The legitimacy of post-colonial governments as derived from colonial treaties of cession
NSBCox
Department of Political Studies, The University of Auckland, New Zealand
(Association of Pacific Rim Universities Doctoral Student Conference 2001, The University of Auckland, 1st to 4th February 2001)
Introduction
Modern New Zealand is the product of nineteenth century colonial expansion. But the country was not unpopulated when settlement by the majority European races began, and the legal status of the prior inhabitants, with whom the British Crown (as representing the settlers) concluded a treaty of cession, has for long been contentious. The critical question posed by the anti-colonial critique and revisionist history is whether a society and government founded in illegitimate conquest can ever hope to acquire legitimacy.(1) It may be that this treaty provides a sufficient source of legitimacy for a post-colonial government. For the initial extension of British government to New Zealand cannot be seen purely as conquest, but rather as an attempt, imperfect though it proved, at consensual regulation of a colonisation driven largely by private enterprise.
The circumstances of the colonisation of New Zealand
The Treaty of Waitangi, signed in 1840 by emissaries of the Queen of Great Britain, and many of the indigenous Maori chiefs of New Zealand, has long been regarded as this country's founding document. Since its signing, it has been seen variously as an unqualified cession of sovereignty to the Imperial government, or as permitting the settler population to administer their own affairs in consultation with Maori. Its exact legal significance was uncertain. But it seems that the Crown gave implicit recognition to Maori as the indigenous inhabitants of the country,(2) both in the Treaty and in its prior conduct towards Maori. The acquisition of sovereignty implicit in the Treaty was not acquired in a legal or political vacuum, yet the strict legal effect of the treaty was not as important as its political function. Both the British Government and the Maori chiefs knew that it was the culmination of a process which had begun some decades earlier.
The signing of the Treaty and the extension of British government to New Zealand was intended to forestall many of the consequences of unregulated settlement. The Marquess of Normanby, on whose instructions the Treaty of Waitangi was negotiated, felt that colonisation was not only unjust but
He was however prepared to depart from the former policy of recognition of the independence of New Zealand and a commensurate degree of non-intervention with extreme reluctance, as
Normanby felt that annexation with the consent of the natives would be their best protection.
In the years after the Treaty was signed the underlying reasons for its signing were largely forgotten or ignored, and the Maori often suffered just such consequences as Normanby feared. But more recently, and especially taking the lead from a number of court decisions,(5) governments have increasingly sought to apply the concept of partnership which has been taken to be the spirit of the Treaty. This application has been motivated largely by the crisis of legitimacy which is afflicting all countries whose origins lie in colonial conquest and settlement.(6)
The acquisition of British sovereignty over New Zealand was always meant to be consensual. Legally authority over New Zealand was formally acquired by the Crown by discovery and settlement, as well as by cession. But this acquisition of authority was intended by the imperial government to be with the consent of the Maori chiefs, and the chiefs generally accepted it on that basis. This was in conformity with prior colonial practice,(7) and consistent with the practice of the previous several decades.(8)
Further, in imposing government on native as well as settler populations, the Crown acquired a special role as trustee for the indigenous peoples of New Zealand, as in Canada and (to a lesser degree) Australia. In each country the Crown assumed, and still discharges, certain responsibilities for what, in New Zealand, are called the tangata whenua, the "people of the land". In effect, this amounted to a form of guardianship, or, in legal terminology, led to a fiduciary obligation on the Crown. As such the Crown occupies a symbolic place distinct, yet linked with, the government of the day.(9) Though the Maori and European (or Pakeha) populations have become increasingly intermingled, the role of the Crown has remained important as guarantor of Maori property, including cultural assets.
Colonial treaties of cession
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 became accepted that colonies occupied by a tribal society could be 'settled'. New Zealand has been cited as the example per excellence of this trend towards a legal fiction of a terra nullius,(10) where it was not uninhabited, but there was no civilised government recognised by international law. If this were so, then the Treaty of Waitangi could not have been treaty of cession, or so later nineteenth century orthodoxy maintained.(11) The Treaty of Waitangi had socio-political, not legal force, as it was not a treaty recognised by international law.(12)
The authority actually exercised by the Crown in New Zealand always exceeded that of a protectorate,(13) and New Zealand was, from the beginning, administered as a Crown colony.(14) New Zealand was held to be a settled colony, though not without difficulty.(15)
From the contemporary British perspective this was a treaty of cession which allowed for settlement and for the purchase of land.(16) 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.
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. Almost invariably in British imperial practice, the acquisition of territories was by cession, accompanied by treaties in which the inhabitants' entitlement to the continued occupation of the territory was declared.(17) This practice implied, by definition, that the territorial sovereignty and property rights of the inhabitants were recognised.(18)
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.(19) 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,(20) and therefore bound at least morally by the terms of a treaty of cession. The fact that developments in international law doctrine subsequently denied treaty-making capacity to what were described as "Native chiefs and Peoples"(21) 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.(22) New Zealand would then be regarded as a ceded territory, and its pre-existing laws subject to abolition or amendment by the Crown.(23) If it were not a valid international treaty, its application remained a matter for domestic law.(24) 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.
Acquisition of legal authority
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.(25)
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.(26) 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,(27) though this may be a strained interpretation.(28) 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.(29) 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,(30) or legal sovereignty.(31) This approach is based upon European legal concepts, something which has been criticised by some Maori academics.(32) However, legitimation by effectiveness and durability of even a revolutionary assumption of power is a well understood principle of law,(33) even amongst the early Maori.(34)
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,(35) and therefore the legitimacy of the present government and legal system.(36) 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.(37) It might be said that the government's view of the Treaty has always been that it gave authority to it,(38) whereas in the common Maori view the Crown's protection of Maori property(39) was more important.(40) 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.
Conclusion
New Zealand's situation is not unique. There are numerous examples of colonial-era treaties between colonial powers and native peoples. This country is however unusual in that there is one treaty upon which to focus. It may be difficult for native peoples to persuade any modern government that their ancestors did not actually intend to relinquish their rights of sovereignty, but they can insist upon the honouring of treaties of cession or of amity.
References
Brookfield, FM, Waitangi and Indigenous Rights (1999)
Brookfield, FM, "The New Zealand Constitution" in Kawharu, Waitangi (1989) 1
Brownlie, Ian, Treaties and Indigenous Peoples (1992) 12
Cheyne, SL, "Search for a constitution" (1975) University of Otago PhD thesis
Dias, RWM, "Legal Politics" [1968] CJ 233
Dumont, J, Corps universal diplomatique de droi des gens (1726-32) vol 8 part 2 p 162
Emerson, Rupert, From Empire to Nation (1960)
Evatt, Elizabeth, "The Acquisition of Territory in Australia and New Zealand" in Alexandrowicz, Studies in the History of the Law of Nations (1968) 16
Hackhsaw, Frederika, "Nineteenth Century Notion of Aboriginal Title" in Kawharu, Waitangi (1989) 92
Hayward, Janine, "Commentary" in Simpson, Constitutional Implications of MMP (1998) 233
Jackson, Moana, Maori and the Criminal Justice System (Part 2) (1988)
Lindley, Sir Mark, The Acquisition and Government of Backward Territories in International Law (1926)
McHugh, PG, "Aboriginal Rights of the New Zealand Maori at common law" (1987) University of Cambridge PhD thesis
McHugh, PG, "Constitutional Myths and the Treaty of Waitangi" [1991] NZLJ 316
McHugh, PG, "Constitutional Theory and Maori Claims" in Kawharu, Waitangi (1989)
McNair, Lord, The Law of Treaties (1961)
McNeil, Kent, Common Law Aboriginal Title (1989)
Mikaere, Annie, Review of Waitangi (1990) 14 NZULR 97
Molloy, Anthony, "The Non-Treaty of Waitangi" [1971] NZLJ 193
Mulgan, Richard, "Can the Treaty of Waitangi provide a constitutional basis for New Zealand’s political future?" (1989) 41(2) Political Science 53
Report of the Privy Council on the project of a Bill for the better government of the Australian Colonies, dated 1 May 1849
Sinha, Prakash, New Nations and the Law of Nations (1977)
Tizard, Dame Catherine, Colonial Chiefs (1995)
Williams, David, "Te Tiriti o Waitangi" in Blank, He Korero Mo Waitangi 1984 (1985)
Williams, David, "The Constitutional Status of the Treaty of Waitangi: an historical perspective" (1990) 14(1) NZULR 9
(1) Mulgan, Richard, "Can the Treaty of Waitangi provide a constitutional basis for New Zealand’s political future?" (1989) 41(2) Political Science 53, 53-54.
(2) At least, such has been the widespread view, now given the backing of both politicians and courts; see for example, New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA). Cf however, New Zealand Maori Council v Attorney-General [1992] 2 NZLR 576 (CA), which could be seen as a partial reversal.
(3) Marquess of Normanby to Captain William Hobson, 14 August 1839; Great Britain: Parliamentary Papers 1844, 16/37.
(4) Marquess of Normanby to Captain William Hobson, 14 August 1839; Great Britain: Parliamentary Papers 1844, 16/37.
(5) Such as New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA) per Cooke P.
(6) Mulgan, Richard, "Can the Treaty of Waitangi provide a constitutional basis for New Zealand’s political future?" (1989) 41(2) Political Science 53, 53-54.
(7) Lindley, Sir Mark, The Acquisition and Government of Backward Territories in International Law (1926).
(8) Interview with Georgina te Heuheu, 7 December 1999.
(9) It has been said that the Crown is increasingly seen by Maori as something more than merely the government; Hayward, Janine, "Commentary" in Simpson, Constitutional Implications of MMP (1998) 233-234.
(10) 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; McHugh, PG, "Aboriginal Rights of the New Zealand Maori at common law" (1987) University of Cambridge PhD thesis 137-142.
(11) Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72.
(12) Molloy, Anthony, "The Non-Treaty of Waitangi" [1971] NZLJ 193; Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72. Cf. R v Symonds (1847) NZPCC 387 (SC).
(13) Where, for example, the relations of imperial power and local population were regulated by specific treaty arrangements. In practice, the extent to which such countries were treated differently from colonies depended upon the degree of sophistication of the indigenous inhabitants' civilization; Emerson, Rupert, From Empire to Nation (1960).
(14) Cheyne, SL, "Search for a constitution" (1975) University of Otago PhD thesis.
(15) 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.
(16) Brownlie, Ian, Treaties and Indigenous Peoples (1992) 12.
(17) Hackhsaw, Frederika, "Nineteenth Century Notion of Aboriginal Title" in Kawharu, Waitangi (1989) 92. See Sinha, Prakash, New Nations and the Law of Nations (1977); Evatt, Elizabeth, "The Acquisition of Territory in Australia and New Zealand" in Alexandrowicz, Studies in the History of the Law of Nations (1968) 16-45.
(18) See a discussion of the dichotomy of nineteenth century theory and practice, see McHugh, PG, "Constitutional Myths and the Treaty of Waitangi" [1991] NZLJ 316.
(19) Examples where treaties with native peoples were regarded as binding in international law include those with the Cherrokees, 20 September 1730; Almon, J, A Collection of all the Treaties of Peace (1772) vol 2, p 13; Dumont, J, Corps universal diplomatique de droi des gens (1726-32) vol 8 part 2 p 162.
(20) Smith, HA, Great Britain and the Law of Nations (1932) vol i, 131; Brownlie, Ian, Treaties and Indigenous Peoples (1992) 11.
(21) McNair, Lord, The Law of Treaties (1961) vol I, 52-54.
(22) 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.
(23) 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; McNeil, Kent, Common Law Aboriginal Title (1989) 196.
(24) 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).
(25) Amounting to what Brookfield calls a revolutionary seizure of power; Brookfield, FM, Waitangi and Indigenous Rights (1999).
(26) Tizard, Dame Catherine, Colonial Chiefs (1995) 14.
(27) Williams, David, "Te Tiriti o Waitangi" in Blank, He Korero Mo Waitangi 1984 (1985); Williams, David, "The Constitutional Status of the Treaty of Waitangi: an historical perspective" (1990) 14(1) NZULR 9.
(28) 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.
(29) Tizard, Dame Catherine, Colonial Chiefs (1995) 10.
(30) Brookfield, FM, "The New Zealand Constitution" in Kawharu, Waitangi (1989) 1.
(31) McHugh, PG, "Constitutional Theory and Maori Claims" in Kawharu, Waitangi (1989).
(32) Mikaere, Annie, Review of Waitangi (1990) 14 NZULR 97, 98.
(33) Dias, RWM, "Legal Politics" [1968] CJ 233, 237.
(34) Jackson, Moana, Maori and the Criminal Justice System (Part 2) (1988) 35-44; Jackson, Moana, "Maori Law" in Young, Mana Tiriti (1991) 15-16.
(35) 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 Melbourne, Hineani, Maori Sovereignty (1995); Archie, Carol, Maori Sovereignty (1995).
(36) Indeed, it has been said that it is quite unrealistic to maintain any contrary argument; Interview with Sir Douglas Graham, 24 November 1999.
(37) Mulgan, Richard, "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.
(38) Article 1.
(39) Article 3.
(40) See Williams, David, "Te Tiriti o Waitangi" in Blank, He Korero Mo Waitangi 1984 (1985).