LAWS 101 New Zealand Legal History

Chapter 2 The Mori Legal System:

Reading 1: The Mori Encounter with Aotearoa New Zealands Legal

System: Tangata Whenua Law:
Legal history of Aotearoa new Zealand began when the first people arrived (13
century).
o Grouped in to distinct people they became literally The People of the Land
Tangata Whenua.
The common language captured this literal interrelationship between land
and people:
Hapu = sub-tribe, to be pregnant.
Whanau = family, to give birth.
Whenua = land, afterbirth (tissue).
Approximately 40 iwi (tribes), and hundreds of hapu derived identity from land
marks.
o E.g. mountains, rivers, lakes.
E.g. Aoraki is my mountain, Waitaki my river, Tahupotiki is the ancestor,
Kai Tahu is my tribe. Ngai Tahu (largest tribe in South Island).
Mori legal system values based not rules based.
o It encapsulates a certain way of life that depends on the relationships between
all things.
Integral values thus include:
Whakapapa (geneology), whanaungatanga (family
relationships), mana (authority), mauri (spiritual life-principles),
tapu (sacredness), rahui (prohibition or conservation, manaaki
(hospitality).
o The Mori phrase for law tikanga Mori involves an obligation to do things in
the right way.
Tikanga are tools of thought and understanding.
They help to differentiate between right and wrong.

Reading 2: A Concise History of New Zealand:

First settlers (in New Zealand), ancestors of the Mori thought to have arrived in the
13th century.
o Europeans arrived 1840.
The tangata whenua established mana over the land (New Zealand). To establish mana
they:
o Brought intellectual order.
o Mental maps of the Polynesian world.
o Peopling with the spiritual fabric of the new land with their own gods and
creation stories.
The North Island, the first landing place they named Te Ika a Maui (the fish of maui)
o In the myth, Maui stood on the South Island and hooked a great fish which the
sun turned solid.
Eye of the fish Lake Toupo, Tail North Land.
The South Island was neamed Te Waka o Aoraki (the canoe of Aoraki).
Stewart Island took the name Rakiura.
Tangata Whenua were a diversity of people, cultures, and identities.
o Subsequently became Mori in their encounter with the Europeans.
The Tangata Whenuas world determined by genealogy whakapapa which they used
to interpret and interact with the landscape.

Whakapapa ordered space and time differently from Europeans models, and
bound the living with the dead.
If whakapapa was the back bone, oral traditions, chants, wananga,
incantations, and other arts could attach themselves as flesh to the
skeletal structure of genealogy.
Laid as a mental map across the land, whakapapa acted as a
cultural marker, so that the land became the peoples ancestor.
o The landing places of canoes helped to establish peoples
authority in a region.
Claiming the land began with naming,
Where the people planted archetypal (very typical of a certain kind
of person or thing) images Polynesian mythology across the
landscape and became tangata whenua in the process.from
Problematically, Europeans imposed their frameworks on traditional
stories imposed new names on physical features.
Europeans developed their own myths about Mori origins that
melded diverse stories into tidy legends, suitable for use in
childrens literature.

Reading 3: New Zealand Law Commission, Mori Custom and Values

in New Zealand Law:
Terminology:
In a broad sense custom law is used as a phrase to describe the body of rules
developed by indigenous societies to govern themselves.
o In New Zealand, custom law as it refers to Mori is referred to as Mori
Custom Law.
In Mori no word/phrase conveys either law or custom.
Closest equivalent to these is the Mori concept = tikanga.
o Interchangeably used Mori Custom Law / tikanga
Mori.
Justice Durie has referred to Mori Custom Law as the:
o Values, standards, principles or norms to which Mori community generally
subscribed for the determination of appropriate conduct.
Bishop Manuhuia Bennet talks of the ethics of tikanga:
o Tikanga indicates the obligation to do things in the right way: doing the right
thing for no other reason than because it is the right thing to do.
Chief Judge Williams describes tikanga Mori as:
o Essentially the Mori way of doing things, from the very mundane to the most
sacred or important fields of human endeavour.
Tikanga can also be described as tools of thought and understanding. They
are packages of ideas which help to organise behaviour and provide some
predictability in how certain activities are carried out.
Tikanga also differ in scale.
Some are large, and involve many participants and a very public.
Other tikanga are small and are less public.
o Tikanga dirives from the word tika meaning right/correct.
Tikanga include measures to deal firmly with actions causing serious
disequilibrium within the community.
Breaking tikanga do not entail punitive sanctions. However, failure
to do what is tika may attract supernatural punishment.
Tikanga Mori comprises a spectrum with values at one end and rules at the other, but
with values informing the whole range.
o Aspects of tikanga may be subject to a particular interpretation according to
certain circumstances but then reinterpreted in the light of other circumstances.
Thus tikanga Mori as a social system was traditionally pragmatic and
open-ended and it remains so today.

Mori Custom Law as Law:

The debate about whether law exists in societies which do not have written laws , law
courts and judges is an old one.
o Anthropologist now generally accept that all human societies have law, in the
sense of principles and processes.
Except in times of crisis, all human societies pursue as key aims the
maintenance of order, the reinforcement of accepted values and the
punishment of breaches.
o It is therefore interesting that many early visitors to New Zealand has no
difficulty at all in identifying the existence and coherence of Mori Custom as
law,
E.g. Edward Shortland, when referring to Ngai tahu rules relating to land
tenure and methods of dispute resolution in the 1840s, quite
unselfconsciously describes them as legal.
Durie concludes that Mori norms were sufficiently regular to
constitute law.
Values Underpinning Tikanga:
It is considered number of central values underpinning tikanga.
o To understand Mori custom law, it is necessary to recognise that Mori concepts
hardly ever correspond exactly with those western concepts which they appear
on the surface to resemble.

Whanaungatanga:
Whanaungatanga denotes the fact that in traditional Mori thinking, relationships are
everything, between people and the physical; world, and between people and the atua
(spiritual entities).
o Out of all the values of tikanga Mori , it is the most pervasive.
The glues that holds the Mori world together is whakapapa (genealogy), identifying
the nature of relationships between all things.
o In traditional Mori society, the individual was important as a member of the
collective. The individual identity was defined through that individuals
relationships with others.
It follows that tikanga Mori emphasised the responsibility owed by the
individual to the collective.
Thus, for example, the transfer of a right in respect to land only
lasted so long as the relationship between the transferor and
transferee remained healthy.
Numerous whakatuki (sayings0, identifying the connectedness of particular mountains,
rivers, or lakes, tribes, and people, are constantly invoked to reaffirm Whanaungatanga
between people and their lands.
The corollary to the paramount importance of the collective in Mori society was that
community accepted responsibility for its members. (David Williams explains).
o Thus the institution of muru (ritual compensation), and the practices associated
with it; a key element of the utu principles to maintain reciprocity and balance in
society provided a means of transferring goods and resources to aggrieved
parties for the wrongdoing of another.
It was not just the wrongdoer that would susffer this sanction. His or her
whanau would be levied; to satitsy flaegal judgement.
Nor would the aggrieved party act alone. The individuals whanau,
and in some cases, entire hapu, would claim the right to muru the
relevant community.
Thus rugged individualism often valued by pioneer settlers was frowned
upon. This is encapsulated in the pejorative term whakahi hi (arrogant),
which would be applied to those individuals who stepped out of line.

Mana:
Mana is defined in the Williams Dictionary of the Mori Language as authority control,
influence, prestige, and power on one hand, and psychic force on the other. (Rangatira
= Chief).
o Mana encompasses political power, which is both ascribed through political
whakapapa and acquired through personal accomplishment.
It is also a power that has a spiritual aspect to it and it thought of being
received from the atua.
Marsden identified three aspects of mana:
o Mana atua (god given power):
Emphaises the tapu nature of the leadership role and the respect which
the community owes to its choses leaders.
In addition to rangatira, mana atua is held by tohunga, both craft
specialists an specialists in ritual and religious matters.
o Mana tupuna (power from the ancestors):
Ascribed mana.
Traditionally those with the senior whakapapa lines have a head
start in the expectation of leadership positions. In most iwi this
remains the position today.
o Mana tangata:
Ones political acumen (the ability to make good judgements and take
quick decisions) and leadership qualities were traditionally very important.
A person with impeccable whakapapa to claim the role as rangatira
may none the less be relegated to a ceremonial minor, or only a
token role, unless the appropriate skills of mana tangata are shown.
Tapu:
Tikanga accociated with tapu are very important in both the traditional and modern
contexts.
o There is first the requirement to respect the tapu that all things carry.
Tapu and noa are complementary opposites, which together constitute a whole. Noa
has its own importance, as a counter and antidote to tapu; the value of everyday,
ordinary, relaxed human activity.
o Tapu attached to people, objects or places might be so significant as to require a
special degree of deference or respect.
Example of tapu: The tapu nature of the marae or wharenui requires that
food be kept away and shoes removed before entry.
The tikanga of tapu can be explained in various ways:
o On one hand tapu is seen as linked to a code for social conduct based on
essentially keeping safe and avoiding risk.
o Also has political purposes in terms of protecting the sanctity of certain persons,
ensuring appropriate levels of respect for hapu and iwi leadership and in keeping
ceremonial or special aspects of life separate from the ordinary.
o On the other hand, the mechanism of tapu is seen as centred in the spiritual, and
it is this aspect of both modern and traditional understanding of tapu which
would seem to ensure its efficacy (the ability to produce a desired or intended
result).
Utu:
Utu is often understood to mean revenge for wrong doing however has a richer wider
meaning.
o Utu refers to the return of whatever is received. (reciprocity).
Metge describes the essence of utu as being the maintenance of relationships by way
of an appropriate imbalance of contribution.
o Williams explains that at a human level utu denoted reciprocity between
individuals, between descent groups and between the departed.
Thus in traditional Mori terms mana was not received through the
acquisition of wealth but rather by distributing that wealth to others.

It was thorough ritual gift distributions that reciprocal obligations

were established. The recipient would be obliged to respond with a
greater gift, and so the cycle of gift exchange or tuku was initiated.
continue for generations.
Key accompanying value to the principle of reciprocity inherent in the term utu is aroha
(affection).
Kaitiakitanga:
Kaitiakitanga denotes the obligation of stewardship and protection.
o Presently it is most often applied to the obligation of whanau, hapu and iwi to
protect the spiritual wellbeing of the natural resources within their mana.
Thus each hapu/iwi has clear prescriptions as to the manner in which the
collection of resources (e.g. fishing) may be undertaken.
Difficult to divorce Kaitiakitanga from mana, which provides the authority
for the exercise of the stewardship or protection obligation, or tapu, which
acknowledges the special or sacred character of all things and hence the
need to protect the spiritual wellbeing of those resources subject to tribal
mana.
It is from Kaitiakitanga that the traditional institution of rahui comes.
o Rahui is an object or sign indicating that a resource has been made tapu.
E.g. rahui traditionally invokes prohibit entry to areas affected by the
tapu of death.

Tikanga tangata: social organisation:

Common thread in all Mori social organisation was Whanaungatanga or kin
relationships.
The various levels of Mori social organisation have been characterised as:
o Whanau: refers to extended family; it can also mean to give birth.
o Hapu: denotes the larger village community it also means to be pregnant. All
Mori, through the whakapapa web could claim membership to several hapu at
once. The relationships between hapu and iwi are complex and are not in a
vertical hierarchy of authority.
o Iwi: Identifies the wider district or sometimes regionally based kin group. It is
commonly translated as tribe, and claims descent from a single ancestor; often
described as an eponymous ancestor because his or her name is incorporated
into the iwis name.
o Waka: probably as a response to pakeha efforts to destroy the tribal base of
Mori society, waka confederations became a unit of social organisation for some
purposes. This level of social organisation delineated the decedents of one of the
migration canoes, usually a collection of iwi and hapu, claiming decent from the
captain or crew of the waka. The traditions of Te Arawa and Waikato (Tainui)
confederations of tribes are good examples of the development of a waka
tradition.
o Kainga: Even in distant times, social organisation was not dependant on
whakapapa. The concept of kainga highlights the importance of rules that did not
necessarily require blood ties. E.g. reciprocity and mutual advantage were
probably more about survival than relatedness.
Tikanga rangatira: Leadership;
Mori leadership roles are generally carried out by rangatira, kaumatua, ariki and
tohunga/pukanga.
o Rank and Mana:
Rangatira lead and represent their hapu, wither regulary or sometimes
for the purpose of a particular project. They are the most significant
leaders in community affairs as the community organisers and
representatives. They bind and unite the various elements of the hapu.

Not necessarily older persons, but they are leaders who sum up the views
of a hui and represent hapu or iwi in relationships with others.
Kaumatua, and the gender specific terms koroua and kuia - often treated
as being synonymous with being an older person, but kaumatua status is
not necessarily conferred on attaining a certain age. Kaumatua status was,
and remains, an active leadership role, A Kaumatua has social seniority,
life experience and wisdom which may be acquired at a relatively young
age in exceptional circumstances.
Ariki were the most senior ranking blood representatives of a collection of
hapu, an iwi or a collection of iwi. The held descent on senior lines from
one of the leaders of significant founding canoes. In some traditions ariki
status was so tapu that the incumbent did not participate in the political
affairs of the hapu and iwi.
There is no neat hierarchy of kaumatua, rangatira and ariki who provide
leadership of whanau, hapu and iwi respectively.
Tohunga and pukenga are specialists in a range of crafts and fields of
knowledge, from carving, weaving and tattooing to the spiritual, mystical
and healing arts.

Tikanga whenua: Land:

Land was and remains integral t ogroup identity and wellbeing. Mori descended from
the land and the stories of the ancestors are carved in it.
o In Mori idiom the people are the property of the land rather than the reverse.
The term whenua means both land and placenta.
The connections with the land are reflected in all five of the underlying
tikanga values. Whanaungatanga or the relationship with land, mana or
the power and authority which hapu and iwi derive from it, utu or the
reciprocal relationship with it, Kaitiakitanga or the obligation to protect it
and tapu in its sacred character.

Reading 4: Will the Settlers Settle? Cultural Conciliation and Law.

Essential Mori value with regard to land = lands are associated with particular
communities and do not pass outside of the descent group.
Land derives from ancestors passes to blood descendants. This is pivotal in
understanding the Mori land tenure system.
o Such an association between land and particular kin groups that to establish a
claim to land, in Mori law, persons only had to say who they were.
Not statutory legal position today ethic is still remembered and is given
effect on marae.
Individual land rights accrued from a combination of ascription (the action of regarding
a quality as belonging to someone or something) and subscription, from belonging to
the community and from subscribing to it on a regular basis.
o Subscription needed descent was not enough.
Decent gave right of entry, but since Mori had links with many hapu and
could enter any one, use rights depended as well on residence,
participation in the community, contribution to wealth and the observance
of its norms.
Persons obtained land rights by incorporation in descent groups.
o Incorporation of outsiders = seen as a characteristic of competitive societies.
Involved the inclusion of persons within the hapu might otherwise have
stood outside but appeared to have a particular contribution to make.
Purpose = to build hapu strength and keep rival hapu at bay.
o Incorporation applied to decent group members as well as to outsiders.

As individuals could join several hapu was completion.

Today leaders recall old relationships to recruit for their hapu.
o Incorporation effected by marriage and the allocation of use rights.
More interest in children who had blood line, for in a sense spouse always
outsider.
Adoption another method although blood relationship with
adopted person usually preferred.
Land rights thus inseparable from duties associated with the community being part of
it, contributing to it, abiding by its authority and law.
o Nearest cultural equivalent to the Mori use right arrangement wan an entailed
licence to the use of a particular resource, without prescribed rent but with
obligations to return benefits to the community to the fullest, practicable extent.
Practice developed of incorporating early Europeans traders and seamen.
o Land allocations to these people not seen as sale of land but as the acquisition
of people.
A rangatira who allocated land to individuals did not augment the receiver but the
community,
o Purpose in all things, was not to elevate the individual bit to build the community.
o Settlers complaine bled to death.
Thoe who stored wealth for themselves subject to muru/plunder.
No case was land allocation a permanent alienation of land.
o Nothing could alter reality land in held by ancestral community stranger
taking land held it only by becoming a part of the community.
In western terminology when donees vacated land reverted to source
but to Mori it had never left the ancestral tenure.
o To secure donees some larger right in the community marriages usually
arranged marriage gave stake in the land by ancestry.
Thus offer of wives for settlers not moral turpitude but method of securing
their place in the community.
Nearly all settlers who lived amongst Mori before 1840 took Mori
wives.
The common feature of Mori law then was that it was not in fact about property, but
about arranging relationships between people
For Mori the benefits of the lands, seas and waterways accrued to all of the associated
community.
o Rangatira held chiefly status but might own nothing. It was their boast that all
they had was the peoples.
Land rights in the Mori scheme, may be defined as a privilege, a privilege to use
resources as a consequence of maintain ones obligations both to the community, and
the deities as protectors of the earths resources.
The management of personal relationships depended on the directions of the rangatira.
One of the major European misconceptions concerns the role of the rangatira.
o Rangatira = portrayed as omnipotent however authority came from the people.
Often accredited by Europeans with larger powers than they actually had
like right to sell land.
Presumed to fold office through primogeniture more regularly led
through achievement.
Considered to own the greater share of tribal property though they
claimed it not for themselves but for the people.
The maintenance of personal relationships depended on punctilious (showing great
attention to detail or correct behaviour) observance of the prescribed protocols in
meeting, greeting, debating and even fighting.
o The rules and protocol, and the rituals of propitiation of divine interests, were
particular means to achieving ends, but the Mori legal system was
predominantly values based not rules based.
Most Mori writers appear to agree that the regulation of Mori behaviour
was governed not by rules but by concepts.

The Mori value system was exemplified in a distinctive manner of contracting.

o Standard Mori contract was not for the transfer of rights for a prescribed
consideration or immediate return. The standard contract was a gift, with the
expectation of a return in due course.
Purpose to establish a permanent and personal relationship with
reciprocal obligations where the main benefit to both sides would come in
the course of time.
The concept the maintained reciprocity was mana. The more one
gave the greater ones mana, and the unequal response meant loss
of mana.
o Gift exchanges repeated time and time again = in time
each could rely on one the other to be generous in times of
local privation, and to expect no immediate response.

Mixing of Legal Systems:

It is obvious Mori had a complex belief system on land tenure that served to maintain
harmony, equality and local freedom.
o However, the question has been asked at what point did the Mori understand
the Western legal syste, and especially, when did they comprehend land sales.
At times it has been asked if Mori had blank minds awaiting intelligence
or willing to jettison their beliefs for an alternative regime,
A study of history dispels these opinions. Mori fought to maintain
their own law and authority.
There was thus two differentiating legal systems, and a value of judgement
to which was better was inappropriate when each was valid in its own terms
-Sir Eddie Durie.
o Perhaps question should have been asked when did the Europeans come to
understand the Mori legal system or whether the Europeans had fulfilled the
contracts in the way Mori expected.
The disparity between the parties expectations was evident in the early
land transactions, not only the large number before the treaty of Waitangi,
but in the government transactions that followed.
Transactions were thus seen in different lights.
Where Mori allocated land, the settler imagined a purchase. Where
vacant possession was thought to have been taken, Mori continued
on the land as before. While payment was seen as final, subsequent
tribute was in fact required. Where Pakeha saw friendship, Mori
saw obligations. Where Pakeha presumed to sell to a further party,
Mori saw a breach of obligations.
o For their part Mori were simply functioning in terms of their
own law.

Chapter 3 European Arrival:

Reading 1: The Law of Nations (Emerich de Vattel):

Earth belongs to mankind.
o All possess a natural right to inhabit it.
When human race began to multiply earth no longer capable of
furnishing spontaneously therefore became necessary for tribes to fix
themselves, and appropriate to themselves portions of land.
o Such must have been the origin of the rights of property and dominion.
The country which a nation inhabits that country is a settlement of the
nation and it has a peculiar and exclusive right to it.
That right comprehends to things:
o The domain:

By virtue of which the nation alone may use the

country for the supply of its necessities, may dispose
of it as it thinks proper, and derive from it every
advantage it is capable of yielding.
o The empire:
Or the right of sovereign command by which the nation
directs and regulates at its pleasure everything that
passes in the country.
When a nation takes possession of a country to which no prior owner can lay claim
considered as acquiring the empire of sovereignty over it, at the same time with the
domain.
o The whole space over which a nation extends its government, becomes the seat
of its jurisdiction, and it is called it territory.
All mankind have an equal right to things that are not own by someone
else, and those things belong to the person who takes possession first.
But it is questioned whether a nation can by the act of taking possession, appropriate
to itself countries, which it does not really occupy.
o This would be an absolute infringement of the natural rights of men, which gives
no nation the right to appropriate a country, except for the purpose of making
use of it.
The law of nations will therefore not acknowledge the property and
sovereignty of a nation over uninhabited countries, except those of which
it has really taken actual possession, in which it has formed settlements,
or of which it makes actual use.
There is another celebrated question:
o May a nation take lawful possession of some part of a country, in which there
are none but erratic nations whose scanty population is incapable of occupying
the whole?
Their unsettled habitation in those regions cannot be accounted a true and
legal possession, therefore the people of Europe too closely pent up at
home, finding land of which the savages stood in no particular need, and
of which they made no actual and constant use, are lawfully entitled to
take possession of it, and settle it with colonies.

Reading 2: Draft Instructions for Governor Phillip [1787]:

Governor Arthur Phillip = Governor in chief, in and over the territory of New South
Wales and its dependencies. given command over New South Wales.

Map of Colony of New South Wales:

Royal instructions establish the boundaries of the colony.
o No definite boundary set, but the colony will include all the islands adjacent in
the Pacifc Ocean.
Map illustrates, these boundaries were obviously set with the geography of
Australia rather than NZ in mind.
Unclear whether the phrase all the islands adjacent in the pacific
oceans was meant to encompass islands in the pacific as distant
from the Australian mainland as New Zealand.
o Strong argument against the intended inclusion of NZ is the
placement of the southern boundary: if intent was to include
NZ within the new colony, why was the southern boundary
line set as a latitude that bifurcates the South Island.
Government and General Order (9 Nov 1814 Lachlan Macquarir Governor of New South
Wales):
Order:
o Traders and seamen trading with the island of NZ especially Bay of Islands
been in habit of insulting and injuring the natives by violently seizing and
carrying off both males and females, and treating them in other respects with

injudicious and unwarrantable severity to the great prejudice of the fair

intercourses of trade, which might otherwise be productive to mutual
advantages.
Governor orders that no master/seamen of any ship belonging to Britain
may remove natives from NZ without permission of the chief/chiefs of the
district in question, which is to be certified by Mr. Thomas Kendall
resident Magistrate of the Bay of Islands.
No ship shall discharge any persons on to NZ, without permission of the
chiefs, and confirmation (certificate) from the magistrate.
Neglecting these orders result in return to England and will be
punished.
Government and General Order (Colony of NSW, 12 NOV 1814):
Reverend Samuel Marsden principal chaplain of NSW permission to proceed to NZ
with the intention of acquiring friendly intercourse with the natives and promoting
views of Church Missionary Society through introduction of Christianity, and the arts
of civilised society.
Governor appoint Mr. Thomas Kendall (missionary) one of his Majestys justices of
the Peace in the Bay of Islands, and throughout the islands of NZ.
An Act for the more Effectual Punishment of Murders and Manslaughters committed in Places
not within his Majestys Dominion:
For remedy (caused by British), any person who commits a related crime shall be
tried, adjudicated and punished in any of his majestys dominions , in the same
manner as if such offence or offences had been committed on the High Seas.
New South Wales Act [1823]:
After establishing the Supreme Court of NSW and the Supreme Court of Van Diemens
Land, the Act grants these Courts some authority over the Islands of New Zealand.
o Persons convicted shall be tried in the said courts.

Mori Petition to King George IV [16 Nov 1831]:

This letter was dictated by 13 chiefs of the Ngapuhi iwi to missionary William Yate:
o This letter was a pleading to the King of England from the Mori chiefs for the
protection of NZ, from the French (tribe of Marian), and any other peoples who
may be a threat to the Mori.

Letter to the Chiefs of NZ from the Lord Viscount Goderich on behalf of the King [14
June 1832]:
King gratified to hear that the cause of alarm has passed.
King sorry for the injuries to the native New Zealanders caused by his subjects.
o He will do all in his power to prevent the recurrence and punish the
perpetrators.
King has sent with this letter, James Busby Esq., to reside among natives as His
Majestys resident in NZ whose duties will be to investigate all complaints which may
be made to him.
o It will also be his duty to prevent men arriving in NZ who have been guilty of
crimes in their own country and been banished from it.

Instructions to James Busby, British Resident in New Zealand, from Sir Richard Bourke,
Governor of NSW [13 April 1833]:
Requests attention to the following particulars/orders:
o Creation of this appointment due to violence perpetrated against the natives of
NZ by British subjects.
Thus investigate as much as possible enormities complained of and
give encouragement and protection to well-disposed settlers and traders
from Great Britain.

Deliver response letter from King deliver presents and announce your
intention of remaining among them
Manage this conference by means of missionaries.
o If your proposal to reside in NZ is accepted confer with them as to where the
most convenient place for your residence may be and claim protection for
yourself/family/servants wither by one of the chiefs near your dwelling or by
placing a native guard over it.
If the results are contrary to expectations you may return to Britain.
You should be aware that you cannot be given legal power/jurisdiction enabling you to
arrest British subjects offending against British/colonial law of NZ.
o Circumstances have prevented an Act being passed (a colonial Act) allowing you
these powers, thus you should rely little of the force of law and must lay the
foundations of your measures upon the influence you shall obtain over the native
chiefs.
Under existing statute Supreme Court of NSW and Van Diemens Land have the power
to inquire of, hear and determine all offences committed in NZ.
o Therefore, you should secure offenders with help of the chiefs, and convey them
to NSW by British ship.
o You will be given a list of names and descriptions of convicts from Sydney known
to be in NZ, and the native chiefs will help to point fugitives from Australian
colonies that they know of, and you shall apprehend and remove them at your
discretion.
Please keep this government informed of every circumstance of importance occurring
in NZ vessels trading between Sydney and Bay of Islands will offer means of
forwarding your communications.
It is also hope that you may be able to mitigate war between rival chiefs
It is also hoped that you may be able to influence the Natives towards a settled form of
government, by the establishment of some system of jurisprudence amongst them, so
offenders may be trialled/convicted under a more efficient process than the one
outlined above.
Please furnish this government with reports upon agriculture and commerce, and
general statistics regarding both islands.
o You will not fail to mention the quantity of flax you may conjecture to be cut
annually and how disposed of.
o

Early New Zealand; a Dependency of NSW:

Busby left with misgivings
o He had been placed under the orders of the Government of NSW, thought Bourke
admitted, the allowed the exercise of wide discretion.
The natives were ready for to listen to him reading the Kings address, and partake in
the feast provided, - less disposed to cooperate in his well-meaning plans.
o They were quick to see weakness of his position - also encouraged by lawless
Europeans who spread the rumour that his appointment was the first step to
enslavement of them.
In attempt to secure good will of the chiefs decided to get them to confederate
suggested adoption of a national flag as an emblem of unity.
Within two years his nominal authority has lost all force he failed to enlist support of
the natives, and disregarded by most Europeans.
o Without the promised legislation unable to effect any of the objects outlined in
the Governors instructions.
Towards end of 1835 busby thrown in to panic news of Baron de Thierry, Sovereign
Prince of NZ on his way to NZ with hundreds of respectable people for the purpose
of setting himself up as an independent sovereign, and he had informed their majesties
Britain, France, and President of US of his new kingdom.
o Far back as 1822 when a student at Cambridge became interested in NZwhen
met two Mori chiefs Hongi and Waikato assisting Professor Lea in a
production of the Mori vocabulary.
He brought land on the Hokianga river.

When he heard NZ was not in British possession proposed plan to establish an

independent government sought from Netherlands cession of its rights to NZ
for 50000 British pounds.
With failure resorted to French government to support his schemes.
In 1834 revived his plan to establish himself as sovereign of NZ.
o He gathered a miscellaneous collection of followers and set sail. British
government knew enough of him to ignore his foolish pretentions.
Busby in NZ new nothing of this mans real strengths and informed Bourke immediately.
o Busby called meeting of native chiefs (35) and secured their adherence to a
document which declared NZ to be an independent state under the United Tribes
of New Zealand.
Busby magnified the importance of the occasion to the extent of referring
to the Declaration as the Magna Carta of New Zealand.
o Bourke refused to treat the matter as serious unwilling to send forces from
Sydney.
When de Thierry arrived in Sydney (August 1837), found no one was willing to support
them.
o Governor not willing to enter treaty with him.
o After an appeal for volunteers, he left with 96, reaching Hokianga on 4 Nov 1837.
Him and followers appeared so pitifully impotent - Mori actually assisted
him to land.
He had no grounds for the apprehension of NZ.
o

Declaration of independence of New Zealand [28 October 1835]:

1. Declare independence of their country, as a independent state, under the designation
of the United tribes of New Zealand.
2. All sovereign power declared to reside entirely and exclusively in the hereditary chiefs.
3. Hereditary chiefs and heads of tribes agree to meet in congress at Waitangi in the
autumn of each year.
4. They also agree to send a copy of this Declaration to his Majesty
Letter to Lord Glenelg, His Majestys Secretary of State for War and the Colonies, from Sir
Richard Bourke, Governor of NSW [9 Sep 1837]:
In consequence of recent war between two tribes near the Bay of islands it was
requested Captain Hobson experienced and judicious officer, to repair NZ to afford
British subjects residing here and ships, protection as required and to inform me on
his return the present state of NZ, and the means of securing the common interests of
the Natives and British settled there.
o Captain Hobson proposed introduction of commercial establishments, confined
within certain limits, within which limits British subjects shall be placed under the
protection and obligation of their own laws.
If the British resident be withdrawn which I assert is a preferable alternative to his
being left there without adopting some further measures to secure the professed
objects of his appointment, the public should thus be informed that trade in NZ is to be
then carried out at their own hazard.
Mr Busby recommends GB should undertake the protection of NZ should maintain
British troops on the islands this undertaking should be commenced with the greatest
of faith and purest intentions.
House of Lords Select Committee Report [1838]:
During April and May 1838 a select committee of the British house of Lords sat to
hear evidence on the state of NZ and consider suggestions from a variety of interested
parties on the possible options for the country.
o Among those giving testimony individuals such as traders, and the navel
captain Robert Fitzroy (who would later serve as New Zealands Governor).
o Organisations also appeared before the committee Church Missionary Society,
New Zealand association (a land trading company).
Trader urged committee to consider greater official British involvement in NZ way of
protecting commercial interest.

Fitzroy advised very difficult to impose British law over whole country, while Reverend
Frederick Wilkinson chaplain based in South Wales said Mori would welcome British
rule.
New Zealand Association Reverend Samuel Hinds official British intervention
unavoidable as Mori held no sovereign rights + Associations principles of systematic
colonisation would be complemented by further British involvement.
Church Missionary Society, and Wesleyan Missionary Society opposed to Associations
schemes urged that Mori be protected against rampant colonisation.
o Select Committee produced a report recommending that a treaty should be
concluded with Mori as part of a broader policy of extending British rule to cover
New Zealand, and that the rights of Mori be protected during this intervention.

Chapter 4 Sovereignty:
Reading 1: Asserting the Doctrine of Discovery on Aotearoa New
Zealand Jacinta Ruru:
Claiming Sovereignty: Treaty of Waitangi:
1840 British claimed sovereignty over NZ through a combination of the Doctrine of
Discovery principles and the partially signed Treaty of Waitangi.
o 1830s France + US interested in claiming sovereignty over NZ Britain
strategically acknowledged the independent sovereignty of some of the Mori
tribes in 1835, and then set about annexation.
No clear date upon which NZ became British colony involves several interrelated
events relating to the signing of the Treaty of Waitangi in 1840.
Busby believed collective Mori sovereignty was required to end tribal warfare.
o 20 March 1834 Busby invited 25 Northern Chiefs to gather at Waitangi to vote
on a National flag.
Declaration of Independence signed 28 Oct 1935. Thought that France would
establish its own independent region in the North of the North island spurred this
action.
o British Government recognised the Declaration. Busby continued to seek
signatures from chiefs throughout the country till late 1830s.
The specific events that really began the process of annexation itself began four years
before the initial signing of the Declaration.
o First, the Letters Patent 15 June 1839 amended the Commission of the
Governor of NSW by enlarging this Australian colony to include any territory
which is or may be acquired in sovereignty by Her Majesty . . . within that group
of islands in the Pacific Ocean, commonly called NZ.\
o Second event draws attention to the three proclamations by Governor Gipps,
published on 19 January 1940 proclaiming that
1. The jurisdiction of the NSW governor extended to NZ.
2. The oaths of office had been administered to Hobson as Lieutenant
Governor.
3. No title land in NZ purchased henceforth would be recognised unless
derived from the crown and that Commissioners would be appointed to
investigate past purchasers of land from Mori.
o Initial signing of the treaty of cession at Waitangi on 6 Feb 1840 constitutes the
4th event.
o 4th event concerns Hobsons proclamations of full British sovereignty over all of
NZ on 21 May 1840.
o The fifth event is the ratification of Hobsons proclamations by their publication
in the London Gazette on 2 Oct 1840.
These interrelated events took place within a context wherein by the late 1830s, Britain
officially sought to pursue sovereignty over NZ via means of cession if possible (treaty
making was in vogue) or if necessary by Doctrine of Discovery.

14 Aug 1839 British government issued instructions Captain Hobson (confirmed by

Governor Gipps) as lieutenant Governor in New Zealand stating:
o We acknowledge NZ as a sovereign and independent state.
o The Queen disclaims for herself and for her subjects every pretention to seize on
the islands of NZ, or to govern them as part of the Dominion of Great Britain,
unless the free and intelligent consent of the natives, expressed according to
their established usages, shall first be obtained.
Hobson immediately sought further directions claiming that the development of the
natives of the North and the South was essentially different with the south being wild
savages this impossible to observe even the form of a treaty.
o He suggested he might be permitted to claim the south by right of discovery.
1. Lord Normanby Secretary of State for the Colonies 15 Aug 1839
stated if the South Island Mori were incapable from entering intelligently
into the treaty with the crown then he might assert sovereignty on the
grounds of discovery.
British Crown presented treaty of cession in English and Mori for signing at Waitangi
early Feb 1840.
o 43 chiefs mostly from northern tribe Nga Puhi assented to the Mori version 6
Feb 1840.
Hobson the travelled North Island seeking more signatures.
o He was spurred on when became aware that the New Zealand Company
settlement (Wellington) sought to establish its own form of government.
First was issued over the North Island by right of session other over the South by
right of discovery proclamations were made on the 21 May 1840.
o Meanwhile Hobson ordered Major Thomas Bumbury proceed to the South
island seek signatures to the Treaty of Waitangi.
Travelled to the smaller southern uninhabited Stewart Island proclaimed
British sovereignty of Cooks discovery.
On return journey
o Ruapuku island obtained signatures (three).
o Tairaroa obtained signatures (two)
o Head of Otago Harbour (1 signature)
Stopping at Cloudy bay 17th June 1840 proclaimed the British
Queens sovereignty over South Island based on cession.
The Treaty of Waitangi short document consisting of three articles expressed in an
English version and a Mori version.
o Controversy today lies in translation of the first two articles.
English version Mori ceded to the Crown absolutely and without
reservation all the rights and powers of sovereignty (article 1), but
retained full exclusive and undisturbed possession of their lands and
estates, forests, fisheries, and other properties (article 2).
Mori version Mori cede to the Crown governance only (article 1), and
retained tino rangatiratanga (sovereignty) over their taonga
(treasures).
Article 2 granted crown pre-emptive right to purchase property
from Mori = article 3 granted Mori same rights and privileges as
British citizens living in Aotearoa New Zealand.
Bilingual treaty cession unique contractual agreement not replicated anywhere else.
Mori chiefs signed for numerous reasons;
o On face treaty looked as if it was asking little of Mori and offering much in
return.
Mori expected to increase trade, to receive assistance in handling new
changes occurring in society and possibility of manipulating British
authority in inter-tribal rivalries.
However argued that while English version of the Treaty may have provided a
harmonious gloss of overt cession the treaty in fact simply encapsulated the
Doctrine of Discovery mind-set.

For instance proclamations made before the drafting and initial signing of the
treaty Hobsons instruction to eek signatures from the South Island Mori
followed his proclamation of discovery over the South Island because Mori were
uncivilised.
o Moreover not all Mori chiefs signed the treaty therefore leaving large tracts
of land outside the province of cession despite proclamations of asserting
cession over the whole country.
Even taking a liberal view of the English version of the Treaty, it is
questionable whether ot does more than implement the common law
principle od discovery.
Year after it was signed Land Claims Ordinance 1841 enacted s 2 of ordinance was
to become the subject of several subsequent cases and it is thus worthwhile repeating
here:
o Declared, enacted, and ordained that all unappropriated lands within the Colony
of New Zealand, subject however to the rightful and necessary occupation and
use thereof by the aboriginal inhabitants of the said Colony, are and remain
Crown or domain lands of Her Majesty, Her heirs and successors, and that the
sole and absolute right of pre-emption from the said aboriginal inhabitants vests
in and can only be exercised by Her said Majesty, Her heirs and successors.
o

Reading 2: The Story of the Treaty Claudia Orange:

After arriving in Sydney Hobson sworn in by Governor George Gipps as lieutenant
governor of any territory he might acquire in New Zealand.
o Chose a small group of official and left for NZ 18 Jan 1840.
Next day Gipps issued proclamation extended territory of the colony of NSW to any
territory that may be acquired in sovereignty by her said Majesty, her heirs or
successors, within that group of islands in the Pacific Ocean, commonly called New
Zealand.

Preparing the Treaty:

Hobson arrived wed-29 Jan 1840 Busby welcomed him offered to organise a meeting
of chiefs as his Waitangi home following Wednesday.
o Next four-five days Hobson had to decide on wording of treaty he had been
ordered to make with the chiefs.
Felt awkward no legal training. Help from secretary several
missionaries gave advice.
Busby thought Hobsons notes inadequate offered to provide new draft.
Hobson received it 3 Feb.
Busby added important promise Britain would guarantee Mori
possession of their lands, their forests, their fisheries and other
prised possessions. Without that promise he was sure that no one
would sign.
Hobson asked henry Williams to translate treaty into Mori with help of 21 year old
son Edqward on the evening of the 4 Feb.
Waitangi Wednesday 5 February:
Most of what we know comes from letters and diaries of some of the missionaries and
other people at the meeting including Busby and Hobson.
o On the day hundreds of Mori sitting in tribal groups Sydney mounted police/
o 09:00 Hobson landed at Waitangi beach went into Busbys home = looked over
translated treaty.
Hobson did not know Mori thus could tell if it was an accurate
translation.

First Meeting:
Late morning Hobson first talked to Europeans about what he was about to do then
turned to Mori (Williams translated).
o Explained British people were free to go where they chose Queen was always
ready to protect them also ready to restrain them but efforts futile because
outside British territory she had no authority to do so.
Asked them to sign the treaty so the Queen could restrain them.
This is Queen Victorias act of love to you, he said. She wants to ensure
that you keep what is yoursyour property, your rights and privileges, and
those things you value. Who knows when a foreign power, perhaps the
French, might try to take this country? The treaty is really like a fortress to
you.
Debate:
Over five hours chiefs spoke for and against the proposal.
o Main concerns were about their authority, their land, and trade dealings.
Refer to Notes for Quotes
o Hobson decided to adjourn the meeting meet again on Friday.
Discussion into the Night:
That evening Mori camped talk centred on the treaty.
o No one knows what was said but in the morning most chiefs were keen to get
the treaty signed immediately so they could go home.
The Signing Thursday 6 February:
Hobson summoned ashore late in the morning.
o Nervous and uneasy feeling that he was being rushed into this unplanned
meeting.
Just before about to sing William Colenso asked your excellency, do you think the
chiefs really understand all aspects of the Treaty?
o If they dont, its not my fault. Ive done all I can.
The signing went ahead Williams told Hobson to say He iwi tahi tatou after each
chief signed.
o Williams must have known it would have special meaning for the chiefs
especially those who were Christian: We are one people Mori and British
were linked, as subjects of the Queen and as followers of Christ.
Over 40 chiefs signed with their names or their moko.
o Hobson was anticipating full Mori agreement to the treaty everywhere else.
Signing at Mangungu:
Hundreds of Mori turned up.
o One chief, Te Taonui had visited Sydney. Chiefs at Waitangi too mentioned
British treatment of Aborigines.
They treat them like dogs: a pakeha kills a pig, the black comes to the
door and eats the refuse.
After eight hours of debate Chiefs started to sign.
Hobson Looks for More Signatures:
Over next few months more important chiefs in the Bay of Islands signed the treaty.
o Hobson falls ill several copies of the treaty in Mori were written out given
to missionaries who were asked to call treaty meetings.
Some of the missionaries who took part new Mori tribes well understood many of
their customs.
o E.g. new woman could be highly influential in Mori affairs.
One woman of rank who signed was Ereonora wife of Nopera
Panakareao.

At the meeting he explained to his people in this way: Only the

shadow of our land passes to the Queen. The substance stays with
us, the Mori people.

Proclaiming British Sovereignty:

Meanwhile settler arrived at Port Nicholson started to set up their own government.
(They kenw about Hobsons negotiations).
o According to international law he was the only one who had the authority to set
up a British colony in NZ.
21 of May Hobson proclaimed British sovereignty over the whole country.
o Norith Island through cession Treaty of Waitangi.
o South Island right of discovery.
Thomas Bunbury who was at this time gathering signatures on the South
Island unaware of Hobsons proclamation 5 June proclaimed British
sovereignty over the South Island based on cession. 40 signatures were
obtained in the South Island.
rd
3 Sep last signature put on Treaty over 500 chiefs had signed at about 50
meetings.
In October Hobson sent the British government a list of the chiefs who had signed
sent them copies of the treaty in Mori and English said nothing about the differences
in meaning between them although he probably did not know himself.
No Unanimous Agreement:
Hobson did not draw attention to the fact that a number of very important chiefs had
not signed the treaty.
Reasons for Signing:
Almost everywhere Mori leaders extremely cautious about giving agreement to the
treaty.
o Many objected at the meetings then signed.

Authority:
They expected treaty to be the start of a new relationship with Britain one in which
they would play an equal role.
Expected officials in NZ to control troublesome Europeans.
Chiefs would look after their own people.
Mana of the land would still be held by the Mori people.
o It would even be increased by the worlds major naval power.
Most especially believed the Queen had a personal authority and that the treaty was
a very personal agreement between the Queen herself and the chiefs. Treaty
negotiators had explained it in that way to get Mori agreement.
Land:
Issue of land usually foremost in influencing chiefs to sign.
o Some areas needed support against aggressive European land buyers.
o Others keen to sell land to the governor.
o Many tribes saw a new way of fighting old enemies if they sold disputed land
no loger have to fight rivals for it.
Many chiefs hoped that the new agreement would bring peace to the
country.
Trade and Settlement:
All who signed hoped for a share in the good things that settlers would bring more
markets for produce, more goods to buy, and a demand for Mori labour and services of
all kinds.
They had no idea that the British government had planned to bring settlers to the
country in large numbers.

The Covenant:
Above all else Mori leaders believed that missionary advice was wise and could
probably be trusted = the treaty would be good for the country and the people.
o They were certainly influenced too by the way the treaty was explained to them.
Missionaries had been quite careful to explain the treaty as a personal
wish of the Queen her act of love.
Missionaries, at least at Waitangi presented treaty as a covenant
between Mori and Queen.
Many Moris would look on the treaty as a bond similar to the
covenants of the bible. Very important to them by 1840 nearly half
the Mori population was following Christian beliefs and ways.

Reading three: The Treaty of Waitangi in New Zealands Law and

Constitution Matthew S R Palmer:

Reading 3: The Treaty of Waitangi in New Zealands

Law and Constitution (Matthew S R Palmer)
The Treaty of Waitangi is short, composed of a preamble, three articles and a postscript. There are
at least two versions of the Treaty of Waitangi, in English and in Mori.

English

Mori

The preamble notes that Queen Victoria of the

United Kingdom is anxious to protect the just
rights and property of Mori chiefs and tribes
and to secure their enjoyment of peace and
good order and has appointed a functionary to
treat with Mori for recognition of her
Sovereign authority over the whole or any part
of those islands because of the great number of
British subjects who have come and are coming
to New ZealandQueen Victoria wishes to
establish a settled form of Civil Government to
avert the evil consequences to Mori and British
settlers that result from the absence of the
necessary laws and institutions and authorises
Captain Hobson, Consul and Lieutenant
Governor of those parts of New Zealand that
may be ceded to her Majesty, to invite the
confederated and independent chiefs to concur
in the following articles.

The preamble notes that Queen Victoria of the

United Kingdom England is anxious to protect
the just rights and property of Mori chiefs and
tribes and to preserve their chieftainship and
lands and to secure their enjoyment of peace
and good order and has appointed a functionary
rangatira or chief to treat with Mori for
recognition of her Sovereign authority
establishment of the Queens government over
the whole or any part of those islands because
of the great number of British subjects who
have come and are coming to New Zealand
Queen Victoria wishes to establish a settled
form of Civil Government to avert the evil
consequences to Mori and British settlers
Pakeha that result from the absence of the
necessary laws and institutions and authorises
Captain Hobson, Consul and Lieutenant Captain
in the Royal Navy, Governor of those parts of
New Zealand that may be ceded to received by
her Majesty, to present to invite the
confederated and independent chiefs to concur
in the following articles these laws.

In the first article, the Chiefs of the United Tribes

of New Zealand and the independent chiefs,
cede to her Majesty absolutely and without
reservation all the rights and powers of
Sovereignty which they respectively exercise or
possess, or may be supposed to exercise or
possess over their respective Territories as the
sole Sovereigns thereof.

In the first article, the Chiefs of the United

Tribes of New Zealand Confederation and the
independent chiefs, cede give to her Majesty
absolutely and without reservation forever all
the rights and powers of Sovereignty which they
respectively exercise or possess, or may be
supposed
to exercise or possess over their respective
Territories as the sole Sovereigns thereof
complete
Kawanatanga, or Governorship or Government,
of their land.

Sovereignty: supreme power or authority:

In the first part of the second article, the Queen

confirms and guarantees to the chiefs and
tribes, and the families and individuals thereof,
the full exclusive and undisturbed possession of
their Lands and Estates Forests Fisheries and
other properties which they may collectively or
individually possess so long as it is their wish
and desire to retain the same in their
possession.

But, in the second part of the second article, the

chiefs yield to the Queen the exclusive right of
Preemption over the sale of such lands as the
owner is willing to sell to the Queens agent at
agreed prices.

In the first part of the second article, the Queen

confirms and guarantees agrees to the chiefs
and tribes, and the families and individuals
thereof all the people, the full exclusive and
undisturbed possession of their unqualified
exercise of their rangatiratanga, or
chieftainship, over
their Lands and villages and all their treasures
or taonga and Estates Forests Fisheries and
other properties which they may collectively or
individually possess so long as it is their wish
and desire to retain the same in their
possession.
But, in the second part of the second article, the
chiefs yield give to the Queen the exclusive
right of Preemption over the sale of such lands
as the owner is willing to sell to the Queens
agent at
agreed prices.

Preemption: the purchase of goods or shares by

one person or party before the opportunity is
offered to others.
In the third article, in consideration thereof the
Queen guarantees Mori her protection and
imparts to them all the Rights and Privileges of

In the third article, in consideration thereof for

this arrangement concerning the Queens
Government, the Queen guarantees all Mori

Key points about the ambiguous meaning of the treaty appear from the texts
themselves,
o Clear difference in the meaning between the Mori and English texts of the
Treaty.
English text written in language colonial law.
o Essential terms of the bargain as they appear from the English text are cession
by Mori to the British crown of sovereignty power to govern in return for a
guarantee of continued Mori enjoyment of their property rights and the sale of
property in the first instance to the crown.
Yet in Mori text Mori cede kawanatanga of their land Kawana being
transliteration of governor thereby forming governorship or government.

Notion of te tino tangatiratanga of the Mori, that the Crown agreed

to protect in the second article of the Mori text referred to chiefs or
rangatira, hence chieftainship.
Sovereignty points to the ultimate power to decide, to rule over any given territory and
the people, and to say the last word.
Governance means managing things reasonably and efficiently, without any ritual,
pretending that power does not exist among human communities, as if the question of
the ultimate power and its legitimacy should not even be raised.
Ruth Rosss seminal article [1972] notes that the New Testament had been translated
into Mori and printed in December 1837, and contained this translation of 1
Corinthians 15:24:
o Then cometh the end, when he shall have delivered up the kingdom
[rangatiratanga] of God, even the Father; when he shall have put down all rule
[te kawanatanga] and all authority [mana] and power [kaha]
Ross suggested term kawanatanga may have resonated with Mori
understanding the biblical relationship between Governor Pontius Pilot and
the Roman Empire and may have been associated with the notion of the
Governors of the Australian colonies.
Rangatiratanga also reportedly appeared in the missionary version of the
Lords Prayer in translation of thy kingdom come.
In the Declaration of Independence and the Treaty of Waitangi
rangatiratanga used to denote the independence of the United
Tribes of new Zealand.
o All sovereign power and authority was ko te kingitanga ko te
mana.

The Meaning of the Treaty in 1840:

Today potential for disagreement about what the treaty meant to different people in
1840.
o Seems clear Crown and Mori choosing to establish formal relationship with
each other related to the exercise of power in NZ particularly Britain was
taking on responsibilities in relation to foreign nations and British subjects.
Of course, hapu whose rangatira did not sign treaty not considered
themselves bound by it.
While each party no doubt had its own understanding of the treaty there was no
common understanding of the extent to which the British power to govern and
continued authority of rangatira, were to interact
The Legal Status of the Treaty in 1840:
Can be summarised in three points:
o First terms of treaty unlikely to be regarded as binding on hapu whose
rangatira did not sign it.
o Second terms of treaty likely to have been regarded as binding on those
rangatira who did sign it though penalty for a breach would have been likely to
depend on the circumstances at that time.
o Third terms of treaty considered by British government to be an obligation
binding the honour of the Crown as a matter of policy but not an obligation that
could be judged binding in court,
Rather as a moral and political obligation.
Any penalty for breach dependent on circumstances of the time.
Present Meaning of the Treaty of Waitangi:
Parliament is sovereign in New Zealands constitutional system.
Legislation instrument of parliamentary decision making has most authority and
power.
o Analysing a range of legislative references to the treaty enables a
comprehensive view of Parliaments interpretation of the meaning of the treaty
to be constructed.

It can be claimed that the Treaty began to be taken seriously by government with the
passage of the Treaty of Waitangi Act 1975 under the Kirk/Rowling labour government
during period of the Mori Land March.
o Act created Waitangi tribunal permanent inquiry into allegations of breaches
of the principles in the treaty and make non-binding recommendations to the
executive government about what should be done.
By passing the Act Parliament did three things:
Act defined the treaty as it was to be recognised in law.
Parliament delegated to the tribunal the role of interpreting the
treaty.
Made implicit statement about its significance.
The Waitangi Day Act 1960 first incorporation of a text of the treaty into domestic
New Zealand law.

Summary of the meaning of the Treaty of Waitangi as

elaborated by Parliament since 1975 in legislation.
The Treaty of Waitangi and its principles:
established a special relationship between the Mori people and the Crown;
embodied the spirit of exchange of kawanatanga for the protection of rangatiratanga;
envisaged a spirit of partnership and goodwill;
underpins the ongoing relationship between the Crown and tangata whenua, which

obliges the Crown to actively protect Mori interests; and

in the Treaty the Crown confirmed and guaranteed to the Mori people, among other

things, all their taonga.

In particular:
In the Treaty of Waitangi the Crown confirmed and guaranteed to the Mori people the
Mori language as a taonga, and under the Treaty the Crown and Mori together are
obliged to preserve, protect and promote te reo Mori;

It is desirable to recognise that land is a taonga tuku iho of special significance to Mori
people and, for that reason, to promote the retention of that land in the hands of its
owners, their whanau and their hapu, and to protect wahi tapu, and to facilitate the
occupation, development and utilisation of that land for the benefit of its owners, their
whanau, and their hapu;

By the Treaty of Waitangi the Crown confirmed and guaranteed to the chiefs, tribes and
individual Mori the full, exclusive and undisturbed possession of their fisheries for so
long as they wished to retain them;

The principles of the Treaty of Waitangi are recognised and respected by mechanisms
enabling Mori to contribute to decision-making on, and to participate in the delivery of,
health and disability services;

The Crowns responsibility to take appropriate account of the principles of the Treaty is
recognised and respected by: principles and requirements for local bodies that are
intended to facilitate participation by Mori in local authority decision-making processes;
and in land transport decision-making processes; and, in relation to public record
keeping, by requirements for the Chief Archivist to ensure that processes are in place for
consulting with Mori, by the composition of, and advice by, the Archives Council and by
the power to approve an iwi or hapu-based repository for public archives.

With varying degrees of force, the Treaty is relevant to and affects:

Management, use, development and protection of natural and physical resources; the
environment; the health and safety of people and communities; and hazardous substances
and new organisms;
Conservation of natural and historic resources and New Zealands historical and cultural
heritage, including the Hauraki Gulf Marine Park;
Promotion of energy efficiency, energy conservation and the use of [104] renewable
sources of energy;
Ownership of dry harbour land and minerals by the Crown and tenure reviews of Crown

land;
Protection of Mori Treaty claims in the transfer of assets to SOEs and CRIs and sale of
the Crowns commercial forestry assets;
Decisions of Councils of Tertiary Education Institutions and the Royal New Zealand
Foundation of the Blind;
Human rights and appointment of Human Rights Commissioners;
The implementation of settlements of historical Treaty of Waitangi claims.

The signing of the Treaty in 1840 should be commemorated by observance of a public holiday.
Issues raised by the differences between the English and Mori language versions of the Treaty are
to be resolved by the Waitangi Tribunal, having regard to both texts, which should make
recommendations relating to the practical application of the principles of the Treaty.
Significant issues relating to the Treaty are matters of general or public importance which it is
necessary in the interests of justice for the Supreme Court to resolve.

There is still inconsistency and randomness, deriving from changing political

circumstances, about the areas of law in which Parliament will refer to the treaty and
whether and how it will do so.

Present and Potential Status and Force of the Treaty of Waitangi:

Analysis suggests treaty valid and binding on crown in international law as a matter
of honour.
o Whether it would be found to be a treaty of cession or protection with
sovereignty acquired by the Britain later, is less clear.
In international law treaty of cession treaty in which one sovereign nation
cedes/transfers sovereignty over itself to another sovereign state.
o Treaty of protection treaty in which one sovereign nation agrees to protect
another sovereign
In either case almost no opportunities for an international tribunal to enforce it.
o This is because if we assume the Mori people constituted a sovereign nation
with legal personality at international law, that legal personality now no longer
exists due to the undoubted nature of the crowns current sovereignty over New
Zealand and its people.
If we are faced with the issue today NZ Supreme Court would fins that the crown has
acquired sovereignty in NZ and that the treaty in not legally enforceable in domestic NZ
law unless incorporated into law by legislation.
o However the Supreme Court would fins that the treaty is valid at international
law non binding still but would have a significant political power. It would be
difficult to ignore and would change the reality of the status and force of the
treaty in NZ

Reading 4: The Mori Encounter with Aotearoa New Zealands Legal

System Jacinta Ruru:
The Waitangi Tribunal and Treaty Settlement Process:
Waitangi Tribunal established 1975 permanent commission of inquiry empowered to
receive, report and recommend on alleged crown breaches of the principles of the
Treaty of Waitangi post 1975.
o During labours next term granted powers to investigate claims dating back to
1840.
Establishment signified Crown had accepted that the historical grievances of Mori
about Crown actions that harmed whanau, hapu and iwi are real.

It is symbolic of biculturalism appointing both Mori and Pakeha as members

comfortable in both Mori and Pakeha environments.
Of those generic claims where it has recommended government action, in some
instances the government has accepted such claims and enacted appropriate
legislation.
o E.g. Mori Language Act 1987; Mori Commercial Aquaculture Claims Settlement
Act 2004
But denied several others such as reports on petroleum and the foreshore
and seabed.
Crown does not require claimants to first have gone to the tribunal but many
claimants find value in doing so.
o Settlement process itself is conducted through the Office of Treaty Settlements
as a separate unit within the Ministry of Justice.
Five steps in the claims process encompassing several preliminary agreements often
including:
o terms of negotiations, agreement principle, deed of settlement, settlement
legislation.
Settlements aim to provide Mori with the foundation for a new relationship between
the crown and the claimant group.
o Settlements thus contain crown apologies of wrongs done, financial and
commercial redress, and redress recognising the claimants groups spiritual,
cultural, historical or traditional associations with natural environment.
Most significant pan-tribal settlement concerns commercial fisheries, with
compensation valued at NZ$750 million.
o Deal negotiated in 1992 dubbed Sealord deal.
In regard to legislated tribal settlements, more than 18 groups have received redress
amounting to a value of more than NZ$718million.
o Several parameters determine the scope of the negotiations:
Crown strongly prefers to negotiate claims with large neutral groupings
rather than individual whanau and hapu.
o

Chapter 5 Property:
Reading 1: Asserting the Doctrine of Discovery on Aotearoa New
Zealand: 1840s-1960s Jacinta Ruru:
Symonds 1847:
Following signing of Treaty colonial government was established.
British began acquiring large tracts of land for British settlement.
o At issue Europeans who had purchased land directly from Mori prior to 1840.
Many questioned whether Mori had valid title to land.
o Purchasers argues Mori held valid title because British crown recognised
sovereignty of Mori in the declaration of independence and treaty.
Therefore Mori must be deemed to have power to alienate land like any
other sovereign.
Courts settled issue in 1847 R v Symonds case served to reinforce sovereign rights
of Britain in NZ.
o Facts of case similar to Johnson v MIntosh US Supreme Court refused to
recognise validity in law in title to land purchased by individuals directly from
the Indian owners.
Symonds case involved British individual purchased land directly from Mori in
accordance with certificate issued by Governor Fitz Roy allowing him to do so.
o Question was had individual acquired legal title to land.
Both judges said no drawing on US jurisprudence.

Case said to represent foundation of principles of the common law relating to

Mori.
First case to explicitly rely of Doctrine of Discovery ideology in new
Zealand law.
o Case held Queen had the exclusive right to pre-emption to purchase land from
Mori as articulated in the treaty.
Justice Chapman observed intercourse of civilised nations (namely GB) with
indigenous communities (especially North America) had led to established principles of
law.
o This law founded in the Doctrine of Discovery encapsulated the common law
doctrine of native title stipulated that the Queens pre-emptive right was
exclusive.
Thus doctrine stated Crown is the sole source if title for settlers.
Exact aoutcome as in Johnson which both judges in Symonds
recognised.
o Both judges in Symonds relied upon several of the US
Supreme Court Chief Justice John Marshalls judgements.
In Symonds Chapman J observed in guaranteeing native title + Queens pre-emptive
right treaty does not assert wither in doctrine or in practice anything new and
unsettled.
o While this observation could be disputed especially when reading Mori version
of the treaty - - decision ,marked a a covert application of the Doctrine of
Discovery.
In fact was to take another 150 years before a court was to hold that
Mori have proprietary interests in land despite a change in sovereignty.
o

Native Acts 1860s:

Initial British Governors in NZ exerted a distinct colonialist policy based on
assumption that Mori unusually intelligent intelligence translated into desire to
become British.
Between 1840 1860 , tools for this evangelism (zealous advocacy or support of a
particular cause) god, money, law and land, sought to convert Mori from savages to
civilisation via assimilation by the mixing of the two people geographically.
o But early evangelism few complete successes.
While many Mori embraced Christianity not at exclusion to their own religion Mori
religion always been open to incorporate new gods.
o While many Mori tribes became commercialised (dominated food supply market
growing crops, transporting and selling to Pakeha) individualism did not
flourish.
By late 1850s life of some tribes radically changed.
British Crown acquired most land in the South Island, and lower North Island (60% of
NZ land mass appox. 10% of Mori lived. Most instances tribes had been duped.
o First controversy about actual land included in purchase agreements
o Second unrest that crown had not set aside land reserves as per agreements.
Disturbed by correlation between selling land and loss of independence
North Island tribes who still retained some land began turning against land
sales.
Importantly pan tribal settlement saw emergence of Mori King movement.
o Perturbed (anxious or unsettled) that land selling would come to an end that as
a consequence the amalgamation of Mori would come to a halt British
concluded law of nature required some help.
British declared war against some Mori tribes underestimated tribal resistance.
o NZ wars than began in March 1960 = did not abate until a decade later.

Tougher newer evangelism emerged during this time with law becoming
the central tool in destroying the Mori way of life.
Large tracts of Mori land confiscated in accordance with legislation.
o Legislation stipulated native school could only receive funding if curriculum was
taught in English causing the near extinction of Mori language and culture and
marginalised Mori by a deliberate policy of training for manual labour rather
than the professions.
Legislation ensured any person practicing traditional Mori healing could
become liable for conviction led to loss of much traditional knowledge.
Heart of genocide establishment of Native Land Court. = Crown now waivered its right
of pre-emption (as indorsed by treaty and common law doctrine of native title) permitting Mori to freely alienate their land.
o However Mori first had to obtain a certificate of title.
System sought to transform land communally held by whanau and hapu (Mori
customary land) in to individualised titles derived from the crown (Mori freehold title).
Further significant statute enacted in 1860s Native Rights Act 1865 act made clear
Mori were deemed to be natural born subject of her Majesty.
o Courts had jurisdiction in all cases touching the persons and property (real or
personal) of Mori.
Native title was to be determined according to ancient custom or usage of
Mori any case concerning title to native title was to be directed towards
the Native Land court.
Doctrine of Discovery ideology obviously permeating deeply into the colonial
mindsets.
o Not because crown sought to deny the existence of native title, but it believed
that it was civil to provide a route for it to become general land.
Hon Sewell, member of the House of Representatives in1870 reflected
Act had two objectives
To bring the great bulk of the land of the northern island which
belonged to the nativeswithin reach of colonisation;
And to destroy if possible, the principles of communism which ran
through the whole of their institution, upon which their social
system was based, and which stood as a barrier in the way of all
attempts to amalgamate the native trace into our own social
political system.
Land Court extraordinarily effective a predatory horde of storekeepers, grog-sellers,
lawyers, surveyors, land-agents, and moneylenders made advances to rival groups of
Mori claimants and recouped costs in land.
o Rightful Mori owners could not avoid litigation and expensive surveys if false
claims were put forward.
By 1930s little tribal land remained in Mori ownership (today amounts to 5% of NZs
landmass).
o The Courts early work have been described as a veritable engine of destruction
for any tribes tenure of land, and a scandal.

Reading 2: Attorney-General v Ngati Apa [2003] (The Appeal) Elias

CJ:
The Legal Status of Customary Interests in Land:
British territories with native populations introduced common law adapted to reflect
local customs, including property rights.
o Approach applied in NZ at 1840 Laws of England applied in NZ only so far as
applicable to the circumstances thereof.

English Laws Act 1858 later recited and authorised this approach.
In Re Lundon and Whitaker Claims Act 1871 the Court of Appeal accepted that all
title to land by English tenure was derived from the crown. But that did not prevent
customary property being recognised by the common law:
o The Crown is bound, both by the common law of England and by its own solemn
engagements, to a full recognition of Native proprietary right. Whatever the
extent of that right by established Native custom appears to be, the Crown is
bound to respect it.
In NZ, land was not available for disposition by crown grant (Grand of land title by the
Crown; a deed of grant issued in the name of the then current monarch conveying to
the grantee some portion of land in fee simple. A Crown grant is the first alienation of
crown land and often excludes or reserves from the grant some part of the land such as
minerals or roads, so that those parts remain vested in the Crown) until Mori property
was extinguished.
o In the North American colonies land occupied or used by the natives was
treated as vacant and available for crown grant.
Even so, the Supreme Court of the US in Johnson v MIntosh (1823)
held, the crowns interest and any grant made by it of the land was subject
to the native rights.
They were rights of common law not simply moral claims against
the crown:
o It has never been contended that the Indian title amounted
to nothing. Their right of possession has never been
questioned. The claim of government extends to the
complete ultimate title, charged with this right of possession,
and to the exclusive power of acquiring that right.
The Privy Council on an appeal from Canada in St Catherines Milling
and Lumber Co v The Queen (1888) described the Crowns substantial
and paramount estate as encumbered (restrict or impede) by the rights
of Indian inhabitants. The Crown only received a plenum dominium (full
ownership, combining legal title and beneficial entitlement) when the
Indian title was surrendered or otherwise extinguished.
Similarly, in NZ, crowns notional radical title (Radical title confers only sovereignty
and doesn't automatically extinguish native title rights), obtained with sovereignty, was
held consistent with and burdened by native customary property.
o E.g. R v Symond, Lundon and Whitakers Claims; Nireaha Tamaki v
Baker.
It was explained by the Privy Council in Manu Kapua v Parra Haimona
(1913 CA):
Prior to the grant and the antecedent proceedings the land in
question 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 Crown, the radical title was, up
to the date of the grant, vested in the Crown subject to the burden
of the native customary title to occupancy.
In Famihana Korokai v Solicitor General (1912), this court rejected an argument
that native title was not recognisable in law.
o Held that the applicants could not be prevented from applying to the Native Land
Court for investigation of their title to the bed of Lake Rotorua unless it was
shown that Native title had been distinguished by proclamation, cession of the
owners, or Crown grant.
o Whether there may be separate property in the bed of a lake was to be
determined according to native custom and usage. Cooper J, after pointing to the

definition of Crown lands in the Land Act which excluded customary lands,
concluded:
Customary lands owned by Natives which have not been ceded to His
Majesty or acquired from the Native owners on behalf of His Majesty
cannot, in my opinion, be said to be land vested in His Majesty by right of
his prerogative. It is true that, technically, the legal estate is in His
Majesty, but this legal estate is held subject to the right of the Natives,
recognized by the Crown, to the possession and ownership of the
customary lands which they have not ceded to the King, and which His
Majesty has not acquired from them.
NZ courts have not always held this view.
o In Wi Parata v Bishop of Wellington Prendergast CJ, comprising himself and
Richmond J held:
That the rule of common law that native customary property survived the
acquisition of sovereignty had no application to the circumstances of NZ.
Mori had, he considered, insufficient social organisation upon
which to found custom recognisable by the new legal order. In such
circumstances he said:
o the supreme executive Government must acquit itself, as
best it may, of its obligation to respect native proprietary
rights, and of necessity must be the sole arbiter of its own
justice. Its acts in this particular cannot be examined or
called in question by any tribunal, because there exist no
known principles whereon a regular adjudication can be
based.
o Although the reasoning in Wi Parata was rejected by the Privy Council, it
continued to influence thinking in New Zealand.
In particular crown continued to argue in litigation that through the
acquisition of sovereignty, all land in NZ became owned by it.
Was the argument of the Solicitor-General in Re the Ninety-Mile
Beach.
According to argument Crowns treaty obligation to protect Mori
customary rights of occupation was a moral duty, not a legal one
discharged when the court granted title to Mori occupiers. Only then
could the court be give effect to a property right.
Before Crown grant, no customary property rights could be
recognised because to do so would be to question the sovereign
power.
o Thus in the Protest of Bench and Bar [1903], made in response to the
decision of the Privy Council in Wallis v Solicitor-Genreal [1903], Stout CJ
asserted that:
All lands of the Colony belonged to the Crown, and it was for the Crown
under Letters Patent to grant to the parties to the Treaty such lands as the
Crown had agreed to grant.
o The error in this approach was as Cooper J in Tamihana Korokai v SolicitorGeneral suggested, its equation of sovereignty with ownership (conflating
imperium and dominium).
Despite the structures of the Privy Council in in Nireaha Tamaki v Baker
and in Wallis v Solicitor-General, the idea that the crown had acquired
property in all land with the assumption of sovereignty proved hardy
(capable of enduring difficult conditions).

May have been in part because of the influence of Sir John Salmond.
Salmond had be largely responsible for drafting the major
restatement of Mori land law in the Native Lands Act 1909.
Salmond realised the distinction between sovereignty and property.
o Considered that consequence of Crown ownership of all land arose on the
introduction into New Zealand and English Law with its system of estates derived
from feudal land tenure:
When we say that certain lands belong to or have been acquired by the
Crown, we may mean either that they are the territory of the Crown or
that they are the property of the Crown.
The first conception pertains to the domain of public law, the second to
that of private law. Territory is the subject-matter of the right of
sovereignty or imperium, while property is the subject-matter of the right
of ownership or dominium.
These two rights may or may not co-exist in the Crown in respect of the
same area. Land may be held by the Crown as territory but not as
property, or as property but not as territory, or in both rights at the same
time.
As property, though not as territory, land may be held by one state within
the dominions of another. This distinction between territorial sovereignty
and ownership is to some extent obscured by the feudal characteristics of
the British constitution.
In accordance with the principles of feudal law all England was originally
not merely the territory but also the property of the Crown; and even
when granted to subjects, those grantees are in legal theory merely
tenants in perpetuity of the Crown, the legal ownership of the land
remaining vested in the Crown.
So, in accordance with this principle, when a new colonial possession is
acquired by the Crown and is governed by English law, the title so
acquired is not merely territorial, but also proprietary.
When New Zealand became a British possession, it became not merely
the Crown's territory, but also the Crown's property, imperium and
dominium being acquired and held concurrently.
o Salmond may have taken the view that the Crowns proprietary interest was
burdened by native title, as Frame suggests (A Frame Salmond, Southern
Jurist (1995, Wellington) 125-126).
But viewed burden not a legal one but as political obligation for
parliament to address.
Sir Kenneth Roberts-Wray in 1966 book Commonwealth and Colonial law
comments on Salmonds view of the effect of the introduction of the common law and
English systems of land tenure that:
o This reasoning does not take into account the vital rule that, when English law
is in force in a Colony, either because it is imported by settlers or because it is
introduced by legislation, it is to be applied subject to local circumstances; and,
in consequence, English laws which are to be explained merely by English social
or political conditions have no operation in a Colony. This vital rule of the
common law (earlier applied in R v Symonds) was made explicit in New Zealand
by the English Laws Act 1858. By it, English law was part of the law of New
Zealand with effect from 1840 only so far as applicable to the circumstances of
New Zealand (s 1).
More recently, the effect of the radical title acquired by the Crown with sovereignty has
been considered by this Court in Te Runanga O Muriwhenua v Attorney-General

[1990] and Te Runanganui o Te Ika Whenua Inc Society v Attorney-General

[1994]. The position was restated by Cooke P for the Court in Te Ika Whenua:
o On the acquisition of the territory, whether by settlement, cession or annexation
(the action of annexing something, especially territory), the colonising power
acquires a radical or underlying title which goes with sovereignty.
o Where the colonising power has been the United Kingdom, that title vests in the
Crown. But, at least in the absence of special circumstances displacing the
principle, the radical title is subject to the existing native rights.
o They are usually, although not invariably, communal or collective. It has been
authoritatively said that they cannot be extinguished (at least in times of peace)
otherwise than by the free consent of the native occupiers, and then only to the
Crown and in strict compliance with the provisions of any relevant statutes.
It was so stated by Chapman J in R v Symonds (1847) in a passage later
expressly adopted by the Privy Council, in a judgment delivered by Lord Davey,
in Nireaha Tamaki v Baker (1901). The radical title of the Crown is a technical and
notional concept. It is not inconsistent with common law recognition of native
property, as R v Symonds, Manu Kapua v Para Haimona and Nireaha Tamaki v
Baker make clear. Brennan J described such radical title in Mabo v State of
Queensland (1992) as merely a logical postulate required to support the
doctrine of tenure (when the Crown has exercised its sovereign power to grant
an interest in land) and to support the plenary title of the Crown (when the
Crown has exercised its sovereign power to appropriate to itself ownership of
parcels of land within the Crown's territory).
Any property interest of Crown in land over which it acquired sovereignty therefore
depends on any pre-existing customary interest and its nature, as the Privy Council in
Amodu Tijani v Secretary, Southern Nigeria held.
o The content of such customary interest is a question of fact discoverable, if
necessary, by evidence (Nireaha Tamaki v Baker).
As a matter of custom the burden on the Crown's radical title might be limited to use or
occupation rights held as a matter of custom (as appears to be the position described
in St Catherine's Milling and Lumber Co v The Queen and as the Tribunal in William
Webster's Claim seems to have thought might be the extent of Mori customary
property).
o On the other hand, the customary rights might be so complete as to reduce any
radical right in the Sovereign to one which only extends to comparatively limited
rights of administrative interference (Amodu Tijani v Secretary, Southern
Nigeria).
The Supreme court of Canada has had occasion recently to consider the content of
customary property interests in that country:
o It recognised that according to custom on which such rights are based - they
may extend from usufructuary (the right to enjoy the use and advantages of
anothers property short of the destruction or waste of its substance) rights to
exclusive ownership with incidents equivalent to those recognised by fee simple
title (see, for example, Delgamuukw v British Columbia [1997] - Lamer CJ).
For present purposes what matters is customary rights of native community
continued at common law to exist until lawfully extinguished.
Property rights may be abrogated (repeal or do away with)/redefined with
exercise of sovereign power.
But in New Zealand the basis of conferral (grant) of prerogative (a right or privilege
exclusive to a particular individual or class) power and later successive lands
legislation, both that relating to Mori land and that relating to general and Crown
lands, is consistent with the continuation of Mori customary interests in land.
o

Thus, the Letters Patent of 1840 setting up government in New Zealand

authorised the Governor to make grants of the waste lands of New Zealand:
Provided Always, that nothing in these our Letters Patent contained shall
affect or be construed to affect the rights of any aboriginal natives of the
said Colony of New Zealand, to the actual occupation or enjoyment in
their own persons, or in the persons of their descendants, of any Lands in
the said Colony now actually occupied or enjoyed by such natives.
The Land Claims Ordinance 1841 confirmed the exclusive Treaty right of preemption in the Crown. Such pre-emption was explicable only in terms of recognition of
existing property rights according to Mori custom.
NZ never thought to be terra nullius (land belonging to no one), an important
distinction from Australia.
o From beginning accepted that the entire country was owned by Mori according
to their customs and until that land was sold it belonged to them.
Originally crown purchasers required to extinguish Mori ownership and free hold land
for settlement under subsequent crown grant.
o Subsequently statutes provided authority for other modes of extinguishing Mori
customary titles.
Significant in present appeal is that NZ legislation has assumed continued
existence at common law of customary property until it is extinguished.
Can be extinguished by sale to crown through investigation of title
through the land court subsequent deemed crown grant, or by
legislation or other lawful authority.
There is no presumption of crown ownership as a consequence of the
assumption of sovereignty to be discerned from the legislation.
Such presumption contrary to common law. Mori customary land
is residual category of property, defined by custom.
o Crown land by contrast defined as land which is not
customary land and ha not be alienated from the crown for
an esate in fee simple.
Crown no property interst in costomary land and
not source title to it.
This is the background against which the
arguments upon the Re the Ninety-Mile
Beach and legislation said to vest ownership of
the seabed and foreshore in the crown must be
assessed.
o

Chapter 6 From Colony, To Dominion, To Realm:

An Act to Declare that the Laws of NSW Extend to Her Majestys Dominions in the Islands of
New Zealand [1840]:
All laws in NSW now extend to NZ so far as the same can be applied therein, any law,
usage or custom to the contrary in anywise notwithstanding.
New South Wales Continuance Act [1840]:
Shall be lawful for her Majesty, by letters patent to erect a separate colony/colonies any
islands which may be comprised within and be dependences of the said colony of NSW.
Charter for Erecting the Colony of New Zealand (Letters Patent 16 Nov 1840):
Erect the said Islands of New Zealand as a separate colony.

Definitions:
Colony:
o A country or area under the full or partial political control of another country and
occupied by settlers from that country.
Dominion:
o Dominions were autonomous polities that were nominally under British
sovereignty, constituting the British Empire and British Commonwealth,
beginning in the later part of the 19th century.
Realm:
o Realm may commonly also be used to describe the Commonwealth realms which
all are kingdoms in their own right and share a common monarch, though they
are fully independent of each other.

Reading 1: Early New Zealand: A Dependency of New South Wales

1788-1841 E J Tapp:

On 16th Nov NZ became a separate colony.

o Hobson appointed Governor of NZ with all the necessary power for the regular
conduct of affairs without reference to the government of NSW free from
dependence upon any other Governor.
New colony in beginning depended upon the counsel and revenues of NSW.
o People of NSW generally approved annexation of NZ the Legislative Council of
NSW made it increasingly difficult for Governor Gipps to accede to Hobsons
requests (money).
In spite tight rein of legislative council, NZ indebtedness to NSW grown
over 33,000 by end of 1840 estimated expenditure for 1841 would be
about 50,000.
When separation became legally effective Hobson quickly initiated now possible
changes in government.
o He adopted laws of NSW which could be applied.
Severance from NSW complete UK Secretary of State Lord John
Russell made it clear to Gipps UK government would not sanction the
administration of justice in NZ by a judge of the Supreme Court of NSW
thus NZ entirely independent.
Immediate post-treaty period Mori alarmed at white mans threat to his future now
bitter and recalcitrant (having an obstinately uncooperative attitude towards authority
or discipline) mood.
o Way of life threatened lands being taken customs ignored tapu openly
flouted and broken.
The bargain with the interloper = never conceived by Mori to be a total
surrender of all his rights to land it remained his and to all intents
inalienable.
Pakeha now coming in all earnest
o First major clash occurred Wairau 18 Jun 1843 North of South Island.
Colonel Wakefield of the New Zealand Company tried to issue warrant
against Mori chief was massacred.
Settlers immediately requested governor Gipps to send military aid.
o Gipps could not ignore such an appeal sent Sir J, Everard
Home on a clear understanding Home not to land unless
actually required to defend lives/property of settlers.
1844 Gipps received another request this time from Hobsons successor Captain R.
Fitzroy.
o Fitzroy had waivered terms of treaty and had allowed private land sales with
Mori.

 Gipps dispatched 150 troops.

Situation continue to deteriorate 1845 Fitzroy sought military assistance again
from NSW.
By May 1845 850 troops in NZ.
In peace that followed Fitzroy replaced by Captain George Gray Nov 1845.
o New governor immediately applied a progressive policy and dealt energetically
with the military crisis.
To assist Gipps tried to strengthen Grays position by means of legislation.
Gipps personal introduced and secured passage of a bill at end of
1845 prevented natives of NZ from obtaining gun powder from
NSW.
1846 Captain Charles Fitzroy Gippss successor = instructed by UK to send whole
disposable force from NSW to Wellington NZ.
o Amounted to 900 mean as NSW was safe could be better used in NZ.
o

Reading 2: Maketu, Wiremu Kingi:

Maketu murderer [1841].

o First person to be hanged by legal process in NZ.
Although little Mori opposition to his execution process of hanging
shocked Mori it was seen as drawn out and cold blooded.
Under Mori custom killed immediately or by blow from a mere.
To the newly established colonial government Maketus surrender, trial and execution
first major test of the application of British law to a Mori offender authority of
crown and its officials successfully upheld

Reading 3: A New Zealand Legal History Peter Spiller, Jeremy Finn

and Richard Boast:

1840 NZ separated from NSW became a colony in its own right.

From then until the creation of a parliamentary government by the New Zealand
Constitution Act 1852 government was in hands of governor and his officials.
o Legislative council comprised of governor, three other officials, three settler
justices of the peace, which passed a number of statutes (called ordinances).
In attempt to destabilise government 1848 by creation of two provinces New
Munster ad New Ulster met little success although legislative council did pass a
number of ordinances in 1849.
System of government transformed by New Zealand Constitution Act 1852
improving Act of 1846 that had not been brought in to operation Governor Gray
convinced colonial office that it as premature.
o New Constitution Act set up system of representative government.
Combined a central bicameral parliament and a number of provincial
governments all with own councils and executives.
Original provinces called: Auckland, New Plymouth, Wellington,
Nelson, Canterbury, Otago.
o Powers of these mini legislatures limited by Constitution Act itself.
Reserved certain matters such as currency, weights and measures,
customs duties, wills, bankruptcy, shipping, crown land and Mori land to
central Parliament and also by granting power to disallow provincial
ordinances he saw to be inexpedient (not practical, suitable, or advisable).
Central Government officially called General Assembly composed of sovereign
represented by the governor, an elected lower house called the House of
Representatives; and an appointed upper house called the Legislative Council.
Provinces showed different responses to the challenge.

The provinces showed quite different responses to the challenge. Some, such as
Otago and Taranaki [New Plymouth], created a decentralised system of local
boards of works that controlled both the construction of works and the collection
of rates to finance (or part-finance) them.
o Other provinces, such as Canterbury, kept control of public works within the
council itself. In some cases the provinces sought to minimise the demands of
their scanty resources by granting to private individuals the right to construct
certain facilities such as bridges or ferries, the cost of which was recouped by
fees charged for their use.
Other important functions acquired more by accident than design.
Since charities and churches could not, and the central Government did
not wish to provide adequately for schools and hospitals, the provinces
were often forced to act.
Provincial government abolished in 1876 no longer justified in
relation to its expense.
Time saw changes to central legislature.
o Weakening of powers to the nominee upper chamber legislative council in
1891 its eventual abolition in 1950 constitutional change which affected the
development of the law.
Until 1870 impossible to combine membership of the legislative council
with tenure of salaried government position.
Early years many councillors held legal expertise mainly as holder s of legal or judicial
officers.
o This state of affairs ended with Disqualification Act 1870, barred most office
holders from seats in NZ Parliament.
o

English Laws Act 1858 (NZ):

Laws of England as existing on the 14 Jan 1840 shall so far as applicable to the
circumstances of the said Colony of NZ be deemed and taken to have been in force
therein on and after that day, and shall continue to be therein applied in the
administration of Justice accordingly.
Commonwealth of Australia Constitution Act [1900] (UK):
After the passing of this Act people of NSW, Victoria, South Australia, Queensland and
Tasmania, and if the people of Western Australia agree will be united in a Federal
Commonwealth under the name of the Commonwealth of Australia
The Commonwealth shall mean the Commonwealth of Australia as established under
this Act.
The States shall mean such of the colonies of New South Wales, New Zealand,
Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the
northern territory of South Australia, as for the time being are parts of the
Commonwealth, and such colonies or territories as may be admitted into or established
by the Commonwealth as States; and each of such parts of the Commonwealth shall be
called a State .
Original States shall mean such States as are parts of the Commonwealth at its
establishment.
Proclamation of King Edward VII [9 Sep 1907]:
On petition of the members of the Legislative Council and House of Representatives of
Our Colony of New Zealand, determined that the title of Dominion of New Zealand shall
be substituted of that of Colony of New Zealand as the designation of the said colony . .
. We do ordain, declare and command that on the twenty-sixth day of September, one

thousand nine hundred and seven, the said Colony of New Zealand and the the territory
belonging thereto shall be called and known by the title of the Dominion of New
Zealand
o In practical terms, the request for and subsequent declaration of dominion status
for New Zealand was relatively insignificant. However, the name change was a
sign of the growing confidence on the part of New Zealanders that they could
govern their own affairs. A national identity for New Zealanddistinct from that
of the British Empire as a wholewas developing.
Statute of Westminster Act [1931] (UK):
Section 2(2):
o No law and no provision of any law made after the commencement of this Act by
the Parliament of a Dominion shall be void or inoperative on the ground that it is
repugnant to the law of England, or to the provisions of any existing or future Act
of Parliament of the United Kingdom, or to any order, rule, or regulation made
under any such Act, and the powers of the Parliament of a Dominion shall include
the power to repeal or amend any such Act, order, rule or regulation in so far as
the same is part of the law of the Dominion.
(3):
o It is hereby declared and enacted that the Parliament of a Dominion has full
power to make laws having extra-territorial operation.
(4):
o No Act of Parliament of the United Kingdom passed after the commencement of
this Act shall extend or be deemed to extend, to a Dominion as part of the law of
that Dominion, unless it is expressly declared in that Act that that Dominion has
requested, and consented to, the enactment thereof.
(10):
o None of the following sections of this Act, that is to say, sections two, three, four,
five, and six, shall extend to a Dominion to which this section applies as part of
the law of that Dominion unless that section is adopted by the Parliament of the
Dominion, and any Act of that Parliament adopting any section of this Act may
provide that the adoption shall have effect either from the commencement of
this Act or from such later date as is specified in the adopting Act.
o (2)
o (3) The Dominions to which this section applies are the Commonwealth of
Australia, the Dominion of New Zealand, and Newfoundland.
Statute of Westminster Adoption Act 1947 (NZ):
Sections two, three, four, five, and six of the Act of the Parliament of the United
Kingdom cited as the Statute of Westminster, 1931 (which Act is set out in the Schedule
to this Act), are hereby adopted, and the adoption of the said sections shall have effect
from the commencement of this Act.
Letters Patent Constituting the Office of Governor-General of New Zealand: