The Extension of the Common Law to Settled, Ceded and Conquered Territories, and the Survival of Indigenous Laws, With Particular Reference to New Zealand

Noel Cox(1)

"Prospects and Retrospects: Law in History 2001" Australia and New Zealand Law and History Society Conference, The University of Waikato, Hamilton, New Zealand, 6^th-8^th July 2001

Abstract

In nineteenth century English law all colonies were regarded as being either settled or conquered or ceded colonies. This was a matter of fact and law to be determined by the courts in each particular instance. New Zealand, like Australia, was held to be a settled colony. Since British settlers took with them English law, the settlement of New Zealand brought with it a complete legal system, leaving little if any room for the pre-existing indigenous law.

But European settlement was accompanied by a treaty between the British government and the chiefs, or such of those as were willing to sign. This purported to convey to the Crown "forever the complete government over their land". But the legal status of the Treaty of Waitangi has after that time sometimes been regarded as null, because the Maori were arguably not in a position to make a treaty valid in international law. The acquisition of sovereignty was thus based legally upon an act of State, rather than upon cession alone.

But even in the nineteenth century what is now regarded as the traditional view of the acquisition of sovereignty over New Zealand was not unanimously held, even by officials of the British Government and of the newly established colonial Government.

What would be the effect of concluding that New Zealand was a conquered or ceded colony? What effect would this have on the position of the Treaty of Waitangi? Would such a reappraisal be just rewriting history? More importantly, did indigenous laws survive the extension of the common law to New Zealand in 1840? For although the determination that New Zealand was a settled colony cannot now be challenged, its implications can.

I Introduction

II The position of pre-existing indigenous laws

III Settled colonies

IV Ceded colonies

V Conquered colonies

VI Protectorates

VII The Treaty of Waitangi as a valid treaty in international law

VIII The assumption of sovereignty

IX Treatment of indigenous laws after 1840

X Conclusion

I Introduction

In classical international law, there were fives modes of acquisition of territory. These were the occupation of terra nullius (uninhabited territory(2)), prescription (effective control over inhabited territory), cession, accretion (the acquisition of title over new land), and subjugation or conquest.(3) All were based on Roman law principles, and were often difficult to apply in practice. The common law, and British practice, generally mirrored the international law.

In the nineteenth century all British colonies were generally classified as either settled colonies (title by occupation), or conquered or ceded colonies. Accretion was exceptional, as was prescription. The basis of the distinction between categories was the stage of civilisation considered to have existed in the territory at the time of acquisition. If there was no population or no form of government considered civilised and recognised in international law, title was obtained by settlement. If there was an organised society to which international personality was attributable, acquisition was by cession or conquest.(4)

The decision as to which category a particular colony belongs once made by practice or judicial decision will not be disturbed by historical research.(5) New Zealand was held to be a settled colony.(6) Whatever element of cession occurred under the Treaty of Waitangi, New Zealand has been treated in law as a settled colony. Brookfield felt that this was revolutionary in relation both to the hapu of non-signatory chiefs, and of the signatory chiefs insofar as the absolute sovereignty claimed went beyond that they respectively had ceded.(7) As understood by many late nineteenth century jurists and politicians- though not by the Privy Council- indigenous tribes in such a colony could not cede sovereignty, the Treaty of Waitangi was legally a nullity,(8) with all that this implied for subsequent Crown-Maori relations. But this approach has been criticised.(9) Not the least of the difficulties this analysis faces is that the fact of New Zealand being treated as a settled colony did not mean that the Maori lacked international legal personality, or, indeed, laws of their own which the common law could, and indeed did, recognise.

This paper begins with a review of the position of pre-existing indigenous laws in these situations. It will then examine the distinctions which have been drawn between settled, ceded, and conquered colonies, and protectorates. The New Zealand position is then evaluated. This involves an evaluation of the status of the Treaty of Waitangi in international law, and the mechanism of the assumption of British sovereignty in 1840. The subsequent treatment of indigenous laws is then assessed.

II The position of pre-existing indigenous laws

The application of more than one legal system within one jurisdiction was alien to the common law:

the law and legislative government of every dominion, equally affects all persons and all property within the limits thereof; and is the rule of decision for all questions which arise there. Whoever purchases, lives, or sues there, puts himself under the law of the place. An Englishman in Ireland, Minorca, the Isle of Man, or the plantations, has no privilege distinct from the natives.(10)

But it was not unusual for more than one legal system to co-exist. The Romans distinguished between the personal rights of Roman citizens (the ius civile), and the law of nations, applied in Roman courts to both Romans and foreigners in their interrelationships in both public and private law.(11) Subject peoples had their own laws and their own courts, though the criminal law of Rome protected the safety of the empire.(12) The very name common law reminds us that customary law for long survived in parts of England, alongside the common law. Only the cold impetus of convenience led to the decline and eventual extinction of such local laws.

In the following centuries the colonial empires of later European powers also saw many instances of the recognition of pre-existing legal systems by the colonial law.(13) The sixteenth century Spanish theologian Francisco de Vitoria argued that the Indians in the conquered territories, having no just cause for war, had rights of ownership which the invading Spaniards could not lawfully interfere with.(14) This was based on notions of natural law.(15) Although Vitoria’s view may not have greatly influenced the politics of the contemporary Spanish government, it was not without its supporters. Indeed, much of modern international law was developed in Iberia in the wake of the Spanish and Portuguese colonial expansion.

The basis of common law acceptance of aboriginal title is not apparently found in concepts of natural law. Its origins, like so much imperial constitutional law, law in practice.(16)

When Britain colonised other parts of the world it introduced its own concept of law. But this doesn’t mean that there is one legal system throughout the Commonwealth. The general introduction of English law did not completely displace whatever had been pre-existing laws.(17) In each country English law existed side by side with local law- or in some cases the law introduced by earlier colonisers- so that there is a great patchwork of legal systems in the Commonwealth.(18) These include Hindu and Moslem law in India,(19) Portuguese(20) and Dutch laws still apply in Sri Lanka. In Mauritius and the Seychelles, once French possessions, French law still operates in certain areas.(21) Dutch law applies in parts of Africa.(22) Malta follows the civil law.(23) Many African countries have their own tribal customary law.(24) The common law also applies in some countries which are not now, or indeed never have been, part of the Commonwealth.(25)

However the Crown acquired sovereignty, property rights survived except where expressly confiscated by act of State before or simultaneously with the acquisition of sovereignty.(26) This continuity doctrine is now accepted(27) in preference to the earlier recognition doctrine, which held that the Crown was bound only by such pre-existing aboriginal rights as it chose to recognise.(28) A formidable body of authority was cited in Mabo v Queensland (No 2)(29) to support the claim that pre-existing indigenous laws were extinguished upon colonisation, unless expressly recognised.(30) But the court accepted that the strong assumption of the common law was that interests in property which existed under native law or custom were not obliterated by the act of State establishing a new British colony but were preserved and protected by the domestic law of the colony after its establishment.(31) "A mere change in sovereignty is not to be presumed as meant to disturb rights of private owners".(32) The consistent practice of the Crown from the sixteenth century had been the recognition of some juridical status in the non-European societies or those described at various times as "infidel" or "uncivilised".(33)

The pre-existing laws of a civilised society survived generally,(34) subject to the requirement as to justice and morality. But the application of the rule was not always clear. Thus in settled colonies it was very doubtful whether the customary criminal law survived,(35) though family law was generally held or assumed to have survived even in settled colonies.(36) Thus the nature of a colony, be it settled or conquered, principally determined the relationship between Crown and subject, rather than private law.

III Settled Colonies

The classic distinction, representing the common law doctrine of the seventeenth and eighteenth centuries, though never entirely consonant with the facts and much altered in its application and shorn of its importance by subsequent legislation, is that between settled and conquered or ceded colonies.(37) It differentiates colonies which had been added to the empire by the migration thither of British subjects, who had entered into occupation of lands previously uninhabited or at least not governed by any civilised power, and therefore not subject to any civilised legal system, and those which had been acquired by conquest or cession from some recognised power hitherto capable of governing and defending it.

What if there be a new and uninhabited country found out by English subjects, as the law is the birthright of every subject so, wherever they go, they carry their laws with them, and therefore such new found country is to be governed by the laws of England.(38)

The legal situation of the inhabitants of a settled colony presents one important initial difference from that of the inhabitants of a conquered colony. The former carry with them the law of England so far as applicable to the conditions of the infant colony, and they continue to enjoy as part of the law of England all their public rights as subjects of the British Crown.(39) The prerogative of the Crown towards them is therefore limited. The corollary of this is that the migration leaves these subjects still under the protection of the Crown and entitled to all the legal safeguards which secure the liberties of natural-born subjects. Foremost among these was the right to a legislative assembly analogous to the imperial Parliament.

Lord Wensleydale, after observing that Newfoundland was a settled,(40) not a conquered, colony, added:

‘To such a colony there is no doubt that the settlers from the mother-country carried with them such portion of its common and statute law as was applicable to their new situation, and also the rights and immunities of British subjects. Their descendants have, on the one hand, the same laws and the same rights, unless they have been altered by parliament; and on the other hand, the Crown possesses the same prerogative and the same powers of government that it does over its other subjects’.(41)

In colonies which were not settled, but where there were settlers, the common law did not apply automatically. It had to be applied by the prerogative or legislative action. Equally, where there was no civilised system of law the colony received the common law, though it was not necessarily a settled colony in the strict meaning of this term, and this application had again to be deliberate.

The original relatively clear distinction between deserted and uninhabited territories (which could be settled), and those which were inhabited (which could be acquired only by conquest or cession), was eroded after the American Revolution. It was clear that certain types of territory were without doubt terra nullius, such as uninhabited areas, abandoned territories, and areas inhabited by relatively few people totally lacking in any kind of social or political organisation. But it was less certain where the territory was inhabited by recognisable political entities.(42)

Three principal hypotheses were advanced. The first, supported by some of the early exponents of international law,(43) was that such people possessed sovereign rights. As a consequence, the acquisition of sovereignty over the lands of such people depended upon the concept of conquest not occupation.

Blackstone noted that:

So long as it [the establishment of settled colonies] was confined to the stocking and cultivation of desert uninhabited countries, it kept strictly within the limits of the the law of nature. But how far the seising on countries already peopled, and driving out or massacring the innocent and defenceless natives, merely because they differed from their invaders in language, in religion, in custom, in government, or in colour; how far such a conduct was consonant to nature, to reason, or to christianity, deserved well to be considered by those, who have rendered their names immortal by thus civilizing mankind.(44)

Blackstone was unable to declare any rule by which the laws of England became the laws of a territory which was not a "desert uninhabited" country when the Crown acquired sovereignty over that territory by discovery and occupation as terra nullius.(45)

The second theory was that people could exercise sovereign rights in certain circumstances only. Vattel, at the end of the eighteenth century, extended terra nullius, to inhabited territory which was uncultivated by indigenous inhabitants.(46) Wandering tribes could lose to colonists land which was in excess of their requirements.(47)

The third theory, which tended to dominate in the later part of the nineteenth century, was that organised tribes in non-European territories had no sovereign title and therefore the land was regarded as terra nullius.(48) It became accepted that colonies occupied by a tribal society could be ‘settled’.(49) New Zealand has been cited as the example per excellence of this trend towards a legal fiction of a terra nullius, where it was not uninhabited, but there was no civilised government recognised by international law.

When colonists settled inhabited parts of the world the view taken was that for the purposes of municipal law that territory (though inhabited) could be treated as a "desert uninhabited" country.(50) This was on the basis that there was no local law already in existence in the territory, so the law of England became the law of the territory, and not merely the personal law of the colonists.

In Roman antiquity, any territory which was not Roman was terra nullius. In the fifteenth and sixteenth centuries any territory which did not belong to a Christian sovereign was terra nullius. It has been said that in the nineteenth century any territory which did not belong to a civilised state was terra nullius.(51) Yet, territory was acquired throughout Africa primarily by means of agreements of cession with local leaders.(52) The International Court of Justice has made the point that although "occupation" was used in a non-technical sense to mean acquisition of sovereignty, this did not necessarily, or always, signify that sovereignty was actually acquired by an occupation of terra nullius in the legal sense of these expressions.(53)

Since the High Court of Australia decision in Mabo v Queensland (No 2)(54) there is now no link between the concept of the settled colony and sparsely populated territory conceived (until that case) as terra nullius. The real distinction between the three great classifications of colonies lay not in the actions of the settlers, but in the nature of pre-settlement indigenous law and the post-colonial relationship with the Crown. Mabo re-iterated the common law presumption of the recognition of pre-existing indigenous laws. Indeed, terra nullius was not a term widely use in common law literature, or case law, and belonged rather to the Roman law tradition.

IV Ceded

A territory which began its imperial connection through conquest or cession was in an altogether different position, in respect of the subjects rights against the Crown, from settled colonies. Its inhabitants are at the outset rightless as against the Crown. In dealing with them the Crown, though no doubt morally bound by the terms of cession, possesses the plenitude of power and might make what arrangements it pleased. It might continue to govern them permanently by prerogative Orders in Council.

Colonies ceded by a civilised state retained their own private law, but public law was created by the Crown.(55) Gibraltar was acquired 1713, and English laws were introduced by letters patent 1721. Spanish law was retained in Minorca.(56) Nova Scotia was ceded by France 1713, but it had been long settled by British settlers.(57)

Almost invariably the acquisition of the territories of indigenous peoples was obtained by cession, accompanied by treaties in which the inhabitants’ entitlement to the continued occupation of the territory was declared.(58) This practice implies, by definition, that the territorial sovereignty and/or property rights of the inhabitants was recognised.(59)

The annexation of a territory following a treaty of cession with native rulers might contain provisions preserving or modifying private or community rights.(60) In the event that no provision was made, the native laws survived unless and until superseded by the common law. But annexation was an act of State, and an obligation undertaken upon annexation to protect private property, though in accordance with international law, was not enforceable by a municipal court, unless the terms of the treaty of cession had been made part of municipal law.(61) An act of State must be accepted as effective,(62) nor is any special formality required for annexation.(63)

In practice, after establishment, the survival of pre-existing private law in both settled and ceded colonies depended largely upon its sophistication.

V Conquered territories

In conquered territories the Crown enjoyed a plenary power until such time as the laws of England were granted, as by the erection of courts with a territorial jurisdiction, or the promise of a representative assembly.(64) But this did not mean the automatic extinction of the pre-existing laws, even in "uncivilised" countries.

In Blankard v Gally, Holt declared the common law

to be applicable to a conquered ‘infidel’ country … their laws by conquest do not entirely cease, but only such as are against the law of God.(65)

In most cases some at least of the pre-existing laws are incorporated into the new system.

As regards conquered colonies the accepted rule- as laid down, for example, by Blackstone- is that the Crown may at its own will effect such changes in the law governing the inhabitants as it deems advisable. Until it does so, ‘the ancient laws of the country remain, unless they are against the law of God, as in the case of infidel countries’.(66) As a general rule, the Crown left the existing law very largely intact, so that, for example, French civil law is still applicable to Quebec and Roman-Dutch law to the Cape of Good Hope. A distinction is thus preserved between these conquered colonies where a non-English legal system still persists, and settled colonies where the rules of English law are applied generally.

VI Protectorates

In the words of Lord Justice Kennedy:

The one common element in Protectorates is the prohibition of all foreign relations except those permitted by the protecting State. Within a Protectorate, the degree and the extent of the exercise by the protecting State of those sovereign powers which Sir Henry Maine has described (International Law, p. 59) as a bundle or collection of powers which may be separated one from another, may and in practice do vary considerably. In this Bechuanaland Protectorate every branch of such government as exists- administrative, executive, and judicial- has been created and is maintained by Great Britain. What the idea of a Protectorate excludes, and the idea of annexation on the other hand would include, is that absolute ownership which was signified by the word ‘dominium’ in Roman Law, and which, though perhaps not quite satisfactorily, is sometimes described as territorial sovereignty. The protected country remains in regard to the protecting State a foreign country; and, this being so, the inhabitants of a Protectorate, whether native born or immigrant settlers, do not by virtue of the relationship between the protecting and the protected State become subjects of the protecting State. As Dr Lushington said in regard to the inhabitants of the Ionian States, then under a British Protectorate, in his judgment in The Ionian Ships (1855) 2 Ecc & Adm 212, at p. 226, ‘allegiance in the proper sense of the term undoubtedly they do not owe; because allegiance exists only between the Sovereign and his subjects, properly so called, which they are not.’ A limited obedience the dwellers within a Protectorate do owe, as a sort of equivalent for protection; and in the present case the Orders in Council relating to the Bechuanaland Protectorate and the proclamations of the High Commissioner made thereunder imply the duty of obedience on the part of Sekgome and other persons within the area of the Protectorate to a practically unlimited extent.(67)

Where the protecting power increases the extent of its responsibility for internal administration, there is a natural, though not an inevitable tendency for protection to be transferred into actual annexation, as was the case with Kenya in 1920. The Protectorate becomes a Crown Colony, and the prerogative, by virtue of which the annexation is made, henceforth takes the place of the Foreign Jurisdiction Act 1890(68) as the authority under which the Crown performs the work of government, unless some statutory arrangement otherwise is made. However the common law was extended to a territory, whether settled, ceded, or conquered, local laws survived.

VII The Treaty of Waitangi as a valid treaty in international law

New Zealand was, from the beginning, administered as a Crown colony.(69) New Zealand was held to be a settled colony, though not without difficulty.(70) From the contemporary British perspective this was a treaty of cession which allowed for settlement and for the purchase of land.(71) However, because the chiefs actually had little formal law, and because of the direct proclamation of sovereignty over the South Island, New Zealand was treated thereafter as a settled colony.(72)

Orthodox theory held that the Treaty of Waitangi has socio-political, not legal force, as it was not a treaty recognised by international law.(73) The Maori lacked the capacity to make a valid international treaty.(74) It therefore has effect only so far as legal recognition has been specifically accorded it.(75) But, even if the Maori were not able to make binding international treaties, the Treaty of Waitangi was not a mere nullity. The capacity to make international treaties was distinct from the existence of an established system of laws, or legal personality.

There can also be little doubt that the negotiation of the Treaty of Waitangi presupposed the legal and political capacity of the chiefs of New Zealand to make some form of internationally valid agreement.(76) Moreover, there is evidence that in the decade prior to the conclusion of the Treaty the British Government conducted itself on the basis that relations with the Maori tribes were governed by the rules of international law,(77) and therefore bound at least morally by the terms of a treaty of cession.(78) The fact that developments in international law doctrine subsequently denied treaty-making capacity to what were described as "Native chiefs and Peoples"(79) is immaterial.

If the Treaty of Waitangi were a valid international treaty, its very execution served to extinguish the separate legal identity of the sovereign chiefs, and brought questions of its implementation to the plane of domestic law.(80) New Zealand would then be regarded as a ceded territory, and its pre-existing laws subject to abolition or amendment by the Crown.(81) If it were not a valid international treaty, its application remained a matter for domestic law.(82) In both cases it depended upon the good faith of the Crown that the provisions of the Treaty were upheld. This meant that the principal focus was on domestic law, though this was perhaps preferable to attempting to resolve essentially internal problems on the international plane. In either place the indigenous laws survived the survival of the common law. They were not extinguished, except in so far as they were barbarious.

VIII Assumption of sovereignty

Scholars continue to differ as to the date of assumption of British sovereignty over New Zealand.(83) The actual means of obtaining sovereignty is also disputed. Swainson, the Attorney-General at the time in question, thought that sovereignty was partly by cession, and that conquest had not occurred, nor usurpation.(84) The Colonial Office, in rejecting Swainson’s view, held that the New South Wales Charter of 16 November 1840 was the legal basis of sovereignty.(85) But the legal foundation of New Zealand as a separate colony can be ascertained with some certainty.(86)

Captain James Cook, Royal Navy, had taken possession of the North Island on 15 November 1769, and the South Island on 16 January 1770.(87) New Zealand had been held to have been constituted a part of the Colony of New South Wales by an Order in Council in 1786 and the first Governor’s Commission for that colony,(88) although this is a rather strained interpretation of the actual authority enjoyed by the government in Sydney.(89)

The Government and General Order Proclamation issued in 1813 by Lachlan Macquarie, Governor of New South Wales, declared that the aboriginal natives of New Zealand were "under the protection of His Majesty and entitled to all good offices of his subjects".(90)

However, the jurisdiction of New South Wales over the islands of New Zealand was expressly denied by an imperial statute, the Murder Abroad Act 1817. Subsequent enactments repeated that New Zealand was "not within His Majesty’s Dominions",(91) but from 1823 did allow the courts of New South Wales to try cases of offences committed in New Zealand by British subjects.(92) Extra-territorial judicial processes were at this time not uncommon, particularly where British trade was conducted in countries with "non-Christian or barbaric laws", or no laws at all.(93) It is likely that nothing more than extra-territorial jurisdiction was in fact intended, certainly not any claim to sovereignty.

But circumstances were to require greater official British involvement in New Zealand. In 1831 thirteen chiefs from Kerikeri petitioned King William IV for protection against the French. As a result of this, and to curb the conduct of visiting ships’ crews and round up runaway convicts, in 1833 James Busby was appointed British Resident in Waitangi, with the local rank of vice-consul. No magisterial powers were conferred upon him; imperial legislation to increase his powers was contemplated but never passed.

Busby encouraged the Declaration of Independence by 35 northern chiefs in 1835, in an attempt to thwart the move by Charles de Thierry, the self-styled "Sovereign Chief of New Zealand and King of Nuhuhia", to set up his own government.(94) The Declaration of Independence of the United Tribes of Aotearoa in 1835 may have been "politically unsustainable, practically unworkable, and culturally inconceivable".(95) But for those tribes who signed, the Declaration meant that henceforth the British king was honour-bound to recognise and protect their independence.(96) This step was followed by the Treaty of Waitangi, inspired as much by internal Colonial Office politics as by a genuine regard for native rights.(97)

In 1838 a House of Lords committee favoured the extension of British possession over New Zealand. The Colonial Office decided in 1839 to annex New Zealand to New South Wales.(98)

Lord Glenelg, in a memorandum of 15 December 1837, made clear the British Government’s recognition of New Zealand’s independence:

They are not savages living by the Chase, but Tribes who have apportioned the country between them, having fixed Abode, with an acknowledged Property in the Soil, and with some rude approaches to a regular System of national Government …. It may therefore be assumed as a basis for all Reasoning and all Conduct on this Subject, that Great Britain has no legal or moral right to establish a Colony in New Zealand, without the free consent of the Natives, deliberately given, without Compulsion, and without Fraud.(99)

This shows a clear Blackstonian influence. It was only with great reluctance that the Colonial Office changed its policy in the face of overwhelming necessity, to one of British annexation.(100) The second draft of the consular instructions to Captain Hobson, dated 8 March 1839, shows this:

Her Majesty’s Government acknowledges in the Natives of New Zealand, an independence and national character as far as it is possible that such a character should be attributed to a collection of separate Tribes occupying so extensive a Territory, without any definite union between the different Tribes or by possession by any of them of the Civil Polity, or social Institutions of civilised Communities. With men in such a state of Society no international treaties can be formed which will not differ widely from those which subsist between nations properly so called. Yet as far as it is possible to establish such connexion with them, it is right that their title be regarded as one independent community should be observed in fact as well as acknowledged in theory. The Queen disclaims any pretension to regard their land as vacant Territory open to the first future occupant, or to establish within any part of New Zealand a sovereignty to the erection of which the free consent of the Natives shall not have been previously given.(101)

The acknowledgment of an independent status was more grudging in the final instructions to Captain William Hobson, Royal Navy:(102)

We acknowledge New Zealand as a sovereign and independent state, so far at least as it is possible to make that acknowledgement in favour of a people composed of numerous, dispersed and petty tribes, who possess few political relations to each other and are incompetent to act, or even to deliberate, in concert. But the admission of their rights though inevitably qualified by this consideration, is binding on the faith of the British Government. The Queen, in common with Her Majesty’s immediate predecessor, disclaims, for Herself an for Her Subjects, every pretension to seize on the islands of New Zealand, 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 uses, shall first be obtained.(103)

Normanby felt that colonisation was not only unjust but

certainly fraught with calamity to a numerous and inoffensive people, whose title to the soil and sovereignty of New Zealand is indisputable, and has been solemnly recognised by the British Government.(104)

He was however prepared to depart from the former policy with extreme reluctance, as

an extensive settlement of British subjects will be rapidly established in New Zealand; and that, unless protected and restrained by necessary laws and institutions, they will repeat, unchecked in that quarter of the globe, the same process of war and spoliation, under which uncivilized tribes have almost invariably disappeared as often as they have been brought into the immediate vicinity of emigrants from the nations of Christendom.(105)

Normanby felt that annexation with the consent of the natives (i.e. cession) would be their best protection

Believing, however, that their own welfare would, under the circumstances I have mentioned, be best promoted by the surrender to Her Majesty of a right now so precarious, and little more than nominal, and persuaded that the benefits of British protection, and of laws administered by British judges, would far more than compensate for the sacrifice by the natives of a national independence, which they are no longer able to maintain, Her Majesty’s Government have resolved to authorize you to treat with the Aborigines of New Zealand for the recognition of Her Majesty’s sovereign authority over the whole or any parts of those islands which they may be willing to place under Her Majesty’s dominion. I am not unaware of the difficulty by which such a treaty may be encountered. The motives by which it is recommended are, of course, open to suspicion. The natives may, probably, regard with distrust a proposal which may carry on the face of it the appearance of humiliation on their side, and of a formidable encroachment on ours; and their ignorance even of the technical terms in which that proposal must be conveyed, may enhance their aversion to an arrangement of which they may be made comprehend the exact meaning, or the probable results.(106)

Captain William Hobson sought elucidation as to the precise meaning of Normanby’s instructions, particularly in respect of the acquisition of sovereign rights by the Queen over the islands of New Zealand. Hobson wrote that

no distinction is made [in Normanby’s instructions] between the northern and southern islands of New Zealand, although their relations with this country, and their respective advancement towards civilization are essentially different. The declaration of the independence of New Zealand was signed by the united chiefs of the northern island only (in fact, only of the northern part of that island), and it was to them alone that His late Majesty’s letter was addressed on the presentation of their flag; and neither of these instruments had any application whatever to the southern islands. It may be of vast importance to keep this distinction in view. Not as regards the natives, towards whom the same measure of justice must be dispensed, however their allegiance may have been obtained; but as it may apply to British settlers, who claim a title to property in New Zealand, as in a free and independent state. I need not exemplify here the uses that may hereafter be made of this difference in their condition; but it is obvious that the power of the Crown may be exercised with much greater freedom in a country over which it possesses all the rights that are usually assumed by first discoverers, than in an adjoining state, which has been recognized as free and independent …. With the wild savages in the southern islands, it appears scarcely possible to observe even the form of a treaty, and there I might be permitted to plant the British flag in virtue of those rights of the Crown to which I have alluded.(107)

The Marquess of Normanby, in response to Hobson’s question respecting the basis of sovereignty over the South Island, explained that his original remarks as to independence were intended to refer to the more civilised northern island, and not to the southern:

Our information respecting the southern island is too imperfect to allow me to address to you any definite instructions as to the course to be pursued there. If the country is really, as you suppose, uninhabited, except but by a very small number of persons in a savage state, incapable from their ignorance of entering intelligently into any treaties with the Crown, I agree with you that the ceremonial of making such engagements with them would be a mere illusion and pretence which ought to be avoided. The circumstances noticed in my instructions, may perhaps render the occupation of the southern island a matter of necessity, or of duty to the natives. The only chance of an effective protection will probably be found in the establishment by treaty, if that be possible, or if not, then in the assertion, on the ground of discovery, of Her Majesty’s sovereign rights over the island.(108)

The Law Officers reported that the United Kingdom could, under the prerogative, properly annex New Zealand, and on 15 June letters patent were signed which enlarged the jurisdiction of the Governor of New South Wales, by amending his commission to include the New Zealand islands. On 14 January 1840 Sir George Gipps, Governor of New South Wales, swore Captain William Hobson, Royal Navy, as his lieutenant-governor and consul, and signed proclamations relating to title to land in New Zealand. These were published in Sydney on 19 January 1840, and in New Zealand 30 January 1840.(109)

Hobson was instructed to take possession of the country only with the consent of the Maori chiefs. The Treaty of Waitangi was the immediate instrument by which this was to be achieved. The initial signing of the Treaty was on 6 February 1840, although the process of signing copies was not completed till 3 September 1840.

As chiefs signed, so local proclamations of British sovereignty were issued, although no formal proclamation of sovereignty over the northern districts was ever issued, as Hobson had to leave for the south in order to control the New Zealand Company settlers in Wellington. In the central North Island there was substantial non-adherence to the Treaty by Maori leaders who were well aware of the implications of signing away their independence.

As a result of reports that the New Zealand Company settlers in Wellington (then called Port Nicholson) had issued their own constitution, and had set up a government, Hobson on 21 May 1840 issued two proclamations of full sovereignty over all of New Zealand, which were published in the London Gazette on 2 October 1840.(110) The first was in respect of the North Island, and was based on cession by virtue of the Treaty of Waitangi.(111) The second proclamation related to the South Island (then called Middle Island) and Stewart Island.

On 15 October 1840 Hobson sent a despatch to London which collated all the copies of the Treaty,(112) and this despatch was approved 30 March 1841.(113) In it, Hobson indicated that the second proclamation of 21 May 1840 relied on the right of discovery, rather than the Treaty.(114) In the meantime, Major Bunbury proclaimed sovereignty by cession over the South Island on 17 June 1840. The proclamations of 21 May were effective in showing that New Zealand was a colony by act of State.(115)

The contemporary view was uncertain, as so much of constitutional law was and is. But perhaps it is best to accept that legal authority was acquired by the Crown by discovery and settlement, as had been given as the reason for the English Laws Act 1858.(116) But this was intended by the imperial government to be with the consent of the Maori chiefs, and the chiefs accepted it on that basis. This dual basis for the acquisition of authority led inevitably to future conflict, and remains central to our constitution.(117)

In both settlement and cession pre-existing laws were presumed to survive. In settled colonies as personal laws and property rights, in ceded colonies as private law for the native population. In practice after 1840 Maori laws did not survive as private law. But the Treaty of Waitangi itself guaranteed their property rights, and at least in some respects Maori law survived as personal law, such as adoption. It was not mere custom, but custom recognised as law by the common law.

IX Treatment of indigenous laws after 1840

Where there was no civilised system of law the colony received the common law, though it was not strictly a settled colony, and this application had to be deliberate. New Zealand was treated as a settled colony after 1840,(118) though in strict law it was not clearly such (at least so far as the North Island was concerned).(119)

There was indeed some uncertainty as to the application of English law after 1840, leading to the English Law Act 1854, and in particular the English Law Act 1858(120) (later consolidated in the English Law Act 1908, and now replaced by the Imperial Laws Application Act 1988). These combined to provide that the law of England as of 14 January 1840 applied in New Zealand. This was the date that Sir George Gipps, Governor of New South Wales, swore Captain William Hobson, Royal Navy, as his lieutenant-governor and consul, and signed proclamations relating to title to land in New Zealand.(121) This ought not to have affected pre-existing Maori property rights.

Unfortunately for the Maori, the practice of the colonial government, to whom the Imperial authorities increasingly sought to transfer responsibility, was one of widespread disregard for the spirit, if not the terms, of the Treaty after 1840.(122)

The British side thought that the chiefs were making a meaningful recognition of the Queen and of the concept of national sovereignty, in return for the recognition of their rights of property.(123) In contrast, Williams has argued that the Maori text connoted a covenant partnership between the Crown and Maori, rather than an absolute cession of sovereignty,(124) though this may be a strained interpretation.(125) But it is likely that the chiefs did not anticipate that the Treaty would have such far-reaching consequences for them. But claims of legitimacy founded in a completely different value system will be so unclear as to be nearly impossible to distinguish.(126) After the treaty the extent of the chiefs’ loss became apparent, but too late.

In the absence of a voluntary cession of full sovereignty the legitimacy of colonial rule could only be validated over time through the habit of obedience,(127) or legal sovereignty.(128) This approach is based upon European legal concepts, something which has been criticised by some Maori academics.(129) However, legitimation by effectiveness and durability of even a revolutionary assumption of power is a well understood principle of law,(130) even amongst the early Maori.(131)

Whether or not it had been intended by the signatories, it is now widely assumed that Maori have, under the first article, accepted the sovereignty of the Crown,(132) and therefore the legitimacy of the present government and legal system.(133) Indeed, most Maori leaders accept this, and concentrate on the Crown’s failure to keep its part of the Treaty as a failure to protect property rights.(134) It might be said that the government’s view of the Treaty has always been that it gave authority to it,(135) whereas in the common Maori view the Crown’s protection of Maori property(136) was more important.(137) This pragmatic position has proved most effective, and has led to the successful conclusion of numerous claims for compensation for past wrongs.

It is now probably too late to be certain as to precisely what the Chiefs thought they were relinquishing. But their descendants, as partners or covenantors with the Crown, can obtain some advantages from the Treaty. Although, in the words if Lord Normanby, war and spoliation were the natural consequence for uncivilised tribes of colonisation, yet it was possible for that process to be checked by treaties. Whilst not always adhered to by either party, the Treaty of Waitangi remains a perpetual bedrock which can form the basis of national reconciliation and unity.

But the question of the survival of native customary law was more important. As a settled colony, public and private law alike were the common law. Native laws would survive, subject to alteration. Had New Zealand been a ceded colony the common law would have had to be deliberately introduced. Although regarded as a settled colony, this distinction made little practical difference, as the laws of England were expressly declared to be the common law of New Zealand by the English Laws Act 1858.(138)

In practice, Maori customary law was largely supplanted by English law after 1840. This came about largely through the establishment of courts throughout the country, courts to which Maori and non-Maori alike had access. Maori benefitted from this system of courts, and took advantage of them, to the detriment of their own legal system. This development mirrored the extension of English common law in India, which grew from the Mayor’s Courts established after 1726. Although the New Zealand Constitution Act 1846 (UK)(139) required the enforcement of Maori laws, customs, and usages, such enforcement was to be in European, rather than Maori courts.

The New Zealand Constitution Act 1852(140) merely provides that

it may be expedient that the laws, customs, and usages of the aboriginal or native inhabitants of New Zealand, so far as they are not repugnant to the general principles of humanity, should for the present be maintained for the government of themselves, in all their relations to and dealings with each other, and that particular districts should be set apart within which such laws, customs, or usages should be so observed.(141)

That Act enacts that

It shall be lawful for Her Majesty, by any letters patent to be issued under the great seal of the United Kingdom, from time to time to make provision for the purposes aforesaid, any repugnancy of any such native laws, customs, or usages to the law of England, or to any law, statute, or usage in force in New Zealand, or in any part thereof, in anywise notwithstanding.(142)

Section 71 of the New Zealand Constitution Act 1852(143) is merely permissive. There is no requirement that the "laws, customs, and usages of the aboriginal or native inhabitants of New Zealand" be preserved by letters patent. This does not necessarily mean that these "laws, customs, and usages" could not survive without the issue of these letters patent. But the attitude of the colonial government was not favourable to the recognition of any native laws or customs. All were assumed to be superseded by the common law.

Disruption caused by settlement, and the later wars, also contributed largely to the decline of a Maori legal order. The attitude of the colonial courts was also unsympathetic to the survival, or even the recognition, of Maori customary law.(144) In R v Symonds(145) Martin CJ and Chapman J followed a natural law based interpretation of aboriginal title, as applied by Maxwell CJ in the United States Supreme Court in Johnson v McIntosh.(146) This approach permitted the acknowledgement of the legal reality of aboriginal title, while admitting the limitations imposed on that title by the doctrine of sovereign pre-emption.

In contrast, in Wi Parata v Bishop of Wellington,(147) Prendergast CJ rejected any Maori customary land title, in a judgement confusing title to property, and sovereignty (i.e. private and public law). In Rira Peti v Ngaraihi te Paku(148) the Supreme Court declined to recognise Maori marriage laws. For many years New Zealand courts followed this lead.(149) But the Privy Council, taking a broader (and more correct) view, recognised the Maori customary law of adoption, in Hineiti Rirerire Arami v Public Trustee,(150) and native customary land title, in Nireaha Tamaki.(151) Regrettably, Hohepa Wi Neera v Bishop of Wellington(152) showed that the New Zealand Court of Appeal was little inclined to defer to the Privy Council in this matter. When in Wallis v Solicitor-General(153) the Privy Council again made clear its belief in the survival of Maori customary title, the New Zealand legal profession responded with the remarkable "Protest of Bench and Bar".(154)

The Native Land Act 1909, whilst in part giving recognition to Maori customary title, incorporating the reasoning of Prendergast CJ.(155) The Maori Affairs Act 1953 similarly reflected a minimalist view of native title.

It was not however until the 1980s that Wi Parata was directly challenged. In 1986 Williamson J recognised Maori customary fishing rights in Te weehi v Regional Fisheries Officer.(156) Since then Maori customary title has been argued, successfully, in a number of cases- and the status of the Treaty of Waitangi e-affirmed.(157) The position now is that New Zealand recognises this law as personal private law.

X Conclusion

New Zealand was held to be a settled colony, under the doctrine of terra nullius. An increasing willingness to acknowledge, and recognise, pre-colonial indigenous laws means that New Zealand would probable now be classified as having been a colony by cession rather than by settlement. Yet the only practical consequence of this would be that the Maori in 1840 were without rights except such as were accorded by the Crown, and that the common law would only extend by deliberate act- as by the English Laws Act 1858.(158) Yet the Treaty of Waitangi itself included the provision that Maori were to be treated as British subjects. But in terms of private law, ‘the ancient laws of the country remain, unless they are against the law of God, as in the case of infidel countries’.(159) It may be seen that the Treaty of Waitangi was also intended to preserve the pre-existing rights of the indigenous inhabitants, something which the common law was generally disposed to do even in settled colonies.

Top

(1) LLM(Hons) PhD CertTertTchg, Barrister of the High Court of New Zealand, and of the Supreme Courts of Tasmania, New South Wales, and South Australia, Lecturer in Law at the Auckland University of Technology.

(2) A land without a settled population, which therefore could have no laws nor legal rights (as of ownership) except that imposed upon the acquisition of sovereignty; Paul McHugh, "Aboriginal Rights of the New Zealand Maori at common law" (1987) University of Cambridge PhD thesis 137-142.

(3) The validity of the last is now highly questionable, in light of Article 2 (4) of the Charter of the United Nations, and parallel developments in international law.

(4) Lyons Corp v East India Co (1836) 1 Moo PCC 175, 272, 274; 12 ER 782; Freeman v Fairlie (1828) 1 Moo Ind Ap 305, 324, 345; 18 ER 117 (PC); 1 Bl Com 104; Campbell v Hall (1774) 1 Cowp 204; 20 State Tr 239, 328-9; 98 ER 1045 (KB); Sir Kenneth Roberts-Wray, Commonwealth and Colonial Law (Stevens, London, 1966) 541-543.

(5) Milirrpum v Nabalco Pty Ltd [1972-73] ALR 65, 124, 153; 17 FLR 141, 202, 242 (NT SC); R v Kojo Thompson (1944) 10 WA CA 201 (West African CA); Phillips v Eyre (1870) LR 6 QB 1, 18 per Willes J; Coe v Commonwealth of Australia (1979) 24 ALR 118, 128-9 (HCA).

(6) See the Report of the Privy Council on the project of a Bill for the better government of the Australian Colonies, dated 1 May 1849. English Laws Act 1858 (21 & 22 Vict no 2), now s 5 Imperial Laws Application Act 1988.

(7) FM Brookfield, Waitangi and Indigenous Rights: Revolution, Law and Legitimation (University of Auckland Press, Auckland, 1999) 109.

(8)Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72 per Prendergast CJ.

(9) Sir Kenneth Keith, "The Treaty of Waitangi in the Courts" (1990) 14 NZULR 37; Paul McHugh, The Maori Magna Carta: New Zealand Law and the Treaty of Waitangi (Oxford University Press, Auckland, 1991) 176ff; Benedict Kingsbury, "The Treaty of Waitangi: some international law aspects" in Sir Hugh Kawharu, (ed), Waitangi: Maori and Pakeha Perspectives of the Treaty of Waitangi (Oxford University Press, Auckland, 1989) 121; Ian Brownlie, Treaties and Indigenous Peoples: The Robb Lectures 1991 ed FM Brookfield (Clarendon Press, Oxford, 1992). The Privy Council itself, in Te Heuheu Tukino v Aotea District Maori Land Board [1941] NZLR 590, 596-7; [1941] AC 308, 324 (PC) held that the Treaty was a valid international treaty, though not enforceable in domestic law; Sir Kenneth Roberts-Wray, Commonwealth and Colonial Law (Stevens, London, 1966) 101-102; Joseph, Constitutional and Administrative Law in New Zealand (The Law Book Co, North Ryde, Sydney, 1993) 32-34.

(10) Campbell v Hall (1774) 1 Cowp 204; 98 ER 1045 per Lord Mansfield, CJ (KB), following Coke J in the Case of the Postnati (1608).

(11) Wolfgang Kunkel, An Introduction to Roman Legal and Constitutional History (2^nd ed Clarendon Press, Oxford, 1973) 76ff.

(12) Wolfgang Kunkel, An Introduction to Roman Legal and Constitutional History (2^nd ed Clarendon Press, Oxford, 1973) 77-78. See, for an example, the trial of Jesus and different procedures for St Paul; Paul Winter, On the Trial of Jesus (Walter de Gruyter, Berlin, 1961) 11,14.

(13) James Zion & Robert Yazzie, "Indigenous Law in North America in the Wake of the Conquest" (1997) 20 Boston CICL Rev 55-84; JND Anderson, "Customary Law and Islamic Law in British African Territories" in Afrika-Institut, The Future of Customary Law (Leiden Universitaire Pers, Leiden, 1956).

(14) Francisco de Vitoria, De Indis trans in Anthony Pagden & Jeremy Lawrance (eds), Vitoria: Political Writings (Cambridge University Press, Cambridge, 1991) 239-251, 291-292. It need hardly be added that Vitoria was not without opponents, or that Spanish practice seldom adhered to his precepts; James Muldoon, The Americas in the Spanish World Order: The Justification for Conquest in the Seventeenth Century (University of Pennsylvania Press, Philadelphia, 1994) 79ff.

(15) Ius naturale, a system of which was rationally knowable by and applicable to all humanity.

(16) Brian Slattery, "Understanding Aboriginal Rights" (1987) 66 CBRev 727, 737, drawing on the judgement of Strong J in St Catharines Milling and Lumber Co v The Queen (1887) 13 SCR 577, 607-616.

(17) R v Vaughan (1769) 4 Burr 2494; 98 ER 308, 311; Campbell v Hall (1774) 1 Cowp 204; 98 ER 1045; Paul McHugh, "Aboriginal Rights of the New Zealand Maori at common law" (1987) University of Cambridge PhD thesis 164-166; George Chalmers, Opinions of Eminent Lawyers on Various Points of English Jurisprudence (Reed & Hunter, London, 1814) vol 1, p 203 (Law Officers’ Opinion of 1724); George Chalmers, Opinions of Eminent Lawyers on Various Points of English Jurisprudence (Reed & Hunter, London, 1814) vol 1, p 198 (Law Officers’ Opinion of 1757).

(18) Scotland, whilst part of the United Kingdom, enjoys a substantial degree of influence of Roman civil law, in particular in land and contract. Criminal law jurisprudence is based on the common law, however.

(19) Lyons Corp v East India Co (1836) 1 Moo PCC 175, 272, 274; 12 ER 782; Advocate-General (Bengal) v Ranee Surnomoye Dossee (1863) 9 Moo PC Ind App 387, 427. In Bangladesh Muslim and Hindu law are applicable in the field of family law. In Pakistan and the Maldive Islands the laws are Islamic Shari’ah law. Nigeria follows the common law, and customary law. Shara’ courts for personal status and family law.

(20) Portuguese law also applies in Mozambique, which joined the Commonwealth as an independent country, and had never been part of the British empire.

(21) In Mauritius the common law is adhered to in the fields of company, tax, industrial, constitutional, criminal procedure, and evidence. In the Seychelles there is a civil law based on the French code civil and code de commerce. The criminal law is based on English. The Cameroons follows French law. Cyprus follows the common law, but administrative law displays French and Greek origins. Alderney, Guernsey, Jersey and Sark still adhere to the grand coutumier de Normandie. Within Canada, Quebec still preserves the French legal tradition. In St Lucia, the Civil Code is of the Romano-Napoleonic type, giving rise to civil law forms of land tenure and real property.

(22) Botswana (Roman Dutch law, penal code on English common law); Lesotho (there are common law and Romano-Dutch influences. Basutho customary law forms the basis of family law and the law of real property); South Africa (Roman-Dutch, strong common law traditions, in criminal, commercial and constitutional law, and in the law of evidence); Namibia follows South African law, based on Roman-Dutch tradition, although displaying strong common law influence in criminal law, mercantile and commercial law, constitutional law, laws of evidence, and rules of civil and criminal procedure. In Vanuatu British and French civil and commercial law are found.

(23) Roman Civil Law largely based on Codes of Justinian and Codes Napoleon. Areas of public law, such as criminal procedure, and commercial and maritime law, display some influence of common law.

(24) In Ghana customary law still exercises great influence in family law, inheritance and land law. In Kenya local customary law is still enforced in areas of family law and inheritance. In Tanzania Muslim law and customary law are also widely applied. There is also some customary law in Uganda. In Malaysia there is also some customary law, and in the Solomon Islands, if not inconsistent with the Constitution or an Act of Parliament. In Tuvalu customary law is recognised in land, adoption, and personal law matters.

(25) The common law is found in Abu Dhabi and the other United Arab Emirates, along with Muslim Sharia law, and in Sudan. In Bahrain, the criminal law is codified, and based on English jurisprudence. Ireland and Hong Kong retain the common law. Israel has the common law and equity, with elements of Ottoman law, French law, and customary and personal Jewish law. Liberia has the common law, as has Burma (now called Myanmer), where uncodified Burmese Buddhist law governs the areas of marriage, divorce, inheritance, and succession in the case of practising Buddhists. The major non-Commonwealth jurisdictions which retain the common law are those of the United States of America, although even here there are exceptions. California and Louisiana have mixed common law and civil law systems. Puerto Rico has adopted USA Federal law and US civil and criminal procedure. Real estate law is still influenced by civil law traditions.

(26) Kent McNeil, Common Law Aboriginal Title (Clarendon Press, Oxford, 1989) 165-179.

(27) Mabo v Queensland (No 2) (1992) 175 CLR 1. Native title to land survive the Crown’s acquisition of sovereignty and radical title, but the native title was exposed to extinguishment by valid exercise of sovereign power inconsistent with the continued right to enjoy native title.

(28) For example, see Vajesingji Joravarsingji v Secretary of State for India (1924) LR51 India Appeals 357.

(29) (1992) 175 CLR 1.

(30) Secretary of State for India v Bai Rajbai (1915) LR42 Ind App 229, 237, 238-239; Vajesingji Joravarsingji v Secretary of State for India (1924) LR51 Ind App 357, 360, 361; Secretary of State for India v Sardar Rustam Khan [1941] AC 356, 370-372.

(31) In re Southern Rhodesia [1919] AC 211 (PC); Adeyinka Oyekan v Musendiku Adele [1957] 1 WLR 880; [1957] 2 All ER 788 (PC).

(32) Amodu Tijani v Secretary of Southern Nigeria [1921] 2 AC 399 (PC).

(33) Paul McHugh, "Aboriginal Rights of the New Zealand Maori at common law" (1987) University of Cambridge PhD thesis 62.

(34) In re Southern Rhodesia [1919] AC 211, 233-234 (PC).

(35) Walker v New South Wales (1994) 182 CLR 45 (HCA).

(36) Kent McNeil, Common Law Aboriginal Title (Clarendon Press, Oxford, 1989) 181.

(37) Blankard v Gally (1693) Holt 341; 90 ER 1089 (KB). The doctrine came too late to apply retrospectively to the American colonies, despite the insistence otherwise by colonial constitutionalists; Paul McHugh, "Aboriginal Rights of the New Zealand Maori at common law" (1987) University of Cambridge PhD thesis 123-132. It was only really clear after Campbell v Hall (1774) 1 Cowp 204; 98 ER 1045 per Lord Mansfield, CJ (KB). Only cession, and occupation or settlement (and not conquest) are arguably relevant to the Australasian situation; Elizabeth Evatt, "The Acquisition of Territory in Australia and New Zealand" in CH Alexandrowicz (ed), Studies in the history of the law of nations (Nijhoff, The Hague, 1970) Grotian Society papers 1968.

(38) Memorandum (1722) 2 Peere Williams 75; 24 ER 464 (PC).

(39) Pictou Municipality v Geldert [1893] AC 524; Cooper v Stuart (1889) 14 App Cas 286.

(40) Laws applying 31 December 1832, the day before the first legislature; JE Coté, "The Reception of English Law" 15 Alta LR 29, 87.

(41) Kielly v Carson (1842) 4 Moo PC 63, 84; 13 ER 225 per Lord Wensleydale.

(42) Malcolm Shaw, Title to Territory in Africa (Clarendon Press, Oxford, 1985) 31.

(43) Vitoria, Soto, La Casas, Ayala, Gentilis, Selden, Grotius; Sir Mark Lindley, The Acquisition and Government of Backward Territories in International Law: Being a treatise on the law and practice relating to colonial expansion (Negro Universities Press, New York, 1969, reprint of 1926 edition) 12-14.

(44) Sir William Blackstone, Commentaries on the Laws of England (17^th ed, 1830) Bk II, ch 1, p 7. See also Advisory Opinion on Western Sahara [1975] 1 ICJR 12.

(45) Mabo v Queensland (No 2) (1992) 175 CLR 1, 34 per Brennan J.

(46) Emmerich de Vattel, Le Droit des Gens, ou Principes de la Loi Naturelle, appliqués à la Conduite et aux Affaires des Nations et des Souverains trans Charles G Fenwick (Carnegie Institution of Washington, Washington, 1916 facsimile of 1797 ed) Bk I, pp 37-38, 85-86, 100-101.

(47) Sir Mark Lindley, The Acquisition and Government of Backward Territories in International Law: Being a treatise on the law and practice relating to colonial expansion (Negro Universities Press, New York, 1969, reprint of 1926 edition) 17.

(48) John Westlake, International Law (Cambridge University Press, Cambridge, 1904-1907).

(49) Paul McHugh, "Aboriginal Rights of the New Zealand Maori at common law" (1987) University of Cambridge PhD thesis 137-142.

(50) Mabo v Queensland (No 2) (1992) 175 CLR 1, 36 per Brennan J.

(51) Advisory Opinion on Western Sahara Pleadings CR75/18, 36-55; Pleadings CR75/19, 2-23.

(52) Sir Mark Lindley, The Acquisition and Government of Backward Territories in International Law: Being a treatise on the law and practice relating to colonial expansion (Negro Universities Press, New York, 1969, reprint of 1926 edition) 34; Daniel O’Connell, International Law (2^nd ed, Stevens, London, 1970) vol 1, pp 408-409.

(53) Advisory Opinion on Western Sahara [1975] 1 ICJR 12, 39.

(54) (1992) 175 CLR 1.

(55) Sammut v Strickland [1938] AC 678, 701 (PC); Campbell v Hall (1774) 1 Cowp 204; 20 State Tr 239, 328-9; 98 ER 1045 (KB).

(56) AB Keith, Constitutional History of the First British Empire (Clarendon Press, Oxford, 1930) 170. Minorca was a colony 1713-1802, when it was ceded to Spain.

(57) Laws were applied as at 3 October 1758, the day the first legislative assembly met; JE Coté, "The Reception of English Law" 15 Alta LR 29, 87. But there is judicial authority for a much earlier application, 1660- Scott v Scott (1970) 15 DLR (3d) 374 (NB CA).

(58) Frederika Hackhsaw, "Nineteenth Century Notion of Aboriginal Title" in Sir Hugh Kawharu, (ed), Waitangi: Maori and Pakeha Perspectives of the Treaty of Waitangi (Oxford University Press, Auckland, 1989) 92. See Sir Mark Lindley, The Acquisition and Government of Backward Territories in International Law: Being a treatise on the law and practice relating to colonial expansion (Negro Universities Press, New York, 1969, reprint of 1926 edition); Prakash Sinha, New Nations and the Law of Nations (Sijthoff, Leyden, 1977); Elizabeth Evatt, "The Acquisition of Territory in Australia and New Zealand" in CH Alexandrowicz (ed), Studies in the history of the law of nations (Nijhoff, The Hague, 1970) Grotian Society papers 1968; Malcolm Shaw, Title to Territory in Africa (Clarendon Press, Oxford, 1985).

(59) See a discussion of the dichotomy of nineteenth century theory and practice, see Paul McHugh, "Constitutional Myths and the Treaty of Waitangi" [1991] NZLJ 316.

(60) Amodu Tijani v Secretary of Southern Nigeria [1921] 2 AC 399 (PC).

(61) Cook v Sprigg [1899] AC 572; Te Heuheu Tukino v Aotea District Maori Land Board [1941] NZLR 590, 596-7; [1941] AC 308 (PC); Secretary of State for India v Sardar Rustam Khan [1941] AC 356.

(62) Salaman v Secretary of State for India [1906] 1 KB 613. The acquisition of territory by a sovereign state for the first time is an act of State which cannot be challenged, controlled or interfered with by the courts of that State; New South Wales v The Commonwealth (1975) 135 CLR 38 per Gibbs J.

(63) In re Southern Rhodesia [1919] AC 211, 238.

(64) One in which at least a half of members were elected; Sir Kenneth Roberts-Wray, Commonwealth and Colonial Law (Stevens, London, 1966) 68-69

(65) Blankard v Gally (1693) Holt 341; 90 ER 1089 (KB).

(66) Sir William Blackstone, 1 Com 100. See The Case of Tanistry (1608) Davies 28; 80 ER 516 per Coke J (KB). Customary laws survived provided they met the requirements of reasonableness, certainty, immorial usage and compatibility with the sovereignty of the Crown. The rule that the laws of infidel nations were abrogated ipso jure was rejected in Anonymous (1640) 1 Salk 46 (CP), and Omichund v Barker (1744) Willes 538 (Ch).

(67) R v Earl Crewe, ex parte Sekgome [1910] 2 KB 576, 619 per Kennedy LJ (CA).

(68) 53 & 54 Vict c 37.

(69) SL Cheyne, "Search for a constitution" (1975) University of Otago PhD thesis.

(70) See the Report of the Privy Council on the project of a Bill for the better government of the Australian Colonies, dated 1 May 1849; R v Symonds (1847) NZPCC 387 (SC). See also the English Laws Act 1858 and s 5 of the Imperial Laws Application Act 1988.

(71) Ian Brownlie, Treaties and Indigenous Peoples: The Robb Lectures 1991 ed FM Brookfield (Clarendon Press, Oxford, 1992) 12.

(72) Phillips v Eyre (1870) LR 6 QB 1 per Willes J (Exch Ch).

(73) Anthony Molloy, "The Non-Treaty of Waitangi" [1971] NZLJ 193. For a contrary view, based on the changing precepts of modern international law, see Klaus Bosselmann, "Two cultures will become one only on equal terms" New Zealand Herald 1 March 1999. However, if the Treaty was not a treaty in 1840, it is difficult to see how it could be one now. It would be preferable to see its importance in domestic constitutional terms. See William Renwick (ed), Sovereignty and indigenous rights: The Treaty of Waitangi in international contexts (Oxford University Press, Wellington, 1991).

(74) Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72. Examples where treaties with native peoples were regarded as binding in international law include those with the Cherrokees, 20 September 1730; J Almon, A Collection of all the Treaties of Peace, etc (privately printed, London, 1772) vol 2, p 13; J Dumont, Corps universal diplomatique de droi des gens (Amsterdam, 1726-32) vol 8 part 2 p 162; C Jenkinson, A Collection of all the Treaties of Peace (London, 1785) vol 2 p 315.

(75) Philip Joseph, Constitutional and Administrative Law in New Zealand (The Law Book Co, North Ryde, Sydney, 1993) 101. Generally, see Wayne Attrill, "Aspects of the Treaty of Waitangi in the Law and Constitution of New Zealand" (1989) Harvard University LLM thesis.

(76) Examples where treaties with native peoples were regarded as binding in international law include those with the Cherrokees, 20 September 1730; J Almon, A Collection of all the Treaties of Peace (privately printed, London, 1772) vol 2, p 13; J Dumont, Corps universal diplomatique de droi des gens (Amsterdam, 1726-32) vol 8 part 2 p 162.

(77) HA Smith (ed), Great Britain and the Law of Nations: A selection of documents illustrating the view of the Government of the United Kingdom upon matters of international law (King, London, 1932) vol 1, p 131; Ian Brownlie, Treaties and Indigenous Peoples: The Robb Lectures 1991 ed FM Brookfield (Clarendon Press, Oxford, 1992) 11.

(78) Paul McHugh, "Aboriginal Rights of the New Zealand Maori at common law" (1987) University of Cambridge PhD thesis 98.

(79) Lord McNair, The Law of Treaties: British Practice and Opinions (Clarendon Press, Oxford, 1961) vol 1, pp 52-54.

(80) The Privy Council, in Te Heuheu Tukino v Aotea District Maori Land Board [1941] NZLR 590, 596-597; [1941] AC 308, 324 held that the Treaty was a valid international treaty, and therefore not enforceable in domestic law.

(81) Whether pre-existing indigenous legal rights automatically survived settlement or cession, or were dependent upon Crown recognition was only settled comparatively recently in favour of the continuing legality of native rights; Kent McNeil, Common Law Aboriginal Title (Clarendon Press, Oxford, 1989) 196.

(82) The Judicial Committee of the Privy Council in Te Heuheu Tukino v Aotea District Maori Land Board [1941] NZLR 590, 596-597; [1941] AC 308, 324 had held that the Treaty was a valid international treaty, though not enforceable in domestic law. This, at least, appears to be generally accepted; Waipapakura v Hempton (1914) 33 NZLR 1065 (SC); Tamihana Korokai v Solicitor-General (1912) 32 NZLR 321 (CA); and Nireaha Tamaki v Baker (1901) NZPC 371 (PC).

(83) David Williams, "The Use of Law in the Process of Colonialization; An Historical and Comparative Study with Particular Reference to Tanzania (mainland) and New Zealand" (1985) University of Dar es Salaam PhD thesis 67ff. There have been many works covering the events both prior to and immediately after the signing of the Treaty of Waitangi. For an overview of the subsequent constitutional implications see SL Cheyne, "Search for a constitution; People and Politics in New Zealand’s Crown Colony Years" (1975) University of Otago PhD thesis; David Williams, "The Annexation of New Zealand to New South Wales in 1840" [1985] Australian Journal of Law and Society 41, David Williams, "The Foundation of Colonial Rule in New Zealand" (1988) 13(1) NZULR 54.

(84) Whether the sovereignty of the United Kingdom Parliament was legally and/or politically grounded in the Treaty of Waitangi has been answered in the affirmative by Paul McHugh, "Constitutional Theory and Maori Claims" in Sir Hugh Kawharu, (ed), Waitangi: Maori and Pakeha Perspectives of the Treaty of Waitangi (Oxford University Press, Auckland, 1989) 25, 42, 47. See also Dame Sian Elias, "The Treaty of Waitangi and Separation of Powers in New Zealand" in BD Gray & RB McClintock (eds), Courts and Policy: Checking the Balance: papers presented at a conference held by the Legal Research Foundation at the Aotea Centre, Auckland, on 5 and 6 August 1993 (Brookers/Legal Research Foundation, Wellington, 1995) 206, 222-4.

(85) "Charter for erecting the Colony of New Zealand, and for creating and establishing a Legislative Council and an Executive Council"; British Public Papers- Colonies, New Zealand (Irish University Press, Shannon, 1970) Sessions 1835-42, 153-5. Sir James Stephen, Under Secretary of State for the Colonies, felt that the acquisition of British sovereignty was complete by act of State, whatever the morality of this or the intentions of the parties in 1840; Opinion of 27 December 1842, Great Britain: Parliamentary Papers 1844/556, p 471 (Appendix No 19), Colonial Office Papers 209/16, pp 487-94.

(86) In modern popular mythology, the Treaty of Waitangi is taken to be the foundation of New Zealand. The legal significance of the 6 February 1840 is, however, rather less according to the general and settled imperial law of the mid-nineteenth century: R v Symonds (1847) NZPCC 387 (SC).

(87) British courts have held that an unequivocal assertion of sovereignty by the Crown must be accepted by a domestic court, even where the claim would not be recognised under international law: Sobhuza II v Miller [1926] AC 518, 522-5 (PC).

(88) Issued 12 October 1786 to Captain Arthur Phillip, Royal Navy, and appointing him "Captain-General and Governor-in-Chief in and over our territory called New South Wales ... ". The commission, which was amplified on 2 April 1787, was publicly read at Sydney Cove on 26 January 1788.

(89) JL Robson (ed), New Zealand: The Development of its Laws and its Constitution (2nd ed Stevens, London, 1967) 2; AH McLintock, Crown Colony Government in New Zealand (Government Printer, Wellington, 1958) 9. New Zealand was generally regarded as being included in the territory of the Colony of New South Wales in early years of the development of that colony.

(90) R McNab, Historical Records of New Zealand (Government Printer, Wellington, 1908) vol 1 pp 316-8.

(91) Australian Courts Act 1828 (9 Geo IV c 83).

(92) An Act for the better administration of justice in New South Wales and Van Diemen’s Land 1823 (4 Geo IV c 96).

(93) Such a jurisdiction survived in the Trucial States, now the United Arab Emirates, until 1971; "Exchange of Notes concerning the termination of special treaty relations between the United Kingdom and the Trucal States", 1 December 1971, Cmnd 4941, UK Treaty Series 34 (1972).

(94) AH McLintock, Crown Colony Government in New Zealand (Government Printer, Wellington, 1958) 24; JD Raeside, Sovereign Chief, A Biography of Baron de Thierry (Caxton Press, Christchurch, 1977).

(95) Jane Kelsey, "Restructuring the Nation" in Peter Fitzpatrick (ed), Nationalism, Racism and the Rule of Law (Dartmouth, Aldershot, 1995) 178-179. It was "laughed at" in many circles; GBPP 1838/680 p 11 evidence of JL Nicholson.

(96) Jane Kelsey, "Restructuring the Nation" in Peter Fitzpatrick (ed), Nationalism, Racism and the Rule of Law (Dartmouth, Aldershot, 1995) 179; Interview with Sir Douglas Graham, 24 November 1999.

(97) Interview with Sir Douglas Graham, 24 November 1999.

(98) Peter Adams, Fatal Necessity (Oxford University Press, Auckland, 1977) part I.

(99) Lord Glenelg, memorandum 15 December 1837; Great Britain: Parliamentary Papers 1844, Colonial Office papers 209/2: 409.

(100) Paul McHugh, "Constitutional Theory and Maori Claims" in Sir Hugh Kawharu, (ed), Waitangi: Maori and Pakeha Perspectives of the Treaty of Waitangi (Oxford University Press, Auckland, 1989) 125.

(101) Great Britain: Parliamentary Papers 1844/556, Colonial Office papers 209/4: 221, 226-227.

(102) Lord McNair, The Law of Treaties: British Practice and Opinions (Clarendon Press, Oxford, 1961) vol 1, p 729.

(103) Marquess of Normanby to Captain William Hobson, 14 August 1839; Great Britain: Parliamentary Papers 1844, 16/37.

(104) Marquess of Normanby to Captain William Hobson, 14 August 1839; Great Britain: Parliamentary Papers 1844, 16/37.

(105) Marquess of Normanby to Captain William Hobson, 14 August 1839; Great Britain: Parliamentary Papers 1844, 16/37.

(106) Marquess of Normanby to Captain William Hobson, 14 August 1839; Great Britain: Parliamentary Papers 1844, 16/37.

(107) Captain William Hobson to the Under Secretary of the Colonial Department (Mr Labouchere), 15 August 1839; Great Britain: Parliamentary Papers 1844, 17/42.

(108) Marquess of Normanby to Captain Hobson, 15 August 1839; Great Britain: Parliamentary Papers 1844, 18/44.

(109) British Public Papers- Colonies, New Zealand (Irish University Press, Shannon, 1970) Sessions 1835-42, 123-5.

(110) British Public Papers- Colonies, New Zealand (Irish University Press, Shannon, 1970) Sessions 1835-42, 140-1

(111) Carter and Keith however argue that the Treaty was a legally valid treaty of cession: B Carter, "The Incorporation of the Treaty of Waitangi into Municipal Law" (1980) 4 AULR 1; Sir Kenneth Keith, "International Law and New Zealand Municipal Law" in JF Northey (ed) The AG Davis Essays in Law (Butterworths, London, 1965).

(112) British Public Papers- Colonies, New Zealand (Irish University Press, Shannon, 1970) Sessions 1835-42, 220.

(113) British Public Papers- Colonies, New Zealand (Irish University Press, Shannon, 1970) Sessions 1835-42, 234.

(114) British Public Papers- Colonies, New Zealand (Irish University Press, Shannon, 1970) Sessions 1835-42, 138

(115) Robson thought it was by occupation, but Foden (in the minority viewpoint), thought settlement; JL Robson (ed), New Zealand: The Development of its Laws and its Constitution (2nd ed Stevens, London, 1967) 4-5; NA Foden, The Constitutional Development of New Zealand in the First Decade (LT Watkins, Wellington, 1938) 38. In Foden’s view, the letters patent of 15 June 1839 are the fons et onjo of British sovereignty. He would eliminate the humanitarian and idealism prevalent in earlier interpretation of events of 1839-40. cf J Rutherford, The Treaty of Waitangi and the Acquisition of British Sovereignty in New Zealand (Auckland University College, Auckland, 1949).

(116) Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72, 78 per Prendergast CJ.

(117) Interview with Georgina te Heuheu, 7 December 1999.

(118) Indeed, the Colonial Office was treating New Zealand as having the common law status of a settled colony from as early as January 1839; Paul McHugh, "Aboriginal Rights of the New Zealand Maori at common law" (1987) University of Cambridge PhD thesis 142; Sir James Stephen, Under Secretary of State for the Colonies, minute, 21 January 1839, Colonial Office Papers 209/4, pp 193, 196.

(119) It is perhaps little wonder that this was so, given the needs of the settlers and the developments in the classifications of a colony at common since the American Revolution; Paul McHugh, "Aboriginal Rights of the New Zealand Maori at common law" (1987) University of Cambridge PhD thesis 147.

(120) David Williams, "The Foundation of Colonial Rule in New Zealand" (1988) 13(1) NZULR 54.

(121) British Public Papers- Colonies, New Zealand (Irish University Press, Shannon, 1970) Sessions 1835-42, 123-5.

(122) Amounting to what Brookfield calls a revolutionary seizure of power; FM Brookfield, Waitangi and Indigenous Rights (1999).

(123) Dame Catherine Tizard, Colonial Chiefs, 1840-1889: Gipps, Hobson, Fitzroy, Grey, Browne, Grey again, Bowen, Fergusson, Normanby, Robinson, Gordon and Jervois (Wellington Historical and Early Settlers’ Association, Wellington, 1995) 14.

(124) David Williams, "Te Tiriti o Waitangi" in A Blank et al (eds), He Korero Mo Waitangi 1984 (Te Runanga o Waitangi, Auckland/Wellington, 1985); David Williams, "The Constitutional Status of the Treaty of Waitangi: an historical perspective" (1990) 14(1) NZULR 9.

(125) The contra proferetem principle, that a document is to be construed against the party who drafted and put it forward, leads to the conclusion that the Maori version is definitive.

(126) Dame Catherine Tizard, Colonial Chiefs, 1840-1889: Gipps, Hobson, Fitzroy, Grey, Browne, Grey again, Bowen, Fergusson, Normanby, Robinson, Gordon and Jervois (Wellington Historical and Early Settlers’ Association, Wellington, 1995) 10.

(127) FM Brookfield, "The New Zealand Constitution" in Sir Hugh Kawharu, (ed), Waitangi: Maori and Pakeha Perspectives of the Treaty of Waitangi (Oxford University Press, Auckland, 1989) 1.

(128) Paul McHugh, "Constitutional Theory and Maori Claims" in Sir Hugh Kawharu, (ed), Waitangi: Maori and Pakeha Perspectives of the Treaty of Waitangi (Oxford University Press, Auckland, 1989).

(129) Annie Mikaere, Review of Waitangi (1990) 14 NZULR 97, 98.

(130) RWM Dias, "Legal Politics" [1968] CJ 233, 237.

(131) Moana Jackson, Maori and the Criminal Justice System (Part 2) (1988) 35-44; Moana Jackson, "Maori Law" in Young, Mana Tiriti (1991) 15-16.

(132) See the edited transcript of a address by the Rt Hon Jenny Shipley, Eden Park, Auckland, 31 October 1999. For general discussions of perceptions of Maori sovereignty, see Hineani Melbourne, Maori Sovereignty: The Maori Perspective (Hodder Moa Beckett, Auckland, 1995); Carol Archie, Maori Sovereignty: The Pakeha Perspective (Hodder Moa Beckett, Auckland, 1995).

(133) Indeed, it has been said that it is quite unrealistic to maintain any contrary argument; Interview with Sir Douglas Graham, 24 November 1999.

(134) Richard Mulgan, "Can the Treaty of Waitangi provide a constitutional basis for New Zealand’s political future?" (1989) 41(2) Political Science 57-59. Though there are some who, whilst decrying alleged Crown breaches of the Treaty, deny that the Treaty conveyed anything more than permission for European settlement; a case of "having their cake and eating it too"; Interview with Sir Douglas Graham, 24 November 1999.

(135) Article 1.

(136) Article 3.

(137) See David Williams, "Te Tiriti o Waitangi" in A Blank et al (eds), He Korero Mo Waitangi 1984 (Te Runanga o Waitangi, Auckland/Wellington, 1985).

(138) 21 & 22 Vict no 2.

(139) 9 & 10 Vict c 103, s 10.

(140) 15 & 16 Vict c 72 (UK). Repealed in New Zealand by the Constitution Act 1986 s 26(1)(a), (2) and (3), and in the United Kingdom by the Statute Law (Repeals) Act 1989, s 1(1) schedule 1 part VI.

(141) Preamble to s 71.

(142) s 71.

(143) 15 & 16 Vict c 72 (UK).

(144) A Frame, "Colonising Attitudes towards Maori customs" [1981] NZLJ 105; Paul McHugh, "Aboriginal Rights of the New Zealand Maori at common law" (1987) University of Cambridge PhD thesis 168-180.

(145) (1847) NZPCC 387 (SC).

(146) (1823) 8 Wheat 543.

(147) (1877) 3 NZ Jur (NS) SC 72.

(148) (1888) 7 NZLR 235.

(149) Paul McHugh, "Aboriginal Title in New Zealand Courts" (1984) 2 Canterbury Law Review 235, 247-248.

(150) (1919) NZPCC 1.

(151) (1900-01) NZPCC 371, 382; cf St Catherines Milling and Lumber Co v The Queen (1887) 13 SCR 577, 607-616 (PC) [Canadian situation].

(152) (1902) 21 NZLR 655.

(153) [1903] AC 173 (PC).

(154) 25 April 1903, in [1840-1932] NZPCC App 1730. See also David B Swinfen, Imperial Appeal. The Debate on the Appeal to the Privy Council 1833-1986 (Manchester University Press, Manchester, 1987) 166-167.

(155) s 84; EJ Haughey, "A vindication of Sir James Prendergast" [1990] NZLJ 230, 231.

(156) [1986] 1 NZLR 680; PG McHugh, "From Sovereignty Talk to Settlement Time: The Constitutional Setting of Maori Claims in the 1990s" in Paul Havemann (ed), Indigenous Peoples’ Rights in Australia, Canada, and New Zealand (Oxford University Press, Auckland, 1999) 458.

(157) Most significantly in New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641.

(158) 21 & 22 Vict no 2 (NZ). This was a New Zealand Act of Parliament, and therefore perhaps could not of itself extend the common law, an act which only the imperial authorities were competent to take.

(159) Sir William Blackstone, 1 Com 100.

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