New Zealand Legal History

8/9/2019 New Zealand Legal History

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LAWS 101 New Zealand Legal History

Chapter 2 The Mori Legal Syste!

"eading 1! The Mori #n$o%nter with Aotearoa New Zealand&s LegalSyste! Tangata When%a Law! Legal history o' Aotearoa new Zealand (egan when the )rst people arri*ed (13

century)+o ,ro%ped in to distin$t people they (e$ae literally -The People of the Land

Tangata Whenua+ The $oon lang%age $apt%red this literal interrelationship (etween land

and people!

Hapu = s%(.tri(e/ to (e pregnant+

Whanau ='aily/ to gi*e (irth+

Whenua = land/ a'ter(irth tiss%e+

Approiately 40 iwi tri(es/ and h%ndreds o' hapu deri*ed identity 'ro landar3s+

o #+g+ o%ntains/ ri*ers/ la3es+

#+g+Aoraki is my mountain, Waitaki my river, Tahupotiki is the ancestor,

Kai Tahu is my tribe. Ngai Tahu largest tri(e in So%th 4sland+

Mori legal syste *al%es (ased not r%les (ased+

o 4t en$aps%lates a $ertain way o' li'e that depends on the relationships (etween

all things+ 4ntegral *al%es th%s in$l%de!

Whakapapageneology/ whanaungatanga'ailyrelationships/ manaa%thority/ mauri spirit%al li'e.prin$iples/

tapusa$redness/ rahui prohi(ition or $onser*ation/ manaakihospitality+

o The Mori phrase 'or law tikanga Mori in*ol*es an -o(ligation to do things in

the right way+ Tikanga are 5tools o' tho%ght and %nderstanding&+

They help to di6erentiate (etween right and wrong+

"eading 2! A Con$ise History o' New Zealand! 7irst settlers in New Zealand/ an$estors o' the Mori tho%ght to ha*e arri*ed in the

18th$ent%ry+o #%ropeans arri*ed 1840+

The tangata when%a esta(lished ana o*er the land New Zealand+ To esta(lish anathey!

o 9ro%ght intelle$t%al order+

o Mental aps o' the :olynesian world+

o :eopling with the spirit%al 'a(ri$ o' the new land with their own gods and

$reation stories+

The North 4sland/ the )rst landing pla$e they naed Te Ika a Maui the )sh o' a%io 4n the yth/ Ma%i stood on the So%th 4sland and hoo3ed a great )sh whi$h the

s%n t%rned solid+ #ye o' the )sh La3e To%po/ Tail North Land+

The So%th 4sland was neaed Te Waka o Aoraki the $anoe o' Aora3i+

Stewart 4sland too3 the nae Rakiura+ Tangata When%a were a di*ersity o' people/ $%lt%res/ and identities+

o S%(se;%ently (e$ae Mori in their en$o%nter with the #%ropeans+

The Tangata When%a&s world deterined (y genealogy wha3apapa whi$h they %sedto interpret and intera$t with the lands$ape+


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o Wha3apapa ordered spa$e and tie di6erently 'ro #%ropeans odels/ and

(o%nd the li*ing with the dead+ 4' wha3apapa was the (a$3 (one/ oral traditions/ $hants/ wananga/

in$antations/ and other arts $o%ld atta$h thesel*es as phrase $on*eys either law or $%sto+

Closest e;%i*alent to these is the Mori $on$ept ? -ti3anga@+

o 4nter$hangea(ly %sed Mori "u!tom Law> tikanga

Mori+

Justice Durie has re'erred to Mori "u!tom Lawas the!o =al%es/ standards/ prin$iples or nors to whi$h Mori $o%nity generally

s%(s$ri(ed 'or the deterination o' appropriate $ond%$t+

Bishop Manuhuia Bennet tal3s o' the ethi$s o' ti3anga!

o Ti3anga indi$ates the o(ligation to do things in the right way! doing the right

thing 'or no other reason than (e$a%se it is the right thing to do+

Chief Judge Wiia!s des$ri(es ti3anga Mori as!o #ssentially the Mori way o' doing things/ 'ro the *ery %ndane to the ost

sa$red or iportant )elds o' h%an endea*o%r+ Ti3anga $an also (e des$ri(ed as tools o' tho%ght and %nderstanding+ They

are pa$3ages o' ideas whi$h help to organise (eha*io%r and pro*ide soepredi$ta(ility in how $ertain a$ti*ities are $arried o%t+ Ti3anga also di6er in s$ale+

Soe are large/ and in*ol*e any parti$ipants and a *ery p%(li$+

ther ti3anga are sall and are less p%(li$+o Ti3anga diri*es 'ro the word -ti3a@ eaning -right>$orre$t&+

Ti3anga in$l%de eas%res to deal )rly with a$tions $a%sing serio%s

dise;%ili(ri% within the $o%nity+

9rea3ing ti3anga do not entail p%niti*e san$tions+ Howe*er/ 'ail%re

to do what is ti3a ay attra$t s%pernat%ral p%nishent+

Ti3anga Mori $oprises a spe$tr% with *al%es at one end and r%les at the other/ (%t

with *al%es in'oring the whole range+o Aspe$ts o' ti3anga ay (e s%(Be$t to a parti$%lar interpretation a$$ording to

$ertain $ir$%stan$es (%t then reinterpreted in the light o' other $ir$%stan$es+ Th%s ti3anga Mori as a so$ial syste was traditionally pragati$ and

open.ended and it reains so today+


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Mori C%sto Law as -Law@!

The de(ate a(o%t whether -law@ eists in so$ieties whi$h do not ha*e written laws / law

$o%rts and B%dges is an old one+o Anthropologist now generally a$$ept that all h%an so$ieties ha*e -law@/ in the

sense o' prin$iples and pro$esses+ #$ept in ties o' $risis/ all h%an so$ieties p%rs%e as 3ey ais the

aintenan$e o' order/ the rein'or$eent o' a$$epted *al%es and thep%nishent o' (rea$hes+o 4t is there'ore interesting that any early *isitors to New Zealand has no

di$%lty at all in identi'ying the eisten$e and $oheren$e o' Mori C%sto as-law@/

#+g+ #dward Shortland/ when re'erring to Ngai tah% r%les relating to land

ten%re and ethods o' disp%te resol%tion in the 1DE0s/ ;%ite%nsel'$ons$io%sly des$ri(es the as -legal@+

F%rie $on$l%des that Mori nors were s%$iently reg%lar to$onstit%te law+

=al%es Gnderpinning Ti3anga!

4t is $onsidered n%(er o' $entral *al%es %nderpinning ti3anga+o To %nderstand Mori $%sto law/ it is ne$essary to re$ognise that Mori $on$epts

hardly e*er $orrespond ea$tly with those western $on$epts whi$h they appearon the s%r'a$e to rese(le+

Whana%ngatanga!

Whana%ngatanga denotes the 'a$t that in traditional Mori thin3ing/ relationships are

e*erything/ (etween people and the physi$al world/ and (etween people and the at%aspirit%al entities+

o %t o' all the *al%es o' ti3anga Mori / it is the ost per*asi*e+

The gl%es that holds the Mori world together is wha3apapa genealogy/ identi'ying

the nat%re o' relationships (etween all things+o 4n traditional Mori so$iety/ the indi*id%al was iportant as a e(er o' the

$olle$ti*e+ The indi*id%al identity was de)ned thro%gh that indi*id%al&srelationships with others+

4t 'ollows that ti3anga Mori ephasised the responsi(ility owed (y the

indi*id%al to the $olle$ti*e+

Th%s/ 'or eaple/ the trans'er o' a right in respe$t to land only

lasted so long as the relationship (etween the trans'eror andtrans'eree reained healthy+

N%ero%s wha3at%3i sayings0/ identi'ying the $onne$tedness o' parti$%lar o%ntains/

ri*ers/ or la3es/ tri(es/ and people/ are $onstantly in*o3ed to rear Whana%ngatanga

(etween people and their lands+ The $orollary to the parao%nt iportan$e o' the $olle$ti*e in Mori so$iety was that

$o%nity a$$epted responsi(ility 'or its e(ers+ Fa*id Willias eplains+o Th%s the instit%tion o' mururit%al $opensation/ and the pra$ti$es asso$iated

with it a 3ey eleent o' the %t% prin$iples to aintain re$ipro$ity and (alan$e inso$iety pro*ided a eans o' trans'erring goods and reso%r$es to aggrie*edparties 'or the wrongdoing o' another+

4t was not B%st the wrongdoer that wo%ld s%s6er this san$tion+ His or her

whana% wo%ld (e le*ied to satitsy


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Mana!

Mana is de)ned in the Willias Fi$tionary o' the Mori Lang%age as a%thority $ontrol/

in


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4t was thoro%gh rit%al gi't distri(%tions that re$ipro$al o(ligations

were esta(lished+ The re$ipient wo%ld (e o(liged to respond with agreater gi't/ and so the $y$le o' gi't e$hange or tukuwas initiated+ $ontin%e 'or generations+

Iey a$$opanying *al%e to the prin$iple o' re$ipro$ity inherent in the ter %t% is aroha

a6e$tion+

Iaitia3itanga!

Iaitia3itanga denotes the o(ligation o' stewardship and prote$tion+

o :resently it is ost o'ten applied to the o(ligation o' whana%/ hap% and iwi to

prote$t the spirit%al well(eing o' the nat%ral reso%r$es within their ana+ Th%s ea$h hap%>iwi has $lear pres$riptions as to the anner in whi$h the

$olle$tion o' reso%r$es e+g+ )shing ay (e %nderta3en+ Fi$%lt to di*or$e Iaitia3itanga 'ro ana/ whi$h pro*ides the a%thority

'or the eer$ise o' the stewardship or prote$tion o(ligation/ or tap%/ whi$ha$3nowledges the spe$ial or sa$red $hara$ter o' all things and hen$e theneed to prote$t the spirit%al well(eing o' those reso%r$es s%(Be$t to tri(alana+

4t is 'ro Iaitia3itanga that the traditional instit%tion o' rah%i $oes+

o

"ah%i is an o(Be$t or sign indi$ating that a reso%r$e has (een ade tap%+ #+g+ rah%i traditionally in*o3es prohi(it entry to areas a6e$ted (y the

tap% o' death+

Ti3anga tangata! so$ial organisation!

Coon thread in all Mori so$ial organisation was Whana%ngatanga or 3inrelationships+

The *ario%s le*els o' Mori so$ial organisation ha*e (een $hara$terised as!

o Whanau! re'ers to etended 'aily it $an also ean -to gi*e (irth@+

o Hapu! denotes the larger *illage $o%nity it also eans to (e pregnant+ AllMori/ thro%gh the wha3apapa we( $o%ld $lai e(ership to se*eral hap% aton$e+ The relationships (etween hap% and iwi are $ople and are not in a*erti$al hierar$hy o' a%thority+

o Iwi! 4denti)es the wider distri$t or soeties regionally (ased 3in gro%p+ 4t is$oonly translated as -tri(e@/ and $lais des$ent 'ro a single an$estor o'tendes$ri(ed as an eponyo%s an$estor (e$a%se his or her nae is in$orporatedinto the iwi&s nae+

o Waka! pro(a(ly as a response to pa3eha e6orts to destroy the tri(al (ase o'

Mori so$iety/ wa3a $on'ederations (e$ae a %nit o' so$ial organisation 'or soep%rposes+ This le*el o' so$ial organisation delineated the de$edents o' one o' the

igration $anoes/ %s%ally a $olle$tion o' iwi and hap%/ $laiing de$ent 'ro the$aptain or $rew o' the wa3a+ The traditions o' Te Arawaand Wai3ato Tain%i$on'ederations o' tri(es are good eaples o' the de*elopent o' a wa3atradition+

o #ainga! #*en in distant ties/ so$ial organisation was not dependant onwha3apapa+ The $on$ept o' 3ainga highlights the iportan$e o' r%les that did notne$essarily re;%ire (lood ties+ #+g+ re$ipro$ity and %t%al ad*antage werepro(a(ly ore a(o%t s%r*i*al than relatedness+

Ti3anga rangatira! Leadership

Mori leadership roles are generally $arried o%t (y rangatira/ 3a%at%a/ ari3i and

toh%nga>p%3anga+o "an# and Mana$

Rangatiralead and represent their hap%/ wither reg%lary or soeties

'or the p%rpose o' a parti$%lar proBe$t+ They are the ost signi)$antleaders in $o%nity a6airs as the $o%nity organisers andrepresentati*es+ They (ind and %nite the *ario%s eleents o' the hap%+


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Not ne$essarily older persons/ (%t they are leaders who s% %p the *iewso' a h%i and represent hap% or iwi in relationships with others+

#aumatua/ and the gender spe$i)$ ters 3oro%a and 3%ia . o'ten treated

as (eing synonyo%s with (eing an older person/ (%t 3a%at%a stat%s isnot ne$essarily $on'erred on attaining a $ertain age+ Ia%at%a stat%s was/and reains/ an a$ti*e leadership role/ A Ia%at%a has so$ial seniority/li'e eperien$e and wisdo whi$h ay (e a$;%ired at a relati*ely yo%ngage in e$eptional $ir$%stan$es+

Arikiwere the ost senior ran3ing (lood representati*es o' a $olle$tion o'hap%/ an iwi or a $olle$tion o' iwi+ The held des$ent on senior lines 'roone o' the leaders o' signi)$ant 'o%nding $anoes+ 4n soe traditions ari3istat%s was so tap% that the in$%(ent did not parti$ipate in the politi$ala6airs o' the hap% and iwi+

o There is no neat hierar$hy o' 3a%at%a/ rangatira and ari3i who pro*ide

leadership o' whana%/ hap% and iwi respe$ti*ely+ Toh%nga and p%3enga are spe$ialists in a range o' $ra'ts and )elds o'

3nowledge/ 'ro $ar*ing/ wea*ing and tattooing to the spirit%al/ ysti$aland healing arts+

Ti3anga when%a! Land!

Land was and reains integral t ogro%p identity and well(eing+ Mori des$ended 'rothe land and the stories o' the an$estors are $ar*ed in it+

o 4n Mori idio the people are the property o' the land rather than the re*erse+

The ter when%a eans (oth land and pla$enta+ The $onne$tions with the land are re


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As indi*id%als $o%ld Boin se*eral hap% was $opletion+

Today leaders re$all old relationships to re$r%it 'or their hap%+o 4n$orporation e6e$ted (y arriage and the allo$ation o' %se rights+

More interest in $hildren who had (lood line/ 'or in a sense spo%se always

o%tsider+

Adoption another ethod altho%gh (lood relationship withadopted person %s%ally pre'erred+

Land rights th%s insepara(le 'ro d%ties asso$iated with the $o%nity (eing part o'

it/ $ontri(%ting to it/ a(iding (y its a%thority and law+o Nearest $%lt%ral e;%i*alent to the Mori %se right arrangeent wan an entailed

li$en$e to the %se o' a parti$%lar reso%r$e/ witho%t pres$ri(ed rent (%t witho(ligations to ret%rn (ene)ts to the $o%nity to the '%llest/ pra$ti$a(le etent+

:ra$ti$e de*eloped o' in$orporating early #%ropeans traders and seaen+o Land allo$ations to these people not seen as sale o' land (%t as the a$;%isition

o' people+

A rangatira who allo$ated land to indi*id%als did not a%gent the re$ei*er (%t the

$o%nity/o :%rpose in all things/ was not to ele*ate the indi*id%al (it to (%ild the $o%nity+

o Settlers $oplaine (led to death+

Thoe who stored wealth 'or thesel*es s%(Be$t to %r%>pl%nder+ No $ase was land allo$ation a peranent alienation o' land+

o Nothing $o%ld alter reality land in held (y an$estral $o%nity K stranger

ta3ing land held it only (y (e$oing a part o' the $o%nity+ 4n western terinology when donees *a$ated land re*erted to so%r$e

(%t to Mori it had ne*er le't the an$estral ten%re+o To se$%re donees soe larger right in the $o%nity arriages %s%ally

arranged arriage ga*e sta3e in the land (y an$estry+ Th%s o6er o' wi*es 'or settlers not oral t%rpit%de (%t ethod o' se$%ring

their pla$e in the $o%nity+

Nearly all settlers who li*ed aongst Mori (e'ore 1DE0 too3 Mori

wi*es+ The $oon 'eat%re o' Mori law then was that it was not in 'a$t a(o%t property/ (%t

a(o%t arranging relationships (etween people

7or Mori the (ene)ts o' the lands/ seas and waterways a$$r%ed to all o' the asso$iated$o%nity+

o "angatira held $hie


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The Mori *al%e syste was eepli)ed in a distin$ti*e anner o' $ontra$ting+

o Standard Mori $ontra$t was not 'or the trans'er o' rights 'or a pres$ri(ed

$onsideration or iediate ret%rn+ The standard $ontra$t was a gi't/ with theepe$tation o' a ret%rn in d%e $o%rse+

:%rpose to esta(lish a peranent and personal relationship with

re$ipro$al o(ligations where the ain (ene)t to (oth sides wo%ld $oe inthe $o%rse o' tie+

The $on$ept the aintained re$ipro$ity was ana+ The ore one

ga*e the greater one&s ana/ and the %ne;%al response eant losso' ana+

o ,i't e$hanges repeated tie and tie again ? in tie

ea$h $o%ld rely on one the other to (e genero%s in ties o'lo$al pri*ation/ and to epe$t no iediate response+

Miing o' Legal Systes!

4t is o(*io%s Mori had a $ople (elie' syste on land ten%re that ser*ed to aintain

harony/ e;%ality and lo$al 'reedo+o Howe*er/ the ;%estion has (een as3ed at what point did the Mori %nderstand

the Western legal syste/ and espe$ially/ when did they $oprehend land sales+ At ties it has (een as3ed i' Mori had (lan3 inds awaiting intelligen$e

or willing to Bettison their (elie's 'or an alternati*e regie/

A st%dy o' history dispels these opinions+ Mori 'o%ght to aintaintheir own law and a%thority+

%here was thus two di&erentiating ega syste!s' and a aue of udge!entto which was *etter was inappropriate when each was aid in its own ter!s+,ir -ddie Durie.

o :erhaps ;%estion sho%ld ha*e (een as3ed when did the #%ropeans $oe to

%nderstand the Mori legal syste or whether the #%ropeans had '%l)lled the$ontra$ts in the way Mori epe$ted+

The disparity (etween the parties& epe$tations was e*ident in the early

land transa$tions/ not only the large n%(er (e'ore the treaty o' Waitangi/

(%t in the go*ernent transa$tions that 'ollowed+ Transa$tions were th%s seen in di6erent lights+

Where Mori allo$ated land/ the settler iagined a p%r$hase+ Where*a$ant possession was tho%ght to ha*e (een ta3en/ Mori $ontin%edon the land as (e'ore+ While payent was seen as )nal/ s%(se;%enttri(%te was in 'a$t re;%ired+ Where :a3eha saw 'riendship/ Morisaw o(ligations+ Where :a3eha pres%ed to sell to a '%rther party/Mori saw a (rea$h o' o(ligations+

o 7or their part Mori were siply '%n$tioning in ters o' their

own law+

Chapter 8 #%ropean Arri*al!

"eading 1! The Law o' Nations #eri$h de =attel! #arth (elongs to an3ind+

o All possess a nat%ral right to inha(it it+

When h%an ra$e (egan to %ltiply earth no longer $apa(le o'

'%rnishing spontaneo%sly there'ore (e$ae ne$essary 'or tri(es to )thesel*es/ and appropriate to thesel*es portions o' land+

o S%$h %st ha*e (een the origin o' the rights o' property and doinion+

The $o%ntry whi$h a nation inha(its that $o%ntry is a settleent o' the

nation and it has a pe$%liar and e$l%si*e right to it+

That right $oprehends to things!

o The doain!


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9y *irt%e o' whi$h the nation alone ay %se the

$o%ntry 'or the s%pply o' its ne$essities/ ay disposeo' it as it thin3s proper/ and deri*e 'ro it e*eryad*antage it is $apa(le o' yielding+

o The epire!

r the right o' so*ereign $oand (y whi$h the nation

dire$ts and reg%lates at its pleas%re e*erything thatpasses in the $o%ntry+

When a nation ta3es possession o' a $o%ntry to whi$h no prior owner $an lay $lai $onsidered as a$;%iring the epire o' so*ereignty o*er it/ at the sae tie with thedoain+

o The whole spa$e o*er whi$h a nation etends its go*ernent/ (e$oes the seat

o' its B%risdi$tion/ and it is $alled it territory+ All an3ind ha*e an e;%al right to things that are not own (y soeone

else/ and those things (elong to the person who ta3es possession )rst+

9%t it is ;%estioned whether a nation $an (y the a$t o' ta3ing possession/ appropriate

to itsel' $o%ntries/ whi$h it does not really o$$%py+o This wo%ld (e an a(sol%te in'ringeent o' the nat%ral rights o' en/ whi$h gi*es

no nation the right to appropriate a $o%ntry/ e$ept 'or the p%rpose o' a3ing

%se o' it+ The law o' nations will there'ore not a$3nowledge the property and

so*ereignty o' a nation o*er %ninha(ited $o%ntries/ e$ept those o' whi$hit has really ta3en a$t%al possession/ in whi$h it has 'ored settleents/or o' whi$h it a3es a$t%al %se+

There is another $ele(rated ;%estion!

o May a nation ta3e -law'%l possession o' soe part o' a $o%ntry/ in whi$h there

are none (%t errati$ nations whose s$anty pop%lation is in$apa(le o' o$$%pyingthe wholeJ@

Their %nsettled ha(itation in those regions $annot (e a$$o%nted a tr%e and

legal possession/ there'ore the people o' #%rope too $losely pent %p athoe/ )nding land o' whi$h the sa*ages stood in no parti$%lar need/ ando' whi$h they ade no a$t%al and $onstant %se/ are law'%lly entitled tota3e possession o' it/ and settle it with $olonies+

"eading 2! Fra't 4nstr%$tions 'or ,o*ernor :hillip 1D! ,o*ernor Arth%r :hillip ? ,o*ernor in $hie'/ in and o*er the territory o' New So%th

Wales and its dependen$ies+ gi*en $oand o*er New So%th Wales+

Map o' Colony o' New So%th Wales!

"oyal instr%$tions esta(lish the (o%ndaries o' the $olony+o No de)nite (o%ndary set/ (%t the $olony will in$l%de -all the islands adBa$ent in

the :a$i'$ $ean+

Map ill%strates/ these (o%ndaries were o(*io%sly set with the geography o'A%stralia rather than NZ in ind+

Gn$lear whether the phrase -all the islands adBa$ent in the pa$i)$o$eans@ was eant to en$opass islands in the pa$i)$ as distant'ro the A%stralian ainland as New Zealand+

o Strong arg%ent against the intended in$l%sion o' NZ is the

pla$eent o' the so%thern (o%ndary! i' intent was to in$l%deNZ within the new $olony/ why was the so%thern (o%ndaryline set as a latit%de that (i'%r$ates the So%th 4sland+

,o*ernent and ,eneral rder O No* 1D1E La$hlan Ma$;%arir ,o*ernor o' New So%thWales!

rder!

o Traders and seaen trading with the island o' NZ espe$ially -9ay o' 4slands@

(een in ha(it o' ins%lting and inB%ring the nati*es (y *iolently seiPing and$arrying o6 (oth ales and 'eales/ and treating the in other respe$ts with


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inB%di$io%s and %nwarranta(le se*erity to the great preB%di$e o' the 'airinter$o%rses o' trade/ whi$h ight otherwise (e prod%$ti*e to %t%alad*antages+

,o*ernor orders that no aster>seaen o' any ship (elonging to 9ritain

ay reo*e nati*es 'ro NZ witho%t perission o' the $hie'>$hie's o' thedistri$t in ;%estion/ whi$h is to (e $erti)ed (y Mr+ Thoas Iendall resident Magistrate o' the 9ay o' 4slands+

No ship shall dis$harge any persons on to NZ/ witho%t perission o' the

$hie's/ and $on)ration $erti)$ate 'ro the agistrate+ Negle$ting these orders res%lt in ret%rn to #ngland and will (e

p%nished+

,o*ernent and ,eneral rder Colony o' NSW/ 12 N= 1D1E!

"e*erend Sa%el Marsden prin$ipal $haplain o' NSW perission to pro$eed to NZ

with the intention o' a$;%iring 'riendly inter$o%rse with the nati*es and prooting*iews o' Ch%r$h Missionary So$iety thro%gh introd%$tion o' Christianity/ and the artso' $i*ilised so$iety+

,o*ernor appoint Mr+ Thoas Iendall issionary one o' his MaBesty&s B%sti$es o'

the :ea$e in the 9ay o' 4slands/ and thro%gho%t the islands o' NZ+

An A$t 'or the ore #6e$t%al :%nishent o' M%rders and Mansla%ghters $oitted in :la$esnot within his MaBesty&s Foinion!

7or reedy $a%sed (y 9ritish/ any person who $oits a related $rie shall (etried/ adB%di$ated and p%nished in any o' his aBesty&s doinions / in the saeanner as i' s%$h o6en$e or o6en$es had (een $oitted on the High Seas+

New So%th Wales A$t 1D28!

A'ter esta(lishing the S%pree Co%rt o' NSW and the S%pree Co%rt o' =an Fieen&s

Land/ the A$t grants these Co%rts soe a%thority o*er the 4slands o' New Zealand+o :ersons $on*i$ted shall (e tried in the said $o%rts+

Mori :etition to Iing ,eorge 4= 1Q No* 1D81!

This letter was di$tated (y 18 $hie's o' the Ngap%hi iwi to issionary Willia Rate!

o This letter was a pleading to the Iing o' #ngland 'ro the Mori $hie's 'or the

prote$tion o' NZ/ 'ro the 7ren$h tri(e o' Marian/ and any other peoples whoay (e a threat to the Mori+

Letter to the Chie's o' NZ 'ro the Lord =is$o%nt ,oderi$h on (ehal' o' the Iing 1E%ne 1D82!

Iing grati)ed to hear that the $a%se o' alar has passed+

Iing sorry 'or the inB%ries to the nati*e New Zealanders $a%sed (y his s%(Be$ts+

o He will do all in his power to pre*ent the re$%rren$e and p%nish theperpetrators+

Iing has sent with this letter/ aes 9%s(y #s;+/ to reside aong nati*es as -His

MaBesty&s resident in NZ@ whose d%ties will (e to in*estigate all $oplaints whi$h ay(e ade to hi+

o 4t will also (e his d%ty to pre*ent en arri*ing in NZ who ha*e (een g%ilty o'

$ries in their own $o%ntry and (een (anished 'ro it+

4nstr%$tions to aes 9%s(y/ 9ritish "esident in New Zealand/ 'ro Sir "i$hard 9o%r3e/,o*ernor o' NSW 18 April 1D88!

"e;%ests attention to the 'ollowing parti$%lars>orders!o Creation o' this appointent d%e to *iolen$e perpetrated against the nati*es o'

NZ (y 9ritish s%(Be$ts+ Th%s in*estigate as %$h as possi(le enorities $oplained o' and

gi*e en$o%rageent and prote$tion to well.disposed settlers and traders'ro ,reat 9ritain+


11/36

o Feli*er response letter 'ro Iing deli*er presents and anno%n$e yo%r

intention o' reaining aong the Manage this $on'eren$e (y eans o' issionaries+

o 4' yo%r proposal to reside in NZ is a$$epted $on'er with the as to where the

ost $on*enient pla$e 'or yo%r residen$e ay (e and $lai prote$tion 'oryo%rsel'>'aily>ser*ants wither (y one o' the $hie's near yo%r dwelling or (ypla$ing a nati*e g%ard o*er it+

4' the res%lts are $ontrary to epe$tations yo% ay ret%rn to 9ritain+

Ro% sho%ld (e aware that yo% $annot (e gi*en legal power>B%risdi$tion ena(ling yo% toarrest 9ritish s%(Be$ts o6ending against 9ritish>$olonial law o' NZ+

o Cir$%stan$es ha*e pre*ented an A$t (eing passed a $olonial A$t allowing yo%

these powers/ th%s yo% sho%ld rely little o' the 'or$e o' law and %st lay the'o%ndations o' yo%r eas%res %pon the in


12/36

o When he heard NZ was not in 9ritish possession proposed plan to esta(lish an

independent go*ernent so%ght 'ro Netherlands $ession o' its rights to NZ'or 0000 9ritish po%nds+

With 'ail%re resorted to 7ren$h go*ernent to s%pport his s$hees+

4n 1D8E re*i*ed his plan to esta(lish hisel' as so*ereign o' NZ+

o He gathered a is$ellaneo%s $olle$tion o' 'ollowers and set sail+ 9ritish

go*ernent 3new eno%gh o' hi to ignore his 'oolish pretentions+

9%s(y in NZ new nothing o' this an&s real strengths and in'ored 9o%r3e iediately+

o 9%s(y $alled eeting o' nati*e $hie's 8 and se$%red their adheren$e to ado$%ent whi$h de$lared NZ to (e an independent state %nder the Gnited Tri(eso' New Zealand+

9%s(y agni)ed the iportan$e o' the o$$asion to the etent o' re'erring

to the Fe$laration as the -Magna Carta o' New Zealand@+o 9o%r3e re'%sed to treat the atter as serio%s %nwilling to send 'or$es 'ro

Sydney+

When de Thierry arri*ed in Sydney A%g%st 1D8/ 'o%nd no one was willing to s%pport

the+o ,o*ernor not willing to enter treaty with hi+

o A'ter an appeal 'or *ol%nteers/ he le't with OQ/ rea$hing Ho3ianga on E No* 1D8+

Hi and 'ollowers appeared so piti'%lly ipotent . Mori a$t%ally assistedhi to land+

He had no gro%nds 'or the apprehension o' NZ+

Fe$laration o' independen$e o' New Zealand 2D $to(er 1D8!1+ Fe$lare independen$e o' their $o%ntry/ as a independent state/ %nder the designation

o' the Gnited tri(es o' New Zealand+2+ All so*ereign power de$lared to reside entirely and e$l%si*ely in the hereditary $hie's+8+ Hereditary $hie's and heads o' tri(es agree to eet in $ongress at Waitangi in the

a%t%n o' ea$h year+E+ They also agree to send a $opy o' this Fe$laration to his MaBesty

Letter to Lord ,lenelg/ His MaBesty&s Se$retary o' State 'or War and the Colonies/ 'ro Sir"i$hard 9o%r3e/ ,o*ernor o' NSW O Sep 1D8!

4n $onse;%en$e o' re$ent war (etween two tri(es near the 9ay o' islands it was

re;%ested Captain Ho(son eperien$ed and B%di$io%s o$er/ to repair NZ to a6ord9ritish s%(Be$ts residing here and ships/ prote$tion as re;%ired and to in'or e onhis ret%rn the present state o' NZ/ and the eans o' se$%ring the $oon interests o'the Nati*es and 9ritish settled there+

o Captain Ho(son proposed introd%$tion o' $oer$ial esta(lishents/ $on)ned

within $ertain liits/ within whi$h liits 9ritish s%(Be$ts shall (e pla$ed %nder theprote$tion and o(ligation o' their own laws+

4' the 9ritish resident (e withdrawn whi$h 4 assert is a pre'era(le alternati*e to his

(eing le't there witho%t adopting soe '%rther eas%res to se$%re the pro'essedo(Be$ts o' his appointent/ the p%(li$ sho%ld th%s (e in'ored that trade in NZ is to (ethen $arried o%t at their own haPard+

Mr 9%s(y re$oends ,9 sho%ld %nderta3e the prote$tion o' NZ sho%ld aintain

9ritish troops on the islands this %nderta3ing sho%ld (e $oen$ed with the greatesto' 'aith and p%rest intentions+

Ho%se o' Lords Sele$t Coittee "eport 1D8D!

F%ring April and May 1D8D a sele$t $oittee o' the 9ritish ho%se o' Lords sat to

hear e*iden$e on the state o' NZ and $onsider s%ggestions 'ro a *ariety o' interestedparties on the possi(le options 'or the $o%ntry+

o Aong those gi*ing testiony indi*id%als s%$h as traders/ and the na*el

$aptain "o(ert 7itProy who wo%ld later ser*e as New Zealand&s ,o*ernor+o rganisations also appeared (e'ore the $oittee Ch%r$h Missionary So$iety/

New Zealand asso$iation a land trading $opany+

Trader %rged $oittee to $onsider greater o$ial 9ritish in*ol*eent in NZ way o'

prote$ting $oer$ial interest+


13/36

7itProy ad*ised *ery di$%lt to ipose 9ritish law o*er whole $o%ntry/ while "e*erend

7rederi$3 Wil3inson $haplain (ased in So%th Wales said Mori wo%ld wel$oe 9ritishr%le+

New Zealand Asso$iation "e*erend Sa%el Hinds o$ial 9ritish inter*ention

%na*oida(le as Mori held no so*ereign rights U Asso$iation&s prin$iples o' systeati$$olonisation wo%ld (e $opleented (y '%rther 9ritish in*ol*eent+

Ch%r$h Missionary So$iety/ and Wesleyan Missionary So$iety opposed to Asso$iations

s$hees %rged that Mori (e prote$ted against rapant $olonisation+o Sele$t Coittee prod%$ed a report re$oending that a treaty sho%ld (e

$on$l%ded with Mori as part o' a (roader poli$y o' etending 9ritish r%le to $o*erNew Zealand/ and that the rights o' Mori (e prote$ted d%ring this inter*ention+

Chapter E So*ereignty!

"eading 1! Asserting the Fo$trine o' Fis$o*ery on Aotearoa NewZealand a$inta "%r%!

Claiing So*ereignty! Treaty o' Waitangi!

1DE0 9ritish $laied so*ereignty o*er NZ thro%gh a $o(ination o' the Fo$trine o'Fis$o*ery prin$iples and the partially signed Treaty o' Waitangi+

o 1D80s 7ran$e U GS interested in $laiing so*ereignty o*er NZ 9ritain

strategi$ally a$3nowledged the independent so*ereignty o' soe o' the Moritri(es in 1D8/ and then set a(o%t anneation+

No $lear date %pon whi$h NZ (e$ae 9ritish $olony in*ol*es se*eral interrelated

e*ents relating to the signing o' the Treaty o' Waitangi in 1DE0+

9%s(y (elie*ed $olle$ti*e Mori so*ereignty was re;%ired to end tri(al war'are+o 20 Mar$h 1D8E 9%s(y in*ited 2 Northern Chie's to gather at Waitangi to *ote

on a National


14/36

1E A%g 1D8O 9ritish go*ernent iss%ed instr%$tions Captain Ho(son $on)red (y

,o*ernor ,ipps as lie%tenant ,o*ernor in New Zealand stating!o We a$3nowledge NZ as a so*ereign and independent state+

o The %een dis$lais 'or hersel' and 'or her s%(Be$ts e*ery pretention to seiPe on

the islands o' NZ/ or to go*ern the as part o' the Foinion o' ,reat 9ritain/%nless the 'ree and intelligent $onsent o' the nati*es/ epressed a$$ording totheir esta(lished %sages/ shall )rst (e o(tained+

Ho(son iediately so%ght '%rther dire$tions $laiing that the de*elopent o' the

nati*es o' the North and the So%th was essentially di6erent with the so%th (eing wildsa*ages this ipossi(le to o(ser*e e*en the 'or o' a treaty+

o He s%ggested he ight (e peritted to $lai the so%th (y right o' dis$o*ery+

1+ Lord Noran(y Se$retary o' State 'or the Colonies 1 A%g 1D8O stated i' the So%th 4sland Mori were in$apa(le 'ro entering intelligentlyinto the treaty with the $rown then he ight assert so*ereignty on thegro%nds o' dis$o*ery+

9ritish Crown presented treaty o' $ession in #nglish and Mori 'or signing at Waitangi

early 7e( 1DE0+o E8 $hie's ostly 'ro northern tri(e Nga :%hi assented to the Mori *ersion Q

7e( 1DE0+

Ho(son the tra*elled North 4sland see3ing ore signat%res+o He was sp%rred on when (e$ae aware that the New Zealand Copany

settleent Wellington so%ght to esta(lish its own 'or o' go*ernent+

7irst was iss%ed o*er the North 4sland (y right o' session other o*er the So%th (y

right o' dis$o*ery pro$laations were ade on the 21 May 1DE0+o Meanwhile Ho(son ordered MaBor Thoas 9%(%ry pro$eed to the So%th

island see3 signat%res to the Treaty o' Waitangi+ Tra*elled to the saller so%thern %ninha(ited Stewart 4sland pro$laied

9ritish so*ereignty o' Coo3&s dis$o*ery+

n ret%rn Bo%rney

o "%ap%3% island o(tained signat%res three+

o

Tairaroa o(tained signat%res twoo Head o' tago Har(o%r 1 signat%re

Stopping at Clo%dy (ay 1 th%ne 1DE0 pro$laied the 9ritish%een&s so*ereignty o*er So%th 4sland (ased on $ession+

The Treat% of Waitangi short do$%ent $onsisting o' three arti$les epressed in an

#nglish *ersion and a Mori *ersion+o Contro*ersy today lies in translation o' the )rst two arti$les+

#nglish *ersion Mori $eded to the Crown a(sol%tely and witho%t

reser*ation all the rights and powers o' so*ereignty arti$le 1/ (%tretained '%ll e$l%si*e and %ndist%r(ed possession o' their lands andestates/ 'orests/ )sheries/ and other properties arti$le 2+

Mori *ersion Mori $ede to the Crown go*ernan$e only arti$le 1/ andretained tino rangatiratanga so*ereignty o*er their taongatreas%res+

Arti$le 2 granted $rown pre.epti*e right to p%r$hase property'ro Mori ? arti$le 8 granted Mori sae rights and pri*ileges as9ritish $itiPens li*ing in Aotearoa New Zealand+

9iling%al treaty $ession %ni;%e $ontra$t%al agreeent not repli$ated anywhere else+

Mori $hie's signed 'or n%ero%s reasons

o n 'a$e treaty loo3ed as i' it was as3ing little o' Mori and o6ering %$h in

ret%rn+ Mori epe$ted to in$rease trade/ to re$ei*e assistan$e in handling new

$hanges o$$%rring in so$iety and possi(ility o' anip%lating 9ritisha%thority in inter.tri(al ri*alries+

Howe*er arg%ed that while #nglish *ersion o' the Treaty ay ha*e pro*ided a

haronio%s gloss o' o*ert $ession the treaty in 'a$t siply en$aps%lated the$otrine of $i!o&er% ind.set+


15/36

o 7or instan$e pro$laations ade (e'ore the dra'ting and initial signing o' the

treaty Ho(son&s instr%$tion to ee3 signat%res 'ro the So%th 4sland Mori'ollowed his pro$laation o' dis$o*ery o*er the So%th 4sland (e$a%se Mori were%n$i*ilised+

o Moreo*er not all Mori $hie's signed the treaty there'ore lea*ing large tra$ts

o' land o%tside the pro*in$e o' $ession despite pro$laations o' asserting$ession o*er the whole $o%ntry+

#*en ta3ing a li(eral *iew o' the #nglish *ersion o' the Treaty/ it is

;%estiona(le whether ot does ore than ipleent the $oon lawprin$iple od dis$o*ery+

Rear a'ter it was signed Land Clais rdinan$e 1DE1 ena$ted s 2 o' ordinan$e wasto (e$oe the s%(Be$t o' se*eral s%(se;%ent $ases and it is th%s worthwhile repeatinghere!

o Declared, enacted, and ordained that all unappropriated lands within the olony

o! New "ealand, sub#ect however to the right!ul and necessary occupation anduse thereo! by the aboriginal inhabitants o! the said olony, are and remainrown or domain lands o! $er %a#esty, $er heirs and successors, and that thesole and absolute right o! pre&emption !rom the said aboriginal inhabitants vestsin and can only be e'ercised by $er said %a#esty, $er heirs and successors.

"eading 2! The Story o' the Treaty Cla%dia range! A'ter arri*ing in Sydney Ho(son sworn in (y ,o*ernor ,eorge ,ipps as lie%tenant

go*ernor o' any territory he ight a$;%ire in New Zealand+o Chose a sall gro%p o' o$ial and le't 'or NZ 1D an 1DE0+

Net day ,ipps iss%ed pro$laation etended territory o' the $olony o' NSW to -anyterritory that ay (e a$;%ired in so*ereignty (y her said MaBesty/ her heirs ors%$$essors/ within that gro%p o' islands in the :a$i)$ $ean/ $oonly $alled NewZealand+

:reparing the Treaty!

Ho(son arri*ed wed.2O an 1DE0 9%s(y wel$oed hi o6ered to organise a eeting

o' $hie's as his Waitangi hoe 'ollowing Wednesday+o Net 'o%r.)*e days Ho(son had to de$ide on wording o' treaty he had (een

ordered to a3e with the $hie's+ 7elt aw3ward no legal training+ Help 'ro se$retary se*eral

issionaries ga*e ad*i$e+ 9%s(y tho%ght Ho(son&s notes inade;%ate o6ered to pro*ide new dra't+

Ho(son re$ei*ed it 8 7e(+

9%s(y added iportant proise 9ritain wo%ld g%arantee Mori

possession o' their lands/ their 'orests/ their )sheries and otherprised possessions+ Witho%t that proise he was s%re that no onewo%ld sign+

Ho(son as3ed henry Willias to translate treaty into Mori with help o' 21 year old

son #d;ward on the e*ening o' the E 7e(+

Waitangi Wednesday 7e(r%ary!

Most o' what we 3now $oes 'ro letters and diaries o' soe o' the issionaries andother people at the eeting in$l%ding 9%s(y and Ho(son+

o n the day h%ndreds o' Mori sitting in tri(al gro%ps Sydney o%nted poli$e>

o 0O!00 Ho(son landed at Waitangi (ea$h went into 9%s(y&s hoe ? loo3ed o*er

translated treaty+ Ho(son did not 3now Mori th%s $o%ld tell i' it was an a$$%rate

translation+


16/36

7irst Meeting!

Late orning Ho(son )rst tal3ed to #%ropeans a(o%t what he was a(o%t to do then

t%rned to Mori Willias translated+o #plained 9ritish people were 'ree to go where they $hose %een was always

ready to prote$t the also ready to restrain the (%t e6orts '%tile (e$a%seo%tside 9ritish territory she had no a%thority to do so+

As3ed the to sign the treaty so the %een $o%ld restrain the+

-This is %een =i$toria&s a$t o' lo*e to yo%/@ he said+ -She wants to ens%re

that yo% 3eep what is yo%rsXyo%r property/ yo%r rights and pri*ileges/ andthose things yo% *al%e+ Who 3nows when a 'oreign power/ perhaps the7ren$h/ ight try to ta3e this $o%ntryJ The treaty is really li3e a 'ortress toyo%+@

Fe(ate!

*er )*e ho%rs $hie's spo3e 'or and against the proposal+o Main $on$erns were a(o%t their a%thority/ their land/ and trade dealings+

"e'er to Notes 'or %otes

o Ho(son de$ided to adBo%rn the eeting eet again on 7riday+

Fis$%ssion into the Night!

That e*ening Mori $aped tal3 $entred on the treaty+o No one 3nows what was said (%t in the orning ost $hie's were 3een to get

the treaty signed iediately so they $o%ld go hoe+

The Signing Th%rsday Q 7e(r%ary!

Ho(son s%oned ashore late in the orning+

o Ner*o%s and %neasy 'eeling that he was (eing r%shed into this %nplanned

eeting+

%st (e'ore a(o%t to sing Willia Colenso as3ed -yo%r e$ellen$y/ do yo% thin3 the

$hie's really %nderstand all aspe$ts o' the TreatyJo -4' they don&t/ it&s not y 'a%lt+ 4&*e done all 4 $an@+

The signing went ahead Willias told Ho(son to say -He iwi tahi tato%@ a'ter ea$h$hie' signed+

o Willias %st ha*e 3nown it wo%ld ha*e spe$ial eaning 'or the $hie's

espe$ially those who were Christian! -We are one people@ Mori and 9ritishwere lin3ed/ as s%(Be$ts o' the %een and as 'ollowers o' Christ+

*er E0 $hie's signed with their naes or their o3o+o Ho(son was anti$ipating '%ll Mori agreeent to the treaty e*erywhere else+

Signing at Mang%ng%!

H%ndreds o' Mori t%rned %p+

o ne $hie'/ Te Taon%i had *isited Sydney+ Chie's at Waitangi too entioned

9ritish treatent o' A(origines+ -They treat the li3e dogs! a pa3eha 3ills a pig/ the (la$3 $oes to the

door and eats the re'%se@+

A'ter eight ho%rs o' de(ate Chie's started to sign+

Ho(son Loo3s 'or More Signat%res!

*er net 'ew onths ore iportant $hie's in the 9ay o' 4slands signed the treaty+o Ho(son 'alls ill se*eral $opies o' the treaty in Mori were written o%t gi*en

to issionaries who were as3ed to $all treaty eetings+

Soe o' the issionaries who too3 part new Mori tri(es well %nderstood any o'

their $%stos+o #+g+ new woan $o%ld (e highly in


17/36

At the eeting he eplained to his people in this way! -nly the

shadow o' o%r land passes to the %een+ The s%(stan$e stays with%s/ the Mori people@+

:ro$laiing 9ritish So*ereignty!

Meanwhile settler arri*ed at :ort Ni$holson started to set %p their own go*ernent+

They 3enw a(o%t Ho(son&s negotiations+o A$$ording to international law he was the only one who had the a%thority to set

%p a 9ritish $olony in NZ+ 21 o' May Ho(son pro$laied 9ritish so*ereignty o*er the whole $o%ntry+

o Norith 4sland thro%gh $ession Treaty o' Waitangi+

o So%th 4sland right o' dis$o*ery+

Thoas 9%n(%ry who was at this tie gathering signat%res on the So%th

4sland %naware o' Ho(son&s pro$laation %ne pro$laied 9ritishso*ereignty o*er the So%th 4sland (ased on $ession+ E0 signat%res wereo(tained in the So%th 4sland+

8rdSep last signat%re p%t on Treaty o*er 00 $hie's had signed at a(o%t 0

eetings+

4n $to(er Ho(son sent the 9ritish go*ernent a list o' the $hie's who had signed

sent the $opies o' the treaty in Mori and #nglish said nothing a(o%t the di6eren$esin eaning (etween the altho%gh he pro(a(ly did not 3now hisel'+

No Gnanio%s Agreeent!

Ho(son did not draw attention to the 'a$t that a n%(er o' *ery iportant $hie's had

not signed the treaty+

"easons 'or Signing!

Alost e*erywhere Mori leaders etreely $a%tio%s a(o%t gi*ing agreeent to the

treaty+o Many o(Be$ted at the eetings then signed+

A%thority! They epe$ted treaty to (e the start o' a new relationship with 9ritain one in whi$h

they wo%ld play an e;%al role+

#pe$ted o$ials in NZ to $ontrol tro%(lesoe #%ropeans+

Chie's wo%ld loo3 a'ter their own people+

Mana o' the land wo%ld still (e held (y the Mori people+o 4t wo%ld e*en (e in$reased (y the world&s aBor na*al power+

Most espe$ially (elie*ed the %een had a personal a%thority and that the treaty was

a *ery personal agreeent (etween the %een hersel' and the $hie's+ Treatynegotiators had eplained it in that way to get Mori agreeent+

Land! 4ss%e o' land %s%ally 'oreost in in


18/36

The Co*enant!

A(o*e all else Mori leaders (elie*ed that issionary ad*i$e was wise and $o%ld

pro(a(ly (e tr%sted ? the treaty wo%ld (e good 'or the $o%ntry and the people+o They were $ertainly in


19/36

"eading 3$ /%he %reaty of Waitangi in ew eaand2s

aw and Constitution (Matthew , " 5a!er)The Treaty o' Waitangi is short/ $oposed o' a prea(le/ three arti$les and a posts$ript+ There are

at least two *ersions o' the Treaty o' Waitangi/ in #nglish and in Mori+

-ngish M6oriThe prea(le notes that %een =i$toria o' the

Gnited Iingdo is anio%s to prote$t the -B%st

rights and property@ o' Mori $hie's and tri(es

and to se$%re their enBoyent o' pea$e and

good order and has appointed a '%n$tionary to

treat with Mori 'or -re$ognition o' her

So*ereign a%thority@ o*er -the whole or any part

o' those islands@ (e$a%se o' the great n%(er o'

9ritish s%(Be$ts who ha*e $oe and are $oing

to New ZealandX%een =i$toria wishes to

-esta(lish a settled 'or o' Ci*il ,o*ernent@ to

a*ert the e*il $onse;%en$es to Mori and 9ritish

settlers that res%lt 'ro the a(sen$e o' the

-ne$essary laws and instit%tions@ and a%thorises

Captain Ho(son/ Cons%l and Lie%tenant

,o*ernor o' those parts o' New Zealand that

ay (e $eded to her MaBesty/ to in*ite the

$on'ederated and independent $hie's to $on$%rin the 'ollowing arti$les+

The prea(le notes that %een =i$toria o' the

Gnited Iingdo #ngland is anio%s to prote$t

the B%st rights and property o' Mori $hie's and

tri(es and topreserve their chie!tainship and

lands and tose$%re their enBoyent o' pea$e

and good order and has appointed a '%n$tionary

rangatira or chie!to treat with Mori 'or

re$ognition o' her So*ereign a%thority

establishment o! the (ueen)s governmento*er

the whole or any part o' those islands (e$a%se

o' the great n%(er o' 9ritish s%(Be$ts who

ha*e $oe and are $oing to New ZealandX

%een =i$toria wishes to esta(lish a settled

'or o' Ci*il ,o*ernent to a*ert the e*il

$onse;%en$es to Mori and 9ritish settlers

*akehathat res%lt 'ro the a(sen$e o' the

ne$essary laws and instit%tions and a%thorises

Captain Ho(son/ Cons%l and Lie%tenant aptainin the +oyal Navy/ ,o*ernor o' those parts o'

New Zealand that ay (e $eded to received by

herMaBesty/ to present to in*ite the

$on'ederated and independent $hie's to $on$%r

in the 'ollowing arti$les these laws+

4n the )rst arti$le/ the Chie's o' the Gnited Tri(es

o' New Zealand and the independent $hie's/

$ede to her MaBesty -a(sol%tely and witho%t

reser*ation all the rights and powers o'

So*ereignty whi$h they respe$ti*ely eer$ise or

possess/ or ay (e s%pposed to eer$ise orpossess o*er their respe$ti*e Territories as the

sole So*ereigns thereo'@+

,oereignty$s%pree power or a%thority!

4n the )rst arti$le/ the Chie's o' the Gnited

Tri(es o' New Zealand on!ederationand the

independent $hie's/ $ede give to her MaBesty

a(sol%tely and witho%t reser*ation !oreverall

the rights and powers o' So*ereignty whi$h they

respe$ti*ely eer$ise or possess/ or ay (es%pposed

to eer$ise or possess o*er their respe$ti*e

Territories as the sole So*ereigns thereo'

complete

Kawanatanga, or overnorship or overnment,

o! their land+

4n the )rst part o' the se$ond arti$le/ the %een

-$on)rs and g%arantees@ to the $hie's and

tri(es/ and the 'ailies and indi*id%als thereo'/

the -'%ll e$l%si*e and %ndist%r(ed possession o'

their Lands and #states 7orests 7isheries and

other properties whi$h they ay $olle$ti*ely orindi*id%ally possess so long as it is their wish

and desire to retain the sae in their

possession@+

4n the )rst part o' the se$ond arti$le/ the %een

$on)rs and g%arantees agreesto the $hie's

and tri(es/ and the 'ailies and indi*id%als

thereo' all the people/ the '%ll e$l%si*e and

%ndist%r(ed possession o' their %n;%ali)ed

eer$ise o' their rangatiratanga, orchie!tainship, over

their Lands and villages and all their treasures

or taongaand #states 7orests 7isheries and

other properties whi$h they ay $olle$ti*ely or

indi*id%ally possess so long as it is their wish

and desire to retain the sae in their

possession+9%t/ in the se$ond part o' the se$ond arti$le/ the

$hie's yield to the %een -the e$l%si*e right o'

:reeption@ o*er the sale o' s%$h lands as the

owner is willing to sell to the %een&s agent at

agreed pri$es+

:reeption! the p%r$hase o' goods or shares (y

one person or party (e'ore the opport%nity is

o6ered to others+

9%t/ in the se$ond part o' the se$ond arti$le/ the

$hie's yield giveto the %een the e'clusive

right o! *reemption overthe sale o' s%$h lands

as the owner is willing to sell to the %een&s

agent atagreed pri$es+

4n the third arti$le/ -in $onsideration thereo'@ the

%een g%arantees Mori her prote$tion and

-iparts to the all the "ights and :ri*ileges o'

4n the third arti$le/ in $onsideration thereo' !or

this arrangement concerning the (ueen)s

overnment/ the %een g%arantees all Mori


20/36

Iey points a(o%t the a(ig%o%s eaning o' the treaty appear 'ro the tets

thesel*es/o Clear di6eren$e in the eaning (etween the Mori and #nglish tets o' the

Treaty+

#nglish tet written in lang%age $olonial law+o #ssential ters o' the (argain as they appear 'ro the #nglish tet are $ession

(y Mori to the 9ritish $rown o' so*ereignty power to go*ern in ret%rn 'or a

g%arantee o' $ontin%ed Mori enBoyent o' their property rights and the sale o'property in the )rst instan$e to the $rown+ Ret in Mori tet Mori $ede -3awanatanga@ o' their land Iawana (eing

transliteration o' go*ernor there(y 'oring go*ernorship or go*ernent+


21/36

Notion o' te tino tangatiratanga o' the Mori/ that the Crown agreed

to prote$t in the se$ond arti$le o' the Mori tet re'erred to $hie's orrangatira/ hen$e $hie'tainship+

-overeignty points to the ultimate power to decide, to rule over any given territory and

the people, and to say the last word.

overnance means managing things reasonably and eciently, without any ritual,

pretending that power does not e'ist among human communities, as i! the /uestion o!the ultimate power and its legitimacy should not even be raised.

"%th "oss&s seinal arti$le 1O2 notes that the New Testaent had (een translatedinto Mori and printed in Fe$e(er 1D8/ and $ontained this translation o' 1Corinthians 1!2E!

o Then cometh the end, when he shall have delivered up the kingdom

0rangatiratanga1 o! od, even the 2ather3 when he shall have put down all rule0te kawanatanga1 and all authority 0mana1 and power 0kaha1

"oss s%ggested ter 3awanatanga ay ha*e resonated with Mori

%nderstanding the (i(li$al relationship (etween ,o*ernor :onti%s :ilot andthe "oan #pire and ay ha*e (een asso$iated with the notion o' the,o*ernors o' the A%stralian $olonies+

"angatiratanga also reportedly appeared in the issionary *ersion o' the

Lords :rayer in translation o' -thy 3ingdo $oe@+ 4n the Fe$laration o' 4ndependen$e and the Treaty o' Waitangi

rangatiratanga %sed to denote the -independen$e@ o' the -GnitedTri(es o' new Zealand@+

o All so*ereign power and a%thority was -3o te 3ingitanga 3o te

ana@+

The Meaning o' the Treaty in 1DE0!

Today potential 'or disagreeent a(o%t what the treaty eant to di6erent people in

1DE0+o Sees $lear Crown and Mori $hoosing to esta(lish 'oral relationship with

ea$h other related to the eer$ise o' power in NZ parti$%larly 9ritain was

ta3ing on responsi(ilities in relation to 'oreign nations and 9ritish s%(Be$ts+ ' $o%rse/ hap% whose rangatira did not sign treaty not $onsidered

thesel*es (o%nd (y it+

While ea$h party no do%(t had its own %nderstanding o' the treaty there was no$oon %nderstanding o' the etent to whi$h the 9ritish power to go*ern and$ontin%ed a%thority o' rangatira/ were to intera$t

The Legal Stat%s o' the Treaty in 1DE0!

Can (e s%arised in three points!

o 7irst ters o' treaty %nli3ely to (e regarded as (inding on hap% whose

rangatira did not sign it+

o Se$ond ters o' treaty li3ely to ha*e (een regarded as (inding on thoserangatira who did sign it tho%gh penalty 'or a (rea$h wo%ld ha*e (een li3ely todepend on the $ir$%stan$es at that tie+

o Third ters o' treaty $onsidered (y 9ritish go*ernent to (e an o(ligation

(inding the hono%r o' the Crown as a atter o' poli$y (%t not an o(ligation that$o%ld (e B%dged (inding in $o%rt/

"ather as a oral and politi$al o(ligation+

Any penalty 'or (rea$h dependent on $ir$%stan$es o' the tie+

:resent Meaning o' the Treaty o' Waitangi!

:arliaent is so*ereign in New Zealand&s $onstit%tional syste+

Legislation instr%ent o' parliaentary de$ision a3ing has ost a%thority and

power+o Analysing a range o' legislati*e re'eren$es to the treaty ena(les a

$oprehensi*e *iew o' :arliaent&s interpretation o' the eaning o' the treatyto (e $onstr%$ted+


22/36

4t $an (e $laied that the Treaty (egan to (e ta3en serio%sly (y go*ernent with the

passage o' the Treaty o' Waitangi A$t 1O %nder the Iir3>"owling la(o%r go*ernent d%ring period o' the Mori Land Mar$h+

o A$t $reated Waitangi tri(%nal peranent in;%iry into allegations o' (rea$hes

o' the prin$iples in the treaty and a3e non.(inding re$oendations to theee$%ti*e go*ernent a(o%t what sho%ld (e done+

9y passing the A$t :arliaent did three things!

A$t de)ned the treaty as it was to (e re$ognised in law+

:arliaent delegated to the tri(%nal the role o' interpreting thetreaty+

Made ipli$it stateent a(o%t its signi)$an$e+

The Waitangi Fay A$t 1OQ0 )rst in$orporation o' a tet o' the treaty into doesti$New Zealand law+

,u!!ary of the !eaning of the %reaty of Waitangi as

ea*orated *y 5aria!ent since 179 in egisation.%he %reaty of Waitangi and its principes$

Y esta(lished a spe$ial relationship (etween the Mori people and the CrownY e(odied the spirit o' e$hange o'kawanatanga 'or the prote$tion o' rangatiratanga'Y en*isaged a spirit o' partnership and goodwill

Y %nderpins the ongoing relationship (etween the Crown and tangata whenua/ whi$h o(liges the Crown to a$ti*ely prote$t Mori interests and

Y in the Treaty the Crown $on)red and g%aranteed to the Mori people/ aong other

things/ all their taonga+

:n particuar$

Y 4n the Treaty o' Waitangi the Crown $on)red and g%aranteed to the Mori people theMori lang%age as a taonga/ and %nder the Treaty the Crown and Mori together areo(liged to preser*e/ prote$t and proote te reo Mori

Y 4t is desira(le to re$ognise that land is a taonga t%3% iho o' spe$ial signi)$an$e to Moripeople and/ 'or that reason/ to proote the retention o' that land in the hands o' itsowners/ their whana% and their hap%/ and to prote$t wahi tap%/ and to 'a$ilitate the

o$$%pation/ de*elopent and %tilisation o' that land 'or the (ene)t o' its owners/ theirwhana%/ and their hap%

Y 9y the Treaty o' Waitangi the Crown $on)red and g%aranteed to the $hie's/ tri(es andindi*id%al Mori the '%ll/ e$l%si*e and %ndist%r(ed possession o' their )sheries 'or solong as they wished to retain the

Y The prin$iples o' the Treaty o' Waitangi are re$ognised and respe$ted (y e$hanissena(ling Mori to $ontri(%te to de$ision.a3ing on/ and to parti$ipate in the deli*ery o'/health and disa(ility ser*i$es

Y The Crown&s responsi(ility to ta3e appropriate a$$o%nt o' the prin$iples o' the Treaty isre$ognised and respe$ted (y! prin$iples and re;%ireents 'or lo$al (odies that are

intended to 'a$ilitate parti$ipation (y Mori in lo$al a%thority de$ision.a3ing pro$essesand in land transport de$ision.a3ing pro$esses and/ in relation to p%(li$ re$ord3eeping/ (y re;%ireents 'or the Chie' Ar$hi*ist to ens%re that pro$esses are in pla$e 'or$ons%lting with Mori/ (y the $oposition o'/ and ad*i$e (y/ the Ar$hi*es Co%n$il and (ythe power to appro*e an iwi or hap%.(ased repository 'or p%(li$ ar$hi*es+

With arying degrees of force' the %reaty is reeant to and a&ects$

Y Manageent/ %se/ de*elopent and prote$tion o' nat%ral and physi$al reso%r$es theen*ironent the health and sa'ety o' people and $o%nities and haPardo%s s%(stan$esand new organiss

Y Conser*ation o' nat%ral and histori$ reso%r$es and New Zealand&s histori$al and $%lt%ral

heritage/ in$l%ding the Ha%ra3i ,%l' Marine :ar3

Y :rootion o' energy e$ien$y/ energy $onser*ation and the %se o' 10E renewa(leso%r$es o' energy

Y wnership o' dry har(o%r land and inerals (y the Crown and ten%re re*iews o' Crown


23/36

land

Y :rote$tion o' Mori Treaty $lais in the trans'er o' assets to S#s and C"4s and sale o'the Crown&s $oer$ial 'orestry assets

Y Fe$isions o' Co%n$ils o' Tertiary #d%$ation 4nstit%tions and the "oyal New Zealand7o%ndation o' the 9lind

Y H%an rights and appointent o' H%an "ights Coissioners

Y The ipleentation o' settleents o' histori$al Treaty o' Waitangi $lais+

The signing o' the Treaty in 1DE0 sho%ld (e $oeorated (y o(ser*an$e o' a p%(li$ holiday+

4ss%es raised (y the di6eren$es (etween the #nglish and Mori lang%age *ersions o' the Treaty are

to (e resol*ed (y the Waitangi Tri(%nal/ ha*ing regard to (oth tets/ whi$h sho%ld a3e

re$oendations relating to the pra$ti$al appli$ation o' the prin$iples o' the Treaty+

Signi)$ant iss%es relating to the Treaty are atters o' general or p%(li$ iportan$e whi$h it is

ne$essary in the interests o' B%sti$e 'or the S%pree Co%rt to resol*e+

There is still in$onsisten$y and randoness/ deri*ing 'ro $hanging politi$al

$ir$%stan$es/ a(o%t the areas o' law in whi$h :arliaent will re'er to the treaty andwhether and how it will do so+

:resent and :otential Stat%s and 7or$e o' the Treaty o' Waitangi!

Analysis s%ggests treaty *alid and (inding on $rown in international law as a atter

o' hono%r+o Whether it wo%ld (e 'o%nd to (e a treaty o' $ession or prote$tion with

so*ereignty a$;%ired (y the 9ritain later/ is less $lear+

4n international law treaty o' $ession treaty in whi$h one so*ereign nation

$edes>trans'ers so*ereignty o*er itsel' to another so*ereign state+o Treaty o' prote$tion treaty in whi$h one so*ereign nation agrees to prote$t

another so*ereign

4n either $ase alost no opport%nities 'or an international tri(%nal to en'or$e it+

o This is (e$a%se i' we ass%e the Mori people $onstit%ted a so*ereign nation

with legal personality at international law/ that legal personality now no longereists d%e to the %ndo%(ted nat%re o' the $rown&s $%rrent so*ereignty o*er NewZealand and its people+

4' we are 'a$ed with the iss%e today NZ S%pree Co%rt wo%ld )ns that the $rown has

a$;%ired so*ereignty in NZ and that the treaty in not legally en'or$ea(le in doesti$ NZlaw %nless in$orporated into law (y legislation+

o Howe*er the S%pree Co%rt wo%ld )ns that the treaty is *alid at international

law non (inding still (%t wo%ld ha*e a signi)$ant politi$al power+ 4t wo%ld (edi$%lt to ignore and wo%ld $hange the reality o' the stat%s and 'or$e o' thetreaty in NZ

"eading E! The Mori #n$o%nter with Aotearoa New Zealand&s LegalSyste a$inta "%r%!

The Waitangi Tri(%nal and Treaty Settleent :ro$ess!

Waitangi Tri(%nal esta(lished 1O peranent $oission o' in;%iry epowered to

re$ei*e/ report and re$oend on alleged $rown (rea$hes o' the prin$iples o' theTreaty o' Waitangi post 1O+

o

F%ring la(o%r&s net ter granted powers to in*estigate $lais dating (a$3 to1DE0+

#sta(lishent signi)ed Crown had a$$epted that the histori$al grie*an$es o' Mori

a(o%t Crown a$tions that hared whana%/ hap% and iwi are real+


24/36

o 4t is sy(oli$ o' (i$%lt%ralis appointing (oth Mori and :a3eha as e(ers

$o'orta(le in (oth Mori and :a3eha en*ironents+

' those generi$ $lais where it has re$oended go*ernent a$tion/ in soe

instan$es the go*ernent has a$$epted s%$h $lais and ena$ted appropriatelegislation+

o #+g+ Mori Lang%age A$t 1OD Mori Coer$ial A;%a$%lt%re Clais Settleent

A$t 200E 9%t denied se*eral others s%$h as reports on petrole% and the 'oreshore

and sea(ed+ Crown does not re;%ire $laiants to )rst ha*e gone to the tri(%nal (%t any

$laiants )nd *al%e in doing so+o Settleent pro$ess itsel' is $ond%$ted thro%gh the $e o' Treaty Settleents

as a separate %nit within the Ministry o' %sti$e+

7i*e steps in the $lais pro$ess en$opassing se*eral preliinary agreeents o'tenin$l%ding!

o 5ters o' negotiations&/ 5agreeent prin$iple&/ 5deed o' settleent&/ 5 settleent

legislation&+

Settleents ai to pro*ide Mori with the 'o%ndation 'or a new relationship (etween

the $rown and the $laiant gro%p+

o Settleents th%s $ontain $rown apologies o' wrongs done/ )nan$ial and$oer$ial redress/ and redress re$ognising the $laiants gro%p&s spirit%al/$%lt%ral/ histori$al or traditional asso$iations with nat%ral en*ironent+

Most signi)$ant pan.tri(al settleent $on$erns $oer$ial )sheries/ with

$opensation *al%ed at NZ0 illion+o Feal negotiated in 1OO2 d%((ed 5Sealord deal&+

4n regard to legislated tri(al settleents/ ore than 1D gro%ps ha*e re$ei*ed redress

ao%nting to a *al%e o' ore than NZ1Dillion+o Se*eral paraeters deterine the s$ope o' the negotiations!

Crown -strongly pre'ers to negotiate $lais with large ne%tral gro%pings

rather than indi*id%al whana% and hap%@+

Chapter :roperty!

"eading 1! Asserting the Fo$trine o' Fis$o*ery on Aotearoa New

Zealand! 1DE0s.1OQ0s a$inta "%r%!

Syonds 1DE!

7ollowing signing o' Treaty $olonial go*ernent was esta(lished+

9ritish (egan a$;%iring large tra$ts o' land 'or 9ritish settleent+

o At iss%e #%ropeans who had p%r$hased land dire$tly 'ro Mori prior to 1DE0+ Many ;%estioned whether Mori had *alid title to land+

o :%r$hasers arg%es Mori held *alid title (e$a%se 9ritish $rown re$ognised

so*ereignty o' Mori in the de$laration o' independen$e and treaty+ There'ore Mori %st (e deeed to ha*e power to alienate land li3e any

other so*ereign+

Co%rts settled iss%e in 1DE R & (%mond! $ase ser*ed to rein'or$e so*ereign rights

o' 9ritain in NZ+o 7a$ts o' $ase siilar to ohnson * M&4ntosh GS S%pree Co%rt re'%sed to

re$ognise *alidity in law in title to land p%r$hased (y indi*id%als dire$tly 'ro

the 4ndian owners+

Syonds $ase in*ol*ed 9ritish indi*id%al p%r$hased land dire$tly 'ro Mori in

a$$ordan$e with $erti)$ate iss%ed (y ,o*ernor 7itP "oy allowing hi to do so+o %estion was had indi*id%al a$;%ired legal title to land+

9oth B%dges said no drawing on GS B%rispr%den$e+


25/36

o Case said to represent 'o%ndation o' prin$iples o' the $oon law relating to

Mori+ 7irst $ase to epli$itly rely o' Fo$trine o' Fis$o*ery ideology in new

Zealand law+o Case held %een had the e$l%si*e right to pre.eption to p%r$hase land 'ro

Mori as arti$%lated in the treaty+

%sti$e Chapan o(ser*ed inter$o%rse o' $i*ilised nations naely ,9 with

indigeno%s $o%nities espe$ially North Aeri$a had led to esta(lished prin$iples o'law+o This law 'o%nded in the Fo$trine o' Fis$o*ery en$aps%lated the $oon law

do$trine o' nati*e title stip%lated that the %een&s pre.epti*e right was

e$l%si*e+ Th%s do$trine stated Crown is the sole so%r$e i' title 'or settlers+

#a$t ao%t$oe as in)ohn!onwhi$h (oth B%dges in Syonds

re$ognised+o 9oth B%dges in Syonds relied %pon se*eral o' the GS

S%pree Co%rt Chie' %sti$e ohn Marshall&s B%dgeents+

4n Syonds Chapan o(ser*ed in g%aranteeing nati*e title U %een&s pre.epti*e

right treaty does not assert wither in do$trine or in pra$ti$e anything new and

%nsettled+o While this o(ser*ation $o%ld (e disp%ted espe$ially when reading Mori *ersion

o' the treaty . . de$ision /ar3ed a a $o*ert appli$ation o' the Fo$trine o'

Fis$o*ery+ 4n 'a$t was to ta3e another 10 years (e'ore a $o%rt was to hold that

Mori ha*e proprietary interests in land despite a $hange in so*ereignty+

Nati*e A$ts 1DQ0s!

4nitial 9ritish ,o*ernors in NZ eerted a distin$t $olonialist poli$y (ased on

ass%ption that Mori %n%s%ally intelligent intelligen$e translated into desire to(e$oe 9ritish+

9etween 1DE0 1DQ0 / tools 'or this e*angelis Pealo%s ad*o$a$y or s%pport o' a

parti$%lar $a%se god/ oney/ law and land/ so%ght to $on*ert Mori 'ro sa*ages to

$i*ilisation *ia assiilation (y the iing o' the two people geographi$ally+o 9%t early e*angelis 'ew $oplete s%$$esses+

While any Mori e(ra$ed Christianity not at e$l%sion to their own religion Mori

religion always (een open to in$orporate new gods+o While any Mori tri(es (e$ae $oer$ialised doinated 'ood s%pply ar3et

growing $rops/ transporting and selling to :a3eha indi*id%alis did not


26/36

To%gher newer e*angelis eerged d%ring this tie with law (e$oing

the $entral tool in destroying the Mori way o' li'e+

Large tra$ts o' Mori land $on)s$ated in a$$ordan$e with legislation+

o Legislation stip%lated nati*e s$hool $o%ld only re$ei*e '%nding i' $%rri$%l% was

ta%ght in #nglish $a%sing the near etin$tion o' Mori lang%age and $%lt%re and

arginalised Mori (y a deli(erate poli$y o' training 'or an%al la(o%r rather

than the pro'essions+

Legislation ens%red any person pra$ti$ing traditional Mori healing $o%ld(e$oe lia(le 'or $on*i$tion led to loss o' %$h traditional 3nowledge+

Heart o' geno$ide esta(lishent o' Nati*e Land Co%rt+ ? Crown now wai*ered its right

o' pre.eption as indorsed (y treaty and $oon law do$trine o' nati*e title .

peritting Mori to 'reely alienate their land+o Howe*er Mori )rst had to o(tain a $erti)$ate o' title+

Syste so%ght to trans'or land $o%nally held (y whana% and hap% Mori

$%stoary land in to indi*id%alised titles deri*ed 'ro the $rown Mori 'reehold title+

7%rther signi)$ant stat%te ena$ted in 1DQ0s Nati*e "ights A$t 1DQ a$t ade $lear

Mori were deeed to (e nat%ral (orn s%(Be$t o' her MaBesty+o Co%rts had B%risdi$tion in all $ases to%$hing the persons and property real or

personal o' Mori+ Nati*e title was to (e deterined a$$ording to an$ient $%sto or %sage o'

Mori any $ase $on$erning title to nati*e title was to (e dire$ted towards

the Nati*e Land $o%rt+

Fo$trine o' Fis$o*ery ideology o(*io%sly pereating deeply into the $olonial

indsets+o Not (e$a%se $rown so%ght to deny the eisten$e o' nati*e title/ (%t it (elie*ed

that it was $i*il to pro*ide a ro%te 'or it to (e$oe general land+ Hon Sewell/ e(er o' the Ho%se o' "epresentati*es in1D0 re


27/36

#nglish Laws A$t 1DD later re$ited and a%thorised this approa$h+

4n Re Lundon and Whitaker "laim! At 181the Co%rt o' Appeal a$$epted that all

title to land (y #nglish ten%re was deri*ed 'ro the $rown+ 9%t that did not pre*ent

$%stoary property (eing re$ognised (y the $oon law!o 4The rown is bound, both by the common law o! 5ngland and by its own solemn

engagements, to a !ull recognition o! Native proprietary right. Whatever the

e'tent o! that right by established Native custom appears to be, the rown is

bound to respect it.6 4n NZ/ land was not a*aila(le 'or disposition (y $rown grant ,rand o' land title (y the

Crown a deed o' grant iss%ed in the nae o' the then $%rrent onar$h $on*eying to

the grantee soe portion o' land in 'ee siple+ A Crown grant is the )rst alienation o'

$rown land and o'ten e$l%des or reser*es 'ro the grant soe part o' the land s%$h as

inerals or roads/ so that those parts reain *ested in the Crown %ntil Mori property

was eting%ished+o 4n the North Aeri$an $olonies land o$$%pied or %sed (y the nati*es was

treated as *a$ant and a*aila(le 'or $rown grant+ #*en so/ the S%pree Co%rt o' the GS in)ohn!on & M*Into!h 1D28

held/ the $rown&s interest and any grant ade (y it o' the land was s%(Be$t

to the nati*e rights+

They were rights o' $oon law not siply oral $lais against

the $rown!o 47t has never been contended that the 7ndian title amounted

to nothing. Their right o! possession has never been

/uestioned. The claim o! government e'tends to the

complete ultimate title, charged with this right o! possession,

and to the e'clusive power o! ac/uiring that right.6 The :ri*y Co%n$il on an appeal 'ro Canada in (t "atherine*! Milling

and Lum+er "o & The ,ueen 1DDD des$ri(ed the Crown&s -s%(stantial

and parao%nt estate@ as en$%(ered restri$t or ipede (y the rightso' 4ndian inha(itants+ The Crown only re$ei*ed -a plen% doini%@ '%ll

ownership/ $o(ining legal title and (ene)$ial entitleent when the

4ndian title was s%rrendered or otherwise eting%ished+

Siilarly/ in NZ/ $rown&s notional -radi$al title@ "adi$al title $on'ers only so*ereignty

and doesn]t a%toati$ally eting%ish nati*e title rights/ o(tained with so*ereignty/ was

held $onsistent with and (%rdened (y nati*e $%stoary property+o #+g+ R & (%mond- Lundon and Whitaker*! "laim! .ireaha Tamaki &

/aker+ 4t was eplained (y the :ri*y Co%n$il in Manu #apua & Parra Haimona

1O18 CA! 4*rior to the grant and the antecedent proceedings the land in

/uestion had been held by the natives under their customs and

usages, and these appear not to have been investigated. As the

land had never been granted by the rown, the radical title was, up

to the date o! the grant, vested in the rown sub#ect to the burden

o! the native customary title to occupancy.6

4n 0amihana #orokai & (oliitor 1eneral 1O12/ this $o%rt reBe$ted an arg%ent

that nati*e title was not re$ognisa(le in law+o Held that the appli$ants $o%ld not (e pre*ented 'ro applying to the Nati*e Land

Co%rt 'or in*estigation o' their title to the (ed o' La3e "otor%a %nless it wasshown that Nati*e title had (een disting%ished (y pro$laation/ $ession o' the

owners/ or Crown grant+o Whether there ay (e separate property in the (ed o' a la3e was to (e

deterined a$$ording to nati*e $%sto and %sage+ Cooper / a'ter pointing to the


28/36

de)nition o' Crown lands in the Land A$t whi$h e$l%ded $%stoary lands/

$on$l%ded! 4ustomary lands owned by Natives which have not been ceded to $is

%a#esty or ac/uired !rom the Native owners on behal! o! $is %a#esty

cannot, in my opinion, be said to be land vested in $is %a#esty by right o!

his prerogative. 7t is true that, technically, the legal estate is in $is

%a#esty, but this legal estate is held sub#ect to the right o! the Natives,

recogni8ed by the rown, to the possession and ownership o! thecustomary lands which they have not ceded to the King, and which $is

%a#esty has not ac/uired !rom them.6

NZ $o%rts ha*e not always held this *iew+

o 4n Wi Parata & /i!hop of Wellington:rendergast C/ $oprising hisel' and

"i$hond held! That the r%le o' $oon law that nati*e $%stoary property s%r*i*ed the

a$;%isition o' so*ereignty had no appli$ation to the $ir$%stan$es o' NZ+

Mori had/ he $onsidered/ ins%$ient so$ial organisation %pon

whi$h to 'o%nd $%sto re$ognisa(le (y the new legal order+ 4n s%$h

$ir$%stan$es he said!o 4the supreme e'ecutive overnment must ac/uit itsel!, as

best it may, o! its obligation to respect native proprietary

rights, and o! necessity must be the sole arbiter o! its own

#ustice. 7ts acts in this particular cannot be e'amined or

called in /uestion by any tribunal, because there e'ist no

known principles whereon a regular ad#udication can be

based.6o Altho%gh the reasoning in Wi Paratawas reBe$ted (y the :ri*y Co%n$il/ it

$ontin%ed to in


29/36

May ha*e (een in part (e$a%se o' the in.

More re$ently/ the e6e$t o' the radi$al title a$;%ired (y the Crown with so*ereignty has

(een $onsidered (y this "ourt in Te Runanga ; Muriwhenua & Attorne%21eneral


30/36

1OO0 and Te Runanganui o Te Ika Whenua In (oiet% & Attorne%21eneral

;1774


31/36

o Th%s/ the Letters :atent o' 1DE0 setting %p go*ernent in New Zealand

a%thorised the ,o*ernor to a3e grants o' the waste lands o' New Zealand! 4*rovided Always, that nothing in these our 9etters *atent contained shall

aBect or be construed to aBect the rights o! any aboriginal natives o! the

said olony o! New "ealand, to the actual occupation or en#oyment in

their own persons, or in the persons o! their descendants, o! any 9ands in

the said olony now actually occupied or en#oyed by such natives.6

The Land "laim! ;rdinane1841$on)red the e$l%si*e Treaty right o' pre.eption in the Crown+ S%$h pre.eption was epli$a(le only in ters o' re$ognition o'

eisting property rights a$$ording to Mori $%sto+

NZ ne*er tho%ght to (e terra nulliu! land (elonging to no one/ an iportant

distin$tion 'ro A%stralia+o 7ro (eginning a$$epted that the entire $o%ntry was owned (y Mori a$$ording

to their $%stos and %ntil that land was sold it (elonged to the+

riginally $rown p%r$hasers re;%ired to eting%ish Mori ownership and 'ree hold land

'or settleent %nder s%(se;%ent $rown grant+o S%(se;%ently stat%tes pro*ided a%thority 'or other odes o' eting%ishing Mori

$%stoary titles+ Signi)$ant in present appeal is that NZ legislation has ass%ed $ontin%ed

eisten$e at $oon law o' $%stoary property %ntil it is eting%ished+

Can (e eting%ished (y sale to $rown thro%gh in*estigation o' title

thro%gh the land $o%rt s%(se;%ent deeed $rown grant/ or (y

legislation or other law'%l a%thority+ There is no pres%ption o' $rown ownership as a $onse;%en$e o' the

ass%ption o' so*ereignty to (e dis$erned 'ro the legislation+

S%$h pres%ption $ontrary to $oon law+ Mori $%stoary land

is resid%al $ategory o' property/ de)ned (y $%sto+o Crown land (y $ontrast de)ned as land whi$h is not

$%stoary land and ha not (e alienated 'ro the $rown 'oran esate in 'ee siple+

Crown no property interst in $ostoary land and

not so%r$e title to it+

This is the (a$3gro%nd against whi$h the

arg%ents %pon the Re the .inet%2Mile

/eah and legislation said to *est ownership o'

the sea(ed and 'oreshore in the $rown %st (e

assessed+

Chapter Q 7ro Colony/ To Foinion/ To "eal!

An A$t to Fe$lare that the Laws o' NSW #tend to Her MaBesty&s Foinions in the 4slands o'

New Zealand 1DE0!

All laws in NSW now etend to NZ so 'ar as the sae $an (e applied therein/ any law/

%sage or $%sto to the $ontrary in anywise notwithstanding+

New So%th Wales Contin%an$e A$t 1DE0!

Shall (e law'%l 'or her MaBesty/ (y letters patent to ere$t a separate $olony>$olonies any

islands whi$h ay (e $oprised within and (e dependen$es o' the said $olony o' NSW+

Charter 'or #re$ting the Colony o' New Zealand Letters :atent 1Q No* 1DE0!

#re$t the said 4slands o' New Zealand as a separate $olony+


32/36

Fe)nitions!

Colony!

o A $o%ntry or area %nder the '%ll or partial politi$al $ontrol o' another $o%ntry and

o$$%pied (y settlers 'ro that $o%ntry+

Foinion!

o Foinions were a%tonoo%s polities that were noinally %nder 9ritish

so*ereignty/ $onstit%ting the 9ritish #pire and 9ritish Coonwealth/

(eginning in the later part o' the 1Oth $ent%ry+ "eal!

o "eal ay $oonly also (e %sed to des$ri(e the Coonwealth reals whi$h

all are 3ingdos in their own right and share a $oon onar$h/ tho%gh they

are '%lly independent o' ea$h other+

"eading 1! #arly New Zealand! A Fependen$y o' New So%th Wales

1DD.1DE1 # Tapp! n 1QthNo* NZ (e$ae a separate $olony+

o Ho(son appointed ,o*ernor o' NZ with all the ne$essary power 'or the -reg%lar

$ond%$t o' a6airs@ witho%t re'eren$e to the go*ernent o' NSW 'ree 'rodependen$e %pon any other ,o*ernor+

New $olony in (eginning depended %pon the $o%nsel and re*en%es o' NSW+

o :eople o' NSW generally appro*ed anneation o' NZ the Legislati*e Co%n$il o'

NSW ade it in$reasingly di$%lt 'or ,o*ernor ,ipps to a$$ede to Ho(son&s

re;%ests oney+ 4n spite tight rein o' legislati*e $o%n$il/ NZ inde(tedness to NSW grown

o*er ^88/000 (y end o' 1DE0 estiated ependit%re 'or 1DE1 wo%ld (e

a(o%t ^0/000+

When separation (e$ae legally e6e$ti*e Ho(son ;%i$3ly initiated now possi(le

$hanges in go*ernent+o He adopted laws o' NSW whi$h $o%ld (e applied+

Se*eran$e 'ro NSW $oplete GI Se$retary o' State Lord ohn

"%ssell ade it $lear to ,ipps GI go*ernent wo%ld not san$tion the

adinistration o' B%sti$e in NZ (y a B%dge o' the S%pree Co%rt o' NSW

th%s NZ entirely independent+

4ediate post.treaty period Mori alared at white an&s threat to his '%t%re now

(itter and re$al$itrant ha*ing an o(stinately %n$ooperati*e attit%de towards a%thority

or dis$ipline ood+o Way o' li'e threatened lands (eing ta3en $%stos ignored tap% openly


33/36

,ipps dispat$hed 10 troops+

o Sit%ation $ontin%e to deteriorate 1DE 7itProy so%ght ilitary assistan$e again

'ro NSW+ 9y May 1DE D0 troops in NZ+

4n pea$e that 'ollowed 7itProy repla$ed (y Captain ,eorge ,ray No* 1DE+

o New go*ernor iediately applied a progressi*e poli$y and dealt energeti$ally

with the ilitary $risis+ To assist ,ipps tried to strengthen ,ray&s position (y eans o' legislation+

,ipps personal introd%$ed and se$%red passage o' a (ill at end o'

1DE pre*ented nati*es o' NZ 'ro o(taining g%n powder 'ro

NSW+

1DEQ Captain Charles 7itProy ,ipps&s s%$$essor ? instr%$ted (y GI to send whole

disposa(le 'or$e 'ro NSW to Wellington NZ+o Ao%nted to O00 ean as NSW was sa'e $o%ld (e (etter %sed in NZ+

"eading 2! Ma3et%/ Wire% Iingi! Ma3et% %rderer 1DE1+

o 7irst person to (e hanged (y legal pro$ess in NZ+

Altho%gh little Mori opposition to his ee$%tion pro$ess o' hangingsho$3ed Mori it was seen as drawn o%t and $old (looded+

Gnder Mori $%sto 3illed iediately or (y (low 'ro a ere+

To the newly esta(lished $olonial go*ernent Ma3et%&s s%rrender/ trial and ee$%tion

)rst aBor test o' the appli$ation o' 9ritish law to a Mori o6ender a%thority o'

$rown and its o$ials s%$$ess'%lly %pheld

"eading 8! A New Zealand Legal History :eter Spiller/ erey 7inn

and "i$hard 9oast! 1DE0 NZ separated 'ro NSW (e$ae a $olony in its own right+

7ro then %ntil the $reation o' a parliaentary go*ernent (y the .ew ealand

"on!titution At 189= go*ernent was in hands o' go*ernor and his o$ials+o Legislati*e $o%n$il $oprised o' go*ernor/ three other o$ials/ three settler

B%sti$es o' the pea$e/ whi$h passed a n%(er o' stat%tes $alled ordinane!+

4n attept to desta(ilise go*ernent 1DED (y $reation o' two pro*in$es New

M%nster ad New Glster et little s%$$ess altho%gh legislati*e $o%n$il did pass a

n%(er o' ordinan$es in 1DEO+

Syste o' go*ernent trans'ored (y New Zealand Constit%tion A$t 1D2

ipro*ing A$t o' 1DEQ that had not (een (ro%ght in to operation ,o*ernor ,ray

$on*in$ed $olonial o$e that it as preat%re+

o New Constit%tion A$t set %p syste o' representati*e go*ernent+ Co(ined a $entral (i$aeral parliaent and a n%(er o' pro*in$ial

go*ernents all with own $o%n$ils and ee$%ti*es+

riginal pro*in$es $alled! A%$3land/ New :lyo%th/ Wellington/

Nelson/ Canter(%ry/ tago+o :owers o' these ini legislat%res liited (y Constit%tion A$t itsel'+

"eser*ed $ertain atters s%$h as $%rren$y/ weights and eas%res/

$%stos d%ties/ wills/ (an3r%pt$y/ shipping/ $rown land and Mori land to

$entral :arliaent and also (y granting power to disallow pro*in$ial

ordinan$es he saw to (e inepedient not pra$ti$al/ s%ita(le/ or ad*isa(le+

Central ,o*ernent o$ially $alled 1eneral A!!em+l% $oposed o' so*ereign represented (y the go*ernor/ an ele$ted lower ho%se $alled the Hou!e of

Repre!entati&e! and an appointed %pper ho%se $alled the Legi!lati&e "ounil+

:ro*in$es showed di6erent responses to the $hallenge+


34/36

o The pro*in$es showed ;%ite di6erent responses to the $hallenge+ Soe/ s%$h as

tago and Tarana3i New :lyo%th/ $reated a de$entralised syste o' lo$al

(oards o' wor3s that $ontrolled (oth the $onstr%$tion o' wor3s and the $olle$tion

o' rates to )nan$e or part.)nan$e the+o ther pro*in$es/ s%$h as Canter(%ry/ 3ept $ontrol o' p%(li$ wor3s within the

$o%n$il itsel'+ 4n soe $ases the pro*in$es so%ght to iniise the deands o'

their s$anty reso%r$es (y granting to pri*ate indi*id%als the right to $onstr%$t

$ertain 'a$ilities s%$h as (ridges or 'erries/ the $ost o' whi$h was re$o%ped (y'ees $harged 'or their %se+

ther iportant '%n$tions a$;%ired ore (y a$$ident than design+

Sin$e $harities and $h%r$hes $o%ld not/ and the $entral ,o*ernent did

not wish to pro*ide ade;%ately 'or s$hools and hospitals/ the pro*in$es

were o'ten 'or$ed to a$t+

:ro*in$ial go*ernent a(olished in 1DQ no longer B%sti)ed in

relation to its epense+

Tie saw $hanges to $entral legislat%re+

o Wea3ening o' powers to the noinee %pper $ha(er legislati*e $o%n$il in

1DO1 its e*ent%al a(olition in 1O0 $onstit%tional $hange whi$h a6e$ted the

de*elopent o' the law+ Gntil 1D0 ipossi(le to $o(ine e(ership o' the legislati*e $o%n$il

with ten%re o' salaried go*ernent position+

#arly years any $o%n$illors held legal epertise ainly as holder s o' legal or B%di$ial

o$ers+o This state o' a6airs ended with $i!>uali?ation At 180/ (arred ost o$e

holders 'ro seats in NZ :arliaent+

#nglish Laws A$t 1DD NZ!

Laws o' #ngland as eisting on the 1E an 1DE0 shall so 'ar as appli$a(le to the

$ir$%stan$es o' the said Colony o' NZ (e deeed and ta3en to ha*e (een in 'or$etherein on and a'ter that day/ and shall $ontin%e to (e therein applied in the

adinistration o' %sti$e a$$ordingly+

Coonwealth o' A%stralia Constit%tion A$t 1O00 GI!

A'ter the passing o' this A$t people o' NSW/ =i$toria/ So%th A%stralia/ %eensland and

Tasania/ and i' the people o' Western A%stralia agree will (e %nited in a 7ederal

Coonwealth %nder the nae o' the Coonwealth o' A%stralia

-The Coonwealth@ shall ean the Coonwealth o' A%stralia as esta(lished %nder

this A$t+

-The States@ shall ean s%$h o' the $olonies o' New So%th Wales/ New Zealand/

%eensland/ Tasania/ =i$toria/ Western A%stralia/ and So%th A%stralia/ in$l%ding the

northern territory o' So%th A%stralia/ as 'or the tie (eing are parts o' the

Coonwealth/ and s%$h $olonies or territories as ay (e aditted into or esta(lished

(y the Coonwealth as States and ea$h o' s%$h parts o' the Coonwealth shall (e

$alled a State +

-riginal States@ shall ean s%$h States as are parts o' the Coonwealth at its

esta(lishent+

:ro$laation o' Iing #dward =44 O Sep 1O0!

n petition o' the e(ers o' the Legislati*e Co%n$il and Ho%se o' "epresentati*es o'

%r Colony o' New Zealand/ deterined that the title o' Foinion o' New Zealand shall

(e s%(stit%ted o' that o' Colony o' New Zealand as the designation o' the said $olony + +

+ We do ordain/ de$lare and $oand that on the twenty.sith day o' Septe(er/ one


35/36

tho%sand nine h%ndred and se*en/ the said Colony o' New Zealand and the the territory

(elonging thereto shall (e $alled and 3nown (y the title o' the Foinion o' New

Zealand\o 4n pra$ti$al ters/ the re;%est 'or and s%(se;%ent de$laration o' doinion stat%s

'or New Zealand was relati*ely insigni)$ant+ Howe*er/ the nae $hange was a

sign o' the growing $on)den$e on the part o' New Zealanders that they $o%ld

go*ern their own a6airs+ A national identity 'or New ZealandXdistin$t 'ro that

o' the 9ritish #pire as a wholeXwas de*eloping+

Stat%te o' Westinster A$t 1O81 GI!

Se$tion 22!

o No law and no pro*ision o' any law ade a'ter the $oen$eent o' this A$t (y

the :arliaent o' a Foinion shall (e *oid or inoperati*e on the gro%nd that it isrep%gnant to the law o' #ngland/ or to the pro*isions o' any eisting or '%t%re A$to' :arliaent o' the Gnited Iingdo/ or to any order/ r%le/ or reg%lation ade%nder any s%$h A$t/ and the powers o' the :arliaent o' a Foinion shall in$l%dethe power to repeal or aend any s%$h A$t/ order/ r%le or reg%lation in so 'ar asthe sae is part o' the law o' the Foinion+

8!

o 4t is here(y de$lared and ena$ted that the :arliaent o' a Foinion has '%ll

power to a3e laws ha*ing etra.territorial operation+

E!

o No A$t o' :arliaent o' the Gnited Iingdo passed a'ter the $oen$eent o'

this A$t shall etend or (e deeed to etend/ to a Foinion as part o' the law o'that Foinion/ %nless it is epressly de$lared in that A$t that that Foinion hasre;%ested/ and $onsented to/ the ena$tent thereo'+

10!o None o' the 'ollowing se$tions o' this A$t/ that is to say/ se$tions two/ three/ 'o%r/

)*e/ and si/ shall etend to a Foinion to whi$h this se$tion applies as part o'the law o' that Foinion %nless that se$tion is adopted (y the :arliaent o' the

Foinion/ and any A$t o' that :arliaent adopting any se$tion o' this A$t aypro*ide that the adoption shall ha*e e6e$t either 'ro the $oen$eent o'this A$t or 'ro s%$h later date as is spe$i)ed in the adopting A$t+

o 2 \

o 8 The Foinions to whi$h this se$tion applies are the Coonwealth o'

A%stralia/ the Foinion o' New Zealand/ and New'o%ndland+

Stat%te o' Westinster Adoption A$t 1OE NZ!

Se$tions two/ three/ 'o%r/ )*e/ and si o' the A$t o' the :arliaent o' the Gnited

Iingdo $ited as the Stat%te o' Westinster/ 1O81 whi$h A$t is set o%t in the S$hed%leto this A$t/ are here(y adopted/ and the adoption o' the said se$tions shall ha*e e6e$t

'ro the $oen$eent o' this A$t+

Letters :atent Constit%ting the $e o' ,o*ernor.,eneral o' New Zealand!


36/36

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