New Zealand Yearbook of New Zealand Jurisprudence
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
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
we have a poor fit between the domestic conceptions and the
conception of public international
1 See DB Goldman, Globalisation and the Western Legal Tradition (Cambridge University
Press, Cambridge, 2007) at 155 et seq, Chapter 7.
2 Ibid., 116.
4 See Sir John Salmond Jurisprudence (7th ed, Sweet & Maxwell, London 1924) at 351 et
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  AC at 543, 555 and Town Investments Ltd v Dept of the Environment  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
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,
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
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
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
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
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
21 Brian Easton “Was there a Treaty of Waitangi? Was it a social contract?” Archifacts (April
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
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
From the beginning there was ambiguity of how far English Law could apply to
the circumstances. To assist the process Chief Justice
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.
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
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
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
by Chief Justice Martin, Bishop Selwyn and, behind closed doors,
Governor George Grey. Governor Grey was clever enough to encourage
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
protest against the general doctrine put forward by Earl Grey as the
principle upon which colonisation should henceforth be conducted
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
State” and the circumstances of the Treaty of
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
Hobson had been sent to New Zealand as her Majesty’s Consul not as
Lieutenant Governor, and only became Governor after the
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.
The New Zealand Company’s attempt to disparage the treaty as “a
praiseworthy device for amusing or pacifying savages for
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,
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;
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,
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
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.
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
whether it have an owner.
It then argues that the second article of the Treaty gave an express
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
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
The rest of the pamphlet discusses practical considerations concerning
Māori and contains a letter from Mr Maunsell of the Church
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
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
Parliament had power to pass laws to the “peace, order and good
government of New Zealand” provided they were not inconsistent
laws of England. The Crown had power to disallow New Zealand legislation. This
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
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
Swainson also discusses the development of resident Magistrates and the
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
Lord Newcastle, Secretary of State for the Colonies, asked Governor Grey in
1861 whether in some areas the establishment of separate
would not be the best way of achieving harmony. Grey ignored this
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
In spite of provocations the Māori attitude and that of the first
Māori king was to abide by the law until high-handed attitudes
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
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  3 NZ Jur (NS) SC 79.
57 Nireaha Tamaki v Baker  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
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
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
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
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,
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
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
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
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
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
he witnessed the exercise of authority under the British
Government, possessed any idea corresponding to that which is conveyed to
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
Another strong critic of the Government was Archdeacon Hadfield who had lived
many years amongst Māori.70 Hadfield later became Archbishop of
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
This coincided with self-rule by Māori in many areas which the
Kīngitanga movement echoed to some extent. This was replaced
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
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
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
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
been developed by the Waitangi Tribunal and Parliament and
found their way into some legislation. An attempt by Geoffrey Palmer to
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
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  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
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
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
80 See Relationship and Confidence and Supply Agreement between the National Party and the Māori Party (16 November 2008).