand Law, 52 U. TORONTO L.J . 101, 125–26 (2002). A

phrase that has strong parallels with autochthony. Autochthony is the status

of being based solely on local sources and not dependent upon the continuing

legal or other authority of an outside source. PETER W. HOGG, CONSTITUTIONAL

LAW OF CANADA 44–49 (1992).

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2002] TREATY OF WAITANGI 125

government of the day.

Though the Maori and European popu-

lations have become increasingly intermingled, the role of the

Crown has remained important as guarantor of Maori property.

In New Zealand the Crown has become national — histori-

cally and politically similar to what happened in Canada, but

distinct from what developed in Australia. In both New Zea-

land and Canada, the Crown made treaties regulating its rela-

tions with the aboriginal inhabitants of the new colonies. These

treaties, combined with the circumstances of settlement, cre-

ated an ongoing duty on the part of the Crown towards the na-

tive peoples of these countries.

The Treaty of Waitangi, signed in 1840 by emissaries of the

Queen of Great Britain and many indigenous Maori chiefs, has

long been regarded as New Zealand’s founding document.

Since its signing, the Treaty has been viewed as an unqualified

cession of sovereignty to the British Imperial Government, or as

a permit for the settler population to administer its own affairs

in consultation with the Maori.

Its exact legal significance was

uncertain. However, it seems that the Crown gave implicit rec-

ognition to the Maori as the indigenous inhabitants of the coun-

try,

both in the Treaty and in its prior and subsequent conduct

towards Maori. The acquisition of sovereignty, implicit in the

Treaty, was not acquired in a legal or political vacuum. Never-

theless, the legal effect of the treaty was not as important as its

political function. Both the British Imperial Government and

4. See Janine Hayward, Commentary, in CONSTITUTIONAL IMPLICATIONS

OF MMP 233–234 (Alan Simpson ed., 1998) (stating that the Crown is increas-

ingly seen by Maori in this light).

5. See Richard A. Epstein, Property Rights Claims of Indigenous Popula-

tions: The View from Common Law, 31 U. TOL. L. REV. 1, 3 (1999).

6. See Betty Carter, The Incorporation of the Treaty of Waitangi into Mu-

nicipal Law, 4 AUKLAND U. L. REV. 1 (1980–83). See also J.G.A. Pocock, Law

Sovereignty and History in a Divided Culture: The Case of New Zealand and

the Treaty of Waitangi, 43 MCGILL L.J. 481, 489–91 (1998).

7. At least, such has been the widespread view, now given the backing of

both politicians and courts. See, e.g., New Zealand Maori Council v. Attorney-

General [1987] 1 N.Z.L.R. 641; but see, New Zealand Maori Council v. Attor-

ney-General [1992] 2 N.Z.L.R. 576 (the 1992 case could be seen as a partial

reversal of the 1987 case).

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126 BROOK. J. INT’L L. [Vol. 28:1

the Maori chiefs knew that it was the culmination of a process

that had begun some decades earlier.

Taking the lead from a number of court decisions,

govern-

ments of the former colonies have increasingly sought to apply

the concept of partnership among the settlers and the indige-

nous population. In both Canada and New Zealand this rela-

tionship has not always been smooth, but the courts have rec-

ognised its importance. The New Zealand government has fol-

lowed the direction set by the courts,

just as it has happened

in Canada

and in the United States of America.

A. Canada

The Supreme Court of Canada in Guerin v. The Queen

ac-

knowledged the existence of a fiduciary obligation of the Crown

towards the Canadian Indians.

The court clearly stated that

the exercise of discretion or power over property, above and be-

yond what people are normally subject to, leads to accountabil-

ity in law.

Since successive governments in Canada have long

assumed the right to control, manage, and dispose of Indian

lands, a fiduciary obligation has rested with the Crown.

This

8. Noel Cox, The Evolution of the New Zealand Monarchy: The Recogni-

tion of an Autochthonous Polity 78 (2001) (unpublished Ph.D. thesis, Univer-

sity of Auckland) (on file with author).

9. See, e.g., New Zealand Maori Council v. Attorney-General [1987] 1

N.Z.L.R. 641 (C.A.).

10. Interview with Douglas Graham, former Minister in Charge of Treaty

of Waitangi Negotiations, in Auckland, N. Z. (Nov. 24, 1999).

11. Joseph Borrows, A Genealogy of Law: Inherent Sovereignty and First

Nations Self-Government (1991) (unpublished LL.M. thesis, University of

Toronto) (on file with author); Richard H. Bartlett, The Fiduciary Obligation

of the Crown to the Indians, 53 SASK. L. REV. 301, 302–03 (1989); BRUCE

CLARK, NATIVE LIBERTY, CROWN SOVEREIGNTY — THE EXISTING ABORIGINAL

RIGHT OF SELF-GOVERNMENT IN CANADA 11–57 (1990).

12. See Janis Searles, Note, Another Supreme Court Move Away from Rec-

ognition of Tribal Sovereignty, 25 ENVTL. L. 209, 235–36 (1995).

13. Guerin v. The Queen [1985] 13 D.L.R. (4th) 321.

14. See Richard H. Bartlett, You Can’t Trust the Crown: The Fiduciary

Obligation of the Crown to the Indians: Guerin v. The Queen, 49 SASK. L. REV.

367, 372–73 (1984–85).

15. Guerin, 13 D.L.R. at 340. For discussion of principles of law in fiduci-

ary relationships see Hospital Products Ltd. v. United States Surgical Corp.,

(1984) 55 A.L.R. 417 (Austl.) and Frame v. Smith, [1987] 2 S.C.R. 790 (Can.).

16. Bartlett, supra note 11, at 302–03.

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2002] TREATY OF WAITANGI 127

obligation was founded both on imperial practice and the Royal

Proclamation of 1763.

The Royal Proclamation, which had the status of an Imperial

Act of Parliament

and thus could not be repealed by the Ca-

nadian Parliament (until the passage of the Statute of West-

minster of 1931

), had guaranteed the native North American

Indians possession of hunting grounds and the protection of the

Crown.

“In restricting the alienation of Indian lands, the

Crown assumed responsibility for the protection and manage-

ment of Indian proprietary interests.”

In this respect there

are strong parallels with the situation in New Zealand. But the

Canadian federal constitutional arrangements saw a more

marked division of powers than what was seen in a unitary

state like New Zealand.

Today the Crown-in-Parliament has sovereignty in Canada,

but aboriginal peoples have legislative jurisdiction, from which

non-natives are excluded.

In a similar way, the federal and

provincial governments of Canada today are subordinate to the

Constitution and can exercise only the powers delegated to

them by the Constitution.

The only government with true sovereignty during the colo-

nial era was the British Imperial Government.

But the impe-

17. The Royal Proclamation of October 7, 1763, R.S.C., c. I-5, app. 1 (1985)

(Can.) [hereinafter Royal Proclamation].

18. See The King v. McMaster, [1926] Ex. C.R. 68, 72 (Can.). However,

this is only because the Crown can legislate by proclamation or order in coun-

cil for colonies. Id. The general power to legislate by proclamation was re-

jected in the Case of Proclamations, 77 Eng. Rep. 1352, 1354 (K.B. 1611).

19. The Statute of Westminster, 1931, 22 Geo. V, c. 4 (U.K.).

20. Royal Proclamation, supra note 17. But it included the right of pre-

emption.

21. Darlene M. Johnston, A Theory of Crown Trust Towards Aboriginal

Peoples, 18 OTTAWA L. REV. 307, 329 (1986).

22. CLARK, supra note 11, at 3.

23. See CAN. CONST. (Constitution Act, 1982) pt. VII (General), § 52. See

also JACQUELINE R. CASTEL & OMEELA K. LATCHMAN, THE PRACTICAL GUIDE TO

CANADIAN LEGAL RESEARCH 4 (2d ed. 1996); BERNARD W. FUNSTON & EUGENE

MEEHAN, CANADA’S CONSTITUTIONAL LAW IN A NUTSHELL 105 (1994).

24. However, there were claims to the contrary by American colonials in

the seventeenth and eighteenth centuries. In the chartered colonies the local

assembly elected the governor, enacted laws repugnant to English law, de-

clined to recognize Admiralty jurisdiction or appeal rights, neglected to pro-

vide their quotas for imperial defence, and encouraged trades forbidden by

imperial legislation. In short, they were politically independent, and claimed

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128 BROOK. J. INT’L L. [Vol. 28:1

rial government in its dealings in North America also sought to

maintain an “even hand” between the Indians and the colonial

governments.

Partly for this reason, they circumscribed the

power of the colonial government, and therefore their federal

and provincial successors.

Throughout Canadian history, the colonial governments were

constitutionally bound to respect aboriginal rights, because they

were never invested with sufficient legal power to abrogate such

rights.

These rights were later formally announced in the

Royal Proclamation of 1763 and in the instructions to the gov-

ernors. However, in accordance with the Colonial Laws Valid-

ity Act of 1865,

the colonial legislature had the power to enact

laws that were prejudicial to the aboriginals.

The native peoples of Canada enjoyed constitutional immu-

nity, not merely federal immunity.

Thus they had certain

rights, such as of land ownership, which depended upon the

constitution, rather than upon federal laws.

Developments in the courts during the 1970s has led to a re-

surgence of native authority.

In Calder v. Attorney-General

for British Columbia,

the Supreme Court of Canada assumed

that the pre-confederation colonial government in British Co-

lumbia was granted by the British Imperial Government, as

legal independence as well. See SIR DAVID LINDSAY KEIR, THE CONSTITUTIONAL

HISTORY OF MODERN BRITAIN SINCE 1485, at 352 (7th ed. 1964).

25. The Queen v. Taylor, [1981] 34 O.R.2d 360, 367 (Can.). More recently,

the courts have observed that, in dealing with the native Americans, “the

honour of the Crown is always involved and no appearance of ‘sharp dealing’

should be sanctioned.” Id.

26. CLARK, supra note 11, at 58–63.

27. See Mark D. Walters, Aboriginal Rights, Magna Carta and Exclusive

Rights to Fisheries in the Waters of Upper Canada, 23 QUEEN’S L.J. 301, 364–

65 (1998).

28. Colonial Laws Validity Act, 1865, 28 & 29 Vict., c. 63 (U.K.). Sections 3

and 4 abolished the former theory and practice that colonial legislatures must

respect the fundamental principles of English law. Id. §§ 3–4.

29. See Ralph W. Johnson, Fragile Gains: Two Centuries of Canadian and

United States Policy Toward Indians, 66 WASH. L. REV. 643, 682–83 (1991).

30. See, e.g., Royal Proclamation, supra note 17. Since 1982 there has been

constitutional entrenchment for these rights under section 35 of the Constitu-

tion Act of 1982. CAN. CONST. (Constitution Act, 1982) pt. II (Rights of the

Aboriginal Peoples of Canada), § 35(1).

31. Graham Interview, supra note 10. See, e.g., Calder v. Attorney-General

for British Columbia, [1973] S.C.R. 313, 395.

32. Calder, [1973] S.C.R. at 395.

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2002] TREATY OF WAITANGI 129

opposed to regal sovereign power, sufficient to extinguish the

aboriginal rights to the territory the Crown had not purchased.

But even the federal government’s powers at the time of confed-

eration were not sovereign.

Canadian courts have led the way to the recognition of a spe-

cial relationship between the Crown and native peoples.

Fol-

lowing its tentative recognition in Calder,

the court in Guerin

v. The Queen authoritatively established that the Crown may be

held accountable for its role in the management and disposition

of aboriginal land and resources.

Four judges held that a fidu-

ciary obligation only arose if the land was surrendered,

while

three held that a more general obligation to protect the land

interests of aborigines existed.

The minority was followed in

The Queen v. Sparrow.

While imbued with an ongoing responsibility for the native

peoples, the Crown enjoys a special position in the Canadian

political system; this position was initially developed by the

courts and has been followed by successive governments and

the Canadian Parliament.

The adoption of a republic in Canada would require a re-

evaluation of the relationship between the different peoples of

the country. To some degree, the establishment of Canada was

founded on a series of treaties between the Crown and the Na-

tive American peoples. The obligations under these treaties

have been assumed by the Canadian authorities, but in such a

way that the Crown remains symbolically central to the rela-

tionship.

The Europeans and the natives did not have such a

relationship, as the Crown did not purport to represent a popu-

lation as such — though the relationship could be perceived as

33. See Brian Slattery, The Independence of Canada, 5 SUP. CT. L. REV.

369, 373, 382 (1983) (Can.).

34. Graham Interview, supra note 10; Delgamuukw v. British Columbia,

[1997] 3 S.C.R. 1010; The Queen v. Van der Peet, [1996] 2 S.C.R. 507; The

Queen v. Sparrow, [1990] 70 D.L.R. (4th) 385; Guerin v. The Queen, [1985] 13

D.L.R. (4th) 321, Calder, [1973] S.C.R. at 395.

35. Calder, [1973] S.C.R. at 395.

36. Guerin, 13 D.L.R. (4th) at 334.

37. Id. at 334 (Dickson, J.).

38. Id. at 357–58, 361 (Wilson, J., concurring).

39. Sparrow, 70 D.L.R. (4th) 385.

40. One rather unusual aspect of this is the existence, since 1711, of Her

Majesty’s Chapel of the Mohawk, Brantford, Ontario. See DAVID BALDWIN,

THE CHAPEL ROYAL: ANCIENT AND MODERN 56–62 (1990).

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130 BROOK. J. INT’L L. [Vol. 28:1

being between the State and the natives — provided that there

was an agreement as to the nature of the State (i.e., the mean-

ing of the Crown).

The general rules of fiduciary obligations have also been de-

veloped in the United States of America,

though the practical

implications of these rules for the native peoples may be lim-

ited.

The relationship between the United States of America

and the North American tribes within its boundaries followed a

similar path to that seen in Canada.

Yet Canada alone se-

cured, at least in theory, Indian rights generally, not only those

of title to land.

They did so with the Royal Proclamation,

which, like the Treaty of Waitangi, has been analogized to the

Magna Carta.

B. Australia

In contrast to Canada, the principles of Crown guardianship

of native peoples had received little judicial attention in Austra-

lia until Mabo v. Queensland (No 2).

Though it had been said

in an earlier case that the Crown in right of the Commonwealth

of Australia may come under a fiduciary duty,

the judgements

in Mabo showed a more marked inclination to recognize a fidu-

ciary obligation in cases where there was actual or threatened

interference with native title rights.

41. See Camilla Hughes, The Fiduciary Obligations of the Crown to Abo-

rigines: Lessons from the United States and Canada, 16 U. NEW SOUTH WALES

L. J. 70, 87 (1993). These duties can be traced back to 1831, id. at 70–71,

though the treatment of American Indians by the government until the early

years of the twentieth century was frequently brutal, and sometimes at odd

with judicial decisions.

42. See Searles, supra note 12, at 210–11.

43. See Hughes, supra note 41, at 87–94.

44. See Calder v. Attorney-General, [1973] S.C.R. 313, 395.

45. Richard Boivin, The Coté Decision: Laying to Rest the Royal Proclama-

tion, 1 CAN. NATIVE L. REP. 1, 1 (1995). Cf. PAUL MCHUGH, THE MAORI MAGNA

CARTA: NEW ZEALAND LAW AND THE TREATY OF WAITANGI (1991).

46. Mabo v. Queensland [No. 2] (1992) 175 C.L.R. 1, 42–43, 205 (Austl.).

47. N. Land Council v. Commonwealth [No. 2] 61 A.L.J.R. 616, 620 (1987)

(Austl.).

48. Mabo, 175 C.L.R. at 42–43, 205. Acquisition of legal title over Austra-

lia was based on settlement, not conquest, with the continent being regarded

legally a terra nullius, or subject to no legal sovereign. This was legally true

of New Zealand also, but for political and moral reasons this country was

treated differently.

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2002] TREATY OF WAITANGI 131

Aboriginal relations, however, have played a lesser part in

the Australian republican debate than they have in the political

debate in Canada or New Zealand, largely because the Austra-

lian aboriginal population generally lacked treaties with the

Crown.

Suggestions in recent years for such a treaty raised an

interesting question about the extent to which Australia could

(or would wish to) replicate the situations that have existed in

Canada for 200 years and in New Zealand for over 150 years.

Ironically, some commentators have suggested that “aborigi-

nality” should replace the Crown in the Australian national

identity,

thereby in some respects reversing the relationship of

the settlers and the aboriginal people. Precisely what is meant

by “aboriginality” is not clear, however. Although the Crown

assumed in Australia, as it did in all colonies, the role of protec-

tor of the native peoples, the protection was limited because of

the absence of written undertakings.

III. THE TREATY OF WAITANGI

The situation in New Zealand is much closer to that in Can-

ada than in Australia. In both New Zealand and Canada, the

Crown assumed a fiduciary role through treaty and its conduct

with respect to the native peoples. The Crown has perpetual

responsibilities to native peoples in both countries. In New Zea-

land, however, one treaty has paramount significance, in part

simply because it was the only treaty made with the indigenous

inhabitants of the islands.

49. See Wendy Brady, Republicanism: An Aboriginal View, in THE

REPUBLICANISM DEBATE 145, 146–47 (Wayne Hudson & David Carter eds.,

1993); see also, generally, Paul Behrendt, Aboriginal Sovereignty, in VOICES OF

ABORIGINAL AUSTRALIA: PAST, PRESENT, FUTURE 398 (Irene Moores ed., 1995).

50. Cox, supra note 8, at 86. See also Mark Brabazon, Mabo, The Constitu-

tion and The Republic, 11 AUSTL. BAR REV. 31, 36–38 (1994); James Cockayne,

More Than Sorry: Constructing a Legal Architecture for Practical Reconcilia-

tion, 23 SYDNEY L. REV. 577, 590 (2001); Andrew Lokan, From Recognition to

Reconciliation: The Functions of Aboriginal Rights Law, 23 MELB. U. L. REV.

65, 112 (1999).

51. John Morton, Aboriginality, Mabo and the Republic: Indigenising Aus-

tralia, in IN THE AGE OF MABO: HISTORY, ABORIGINES AND AUSTRALIA 117, 119–

123 (Bain Attwood ed., 1996).

52. William Renwick, A Variation of a Theme, in SOVEREIGNTY AND

INDIGENOUS RIGHTS: THE TREATY OF WAITANGI IN INTERNATIONAL CONTEXTS

199, 208 (William Renwick ed., 1991).

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132 BROOK. J. INT’L L. [Vol. 28:1

Orthodox theory holds that the Treaty of Waitangi (“Treaty”)

has a socio-political, not legal, force, as it was not a treaty rec-

ognized under international law.

It therefore has an effect

only so far as a legal recognition has been specifically accorded

to it.

However, at some point either the courts or New Zea-

land Parliament may have to give the Treaty legal recognition

as part of the constitution of New Zealand.

In any event the

Treaty, as a constitutional principle, has become entrenched, if

only because it is generally regarded by the Maori as a sort of

“holy writ.”

Government agencies therefore apply the Treaty,

wherever possible, as if it were legally binding upon them.

this respect, the growth in what has been called the “myth” of

Crown–Maori partnership has been particularly important.

This section looks at the events that led to the assumption of

British authority in New Zealand, the process by which this

assumption was achieved, the legal basis for this assumption,

and the legitimacy derived from the Treaty.

A. Assumption of Sovereignty

Scholars disagree as to the specific date of assumption of Brit-

ish sovereignty over New Zealand.

The actual means of ob-

53. See Anthony P. Molloy, The Non-Treaty of Waitangi, N.Z. L.J. 193, 193

(1971). For a contrary view, based on the changing precepts of modern inter-

national law, see K. Bosselmann, Two Cultures Will Become One Only on

Equal Terms, N. Z. HERALD, Mar. 1, 1999, at A13. However, if the Treaty was

not a treaty in 1840, it is difficult to see how it could be one now. It would be

preferable to see its importance in domestic constitutional terms. See E.T.J.

Durie, The Treaty in Maori History, in SOVEREIGNTY AND INDIGENOUS RIGHTS:

THE TREATY OF WAITANGI IN INTERNATIONAL CONTEXTS 156, 162–64 (William

Renwick ed., 1991).

54. See generally W. Attrill, Aspects of the Treaty of Waitangi in the Law

and Constitution of New Zealand (1989) (unpublished LL.M. thesis, Harvard

University) (on file with author).

55. John Fogarty, Book Review, N.Z. L.J. 212 (1993) (reviewing PHILIP A.

JOSEPH, CONSTITUTIONAL AND ADMINISTRATIVE LAW IN NEW ZEALAND (1993)).

56. Graham Interview, supra note 10.

57. Id.

58. See Guy Chapman, The Treaty of Waitangi — Fertile Ground for Judi-

cial (and Academic) Myth-making, N.Z. L.J. 228 (1991). Cf. Paul McHugh,

Constitutional Myths and the Treaty of Waitangi, N.Z. L.J. 316, 317–18 (1991);

Joe Williams, Chapman is Wrong, N.Z. L.J. 373 (1991).

59. David V. Williams, The Use of Law in the Process of Colonialization

67ff (1985) (unpublished Ph.D. thesis, University of Dar es Salaam) (on file

with author). There have been many works covering the events both prior to

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2002] TREATY OF WAITANGI 133

taining sovereignty is also disputed. William Swainson, the

first New Zealand Attorney-General, thought that sovereignty

was partly established by cession, and that neither conquest nor

usurpation had occurred.

The Colonial Office, in rejecting

Swainson’s view, held that the New South Wales Charter of

November 16, 1840, was the legal basis of sovereignty.

Though the assumption of sovereignty is disputed, the legal

foundation of New Zealand as a separate colony can be ascer-

tained with some certainty.

Captain James Cook, of the British Royal Navy, took posses-

sion of the North Island on November 15, 1769, and the South

Island on January 16, 1770.

New Zealand constituted a part

of the Colony of New South Wales by an Order in Council in

1786 and the first Governor’s Commission for that colony.

and immediately after the signing of the Treaty of Waitangi. For an overview

of the subsequent constitutional implications, see S.L. Cheyne, Search for a

Constitution (1975) (unpublished Ph.D. thesis, University of Otago) (on file

with author); David V. Williams, The Annexation of New Zealand to New

South Wales in 1840: What of the Treaty of Waitangi?, 2 AUSTL. J. L. & SOC. 41

(1985); David V. Williams, The Foundation of Colonial Rule in New Zealand,

13 N.Z.U. L. REV. 54 (1988).

60. Whether the sovereignty of the United Kingdom Parliament was le-

gally and/or politically grounded in the Treaty of Waitangi has been answered

in the affirmative by Paul McHugh. See Paul McHugh, Constitutional Theory

and Maori Claims, in WAITANGI: MAORI AND PAKEHA PERSPECTIVES OF THE

TREATY OF WAITANGI 25, 42, 47 (Sir Hugh Kawharu ed., 1989). See also Sian

Elias, The Treaty of Waitangi and Separation of Powers in New Zealand, in

COURTS AND POLICY: CHECKING THE BALANCE 206, 222–224 (B.D. Gray & R.B.

McClintock eds., 1995).

61. Charter for erecting the Colony of New Zealand, and for Creating and

Establishing a Legislative Council and an Executive Council (Nov. 16, 1840),

reprinted in BRITISH PARLIAMENTARY PAPERS , 3 COLONIES, NEW ZEALAND,

1835–42, at 153–155 (Irish University Press Series 1970) [hereinafter Charter

of Dec. 9, 1840].

62. In modern popular mythology, the Treaty of Waitangi is taken to be the

foundation of New Zealand. The legal significance of February 6, 1840 is,

however, rather less according to the general and settled imperial law of the

mid-nineteenth century. Wi Parata v. The Bishop of Wellington [1877] 3 N.Z.

Jurist Reports (New Series) 72. Cf. The Queen v. Symonds [1847] N.Z.P.C.C.

387.

63. British courts have held that an unequivocal assertion of sovereignty

by the Crown must be accepted by a domestic court, even where the claim

would not be recognised under international law. See Sobhuza II v. Miller

[1926] A.C. 518, 524–25.

64. J. L. ROBSON, NEW ZEALAND: THE DEVELOPMENT OF ITS LAWS AND

CONSTITUTION 2 (1954). The Commission issued instructions April 25, 1787 to

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134 BROOK. J. INT’L L. [Vol. 28:1

However, this is a rather strained interpretation of the actual

authority enjoyed by the government in Sydney.

The Government and General Order Proclamation issued in

1813 by Lachlan Macquarie, Governor of New South Wales, de-

clared that the aboriginal natives of New Zealand were “under

the protection of His Majesty and entitled to all good offices of

his subjects.”

However, the jurisdiction of New South Wales

over the islands of New Zealand was expressly denied by an

imperial statute, the Murder Abroad Act of 1817.

Subsequent

enactments repeated that New Zealand was “not subject to his

Majesty.”

Since 1823, however, the courts of New South

Wales were permitted to try cases for offences committed in

New Zealand by British subjects.

Extra-territorial judicial

processes were at this time common, particularly where British

trade was conducted in countries with “non-Christian or bar-

baric laws,” or with no laws at all.

Thus, it is likely that ex-

traterritorial jurisdiction was intended, rather than any claim

to sovereignty.

Circumstances eventually required greater official British in-

volvement in New Zealand. In 1831, thirteen chiefs from

Kerikeri petitioned King William IV for protection against the

Captain Arthur Phillip, Royal Navy, appointing him “Captain General and

Governor in Chief of Our Territory called New South Wales . . . .” Governor

Phillip’s Instructions, Apr. 25, 1787, H.R.A., Ser. I, vol. 1, at p. 1, available at

http://www.foundingdocs.gov.au/places/transcripts/nsw/nsw_pdf/nsw2_doc_17

87.pdf. The commission, which was amplified on April 2, 1787, was publicly

read at Sydney Cove on January 26, 1788. See ALEX C. CASTLES, AN

AUSTRALIAN LEGAL HISTORY 24 (1982).

65. ROBSON, supra note 64. See also A.H. MCLINTOCK, CROWN COLONY

GOVERNMENT IN NEW ZEALAND 9 (1958). New Zealand was generally regarded

as being included in the territory of the Colony of New South Wales in early

years of the development of that colony. Id.

66. ROBERT MCNAB, 1 HISTORICAL RECORDS OF NEW ZEALAND 317 (1908).

67. An Act for the More Effectual Punishment of Murders and Manslaugh-

ters Committed in Places not within His Majesty’s Dominions, 57 Geo. III, c.

53 (1817) (U.K.).

68. Australian Courts Act, 1828, 9 Geo. IV, c. 83 (U.K.).

69. An Act for the Better Administration of Justice in New South Wales

and Van Diemen’s Land, 1823, 4 Geo. IV, c. 96 (U.K.).

70. Such a jurisdiction survived in the Trucial States, now the United Arab

Emirates, until 1971. See Exchange of Notes Concerning the Termination of

Special Treaty Relations between the United Kingdom and the Trucial States,

1971 U.K.T.S. No. 34, at 3 (Cmnd. 4941).

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2002] TREATY OF WAITANGI 135

French.

As a result of this petition, and to curb the conduct of

visiting ships’ crews and round up runaway convicts, James

Busby was appointed British Resident in Waitangi in 1833,

with the local rank of vice-consul.

No magisterial powers were

ever conferred upon him; imperial legislation seeking to in-

crease his powers was contemplated but never passed.

Busby encouraged the Declaration of Independence by thirty-

five northern chiefs in 1835, in an attempt to thwart the move

by Charles de Thierry, the self-styled “Sovereign Chief of New

Zealand and King of Nuku Hiva,” to set up his own govern-

ment.

The Declaration of Independence of the United Tribes of

Aotearoa in 1835 may have been “politically unsustainable,

practically unworkable, and culturally inconceivable.”

None-

theless, for those tribes who signed, the Declaration meant that

henceforth the British king was “honour-bound to recognise and

protect their independence.”

This step was followed by the

Treaty of Waitangi, inspired as much by internal Colonial Office

politics as by a genuine regard for native rights.

In 1838, a House of Lords committee favored the extension of

British possession over New Zealand, though it did not ex-

pressly advocate it.

The Colonial Office, however, decided to

annex New Zealand to New South Wales.

On June 15, 1839,

letters patent were signed, which enlarged the jurisdiction of

the Governor of New South Wales by amending his commission

71. MCLINTOCK, supra note 65, at 18.

72. Id. at 22.

73. See id. at 21 n.4, 25.

74. See id. at 24; see also J.D. RAESIDE, SOVEREIGN CHIEF, A BIOGRAPHY OF

BARON DE THIERRY 113, 118–19 (1977).

75. Jane Kelsey, Restructuring the Nation: The Decline of the Colonial

Nation-State and Competing Nationalisms in Aotearoa/New Zealand, in

NATIONALISM, RACISM AND THE RULE OF LAW 177, 178–179 (Peter Fitzpatrick

ed., 1995). The Declaration was “laughed at” in many circles. See Copy of a

Despatch from Governor Sir R. Bourke . . . to Lord Glenelg (Sept. 9, 1837),

reprinted in BRITISH PARLIAMENTARY PAPERS , 3 COLONIES, NEW ZEALAND,

1835–42, at 24 (Irish University Press Series 1970).

76. Kelsey, supra note 75, at 179; Graham Interview, supra note 10.

77. Graham Interview, supra note 10.

78. See Letter from Standish Motte, Esq., to the Marquis of Normanby

(Mar. 4, 1839), reprinted in BRITISH PARLIAMENTARY PAPERS, 3 COLONIES, NEW

ZEALAND, 1835–42, at 68–69 (Irish University Press Series 1970). See also

PETER ADAMS, FATAL NECESSITY 134–171 (1977).

79. See ADAMS, supra note 78, at 134–171.

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136 BROOK. J. INT’L L. [Vol. 28:1

to include the New Zealand islands.

On January 14, 1840, Sir

George Gipps, Governor of New South Wales, swore in Captain

William Hobson of the British Royal Navy, as his lieutenant-

governor and consul, and signed proclamations relating to title

to the land in New Zealand.

These were published in Sydney

on January 19, 1840, and in New Zealand January 30, 1840.

Hobson was instructed to take possession of the country only

with the consent of the Maori chiefs.

The Treaty of Waitangi

was the immediate instrument by which this was to be

achieved.

The Treaty was initially signed on February 6,

1840, although the process of signing copies was not completed

until September 3, 1840.

After the chiefs signed, local

proclamations of British sovereignty were issued. However, no

formal proclamation of sovereignty by the Imperial Government

over the northern districts was ever issued. In the central

North Island there was substantial non-adherence to the Treaty

by Maori leaders who were well aware of the implications of

signing away their independence.

80. Proclamation By His Excellency Sir George Gipps, Kni ght, Captain-

General and Governor-in-Chief (Feb. 9, 1840), reprinted in BRITISH

PARLIAMENTARY PAPERS, 3 COLONIES, NEW ZEALAND, 1835–42, at 123 (Irish

University Press Series 1970).

81. Id. at 123–25.

82. Id.

83. From the Marquis of Normanby to Captain Hobson, Royal Navy (Aug.

14, 1839), reprinted in BRITISH PUBLIC PAPERS , 3 COLONIES, NEW ZEALAND,

1835–42, at 85–90 (Irish University Press Series 1970) [hereinafter Marquis

of Normanby to Hobson, Aug. 14, 1839].

84. See id. at 86–87; MCLINTOCK, supra note 65, at 61–62, 146.

85. T. LINDSAY BUICK, THE TREATY OF WAITANGI OR HOW NEW ZEALAND

BECAME A BRITISH COLONY 203–13 (1914). See also CLAUDIA ORANGE, THE

TREATY OF WAITANGI 84–6 (1987); J. RUTHERFORD, THE TREATY OF WAITANGI

AND THE ACQUISITION OF BRITISH SOVEREIGNTY IN NEW ZEALAND 20, 63 (1949).

86. NZHistory.net.nz, Manukau-Kawhia Treaty Copy, at

http://www.nzhistory.net.nz/gallery/treaty-sigs/manukau.htm (last visited

Oct. 11, 2002). There were “very serious doubts whether the Treaty of Wai-

tangi, made with naked savages by a Consul invested with no plenipotentiary

powers, without ratification by the Crown, could be treated by lawyers as

anything but a praiseworthy device for amusing and pacifying savages for the

moment.” The Effect of the Treaty of Waitangi on Subsequent Legislation, 10

N.Z. L.J. 13, 15 (1934) (quoting Letter from Joseph Soames to Lord Stanley,

Minister for the Colonies (Jan. 24, 1843) (promoting the Company’s claim to

twenty million acres of New Zealand)).

The New Zealand Company was not disinterested in this matter, and it was

incorrect that Hobson was merely a consul without plenipotentiary power —

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2002] TREATY OF WAITANGI 137

As a result of reports that the New Zealand Company settlers

in Wellington (then Port Nicholson) had issued their own con-

stitution and set up a government,

on May 21, 1840, Hobson

issued two proclamations of full sovereignty over all of New

Zealand, which were published in The London Gazette on Octo-

ber 2, 1840.

The first proclamation was in respect to the

North Island, and was based on cession by virtue of the Treaty

of Waitangi.

The second related to the South Island (then

Middle Island) and Stewart Island.

On October 15, 1840, Hobson sent a despatch to London

which collated all the copies of the Treaty,

and this despatch

was approved March 30, 1841.

In it, Hobson indicated that

the second proclamation of May 21, 1840 relied on the right of

discovery, rather than on the Treaty.

Hobson was thus acting

he had been appointed Lieutenant-Governor and instructed to make a treaty

with the natives. See Marquis of Normanby to Hobson, Aug. 14, 1839, supra

note 83. Nor was ratification by the Crown necessary. But the essence of the

argument remained as to the Treaty of Waitangi’s status in international law.

87. Lieut.-Governor Hobson to the Secretary of State for the Colonies (May

25, 1840), reprinted in BRITISH PARLIAMENTARY PAPERS, 3 COLONIES, NEW

ZEALAND, 1835–42, at 138–39 (Irish University Press Series 1970) [hereinafter

Hobson Letter of May 25, 1840].

88. Proclamation In the Name of Her Majesty Victoria, Queen of the

United Kingdom of Great Britain and Ireland, by William Hobson, Esq. (May

21, 1840) [“The Northern Island”], reprinted in BRITISH PARLIAMENTARY

PAPERS , 3 COLONIES, NEW ZEALAND, 1835–42, at 140 (Irish University Press

Series 1970) [hereinafter Northern Island Proclamation of 1840]; Proclama-

tion In the Name of Her Majesty Victoria, Queen of the United Kingdom of

Great Britain and Ireland, by William Hobson, Esquire (May 21, 1840) [“The

Southern Islands of New Zealand”], reprinted in BRITISH PARLIAMENTARY

PAPERS , 3 COLONIES, NEW ZEALAND, 1835–42, at 141 (Irish University Press

Series 1970) [hereinafter Southern Islands Proclamation of 1840].

89. See Hobson Letter of May 25, 1840, supra note 86; Northern Island

Proclamation of 1840, supra note 87. But see Carter, supra note 6 (arguing

that the Treaty was a legally valid treaty of cession); Sir Kenneth Keith, In-

ternational Law and New Zealand Municipal Law, in AG DAVIS ESSAYS IN

LAW 130–48 (J.F. Northey ed., 1965) (same).

90. Southern Islands Proclamation of 1840, supra note 88.

91. Copy of a Despatch from Governor Hobson to the Secretary of State for

the Colonies, (Oct. 15, 1840), reprinted in BRITISH PARLIAMENTARY PAPERS, 3

COLONIES, NEW ZEALAND, 1835–42, at 220 (Irish University Press Series

1970).

92. Copy of a Despatch from Lord John Russell to Governor Hobson (March

30, 1831), reprinted in BRITISH PARLIAMENTARY PAPERS, 3 COLONIES, NEW

ZEALAND, 1835–42, at 234 (Irish University Press Series 1970).

93. Hobson Letter of May 25, 1840, supra note 87.

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138 BROOK. J. INT’L L. [Vol. 28:1

in conformity with his instructions to extend British sover-

eignty over the South Island “by treaty, if that be possible, or if

not, then in the assertion, on the ground of discovery, of Her

Majesty's sovereign rights over the island.”

In the meantime, Major Bunbury proclaimed sovereignty by

cession over the South Island on June 17, 1840. The proclama-

tions of May 21 were effective in showing that New Zealand was

a colony by act of State.

An act of State must be accepted as

legally effective,

and no special formality is required for an-

nexation.

Meanwhile, the government of New South Wales purported to

annex New Zealand through an act that came into force as of

June 16, 1840;

yet this was done in ignorance of the British

imperial plans.

New Zealand remained a dependency of New

South Wales until letters patent in the form of a Royal Charter

were signed on November 16, 1840.

100

The letters patent and a

Governor’s commission

101

were published in the London Gazette

on November 24, 1840, and proclaimed in New Zealand on May

94. Captain William Hobson to the Under Secretary of the Colonial De-

partment (August 15, 1839), reprinted in BRITISH PARLIAMENTARY PAPERS, 3

COLONIES, NEW ZEALAND, 1835–42, at 90–92 (Irish University Press Series

1970); Marquis of Normanby to Captain Hobson (August 15, 1839); reprinted

in BRITISH PARLIAMENTARY PAPERS, 3 COLONIES, NEW ZEALAND 1835–42, at 92–

93 (Irish University Press 1970).

95. Robson argues that it was a colony by occupation, but Foden (in the

minority viewpoint), argues that it was through settlement. Compare

ROBSON, supra note 64, at 4–5, with N.A. FODEN, THE CONSTITUTIONAL

DEVELOPMENT OF NEW ZEALAND IN THE FIRST DECADE 38 (1938). In Foden’s

view, the letters patent of June 15, 1839 are the fons et origo of British sover-

eignty. He eliminates the humanitarianism and idealism prevalent in earlier

interpretations of the events of 1839–40. Cf. RUTHERFORD, supra note 85.

96. Salaman v. Secretary of State in Council of India, 1906 K.B. 613 (Eng.

C.A.).

97. In re Southern Rhodesia, [1919] A.C. 211, 239–41 (P.C. 1918).

98. An Act to Annex to Her Majesty’s Dominions, in the Islands of New

Zealand, to the Government of New South Wales, 3 Vict. 28 (Austl.); David V.

Williams, The Foundation of Colonial Rule in New Zealand, 13 N.Z.U. L. REV.

54, 56 (1988).

99. Charter of Dec. 9, 1840, supra note 61.

100. Copy of Letters Patent Appointing William Hobson, Esq. Captain in

the Royal Navy Governor and Commander-in-Chief in and Over the Colony of

New Zealand (Nov. 24, 1840), reprinted in BRITISH PARLIAMENTARY PAPERS , 3

COLONIES, NEW ZEALAND, 1835–42, at 153–155 (Irish University Press Series

1970).

101. Id.

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2002] TREATY OF WAITANGI 139

3, 1841.

102

The Royal Instructions to the Governor were issued

December 5, 1840.

103

The Charter was based solely on the au-

thority of the New South Wales and Van Diemen’s Land Act of

1840, passed August 7, 1840, by which separate colonies were to

be established in the territories of the Colony New South Wales

and Van Diemen’s Land.

104

The assumption of British rule over New Zealand was in

some way inevitable, but it came at a time when modern no-

tions of international law were evolving. It was clear that the

Crown was acting, at least partly, for the good of the Maori. In

this regard, the Crown assumed an obligation towards the na-

tive peoples that was to outlast its imperial authority and be-

come a legacy for post-colonial governments.

B. The Legal Basis for the Assumption of Sovereignty

According to the constitutional theory, which had evolved

since the establishment in the seventeenth century of the first

British Empire,

105

colonies in the mid-nineteenth century were

either settled colonies, conquered colonies, or ceded colonies.

106

The basis of the distinction was the stage of civilization consid-

ered to have existed in the territory at the time of acquisition.

If there was no population or no form of government considered

civilized and recognized in international law, possession was

obtained by settlement.

107

If there was an organized society to

102. PETER ADAMS, FATAL NECESSITY 162 (1977).

103. Instructions to . . . William Hobson, Esq. our Governor and Com-

mander-in-Chief in and Over Our Colony of New Zealand (Dec. 5, 1840), re-

printed in BRITISH PARLIAMENTARY PAPERS, 3 COLONIES, NEW ZEALAND, 1835–

42, at 156–64 (Irish University Press Series 1970).

104. New South Wales and Van Diemen’s Land Act, 1840, 3 & 4 Vict., c. 62

(Eng.). This statute of course presupposed that New Zealand was by 1840 a

part of the Colony of New South Wales, a fact which was sufficiently clear

after June 15, 1839. Van Diemen’s Land (renamed Tasmania in 1856) like-

wise became a colony independent of New South Wales, by letters patent June

14, 1825.

105. See A. BERRIEDALE KEITH, CONSTITUTIONAL HISTORY OF THE FIRST

BRITISH EMPIRE, at B2 (1930).

106. Phillips v. Eyre, 6 L.R.-Q.B. 1, 10–11 (1870) (Eng.); Lyons (Mayor of) v.

East India Co., 12 Eng. Rep. 782 (P.C. 1836); 1 WILLIAM BLACKSTONE,

COMMENTARIES ON THE LAWS OF ENGLAND 104 (1978).

107. R. Y. JENNINGS, THE ACQUISITION OF TERRITORY IN INTERNATIONAL LAW

20–23 (1963).

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140 BROOK. J. INT’L L. [Vol. 28:1

which international personality was attributable, acquisition

was accomplished by cession or conquest.

108

The original, relatively clear distinction, between the de-

serted and uninhabited territories, which could be settled, and

those that were inhabited, which could not be settled, was

eroded after the American Revolution. It became accepted that

colonies occupied by a tribal society could be “settled.” New

Zealand has been cited as the example par excellence of this

trend towards a legal fiction of a terra nullius.

109

If this were so,

then the Treaty of Waitangi could not have been a treaty of ces-

sion, as the later nineteenth century orthodox theory main-

tained.

110

The Treaty of Waitangi had a socio-political, not legal

force, as it was not a treaty recognized by international law.

111

The authority actually exercised by the Crown in New Zea-

land always exceeded that of a protectorate,

112

and, from the

beginning, New Zealand was administered as a Crown colony.

113

New Zealand was held to be a settled colony — though not

without difficulty.

114

From the contemporary British perspec-

108. Lyons (Mayor of) v. East India Co., 12 Eng. Rep. 782 (P.C. 1836);

Freeman v. Fairlie, 18 Eng. Rep. 117 (P.C. 1828); BLACKSTONE, supra note

105, at 104.

109. A land without a settled population, which therefore could have no

laws nor legal rights (as of ownership) except that imposed upon the acquisi-

tion of sovereignty; Paul McHugh, Aboriginal Rights of the New Zealand

Maori at Common Law 137–142 (1987) (unpublished Ph.D. thesis, University

of Cambridge) (on file with author).

110. Wi Parata v. The Bishop of Wellington [1877] 3 N.Z. Jurist Reports

(New Series) 72.

111. Molloy, supra note 53, at 195; Wi Parata v. The Bishop of Wellington

[1877] 3 N.Z. Jurist Reports (New Series) 72. Cf. The Queen v. Symonds

[1847] N.Z.P.C.C. 387.

112. Where, for example, the relations of imperial power and local popula-

tion were regulated by specific treaty arrangements. In practice, the extent to

which such countries were treated differently from colonies depended upon

the degree of sophistication of the indigenous inhabitants’ civilization.

RUPERT EMERSON, FROM EMPIRE TO NATION: THE RISE TO SELF-ASSERTION OF

ASIAN AND AFRICAN PEOPLES (1960).

113. Cheyne, supra note 59. See also English Laws Act, 1858, 21 & 22 Vict.

No. 2 (N.Z.); Imperial Laws Application Act, 1988, § 5, sched. 2 (N.Z.).

114. See David V. Williams, The Foundation of Colonial Rule in New Zea-

land, 13 N.Z.U. L. REV. 54 (1998); REPORT OF THE PRIVY COUNCIL ON THE

PROJECT OF A BILL FOR THE BETTER GOVERNMENT OF THE AUSTRALIAN COLONIES,

1849; The Queen v. Symonds [1847] N.Z.P.C.C. 387. See also English Laws

Act, 1858, 21 & 22 Vict. No. 2 (N.Z.); Imperial Laws Application Act 1988, § 5,

sched. 2 (N.Z.).

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2002] TREATY OF WAITANGI 141

tive, the Treaty of Waitangi was a treaty of cession, which al-

lowed for the settlement and purchase of land.

115

However, be-

cause the chiefs had little formal law, and because of the direct

proclamation of sovereignty over the South Islands, New Zea-

land was treated thereafter as a settled colony.

116

That said,

even if the Maori were not able to make binding international

treaties, the Treaty of Waitangi was not a mere nullity. The

capacity to make international treaties was distinct from the

existence of an established system of laws or legal personality.

Almost invariably in British imperial practice, the acquisition of

territories was by cession, accompanied by treaties, in which

the inhabitants’ entitlement to the continued occupation of the

territory was declared.

117

This practice implied, by definition,

that the territorial sovereignty and property rights of the in-

habitants were recognized.

118

There can also be little doubt that the negotiation of the

Treaty of Waitangi presupposed the legal and political capacity

of the chiefs of New Zealand to make some form of internation-

ally valid agreement.

119

Moreover, there is evidence that in the

decade prior to the conclusion of the Treaty of Waitangi the

British Government conducted itself on the basis that relations

with the Maori tribes were governed by the rules of interna-

tional law,

120

and therefore bound, at least morally, by the

115. IAN BROWNLIE, TREATIES AND INDIGENOUS PEOPLES 9 (F.M. Brookfield

ed., 1992).

116. KENT MCNEIL, COMMON LAW ABORIGINAL TITLE 196 (1989).

117. Frederika Hackhsaw, Nineteenth Century Notions of Aboriginal Title,

in WAITANGI: MAORI AND PAKEHA PERSPECTIVES OF THE TREATY OF WAITANGI 92,

97 (I.H. Kawharu ed., 1989). See SIR MARK LINDLEY, THE ACQUISITION AND

GOVERNMENT OF BACKWARD TERRITORIES IN INTERNATIONAL LAW: BEING A

TREATISE ON THE LAW AND PRACTICE RELATING TO COLONIAL EXPANSION (1969);

Elizabeth Evatt, The Acquisition of Territory in Australia and New Zealand,

in STUDIES IN THE HISTORY OF THE LAW OF NATIONS 16, 16–45 (C.H. Alex-

androwicz ed., 1970).

118. See McHugh, supra note 58, at 317–19 (discussing the nineteenth cen-

tury theory and practice).

119. Examples of where treaties with native peoples were regarded as bind-

ing in international law include those made with the Cherokee on September

20, 1730. See 2 J. ALMON, A COLLECTION OF ALL THE TREATIES OF PEACE, ETC.

13 (1772).

120. See 1 GREAT BRITAIN AND THE LAW OF NATIONS: A SELECTION OF

DOCUMENTS ILLUSTRATING THE VIEW OF THE GOVERNMENT OF THE UNITED

KINGDOM UPON MATTERS OF INTERNATIONAL LAW 131 (Herbert Arthur Smith

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142 BROOK. J. INT’L L. [Vol. 28:1

terms of a treaty of cession. The fact that doctrinal develop-

ments in international law subsequently denied the treaty-

making capacity to what were described as “Native chiefs and

Peoples”

121

is immaterial.

If the Treaty of Waitangi was a valid international treaty, its

very execution served to extinguish the separate legal identity

of the sovereign chiefs and brought questions of its implementa-

tion to the plane of domestic law.

122

New Zealand would then be

regarded as a ceded territory, and its pre-existing laws subject

to abolition or amendment by the Crown.

123

If it was not a valid

international treaty, its application remained a matter of do-

mestic law.

124

In both cases it depended upon the good faith of

the Crown that the provisions of the Treaty were upheld. This

meant that the principal focus was on domestic law, which was

perhaps preferable to attempting to resolve essentially internal

problems on the international plane. In the decade prior to the

conclusion of the Treaty of Waitangi, the British Government

conducted itself on the basis that relations with the Maori

tribes were governed by the rules of international law, at least

with respect to the North Island,

125

and therefore bound, at

least morally, by the terms of a treaty of cession.

C. Legitimacy Derived from the Treaty of Waitangi

The Crown acquired legal authority over New Zealand by dis-

covery and settlement, as well as by cession.

126

But this acqui-

sition of authority was intended by the imperial government to

be with the consent of the Maori chiefs, and the chiefs generally

accepted it on that basis.

127

This acquisition was in conformity

ed., 1932) [hereinafter THE LAW OF NATIONS]; IAN BROWNLIE, Q.C., TREATIES

AND INDIGENOUS PEOPLES 8 (F.M. Brookfield ed., 1992).

121. 1 LORD MCNAIR, THE LAW OF TREATIES, 52–54 (1961).

122. See Te Heuheu Tukino v. Aotea District Maori Land Board [1941]

N.Z.L.R. 590, 596–597, A.C. 308, 324 (P.C. 1941) (holding that the Treaty was

not enforceable in domestic law).

123. Whether pre-existing indigenous legal rights automatically survived

settlement or cession, or were dependent upon Crown recognition was only

settled comparatively recently in favour of the continuing legality of native

rights. KENT MCNEIL, COMMON LAW ABORIGINAL TITLE 196 (1989).

124. See Te Heuheu Tukino, [1941] N.Z.L.R. at 596–597, A.C. at 324.

125. See sources cited supra note 120.

126. Evatt, supra note 117, at 36–39.

127. McHugh, supra note 60, at 47.

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2002] TREATY OF WAITANGI 143

with prior colonial practice

128

and consistent with the practice of

the previous several decades.

129

Unfortunately for the Maori,

after 1840 the practice of the colonial government, to whom the

imperial authorities increasingly sought to transfer responsibil-

ity, was one of widespread disregard for the spirit, if not the

terms, of the Treaty.

130

The British side thought that the chiefs were making a mean-

ingful recognition of the Queen and the concept of national sov-

ereignty in return for the recognition of their rights of prop-

erty.

131

In contrast, David Williams has argued that the Maori

text connoted a covenant partnership between the Crown and

Maori, rather than an absolute cession of sovereignty;

132

but

this interpretation may be strained.

133

It is likely that the

chiefs did not anticipate that the Treaty would have such far-

reaching consequences for them. Claims of legitimacy founded

in a completely different value system can be so unclear as to be

nearly impossible to distinguish.

134

After the treaty the extent of

the chiefs’ loss became apparent, but it was too late.

In the absence of a voluntary cession of full sovereignty, the

legitimacy of colonial rule could only be validated over time

through the habit of obedience

135

or legal sovereignty.

136

This

128. MARK LINDLEY, THE ACQUISITION AND GOVERNMENT OF BACKWARD

TERRITORIES IN INTERNATIONAL LAW: BEING A TREATISE ON THE LAW AND

PRACTICE RELATING TO COLONIAL EXPANSION (1969).

129. Interview with Georgina Te Heuheu, former Associate Minister in

Charge of Treaty of Waitangi Negotiations, in Auckland, N.Z. (Dec. 7, 1999)

(on file with author).

130. F.M. BROOKFIELD, WAITANGI AND INDIGENOUS RIGHTS: REVOLUTION, LAW

AND LEGITIMATION (1999) (amounting to what Brookfield calls a revolutionary

seizure of power).

131. Catherine Tizard, Address at The Wellington Historical and Early

Settlers’ Association 1995 Lecture on Colonial Chiefs 1840–1889 (March 30,

1995), at http://www.gov_gen.govt.nz/speeches/tizard/1995-03-30.html (last

visited Sept. 25, 2002) [hereinafter Tizard Address].

132. David V. Williams, The Constitutional Status of the Treaty of Waitangi:

An Historical Perspective, 14 N.Z.U. L. REV. 9, 16–18 (1990).

133. The contra proferetem principle leads to the conclusion that the Maori

version is definitive. See id.

134. Tizard Address, supra note 131.

135. F.M. Brookfield, The New Zealand Constitution the Search for Legiti-

macy, in WAITANGI: MAORI AND PAKEHA PERSPECTIVES OF THE TREATY OF

WAITANGI 1, 1 (Hugh Kawharu ed., 1989).

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144 BROOK. J. INT’L L. [Vol. 28:1

approach is based upon European legal concepts, something

that has been criticized by some Maori academics.

137

However,

“legitimation by effectiveness and durability of even a revolu-

tionary assumption of power is a well understood principle of

law,”

138

even amongst the early Maori.

139

Whether or not it had

been intended by the signatories, it is now widely assumed that

Maori have, under the first article, accepted the sovereignty of

the Crown,

140

and have therefore accepted the legitimacy of the

present government and legal system.

141

Indeed, most Maori

leaders accept this legitimacy and concentrate on the Crown’s

failure to keep its obligations to protect property rights under

the Treaty.

142

It might be said that the government has always

viewed the Treaty as mainly a source of its own authority,

143

whereas in the common Maori view, the Crown's protection of

Maori property

144

was more important than the placement of

136. Paul McHugh, Constitutional Theory and Maori Claims, in WAITANGI:

MAORI AND PAKEHA PERSPECTIVES OF THE TREATY OF WAITANGI (Hugh Kawharu

ed., 1989).

137. See Annie L. Mikaere, Waitangi: Maori and Pakeha Perspectives of the

Treaty of Waitangi, 14 N.Z.U. L. REV. 97, 98 (1990) (book review).

138. R.W.M. Dias, Legal Politics: Norms behind the Grundnorm, 26 Cam-

bridge L.J. 233, 237–38 (1968).

139. See MOANA JACKSON, THE MAORI AND THE CRIMINAL JUSTICE SYSTEM: A

NEW PERSPECTIVE: TE WHAIPAANGA HOU (Part 2) 35–44 (1988) [hereinafter

CRIMINAL JUSTICE SYSTEM]; Moana Jackson, Maori Law, Pakeha Law and the

Treaty of Waitangi, in MANA TIRITI: THE ART OF PROTEST AND PARTNERSHIP 15–

16 (Ramari Young ed., 1991) [hereinafter PROTEST AND PARTNERSHIP].

140. See WAITANGI TRIBUNAL, WAI 350, MAORI DEVELOPMENT CORPORATION

REPORT app. 6.1 (1993), available at

http://www.wai8155s1.verdi.2day.com/reports/generic/wai350/app06/app0601.

asp; Te Heuheu, Interview, supra note 129. For general discussions of percep-

tions of Maori sovereignty, see generally HINEANI MELBOURNE, MAORI

SOVEREIGNTY: THE MAORI PERSPECTIVE (1995); CAROL ARCHIE, MAORI

SOVEREIGNTY: THE PAKEHA PERSPECTIVE (1995).

141. Indeed, it has been said that it is unrealistic to maintain any contrary

argument. Graham Interview, supra note 10.

142. Mulgan, supra note 2, at 56, 57–59. There are some who, whilst decry-

ing alleged Crown breaches of the Treaty, deny that the Treaty conveyed any-

thing more than permission for European settlement — a case of “having their

cake and eating it too.” Graham Interview, supra note 10.

143. Treaty of Waitangi, Feb. 6, 1840, Eng.-Maori, art. I, 89 Consol. T.S.

473, 475, available at http://www.govt.nz/aboutnz/treaty.php3.

144. Id. art. III.

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2002] TREATY OF WAITANGI 145

authority.

145

This pragmatic position has proved most effective

and has led to the successful conclusion of numerous claims for

compensation for past wrongs.

The Treaty at least partially justifies or legitimates the

Crown and Parliament’s claims to power, though, in Jackson’s

view, only with respect to Pakeha.

146

However, such a resolu-

tion presupposes that the original assumption of sovereignty

was in some way illegal, a proposition itself open to argu-

ment.

147

It becomes clear that traditional views of the Treaty must be

reassessed, and that the concept (or “myth” as Guy Chapman

called it

148

) of the Treaty as a living document is symbolically

important. A republican constitution would allow a fresh start,

though at a greater potential risk, due to the need to re-

evaluate the nature of the relationship between the Maori and

the government. But not all have accepted that the Treaty of

Waitangi is a substantial enough basis upon which to build a

constitution.

149

The Treaty occupies an uncertain place in the New Zealand

constitution.

150

No Maori law was recognized by the colonial le-

gal system

151

— indeed there was no Maori law as the term is

now generally understood.

152

The New Zealand Parliament has

never doubted that they have full authority irrespective of the

Treaty.

153

There have been some signs that this orthodoxy may

be challenged,

154

but it is difficult to see how this could be

145. See Haare Williams, Te Tiriti o Waitangi, in HE KORERO MO WAITANGI

1984 (Arapera Bank et al. eds., 1985).

146. PROTEST AND PARTNERSHIP, supra note 139, at 19.

147. F.M. Brookfield, Parliament, the Treaty, and Freedom, in ESSAYS ON

THE CONSTITUTION 43–46 (Philip Joseph ed., 1995).

148. Chapman, supra note 57.

149. See, e.g., Peperell, supra note 2 (quoting Simon Upton, Member of Par-

liament, Address before the Parliament of New Zealand, Dec. 12, 2000).

150. For the general background to the Treaty, see BUICK, supra note 85; P.

MOON, ORIGINS OF THE TREATY OF WAITANGI (1914); RUTHERFORD, supra note

85.

151. Wi Parata v. The Bishop of Wellington [1877] 3 N.Z. Jurist Reports

(New Series) 72.

152. Tapu, customs, and lore fulfilled the functions of laws found in more

complex societies.

153. F. M. Brookfield, Kelsen, The Constitution and the Treaty, 15 N.Z.U. L.

REV. 163, 175 (1992).

154. Id.

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146 BROOK. J. INT’L L. [Vol. 28:1

achieved in the absence of an entrenched Constitution and a

strong Supreme Court of the American model.

155

Lord Woolf, in his 1994 Mann lecture, subscribed to the opin-

ion, which is gradually gaining ground, that there are some

fundamentals that even the Westminster Parliament cannot

abolish.

156

The traditional doctrine of supremacy of Parliament,

however, holds that there is nothing that Parliament cannot

do.

157

The time may have come for the courts to give judicial recog-

nition to the Treaty of Waitangi, as Professor Whatarangi

Winiata, among others, has called upon them to do.

158

There

have been clear signs that Lord Cooke of Thorndon, while

President of the Court of Appeal, was inclined to reconsider the

position of the Treaty.

159

Such a significant step remains, how-

ever, unlikely.

160

In the meantime, the Crown and the Maori

remain in a form of political or legal symbiosis through their

Treaty relationship.

In light of the strong Pakeha opposition to the Maori claims

under the existing Treaty,

161

it is uncertain whether there

would be sufficient support for a simple transfer of Treaty obli-

gations to a new regime. More importantly, many Maori still

view the Treaty as an obligation assumed by the Crown, and

not solely by the government of New Zealand.

162

155. F.M. Brookfield, A New Zealand Republic?, 8 LEGISLATIVE STUDIES 5

(1994).

156. See Robert Lindsay, The Australian Janus: The Face of the Refugee

Convention or the Unacceptable Face of the Migration Act?, at

http://www.ntu.edu.au/faculties/lba/schools/Law/apl/Retreating/lindsay.htm

(amended Feb. 21, 1997) (quoting Lord Woolf).

157. See, e.g., T.R.S. Allan, Legislative Supremacy and the Rule of Law:

Democracy and Constitutionalism, 44 CAMBRIDGE L.J. 111, _ (1985).

158. Whatarangi Winiata, Revolution by Lawful Means, in 2 THE LAW AND

POLITICS: LAW CONFERENCE PAPERS 13, 16–18 (New Zealand Law Conference

1993).

159. See Te Runanga o Wharekauri Rekohu Inc v. Attorney-General [1993]

2 N.Z.L.R. 301, 305.

160. Te Heuheu Interview, supra note 129.

161. See generally Paul Perry & Alan Webster, New Zealand Politics at the

Turn of the Millennium: Attitudes and Values about Politics and Government

75 (1999).

162. Hayward, supra note 4, at 233–34.

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2002] TREATY OF WAITANGI 147

IV. MAORI ATTITUDES TOWARD THE CROWN

The Treaty of Waitangi may legally have ceded sovereignty,

but it should be seen as part of the British government’s stated

intention to take possession of the country only with the con-

sent of the Maori chiefs.

163

Since the 1770s, Maori contact with

British officers had given them an understanding of the advan-

tages and disadvantages of coming under the Queen’s protec-

tion.

164

It is clear that in signing the Treaty of Waitangi, they

saw themselves as reinforcing this link with the Queen and her

royal predecessors (as well as successors).

165

Maori deputations to the Sovereign, in 1882 and 1884 to

Queen Victoria,

166

and in 1914 and 1924 to King George V to

seek redress of grievances under the Treaty, must be seen in

this context.

167

The Maori did not consider that the Queen had

signed in any other capacity than the chiefs themselves had

signed.

168

Thus they may not have fully appreciated that al-

though the Treaty was signed on behalf of Queen Victoria, the

political capacity of the Sovereign was exercised by her Minis-

ters on her behalf.

169

Each of the deputations was referred by the Ministers in the

United Kingdom to the colonial Ministers in Wellington, on

whose advice the Sovereign was now acting in matters affecting

his or her Maori subjects.

170

Whether this was a correct position

163. Marquis of Normanby to Hobson, Aug. 14, 1839, supra note 83, at 38–

39.

164. See RANGINUI WALKER, KA WHAWHAI TONU MATOU: STRUGGLE WITHOUT

END 94–95 (1990) [hereinafter STRUGGLE].

165. See Cox, supra note 8, at 109.

166. See STRUGGLE, supra note 164, at 160, 163 (1990).

167. See id. at 165.

168. See Cox, supra note 8, at 109.

169. See id. Indeed, they were encouraged to see the Treaty as an agree-

ment with the Queen. Graham Interview, supra note 10.

170. In a similar way, efforts were made to seek the involvement of the

United Kingdom Parliament on behalf of the Canadian Indians during the

1981–82 patriation process. The courts had to rule that the treaty obligations

to natives were now the responsibility of the government and Parliament of

Canada. See The Queen v. Secretary of State for Foreign and Commonwealth

Affairs, 1982 Q.B. 892, 926 (Eng. C.A.); Douglas E. Sanders, The Indian

Lobby, in AND NO ONE CHEERED: FEDERALISM, DEMOCRACY AND THE

CONSTITUTION ACT 301, 322–323 (Keith Banting & Richard Simeon eds.,

1983).

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148 BROOK. J. INT’L L. [Vol. 28:1

to take in the late nineteenth century is doubtful.

171

It is cer-

tain, however, that today any attempt to seek recourse to the

Sovereign personally will be referred to the appropriate New

Zealand Minister.

172

The Crown’s obligations under the Treaty of Waitangi are

now exclusively the concern of the Crown in right of New Zea-

land.

173

However, the personal involvement of the Sovereign as

a party to the Treaty remains important to the Maori. This is

illustrated by the strongly asserted Maori appeal to Her present

Majesty Queen Elizabeth in 1984 to “honour the Treaty.”

174

Many Maori share a widely and deeply held view of the Queen

as the great-granddaughter of Queen Victoria,

175

though the

numbers of people holding this view appear to be in decline.

176

Sir James Henare, a leading Maori elder, informed the Court of

Appeal that: “[I]t’s a very moot point whether the Maori people

do love Governments in New Zealand because of what they have

done in the past . . . . The Maori people really do have no great

love for governments but they do for the Crown.”

177

Though this illustrates the confusion over the identity of the

Crown,

178

the existence of such an attitude cannot be ignored.

Thus, the apology from the Crown, enshrined in the Waikato

Raupatu Claims Settlement Act of 1995 and signed by the

Queen in November 1995, was of great symbolic importance.

179

The fact that the apology could not be attributed to Her Majesty

personally was widely overlooked.

180

171. F.M. Brookfield, A New Zealand Republic?, 8 LEGISLATIVE STUDIES 5

(1994).

172. Graham Interview, supra note 10.

173. This is shown in the Canadian context in The Queen v. Secretary of

State for Foreign and Commonwealth Affairs, 1982 Q.B. 892, 926 (C.A.).

174. See STRUGGLE, supra note 164, at 234 (1990).

175. Interview with David Lange, former Prime Minister, in Auckland, N.Z.

(May 20, 1998) (on file with author); Graham Interview, supra note 10.

176. Te Heuheu Interview, supra note 129.

177. Statement quoted from the Affidavit of Sir James Henare, May 1, 1987

(on file with author), which is referred to in New Zealand Maori Council v.

Attorney-General [1987] 1 N.Z.L.R. 641.

178. See Janine Hayward, In Search of a Treaty Partner (1995) (unpub-

lished Ph.D. thesis, Victoria University of Wellington) (on file with author).

179. Waikato Raupatu Claims Settlement Act, 1995 (N.Z.); New Zealand

Sees New Era Dawn with Queen’s Apology, DAILY TELEGRAPH (London) Nov. 4,

1995.

180. Graham Interview, supra note 10.

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2002] TREATY OF WAITANGI 149

The importance of the British connection remains strong for

many Maori, who would prefer that the Crown not have an ex-

clusively national identity.

181

Some value the perceived inde-

pendence of a transnational institution.

182

Indeed, some have

continued to see the Treaty as an agreement with the United

Kingdom, rather than with the New Zealand government.

183

Thus, although the Crown may have evolved into the “New Zea-

land Crown,” to many Maori this might be unwelcome, if it

means the increased subordination of the head of state to the

political government in Wellington.

184

The legal status of the Treaty of Waitangi is secondary to how

it is perceived by Maori.

185

Whatever the legal effect of the

Treaty of Waitangi, the chiefs yielded, voluntarily or not, ka-

wanatanga to the Queen.

186

It appears to be a widespread

Maori belief that the Treaty was with the Crown, and that this

link should not be amended, let alone severed, unilaterally —

i.e., the Maori would have to be consulted before the govern-

ment decided any change.

187

The Treaty dispute settlement process has encouraged con-

sideration of the system of government — of the constitution in

181. Id.; Te Heuheu Interview, supra note 129.

182. Jane Kelsey, The Agenda for Change — the Effect and Implications of

MMP and Republicanism on Treaty Settlement Methods and the Effect on the

Treaty with the Crown, paper presented to the Institute for International Af-

fairs, Wellington (May 17–18, 1995) (on file with author). It was partly for

this reason that Maori opposed the abolition of appeals to the Judicial Com-

mittee of the Privy Council. Te Heuheu Interview, supra note 129.

183. See Confederation of United Tribes of New Zealand, Historical Brief, at

http://www.nzaif.com/historical_brief.html (last visited Oct. 10, 2002).

184. See McHugh, supra note 60, at 41–42.

185. The Royal Commission on the Electoral System concluded that Mixed

Member Proportional Representation (“MMP”) would obviate the need for

Maori seats, indicating a lack of appreciation of the different perceptions of

Maori; ROYAL COMMISSION ON THE ELECTORAL SYSTEM, REPORT OF THE ROYAL

COMMISSION ON THE ELECTORAL SYSTEM “TOWARDS A BETTER DEMOCRACY” 81–

97 (1986); Interview with Sir Paul Reeves, former Governor-General, in Auck-

land, N.Z. (Nov. 11, 1998) (on file with author).

186. Kawanatanga, or “governance,” is often used interchangeably with the

term “sovereignty.” See Brookfield, supra note 135, at 4. Though, in some

parts of the country this only occurred as late as the latter years of the nine-

teenth century.

187. Kelsey, supra note 182.

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150 BROOK. J. INT’L L. [Vol. 28:1

general, and that of the Maori in particular.

188

The relationship

between Crown and the Maori people is a regular subject of dis-

cussion in marae.

189

Because the legitimacy of the government

in New Zealand is based, at least in part, on the Treaty of Wai-

tangi, a commonly held Maori position is that the government

has no right to make any change in its constitutional status

without their consent.

190

There appears to be no more agree-

ment among Maori than there is in the general population

about the future direction of government, but there is a concern

to preserve any structures or institutions that bolster the eco-

nomic or social status of Maori.

191

General constitutional re-

form must precede or be integral to any move to a republic.

This reform should include a consideration of tino rangati-

ratanga and kawanatanga.

192

Nor would a move to a republic

absolve a future government of its Treaty obligations,

193

al-

though some have advocated a republic for the purpose of end-

ing these obligations.

194

There has been a fear expressed that

governments could be using republicanism to evade Treaty re-

sponsibilities.

195

An example would be cutting appeals to the

Privy Council, which is regarded as an external channel for re-

188. Te Heuheu Interview, supra note 129; Interview with Sir Paul Reeves,

former Governor-General, in Auckland, N.Z. (Nov. 11, 1998) (on file with au-

thor). Examples are the constitutional proposals of the Rt. Hon. Mike Moore.

M. Moore, Explanation: New Zealand Constitutional [People’s] Convention Bill

1998 (Feb. 11, 1998) (on file with author).

189. “Tribal meeting houses.” This is true of the Ngati Tuwharetoa at least.

Te Heuheu Interview, supra note 129.

190. Graham Interview, supra note 10.

191. Te Heuheu Interview, supra note 129.

192. See Kelsey, supra note 182, at 12–13. Tino rangatiratanga, defined in

the Treaty of Waitangi Act 1975 as a people’s “full exclusive and undisturbed

possession of their Lands and Estates Forests Fisheries and other properties,”

Treaty of Waitangi Act, 1975 (N.Z.), is often defined more broadly to mean

“sovereignty,” Brookfield, supra note 135, at 4.

193. See sources cited supra note 192. See also Andrew P. Stockley, Parlia-

ment, Crown and Treaty: Inextricably Linked?, 17 N.Z.U. L. REV. 193, 212

(1996).

194. See, e.g., Stephen Morris, Letter to the Editor of the NEW ZEALAND

HERALD, June 21, 1999 (on file with author). This may also be implicit in the

policy of the New Zealand Libertarians, which advocates “abolish[ing] the

institutionalised apartheid that currently exists in New Zealand.” See Liber-

tariaNZ: Less Government, LAW TALK, Sept. 20, 1999, at 24.

195. Andrea Tunks, Mana Tiriti, in REPUBLICANISM IN NEW ZEALAND 117

(Luke Trainor ed., 1996).

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2002] TREATY OF WAITANGI 151

dress

196

and formally as an appeal to the Crown.

197

Without

specific concurrence from the Maori as the Treaty partner with

the Crown, the abolition of the monarchy would appear to lack

legitimacy.

198

Formerly it might be said that the traditional national iden-

tity of New Zealand was one of a people with one culture, that

culture being, predominantly, Pakeha .

199

This is no longer so,

but just what the New Zealand identity is remains uncertain.

200

Especially since the 1970s, the liberal democratic ethos has

generated what Jane Kelsey calls an integration ethic and a

self-determination ethic — an attempt to incorporate Maori into

the Pakeha majority, while preserving their separate identity.

201

These two views may ultimately prove impossible to reconcile.

202

Both racial groups, however, are linked by the concept of the

Crown, as it is variously understood. The argument that the

Crown, as a party to the Treaty of Waitangi, is a fundamental

postulate of the New Zealand constitution is important,

203

even

if it is exaggerated.

V. CONCLUSION

This paper has developed the thesis that the legitimacy of the

British Crown in New Zealand is derived, in part, from its part-

nership with the tangata whenua

204

in the Treaty of Waitangi.

196. Again, this attitude is not an indication of support for the monarchy,

but of appreciation of the advantages of the Crown to a minority. Te Heuheu

Interview, supra note 129. See, e.g., New Zealand Maori Council v. Attorney-

General of New Zealand [1994] 1 A.C. 466 (P.C. 1994).

197. Judicial Committee Act, 1833, 3 & 4 Will. IV, c. 41 (U.K.); Judicial

Committee Act, 1844, 7 & 8 Vict., c. 69 (U.K.); Judicial Committee Act, 1881,

44 & 45 Vict., c. 3 (U.K.).

198. Robin Cooke, The Suggested Revolution against the Crown, in ESSAYS

ON THE CONSTITUTION 28, 38 (Philip Joseph ed., 1995).

199. Kelsey, supra note 75, at 185.

200. Te Heuheu Interview, supra note 129.

201. Kelsey, supra note 75, at 185, 192–93.

202. See also BRUCE CLARK, NATIVE LIBERTY, CROWN SUPREMACY — THE

EXISTING ABORIGINAL RIGHT OF SELF-GOVERNMENT IN CANADA 191 (1990); A.

Ward, Historical Claims under the Treaty of Waitangi, 27 J. OF PACIFIC

HISTORY 181 (1993).

203. Cooke, supra note 198, at 35–37.

204. See sources cited supra note 3.

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152 BROOK. J. INT’L L. [Vol. 28:1

This partnership is a major source of non-traditional legitimacy

that depends not on popularity but on perception.

205

Similarly, the establishment of Canada was founded to some

degree on a series of treaties between the Crown and the native

American people. The obligations under these treaties have

been assumed by the Canadian authorities, but in such a way

that the British Crown remains central to the relationship.

Parallels are less clear in Australia, where the native peoples

generally lacked the same treaty relationship with the Crown.

Retention of the “uncomfortable” idea that the Crown is sov-

ereign avoids the problems inherent in a legal notion of popular

sovereignty. Both Maori and Pakeha are under the Crown,

which owes a special duty to the Maori as partners in the

Treaty of Waitangi.

From the Maori perspective there are perhaps two questions

central to any republican debate in New Zealand: who or what

is the Crown and, more specifically, what is its function under

the Treaty of Waitangi?

206

It continues to be, and in fact ap-

pears increasingly imperative to the Maori, that the Crown is

not only something other than the government of the day,

207

but

that the Crown is able to function in such a manner as to hold

the government to the guarantees made under the Treaty of

Waitangi.

208

The Crown is, at the very least, something distinct

from the political government. Nor can it, as a Treaty partner,

be equated with a State or the people, since it involves the pres-

ervation of a special relationship with one sector of society —

the Maori.

The legitimacy of the present regime relies, at least in part,

on a compact between the Crown and the Maori, as a basis for

the assumption and continuation of sovereignty. Whether the

Maori can be said to have actually benefitted from this cession

to the Crown, and from the subsequent artificial distinction

drawn between the Crown and government, is problematic. The

205. See, e.g., NEW ZEALAND 1990 COMMISSION, THE TREATY OF WAITANGI:

THE SYMBOL OF OUR LIFE TOGETHER AS A NATION (1989); DOUGLAS GRAHAM,

TRICK OR TREATY? (1997).

206. Hayward, supra note 178.

207. Te Heuheu Interview, supra note 129. Sometimes the Crown meant

the government of the day, sometimes more. Graham Interview, supra note

10. See also Hayward, supra note 178.

208. Hayward, supra note 4, at 233–234.

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2002] TREATY OF WAITANGI 153

British government would probably have been extended to New

Zealand in any event, but the way in which it was done was im-

portant.

The perception the nineteenth century Maori had of the

Crown was determined by their own cultural heritage and the

way in which they perceived Queen Victoria's role. This percep-

tion differed markedly from that of the settlers or the British or

colonial government. But the perception is more important

than the reality. If the reality is that the Maori must negotiate

with governments that owe their authority solely to the general,

predominantly European population, then the majority ambiva-

lence or hostility to the principles of the Treaty present real

problems for Maori wishing to enforce the Treaty of Waitangi.

The result is that, for pragmatic reasons alone, many Maori

remain attached to the concept of the Crown. This is so even

though the Treaty of Waitangi may itself be an insubstantial

basis for a modern constitution.

209

The Crown may not be essen-

tial to the body politic, but its removal would raise questions of

the role of Maori in society and government, which many, not

least of all political leaders, would prefer to avoid.

209. Pepperell, supra note 2 (quoting Simon Upton, Member of Parliament,

Address before the Parliament of New Zealand, Dec. 12, 2000).