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Last Updated: 16 August 2010
THE TREATY OF WAITANGI AND THE RELATIONSHIP BETWEEN CROWN AND MAORI IN NEW ZEALAND
Noel Cox[∗]
I. INTRODUCTION
T
HE orthodox legitimacy of the
Crown,[1] 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 potent, source of
legitimacy in New Zealand — the Treaty of Waitangi (“Treaty”).
As the moral, if not legal, authority for European 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.[2] 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 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 today.
In particular it will
examine the development of the concept of fiduciary duty. The second section
looks at the New Zealand situation,
and specifically at the Treaty. This Treaty
is evaluated both as a source of legitimacy — as a direct agreement
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 section 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 considered 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
inherent in analyzing political structures that are founded in disparate
cultural histories, in this case the
difference between the culture of the
indigenous Maori people and that of the European 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, Australia. 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.”[3] As such
the Crown occupies a symbolic place distinct from, yet linked with, the
government of the
day.[4] Though the
Maori and European populations 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 — historically and politically
similar to what happened in Canada, but distinct
from what developed in
Australia. In both New Zealand and Canada, the Crown made treaties regulating
its relations with the aboriginal
inhabitants of the new colonies. These
treaties, combined with the circumstances of settlement, created an ongoing duty
on the part
of the Crown towards the native 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.[5]
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.[6] Its exact
legal significance was uncertain. However, it seems that the Crown gave
implicit recognition to the Maori as the indigenous
inhabitants of the
country,[7] 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. Nevertheless, the legal effect of the treaty was not as important as
its political
function. Both the British Imperial Government and the Maori
chiefs knew that it was the culmination of a process that had begun
some decades
earlier.[8]
Taking
the lead from a number of court
decisions,[9]
governments of the former colonies have increasingly sought to apply the concept
of partnership among the settlers and the indigenous
population. In both Canada
and New Zealand this relationship has not always been smooth, but the courts
have recognised its importance.
The New Zealand government has followed the
direction set by the
courts,[10] just as it
has happened in
Canada[11] and in the
United States of
America.[12]
A. Canada
The Supreme Court of Canada in Guerin v. The
Queen[13]
acknowledged the existence of a fiduciary obligation of the Crown towards the
Canadian Indians.[14]
The court clearly stated that the exercise of discretion or power over property,
above and beyond what people are normally subject
to, leads to accountability in
law.[15] 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.[16] This
obligation was founded both on imperial practice and the Royal Proclamation of
1763.[17]
The Royal
Proclamation, which had the status of an Imperial Act of
Parliament[18] and
thus could not be repealed by the Canadian Parliament (until the passage of the
Statute of Westminster of
1931[19]), had
guaranteed the native North American Indians possession of hunting grounds and
the protection of the
Crown.[20] “In
restricting the alienation of Indian lands, the Crown assumed responsibility for
the protection and management of Indian
proprietary
interests.”[21]
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.[22] 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.[23]
The
only government with true sovereignty during the colonial era was the British
Imperial
Government.[24] But
the imperial government in its dealings in North America also sought to maintain
an “even hand” between the Indians
and the colonial
governments.[25]
Partly for this reason, they circumscribed the power of the colonial government,
and therefore their federal and provincial
successors.[26]
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.[27] These
rights were later formally announced in the Royal Proclamation of 1763 and in
the instructions to the governors. However,
in accordance with the Colonial
Laws Validity Act of
1865,[28] the colonial
legislature had the power to enact laws that were prejudicial to the
aboriginals.
The native peoples of Canada enjoyed constitutional immunity,
not merely federal
immunity.[29] Thus
they had certain rights, such as of land ownership, which depended upon the
constitution, rather than upon federal
laws.[30]
Developments in the courts during the 1970s has led to a resurgence of
native authority.[31]
In Calder v. Attorney-General for British
Columbia,[32]
the Supreme Court of Canada assumed that the pre-confederation colonial
government in British Columbia was granted by the British
Imperial Government,
as 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 confederation were not
sovereign.[33]
Canadian courts have led the way to the recognition of a special
relationship between the Crown and native
peoples.[34]
Following its tentative recognition in
Calder,[35] 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.[36] Four
judges held that a fiduciary obligation only arose if the land was
surrendered,[37] while
three held that a more general obligation to protect the land interests of
aborigines
existed.[38] The
minority was followed in The Queen v.
Sparrow.[39]
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 Native 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
relationship.[40] The
Europeans and the natives did not have such a relationship, as the Crown did not
purport to represent a population as such —
though the relationship could
be perceived as being between the State and the natives — provided that
there was an agreement
as to the nature of the State (i.e., the meaning of the
“Crown”).
The general rules of fiduciary obligations have also
been developed in the United States of
America,[41] though
the practical implications of these rules for the native peoples may be
limited.[42] 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.[43] Yet
Canada alone secured, at least in theory, Indian rights generally, not only
those of title to
land.[44] They did so
with the Royal Proclamation, which, like the Treaty of Waitangi, has been
analogized to the Magna
Carta.[45]
B. Australia
In contrast to Canada, the principles of Crown
guardianship of native peoples had received little judicial attention in
Australia
until Mabo v. Queensland (No
2).[46] 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,[47] the
judgements in Mabo showed a more marked inclination to recognize a
fiduciary obligation in cases where there was actual or threatened interference
with
native title
rights.[48]
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 Australian aboriginal population generally lacked
treaties with the
Crown.[49] 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.[50]
Ironically, some commentators have suggested that “aboriginality”
should replace the Crown in the Australian national
identity,[51] 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 protector of the native peoples,
the protection was limited because
of the absence of written undertakings.
The situation in New Zealand is much closer to
that in Canada 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 Zealand, however, one treaty has paramount significance,
in part simply because it was
the only treaty made with the indigenous
inhabitants of the islands.
[52]
Orthodox
theory holds that the Treaty of Waitangi (“Treaty”) has a
socio-political, not legal, force, as it was not a
treaty recognized under
international law.[53]
It therefore has an effect only so far as a legal recognition has been
specifically accorded to
it.[54] However, at
some point either the courts or New Zealand Parliament may have to give the
Treaty legal recognition as part of the
constitution of New
Zealand.[55] 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.”[56]
Government agencies therefore apply the Treaty, wherever possible, as if it were
legally binding upon
them.[57] In this
respect, the growth in what has been called the “myth” of
Crown–Maori partnership has been particularly
important.[58]
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 British sovereignty over New
Zealand.[59] The
actual means of obtaining 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.[60] 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.[61]
Though the assumption of sovereignty is disputed, the legal foundation of New
Zealand as a separate colony can be ascertained with
some
certainty.[62]
Captain
James Cook, of the British Royal Navy, took possession of the North Island on
November 15, 1769, and the South Island on January
16,
1770.[63] 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.[64] However,
this is a rather strained interpretation of the actual authority enjoyed by the
government in
Sydney.[65]
The
Government and General Order Proclamation issued in 1813 by Lachlan Macquarie,
Governor of New South Wales, declared that the
aboriginal natives of New Zealand
were “under the protection of His Majesty and entitled to all good offices
of his
subjects.”[66]
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.[67] Subsequent
enactments repeated that New Zealand was “not subject to his
Majesty.”[68]
Since 1823, however, the courts of New South Wales were permitted to try cases
for offences committed in New Zealand by British
subjects.[69]
Extra-territorial judicial processes were at this time common, particularly
where British trade was conducted in countries with
“non-Christian or
barbaric laws,” or with no laws at
all.[70] Thus, it is
likely that extraterritorial jurisdiction was intended, rather than any claim to
sovereignty.
Circumstances eventually required greater official British
involvement in New Zealand. In 1831, thirteen chiefs from Kerikeri petitioned
King William IV for protection against the
French.[71] 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.[72] No
magisterial powers were ever conferred upon him; imperial legislation seeking to
increase his powers was contemplated but never
passed.[73]
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
government.[74] The
Declaration of Independence of the United Tribes of Aotearoa in 1835 may have
been “politically unsustainable, practically
unworkable, and culturally
inconceivable.”[75]
Nonetheless, for those tribes who signed, the Declaration meant that henceforth
the British king was “honour-bound to recognise
and protect their
independence.”[76]
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.[77]
In
1838, a House of Lords committee favored the extension of British possession
over New Zealand, though it did not expressly advocate
it.[78] The Colonial
Office, however, decided to annex New Zealand to New South
Wales.[79] On June
15, 1839, letters patent were signed, which enlarged the jurisdiction of the
Governor of New South Wales by amending his
commission to include the New
Zealand islands.[80]
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.[81] These
were published in Sydney on January 19, 1840, and in New Zealand January 30,
1840.[82]
Hobson
was instructed to take possession of the country only with the consent of the
Maori chiefs.[83] The
Treaty of Waitangi was the immediate instrument by which this was to be
achieved.[84] The
Treaty was initially signed on February 6, 1840, although the process of signing
copies was not completed until September 3,
1840.[85] 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.[86]
As a result of reports that the New Zealand Company settlers in Wellington
(then Port Nicholson) had issued their own constitution
and set up a
government,[87] on May
21, 1840, Hobson issued two proclamations of full sovereignty over all of New
Zealand, which were published in the London Gazette on October 2,
1840.[88] The first
proclamation was in respect to the North Island, and was based on cession by
virtue of the Treaty of
Waitangi.[89] The
second related to the South Island (then Middle Island) and Stewart
Island.[90]
On
October 15, 1840, Hobson sent a despatch to London which collated all the copies
of the Treaty,[91] and
this despatch was approved March 30,
1841.[92] In it,
Hobson indicated that the second proclamation of May 21, 1840 relied on the
right of discovery, rather than on the
Treaty.[93] Hobson
was thus acting in conformity with his instructions to extend British
sovereignty 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.”[94]
In the meantime, Major Bunbury proclaimed sovereignty by cession over the
South Island on June 17, 1840. The proclamations of May
21 were effective in
showing that New Zealand was a colony by act of
State.[95] An act of
State must be accepted as legally
effective,[96] and no
special formality is required for
annexation.[97]
Meanwhile,
the government of New South Wales purported to annex New Zealand through an act
that came into force as of June 16,
1840;[98] yet this was
done in ignorance of the British imperial
plans.[99] 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 3,
1841.[102] The
Royal Instructions to the Governor were issued December 5,
1840.[103] The
Charter was based solely on the authority 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 notions 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 native peoples that was
to outlast its imperial authority and become 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 considered 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 which international personality was
attributable, acquisition was accomplished by cession or
conquest.[108]
The original, relatively clear distinction, between the deserted 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
cession, as the later nineteenth century orthodox theory
maintained.[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 Zealand 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 perspective, the Treaty of Waitangi was a treaty
of cession, which allowed for the settlement and
purchase of
land.[115] However,
because the chiefs had little formal law, and because of the direct proclamation
of sovereignty over the South Islands,
New Zealand 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 inhabitants 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 internationally 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 international
law,[120] and
therefore bound, at least morally, by the terms of a treaty of cession. The
fact that doctrinal developments 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 implementation 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
domestic 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 discovery and settlement, as well
as by cession.[126]
But this acquisition 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 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 responsibility,
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 meaningful
recognition of the Queen and the concept of national sovereignty
in return for
the recognition of their rights of
property.[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 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
revolutionary 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
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 resolution presupposes that the original assumption of
sovereignty was in some way illegal, a proposition itself
open to
argument.[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 legal
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 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 opinion, 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 recognition 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, however,
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 obligations 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]
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 consent of the Maori
chiefs.[163] Since
the 1770s, Maori contact with British officers had given them an understanding
of the advantages and disadvantages of coming
under the Queen’s
protection.[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 although the Treaty was signed on
behalf of Queen Victoria, the political capacity
of the Sovereign was exercised
by her Ministers 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 to take in the late nineteenth century is
doubtful.[171] It is
certain, 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
Zealand.[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]
The importance of the British connection remains strong for many Maori, who
would prefer that the Crown not have an exclusively national
identity.[181] Some
value the perceived independence 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 Zealand
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, kawanatanga 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 government decided any
change.[187]
The
Treaty dispute settlement process has encouraged consideration of the system of
government — of the constitution in general,
and that of the Maori in
particular.[188]
The relationship between Crown and the Maori people is a regular subject of
discussion in
marae.[189]
Because the legitimacy of the government in New Zealand is based, at least in
part, on the Treaty of Waitangi, 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 agreement 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 economic or social
status of
Maori.[191] General
constitutional reform must precede or be integral to any move to a republic.
This reform should include a consideration
of tino rangatiratanga and
kawanatanga.[192]
Nor would a move to a republic absolve a future government of its Treaty
obligations,[193]
although some have advocated a republic for the purpose of ending these
obligations.[194]
There has been a fear expressed that governments could be using republicanism to
evade Treaty
responsibilities.[195]
An example would be cutting appeals to the Privy Council, which is regarded as
an external channel for
redress[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 identity 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 partnership
with
the tangata
whenua[204] in
the Treaty of Waitangi. 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 sovereign 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 appears 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 preservation 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 British government would probably
have been extended to New Zealand in any
event, but the way in which it was done was important.
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
perception 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 ambivalence 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 essential 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.
[∗] Lecturer in Law at the Auckland
University of Technology. Barrister of the High Court of New Zealand, and of
the Supreme Courts
of Tasmania, New South Wales, South Australia, and the
Northern Territory. The author can be contacted at
noel.cox@aut.ac.nz
[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 Perspective, 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
Enterprises 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).
[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).
[4]. See Janine Hayward,
Commentary, in CONSTITUTIONAL IMPLICATIONS OF MMP 233–234
(Alan Simpson ed., 1998) (stating that the Crown is increasingly seen by Maori
in
this light).
[5]. See Richard A.
Epstein, Property Rights Claims of Indigenous Populations: 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 Municipal 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. Attorney-General [1992]
2 N.Z.L.R. 576 (the 1992 case could be seen as a partial reversal of the 1987
case).
[8]. Noel Cox, The Evolution of the
New Zealand Monarchy: The Recognition of an Autochthonous Polity 78 (2001)
(unpublished Ph.D. thesis,
University 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 Recognition 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 fiduciary
relationships see Hospital Products Ltd. v. United States Surgical Corp.,
[1984] HCA 64; (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.
[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 council for
colonies.
Id. The general power to legislate by proclamation was
rejected in the Case of Proclamations[1610] EWHC J22; , 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
preemption.
[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, declined to recognize Admiralty jurisdiction
or appeal
rights, neglected to provide their quotas for imperial defence, and encouraged
trades forbidden by imperial legislation.
In short, they were politically
independent, and claimed 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 Constitution 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.
[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).
[41]. See Camilla Hughes, The
Fiduciary Obligations of the Crown to Aborigines: 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 Proclamation, 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] [1987] HCA 52; 61 A.L.J.R. 616, 620 (1987)
(Austl.).
[48]. Mabo, 175 C.L.R. at
42–43, 205. Acquisition of legal title over Australia 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.
[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 Constitution and
The Republic, 11 AUSTL. BAR REV. 31, 36–38 (1994); James Cockayne,
More Than Sorry: Constructing a Legal Architecture for Practical
Reconciliation[2001] SydLawRw 23; , 23 SYDNEY L. REV. 577, 590 (2001); Andrew Lokan, From
Recognition to Reconciliation: The Functions of Aboriginal Rights Law[1999] MelbULawRw 3; , 23
MELB. U. L. REV. 65, 112 (1999).
[51]. John
Morton, Aboriginality, Mabo and the Republic: Indigenising Australia,
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).
[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 international 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 Judicial (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 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 legally 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 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_1787.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 Manslaughters 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).
[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.
[80]. Proclamation By His
Excellency Sir George Gipps, Knight, 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
Waitangi, 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 — 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, Esquire
(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]; Proclamation 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,
International 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.
[94]. Captain William Hobson to the
Under Secretary of the Colonial Department (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 sovereignty. 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.
[102]. PETER ADAMS, FATAL NECESSITY
162 (1977).
[103]. Instructions to
. . . William Hobson, Esq. our Governor and Commander-in-Chief in and Over Our
Colony of New Zealand (Dec. 5, 1840),
reprinted 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
(U.K.). 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) likewise 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.[1836] EngR 1155; , 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).
[108]. Lyons (Mayor of) v.
East India Co.[1836] EngR 1155; , 12 Eng. Rep. 782 (P.C. 1836); Freeman v. Fairlie, [1828] EngR 63; 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 acquisition 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 population 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 REPORT
OF THE PRIVY COUNCIL ON THE PROJECT OF A BILL FOR THE BETTER GOVERNMENT OF THE
AUSTRALIAN COLONIES, 1849 Command _, at _;
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.).
[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. Alexandrowicz ed.,
1970).
[118]. See McHugh,
supra note 58, at 317–19 (discussing the nineteenth century theory
and practice).
[119]. Examples of where
treaties with native peoples were regarded as binding 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 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.
[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 note131.
[135]. F.M.
Brookfield, The New Zealand Constitution the Search for Legitimacy,
in WAITANGI: MAORI AND PAKEHA PERSPECTIVES OF THE TREATY OF WAITANGI 1, 1
(Hugh Kawharu ed., 1989).
[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 Cambridge 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
perceptions 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 decrying
alleged Crown breaches of the Treaty, deny that the Treaty conveyed
anything
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.
[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 Parliament,
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]. F.M. Brookfield,
Kelsen, The Constitution and the Treaty, 15 N.Z.U. L. REV. 163, 175
(1992).
[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]. Revolution by Lawful
Means, LAW AND POLITICS: 1993 NEW ZEALAND LAW CONFERENCE PAPERS vol 2, pp
13, 16–18.
[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.
[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 agreement 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).
[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) (unpublished 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.
[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 Affairs, 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 Committee 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 Auckland, 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 nineteenth
century.
[187]. Kelsey, supra note
182.
[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 author). 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,
Parliament, 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 LibertariaNZ:
Less Government, LAW TALK, Sept. 20, 1999, at 24.
[195]. Andrea Tunks, Mana
Tiriti, in REPUBLICANISM IN NEW ZEALAND 117 (Luke Trainor ed., 1996).
[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.
[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.
[209]. Pepperell,
supra note 2 (quoting Simon Upton, Member of Parliament, Address before
the Parliament of New Zealand, Dec. 12, 2000).
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