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Farrar, Professor John --- "Early conceptions of the state in New Zealand" [2011] NZYbkNZJur 8; (2010-2011) 13-14 Yearbook of New Zealand Jurisprudence 51

Last Updated: 25 April 2015

EARLY CONCEPTIONS OF THE STATE IN NEW ZEALAND

PROFESSOR JOHN FARRAR

The early history of New Zealand is very complex and there is a natural tendency to focus on the Treaty of Waitangi and to seek in this a legitimation of the modern state. A consequence of this is that we seek to impose Western concepts on Māori which do not fit. The concept of the state in fact has a complicated history within the Western legal tradition.¹ Originally, references to state or status regni simply referred to situation.² Justinian’s Corpus Juris talked about the Status Rei Romanae.³ It was not until the 15th century that lawyers began to develop the corporate legal personality of the state. In the case of English law this was even more confused in the equation of the concept of the state with the Crown. The Crown starts off with the person of the King or Queen and was then analysed in terms of a corporation sole.⁴

This maintained the office when the King or Queen died. It is only in modern times that the Crown has been thought of as a corporation aggregate.⁵ At the same time, public international law has recognised a concept of the state for its purposes.⁶ This requires a permanent population, a defined territory, government and capacity to enter into relations with other states. Thus we have a poor fit between the domestic conceptions and the conception of public international law.

1 See DB Goldman, Globalisation and the Western Legal Tradition (Cambridge University

Press, Cambridge, 2007) at 155 et seq, Chapter 7.

2 Ibid., 116.

3 Ibid.

4 See Sir John Salmond Jurisprudence (7th ed, Sweet & Maxwell, London 1924) at 351 et

seq.

5 For a thorough modern discussion see Philip Joseph Constitutional and Administrative Law in New Zealand (3rd ed, Thomson Brookers, Wellington, 2007) Chapter 16, 583 et seq. For differing views in the House of Lords see Adams v Naylor [1946] AC at 543, 555 and Town Investments Ltd v Dept of the Environment [1978] AC at 359, 400.

6 See Vaughan Lowe International Law (Oxford University Press, Oxford, 2007) at 136 et seq. See the Definition in Article 1 of the 1933 Montevideo Convention on Rights and Duties of States.

The role of the state has changed over time and it is necessary to evolve theory which takes adequate notice of these changes⁷ and not be bogged down in some archaic legalism. Any theory of the modern state in New Zealand needs to take into account its distinctive history and the special role of the Treaty of Waitangi.

i. THE ORIGINS OF THE STATE

Aristotle in his Politics⁸ emphasised the beneficial nature of the state as a

form of social organisation.

The idea of the modern state developed in the Renaissance⁹ and early theories were based on the state of nature and the need for a social contract leading to the state.¹⁰ Common law theorising put this in terms of sovereignty.¹¹ The late Professor HLA Hart in his Concept of Law¹² identified what he called “the minimum content of Natural Law”.¹³ In doing so he drew on Hobbes and Locke. He identified five truisms which led to law and the state. These were:

(1) human vulnerability (2) approximate equality (3) limited altruism

(4) limited resources and

(5) limited understanding and strength of will.¹⁴

These led as a matter of “natural necessity” to the state. By this he meant that they afforded practical reasons for its existence.

7 See HM Government (UK) Building on Progress: The Role of the State (Public Services, London, 2007); See generally J Wolff An Introduction to Political Philosophy (Oxford University Press, Oxford, 2006) Chapter 2; Norman Barry An Introduction to Modern Political Theory (4th ed, Palgrave Macmillan, London) Chapter 3.

8 See B Russell, History of Western Philosophy (2nd ed, Routledge, London, 1961) at 196,

197.

9 Goldman, above n 1, at 115 et seq.

10 See T Hobbs, Leviathan (JM Dent and Sons Ltd, London, 1651); JCA Gaskin (ed) The Elements of Law Natural and Politic, Part II De Corpore Politico (Oxford University Press, Oxford, 1994).

11 Hobbes Leviathan, Chapter XVIII.

12 HLA Hart Concept of Law (2nd ed, Clarendon Press, Oxford, 1994), at 193–200.

13 Ibid., at 199.

14 Ibid., at 193-198.

ii. THE DEVELOPMENT OF THE STATE IN AOTEAROA NEW ZEALAND

Māori tribes had no concept of the state before the arrival of the Pākehā.¹⁵

Each iwi was a separate organisation with its own sub-classifications into hapū. There were alliances from time to time but these were fairly loose and at other times there was warfare. It is probably correct to say Māori lived in a state of nature¹⁶ in Hobbesian terms. To impose upon them the confused Western concepts was an act of ethnocentrism.¹⁷

A. The United Tribes of New Zealand

Originally, the ethnocentrism was well intended. James Busby¹⁸ convinced chiefs to adopt a flag as the United Tribes of New Zealand in 1834 so that Māori ships could be recognised by international maritime laws. He persuaded 35 of them to enter into a confederation and to make a Declaration of Independence in 1835. Other Māori chiefs went along with this but did not participate actively in the decisions. The immediate concern of Busby was to ward off the French and the Americans who were beginning to appear on the scene with their own imperialistic notions.

Whatever the degree of Māori involvement and whatever the strict juridical position, the English colonial office accepted the efficacy of these documents¹⁹ and the necessity to enter into a treaty relationship with Māori to justify their presence and the acquisition of sovereignty over New Zealand. The instructions of Lord John Russell to Captain Hobson were to protect the welfare of Māori but not necessarily to recognise their laws and customs.²⁰

B. The Treaty of Waitangi and Declaration of Sovereignty

After some heated discussions on the previous day, resulting in the redrafting of a text originally written in English but explained in Māori, a Māori-language document was drawn up and presented by Hobson as the representative of the Queen of England to assembled chiefs, mostly from northern hapū, at Waitangi

15 See Elsdon Best The Maori As He Was (Government Printer, Wellington, 1974) Chapter 5, at 93-100. See also note 16 below and the materials cited.

16 See Sir William Martin Ko Nga Tikanga A Te Pakeha (Printed at the Church Mission Press,

1845); James Busby Remarks Upon a Pamphlet Entitled “The Taranaki Question” by Sir

William Martin (Southern Cross Office, Auckland, 1860) at 7-8.

17 See Busby, above n 16, at 8.

18 See E Ramsden Busby of Waitangi: HM’s Resident at New Zealand, 1833-40 (Wellington,

1942); Paul Moon and Peter Biggs The Treaty and its Times – The Illustrated History

(Resource Books, Auckland, 2004) Chapter 4, at 85 et seq.

19 Moon and Biggs, above n 18, at 103-104.

20 See extracts in Moon and Biggs, above n 18, Chapter 7.

in the Bay of Islands on 6 February 1840, many of whom decided to sign it after further debate, with others adding their signatures later. This document, the only one actually signed at Waitangi and thus the only real “Treaty of Waitangi”, was later supplemented by an English-language approximation (labelled by the economist Brian Easton as the “Treaty of Waikato Heads”²¹). This English approximation, which did indeed appear to be a deed of cession rather than an agreement about governance (a plausible reading of the Māori text), was later to gain a status equal to if not greater than the Māori text. Whether the original Treaty was a “solemn covenant”, a “simple nullity”, or something in between, has yet to be resolved definitively, but it remains a powerful force in New Zealand politics and inter-ethnic relationships.²²

Three months after signing the Treaty of Waitangi Hobson began what FM Brookfield²³ argues was the British Crown’s at least partly revolutionary seizure of power when he issued his Declarations of Sovereignty, claiming the North Island on the grounds of cession and the South Island on the grounds of discovery. This despite the fact that clearly not all the North Island tribes had acceded to the Treaty, and few if any of those who had regarded it as a deed of cession in the sense proclaimed by Hobson. This pre-emptive strike by the Crown has been followed up, in Brookfield’s view, by a series of revolutions and counter-revolutions up to very recent times.²⁴

C. New Zealand as a Crown Colony

The immediate impact of the Treaty was that the British treated New Zealand as a Crown colony.²⁵ Originally, it was regarded as falling under the Governor and Legislative Council of New South Wales but a UK Act authorised the Crown by Letters Patent to create a separate colony.²⁶ This step was taken on

16 November 1840 when the Letters Patent known as the Charter of 1840 were issued.²⁷ This document stipulated that the three principal islands should

21 Brian Easton “Was there a Treaty of Waitangi? Was it a social contract?” Archifacts (April

1997) 21.

22 See, for example, Brian Easton above n 21; R Benton “Truth and the Treaty of Waitangi” (2007) Te Mātāhauariki Newsletter 7, at 9; Richard Dawson The Treaty of Waitangi and the Control of Language (Institute of Policy Studies, Victoria University of Wellington,

2001); Claudia Orange The Treaty of Waitangi (Bridget Williams Books, Wellington, 1987); Human Rights Commission Mana ki te Tiriti – Human Rights and the Treaty of Waitangi (Human Rights Commission, Wellington 2003); FM Brookfield Waitangi and Indigenous Rights: Revolution, Law.& Legitimation (Auckland University Press, Auckland, 2006).

23 Brookfield, above n 22, at 97.

24 Ibid., at 108-135.

25 See generally AH McLintock Crown Colony Government in New Zealand (Government

Printer, Wellington, 1958).

26 Ibid., at 49, 54, 57.

27 Ibid., at 99.

be known respectively as New Ulster, New Munster and New Leinster. Eight days after issue of the new Charter, Captain Hobson was appointed Governor in Chief with the usual powers and prerogatives. He had the assistance of an executive council and constituted a legislative council with full power to enact laws and ordinances, “for the peace, order and good governance of New Zealand”.²⁸ The early approaches were sympathetic to Māori but were overtaken by events.

In 1825 the New Zealand Company had been formed to colonise New Zealand.²⁹ Prior to the Charter referred to above, there was talk of a charter to be given to the New Zealand Association, formed in 1837, and in 1839 the bodies were merged to form the New Zealand Land Company. In these activities Edward Gibbon Wakefield, a controversial but talented man who had been imprisoned for abducting a 15-year-old heiress, was the driving force.³⁰ The New Zealand Company organised a land-buying expedition and emigrant ships arrived in Port Nicholson.³¹ From then on the future of New Zealand governance became increasingly complex. This started with the absence of government in Port Nicholson and the attempt by the settlers to deal with a vacuum.³² They adopted a provisional constitution which constituted a primitive republic.³³ They took the trouble to have this ratified by Māori chiefs of the district.³⁴ When this came to the attention of Captain Hobson, he regarded it as high treason and took steps to issue a proclamation making it clear that Crown colonial government applied.³⁵ There was a degree of vehemence which entered into the relationship and there began calls for greater Pākehā involvement in government.

From the beginning there was ambiguity of how far English Law could apply to the circumstances. To assist the process Chief Justice Martin³⁶ wrote Ko Nga Tikanga A Te Pakeha, which was published by the Church Mission Press in 1845. This is more a philosophical piece about the basic approaches of English Law than a digest of laws. Martin described it as a “Letter to you to explain the Rules of the Pakeha for the administration of justice in various

28 See M King The Penguin History of New Zealand (Penguin Books, Auckland, 2003) at 196.

29 King, above n 28, at 171 et seq; P Temple A Sort of Conscience – The Wakefields (Auckland University Press, Auckland, 2003) at 188 et seq; GW Rusden History of New Zealand (2nd ed, Melville, Mullins & Slade, London, 1895), Vol 180 et seq.

30 See generally Temple, above n 29, passim; Rusden, above n 29, Vol 1 at 180.

31 Temple, above n 29, at 249 et seq.

32 Ibid., at 275.

33 Ibid; Rusden, above n 29, at 215.

34 Temple, above n 29, at 275; Rusden, above n 29, at 192.

35 Ibid.

36 Ko Nga Tikanga A Te Pakeha (Church Mission Press, Auckland, 1845). For a version of this see The Maori Messenger of 31 March 1856, at 4-10.

cases, and for several other things”. These were “good rules for the people who desire to live quietly”. When Martin returned to England due to ill health it was republished in The Maori Messenger of 31 March 1856. There are different versions of it.

1. The New Zealand Constitution Act 1846

The Governor under the early arrangements could operate as an autocrat and often did.³⁷ On the other hand, the Governor had the responsibility of compliance with the Treaty in the light of the fluctuating views coming from the Colonial Office in London.³⁸ The New Zealand Land Company had friends in high places and this led to the enactment of the New Zealand Constitution Act of 1846.³⁹ This was the first enactment to give New Zealand self-government but it was never fully implemented. It met with vehement opposition by Chief Justice Martin, Bishop Selwyn and, behind closed doors, Governor George Grey. Governor Grey was clever enough to encourage the pamphlet circulated by the opponents of this measure, but not to leave his fingerprints on it. It argued that Earl Grey’s instructions involved a “breach of the National Faith of Britain” and a violation of established law. It expressed a protest against the general doctrine put forward by Earl Grey as the principle upon which colonisation should henceforth be conducted by Britain.

The pamphlet was entitled England and the New Zealanders and was privately printed at the Bishop of Auckland’s College Press in 1847. It was sent to key people privately and not published.

The first argument recited the UK Parliamentary history from 1834. This included the recognition of New Zealand as “a Sovereign and Independent State” and the circumstances of the Treaty of Waitangi.⁴⁰

The instructions to Hobson were:⁴¹

All dealings with the Aborigines for their lands must be conducted on the same principles of sincerity, justice, and good faith, as must govern your transactions with them for the recognition of Her Majesty’s Sovereignty in the Islands.

Hobson had been sent to New Zealand as her Majesty’s Consul not as

_{Lieutenant Governor, and only became Governor after the treaty.}

37 See J Rutherford Sir George Grey 1812-1898: A Study in Colonial Government (Cassell, London, 1961).

38 See, for example, Paul Moon Fitzroy – Governor in Crisis 1843-5 (David Ling Publishing

Ltd, Auckland, 2000), and Rusden, above n 29, Vols I and II; Rutherford, above n 37.

39 Rutherford, above n 37, Chapter 12 at 142 et seq.

40 Ibid., at 3.

41 Ibid.

The New Zealand Company’s attempt to disparage the treaty as “a praiseworthy device for amusing or pacifying savages for the moment”⁴² was dismissed by Lord Stanley.⁴³ Mr Hope writing to the Company on 1 February 1843 said:⁴⁴

Lord Stanley is not prepared, as Her Majesty’s Secretary of State, to join with the Company in setting aside the treaty of Waitangi, after obtaining the advantages guaranteed by it, even though it might be made with naked savages, or though it might be treated by lawyers as a praiseworthy device for amusing or pacifying savages for the moment. Lord Stanley entertains a different view of the obligations contracted by the Crown of England; and his final answer must be that, as long as he has the honour of serving the Crown, he will not admit that any person or any government, acting in the name of Her Majesty, can contract a legal, moral or honorary obligation to despoil others of their lawful or equitable rights.

Lord Stanley writing to Lieutenant Governor Grey, on 13 June 1845, said:⁴⁵

I repudiate with the utmost possible earnestness the doctrine maintained by some that the Treaties which we have entered into with these people are to be considered as a mere blind to amuse and deceive ignorant savages. In the name of the Queen I utterly deny, that any Treaty entered into and ratified by her Majesty’s Command, was or could have been made in a spirit thus disingenuous, or for a purpose thus unworthy. You will honourably and scrupulously fulfil the conditions of the Treaty of Waitangi.

The pamphlet concludes:

The title then of Great Britain to this Country rests entirely upon a voluntary cession of the Sovereignty of the country to the Queen. Therefore, according to established principles of law, all private rights of property existing in the country at the time of the cession remain unaffected. By that cession, Great Britain has not acquired any land of any sort in the country, if that land have an owner among natives, according to their own customs. Whether the land be actually occupied by its owner is not the question; but only, whether it have an owner.

It then argues that the second article of the Treaty gave an express guarantee.

The second argument was that Earl Grey’s instructions involved a violation of established law. This argued that even without the Treaty there were rights under the common law. This argument cites American precedents and Chancellor Kent.⁴⁶ It then further argued a constitutional right as a British

42 Ibid., at 9.

43 Ibid., at 9-10.

44 Ibid., at 9.

45 England and the New Zealanders, at 13.

46 Ibid., at 19 et seq.

subject not to have property taken away even by a Legislature in which he is represented, without compensation.⁴⁷ The remainder of the argument was against the particular recommendations.

The third argument was a protest against the general doctrine relied on by Earl Grey. This doctrine was based on Dr Thomas Arnold and was demonstrated to be fallacious.⁴⁸

The rest of the pamphlet discusses practical considerations concerning Māori and contains a letter from Mr Maunsell of the Church Missionary Society to Governor Grey.⁴⁹

Both Martin and Selwyn were strongly criticised by some UK politicians for taking this step and it must be admitted it was a questionable action for the Chief Justice.⁵⁰ However it was accepted that Chief Justice Martin had acted in good faith. Governor Grey’s criticism of Martin was rather hypocritical.

2. The New Zealand Constitution Act 1852

Grey never brought the 1846 constitution into force. A new constitution was adopted in 1852 with the New Zealand Constitution Act 1852 of the Imperial Parliament.⁵¹ This remained in force until 1986 when it was repealed by the Constitution Act 1986.

This established the provinces. It provided for

(1) a bicameral Parliament consisting of the General Assembly, a

Legislative Council and the Governor

(2) an executive council nominally appointed by the Governor

(3) six provinces which had authority to enact provincial legislation subject to a reserve power of veto in the Governor. The provinces were abolished in 1876.

Parliament had power to pass laws to the “peace, order and good government of New Zealand” provided they were not inconsistent with the laws of England. The Crown had power to disallow New Zealand legislation. This power was

47 Ibid., at 27 et seq.

48 Ibid., at 35 et seq.

49 Ibid., at 74-80.

50 See Guy Lennard Sir William Martin (Whitcombe and Tombs Ltd, Christchurch, 1961) Chapter VII “Good Citizenship or Indiscretion?”

51 Rutherford, above n 37, Chapter 17.

eventually limited by the Balfour Declaration of 1924 that it would only be exercised on the advice of New Zealand ministers, and finally dropped from the Constitution Act in 1986.

Section 71 provided for Māori districts where Māori Law and custom could be applied. It was, however, never implemented by the Crown but was used by Kīngitanga to justify claims for self-government later.

D. The Reception of English Law

The English Laws Act 1858 of the New Zealand Parliament section 1 provided:

The laws of England as existing on the 14th day of February 1840 shall, so far as applicable to the circumstances of the Colony of New Zealand, be deemed and taken to have been in force therein on and after that day.

This was already the case when New Zealand came under the jurisdiction of

New South Wales.

As we have seen, Chief Justice Martin drafted a pamphlet Ko Nga Tikanga a te Pakeha in 1845 to explain the basics of English Law to Māori. Later a more elaborate document was produced by Francis Fenton, Laws of England

– Ture o Ingarani⁵² in 1858.

The approach at this time was basically assimilist in spite of Section 71 of the 1852 Act. It is important at this point to refer to the map in William Swainson’s New Zealand and its Colonisation⁵³ which shows the limits of British Settlement at 1859. It seems incredible that a European Parliament and legal system was imposed on a predominantly Māori New Zealand. Māori consequently had legitimate concerns which led eventually to the Kīngitanga movement and then warfare.

For many years English Law did not apply beyond British settlements. Tikanga

Māori continued to apply, although it gradually absorbed some Pākehā ideas.⁵⁴

Swainson also discusses the development of resident Magistrates and the

rūnanga system.⁵⁵

52 The Laws of England Compiled and Translated into the Maori Language by Direction of

His Excellency Col. J. Gore-Browne, Governor of New Zealand (Auckland, 1858).

53 William Swainson New Zealand and its Colonization (Smith, Elder & Co, London, 1859).

54 The hybrid criminal justice system which prevailed for some time is discussed by Dr Robert Joseph in ‘The Government of Themselves’: Case Law, Policy and Section 71 of the New Zealand Constitution Act 1852 (Te Mātāhauariki Institute Monograph 2002), at 21 et seq.

55 Ibid n 53, also William Swainson, New Zealand and the War (Smith, Elder and Company, London, 1862) p 27-44.

There were limited attempts to implement Section 71 of the 1852 Act in the Native Offenders Act 1856, the Native Districts Regulations Act 1858 and the Native Circuit Courts Act 1858. A proposal by Henry Sewell to establish a Native Council in 1860 was opposed and dropped.

Lord Newcastle, Secretary of State for the Colonies, asked Governor Grey in 1861 whether in some areas the establishment of separate Māori districts would not be the best way of achieving harmony. Grey ignored this suggestion.

In Wi Parata v Bishop of Wellington (1877)⁵⁶ Prendergast CJ held that Māori custom did not exist. This decision was unsound in principle, contrary to earlier authority and inconsistent with Common Law. It was later rejected by the Privy Council in Nireaha Tamaki v Baker (1901).⁵⁷ This gave rise to a protest from the New Zealand Bench and Bar which argued the Privy Council’s ignorance of local conditions.

In spite of provocations the Māori attitude and that of the first Māori king was to abide by the law until high-handed attitudes by Governors Gore-Browne and Grey led to hostilities after the Taranaki dispute.

1. The Kīngitanga Movement⁵⁸

The idea of a Māori king was floated in the early 19th century but never came to anything until the 1850s when the need was felt for the establishment of a symbolic role similar to the English monarch due to the loss of land and loss of mana by the chiefs. The movement was instigated by Tamihana Te Rauparaha, after meeting Queen Victoria in 1851.⁵⁹ A leading figure was Wiremu Tamihana (William Thompson as he was known to the English).⁶⁰ Tamihana became known as the King Maker. Henry Sewell in the New Zealand Native Rebellion, in a letter to Lord Lyttelton in 1864, described it as “a rude attempt on the part of certain native tribes at self-organisation and self-government”.

The aim was to provide unity among the Māori iwi, but it was difficult to overcome traditional rivalries. Eventually, Potatau Te Wherowhero, a distinguished but elderly chief of Tainui, was elected King despite his reluctance. He was crowned in 1858.⁶¹

56 Wi Parata v Bishop of Wellington [1877] 3 NZ Jur (NS) SC 79.

57 Nireaha Tamaki v Baker [1901] NZPC C371.

58 See JE Gorst The Maori King (KO Arvidson ed, Reed Books, Auckland, 2001, first published

by Macmillan & Co, London, 1864).

59 See E Bohan Climates of War: New Zealand in Conflict 1859-69 (Hazard Press, Christchurch,

2005) at 41. See also K Sinclair The Origins of the Maori Wars (New Zealand University

Press, Auckland, 1957); J Belich The New Zealand Wars (Penguin Books, Auckland, 1986).

60 See E Stokes Wiremu Tamihana Rangatira (Huia Publishers, Wellington, 2002).

61 See Rusden, above n 29, Vol 2.

The election of the King and the development of war in Taranaki led to plans by the Government to invade the Waikato.⁶² Potatau favoured a peaceful solution but eventually war developed after his death.⁶³ He was succeeded by his son Tawhiao. After the war and confiscations the King Country remained beyond the pale. Although there was gradual pacification there was a lingering sense of distrust and injustice. The latter to some extent has been dealt with by the Tainui Settlement in 1995 but the former has not been eradicated.

Tawhiao travelled to England to petition Queen Victoria for an independent Māori Parliament and enquiry into the confiscations. His request to meet the Queen was rejected and the UK Government refused to intervene, leaving it to the New Zealand Government.

2. Arguments against the War

Sir William Martin, who by this time had resigned as Chief Justice due to ill health, strongly criticised the use of force in his pamphlet The Taranaki Question⁶⁴ in 1860. He regarded the underlying dispute as one of title, not sovereignty. The opposite view was held by Governor Gore-Browne and the Government. The Government felt obliged to respond to Martin’s arguments in Notes on Sir William Martin’s Pamphlet Entitled the Taranaki Question⁶⁵ in the same year. A revised copy was published in January 1861.

Another criticism, arguably of more force, was expressed by James Busby in his Remarks upon a Pamphlet entitled “The Taranaki Question” by Sir William Martin DCL, late Chief Justice of New Zealand”⁶⁶ published in

1860. These remarks are particularly interesting because Busby had been the British Resident in New Zealand and advised the tribes on the Confederation and Declaration of Independence in 1835. He also had a significant role in drawing up the Treaty of Waitangi. He describes the circumstances of the latter as follows:⁶⁷

When it became necessary to draw the Treaty Captain Hobson was so unwell as to be unable to leave his ship. He sent the gentleman who was to be appointed Colonial Treasurer and the Chief Clerk to me with some notes, which they had put together as the basis of the Treaty, to ask my advice respecting them.

62 Ibid., at 254.

63 Ibid., at 101.

64 Sir William Martin The Taranaki Question (Melanesian Press, Auckland, 1860).

65 Published for the New Zealand Government, January, 1861 [Revised Copy]. For scathing

criticism see Rusden, above n 29, Vol 2, at 131 et seq.

66 James Busby, above n 16, at 3-4.

67 Ibid., at 1-2.

I stated that I should not consider the propositions contained in those notes as calculated to accomplish the object, but offered to prepare the draft of a treaty for Captain Hobson’s consideration.

To this they replied that that was precisely what Captain Hobson desired. The draft of the Treaty prepared by me was adopted by Captain Hobson without

any other alteration than a transposition of certain sentences, which did not in

any degree affect the sense.

Busby attacks Martin’s arguments based on natural rights. Busby argued as

follows:⁶⁸

It is usual for writers on Ethics to treat of what are called “natural rights,” meaning thereby the duty and obligation which rests upon every man to treat his neighbour as he would be treated himself, with that sense of justice which is implanted in the breast of every human being by Him who made of one blood all nations on earth, and fashioned their hearts alike: and which, however obliterated by that selfishness and cruelty which reign in the dark places of the earth, requires only to be brought fairly before the mind even of the most ignorant savages in order to command his assent.

The NATURAL RIGHTS are generally considered to be the right to life, liberty, and property; and in this sense Sir W. Martin’s rules and observations might be accepted without comment. But this is not the sense in which the words used will be understood by the generality of readers, or by those statesmen whose business it will be to consider the obligations created by the Treaty of Waitangi upon the justice and good faith of the British Government.

In these remarks we have only to do with the rights of property, as they are necessarily understood by jurists and statesmen, implying corresponding obligations to respect such rights. In this sense I do not hesitate to say, that so far as we can trace their history, there is no evidence of the New Zealanders ever having possessed any rights, with the exception of those which were created by the Treaty of Waitangi. Of what use is it, practically, for a man to say I possess a right to my property, when there is no law to define the obligations which are created by such a right, or government with power to administer the law, supposing it to have existed? New Zealand was, in an emphatic sense, a country without a law and without a prince. It is doubtful whether the New Zealander, until he witnessed the exercise of authority under the British Government, possessed any idea corresponding to that which is conveyed to our minds by the word “authority.” Their only law was that of the strong arm. “When a strong man armed kept his palace his goods were in peace, but when a stronger than he came upon him, and overcame him, he took from him all his armour and divided his spoils: and there was no redress.”

68 Ibid., at 5.

In other words Martin ascribed to the Māori “rights which they never possessed, and claims for them privileges to which they have not a shadow of title”.⁶⁹

Another strong critic of the Government was Archdeacon Hadfield who had lived many years amongst Māori.⁷⁰ Hadfield later became Archbishop of New Zealand.

A later judicial critic of the high-handed and unlawful behaviour of the colonists and colonial Government was Gillies J⁷¹ in the Supreme Court at New Plymouth on 8 November 1881 where he said that he would be wanting in his duty if he did not allude

“to the position of the district in which large bodies of armed men were assembled on active service, and he took leave to remind them of the constitutional principle that the employment of an armed force was only justifiable either under the authority of Parliament in repelling armed aggression, or in aid of the civil arm of the law when that arm had proved powerless to enforce the law’s mandates. In any other case the use of armed force was illegal, and a menace to, if not an outrage upon the liberties of the people.”

E. The Transitions in Conceptions of the State

Before the 19th century Māori had no concept of the state. Crown colony governance was essentially a primitive form of state consisting of a powerful ruler. It was roughly equivalent to the charismatic leader of Max Weber,⁷² although governors differed in their charismatic qualities and the whole order rested for its legality on the Treaty and the Common Law.

This coincided with self-rule by Māori in many areas which the Kīngitanga movement echoed to some extent. This was replaced by the colonising state with a built-in Pākehā majority which expropriated Māori land and disregarded Māori rights. Later there emerged the idea of an empowering state with the rise of paternalism and welfare roles which were predicated on assimilation. Around the end of the First World War the process (revolutionary in Brookfield’s analysis⁷³) of replacing the “Imperial Crown” by the “Crown

69 Ibid., at 6-7.

70 For a detailed discussion of the evidence of Hadfield and McLean before the House of Representatives see R Fargher The Best Man Who Ever Served the Crown? A Life of Donald McLean (Victoria University Press, 2007) Chapter 12, at 212 et seq.

71 See Rusden, above n 29, Vol 3, at 303-304.

72 See Max Rheinstein (ed) Max Weber on Law in Economy and Sovereignty (Simon and

Schuster, New York, 1954) at xxxii.

73 Waitangi and Indigenous Rights, above n 22, at 126.

in right of New Zealand” had been completed, vesting de facto sovereignty in a local body politic, but certainly not that constituted by the Declaration of Independence or that putatively represented by the Māori signatories of the Treaty of Waitangi.

The modern state continues to undergo change.⁷⁴ It is not a static concept in spite of the narrow views of some constitutional lawyers. One of the main roles of the modern state is to maintain social order through a monopoly of force.⁷⁵ It is the sole taxing authority with power to disburse social benefits and it is the provider or guarantor of public goods. A recent UK publication, Building on Progress: The Role of the State,⁷⁶ in 2007 identified five roles of the modern state. These are:

(1) the direct provider of services (2) the commissioner of services (3) regulator

(4) provider of information

(5) legislator

For a decade or more since 1986 there was a retreat by the state in the move to corporatise and privatise. This came into conflict with rights under the Treaty of Waitangi.

In New Zealand the courts⁷⁷ have recognised the peculiar status of the Treaty of Waitangi and identified principles of the Treaty. These principles have subsequently been developed by the Waitangi Tribunal and Parliament and found their way into some legislation. An attempt by Geoffrey Palmer to put them into the Bill of Rights failed.⁷⁸

Another important result of the case law is the recognition of “partnership” obligations on the Crown in respect of the Treaty and in its relations with the Māori.⁷⁹ These are either fiduciary or akin to fiduciary obligations.

74 For an interesting analysis see ibid., passim.

75 See Salmond, above n 4.

76 HM Government, Policy Review, May 2007.

77 See, for example, New Zealand Maori Council v AG [1994] 1 NZLR 513.

78 See A Bill of Rights for New Zealand. A White Paper (Government Printer, Wellington,

1985). For comment see Joseph, above n 5, at 79.

79 For Treaty jurisprudence, see Joseph, above n 5, at 3. 9. 3. See also 70-73.

It is interesting in this respect to see the invitation to members of the Māori Party to join the Government after the 2008 election.⁸⁰ This was not forced on the National Government by MMP but was an act of calculated goodwill.

What this shows is the complex and sometimes troubled development of the New Zealand state and how conceptions of the state change over time and cannot always be adequately explained in legal terms. The reality is that we have evolved as a hybrid community which is now fast becoming multicultural. It is important that we recognise this history and treat each other with respect.

80 See Relationship and Confidence and Supply Agreement between the National Party and the Māori Party (16 November 2008).