I am a common lawyer not a historian. Other than to the extent that the common law is always concerned with what can be proved to have taken place in the past as a guide to the present and future I claim no particular expertise.
The official British Government position concerning who exercised sovereignty over New Zealand at the beginning of the nineteenth century is summarised in the instructions given by Lord Normanby to his appointed Consul Captain William Hobson before he sailed for New Zealand on the 25th August 1839.
At the time these instructions were written there was considerable dispute about the constitutional status of New Zealand. The official United Kingdom Government position appeared to be that New Zealand was a sovereign country. This was hotly disputed by the promoters of the New Zealand Company who were able through their spokesman Mr Soames to point to a number of executive acts of the British Government which strongly pointed towards its exercise of sovereignty over New Zealand. These included: Captain James Cook’s formal possession of the lands of New Zealand in 1769 pursuant to a Crown Commission to that effect, the appointment of Captain Phillip as a Royal Commissioner “in possession” as Captain General and Governor in Chief over the territories of New South Wales and New Zealand, the 1814 declaration that the islands of New Zealand were a dependency of Great Britain, the appointment in 1814 of Justices of the Peace to administer criminal and civil jurisdiction over both natives and European settlers, the appointment in 1819 of a resident Magistrate, and the extension in 1823 by British Act of Parliament of the jurisdiction of the New South Wales Courts to New Zealand. All of which in the view of the New Zealand Company amounted to de facto exercise of British Sovereignty over New Zealand.
Against this was the apparent forfeiting of British Sovereignty in 1831 by a “diplomatic agent of the Crown” and the presentation to the Native people of The Bay of Islands of a national flag, followed by the assembly of a confederation of local chiefs and the declaration of “native independence”. The name chosen for the country as part of this exercise was Na Terrene which was apparently the Maori attempt at pronouncing New Zealand. As Mr Soames pointed out notwithstanding these contrary indications it is highly unlikely that Hobson’s commission can have had any lawful effect on the question of who exercised sovereignty over the islands to that time being as it was restricted to a few Chiefs living on a small part of the total country. Soames’s views were largely ignored by the British government, and in the result this debate was overtaken by the appointment of Hobson as Consul and the terms of the instructions he received from Lord Normanby.
Lord Normanby’s instructions to William Hobson.
Lord Normanby was the Secretary of State for the Colonies, and the instructions he gave to Hobson displayed an extraordinarily enlightened attitude to the rights of the indigenous peoples of New Zealand in the face of European settlement. It drew attention to the evils of annexation of the lands of “numerous and inoffensive peoples” in order to enhance the wealth of Britain. But it recognised the fact that there existed in New Zealand a large body of European settlers including “many persons of bad and doubtful character” some of whom had succeeded in acquiring large tracts of native land in dubious circumstances. In addition the activities of these settlers was unrestrained by any effective laws.
To mitigate this unsatisfactory state of affairs the Secretary of State decided to establish in New Zealand a “settled form of civil government.” In doing so he first acknowledged that New Zealand was a sovereign and independent state but immediately recognised the legal difficulty surrounding such a proposition. As he well understood International law at that time did not accept that small (often warring) tribal groups inhabiting a territory without any central civil or political structure could be recognised as a sovereign authority in that country. It is therefore clear that the point of Lord Normanby’s acknowledgement of native sovereignty is to impose a moral duty on the Crown not to simply annex the lands of New Zealand for the benefit of Britain without conferring corresponding benefits on the inhabitants not currently enjoyed. This is encapsulated in the crucial passage in the instructions relevant to sovereignty:
Believing however that their (sic the natives) own welfare would under the circumstances I have mentioned be best promoted by the surrender of a right so precarious and little more than nominal and persuaded that the benefits of British protection and 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 has authorised you to treat with the aborigines for the recognition of Her Majesty’s sovereign authority over the whole or any part of those Islands which they may be willing to place under Her Majesty’s dominion….. It has therefore been resolved to place whatever territories may be required in the sovereignty by The Queen in New Zealand.
This is precisely what happened. Hobson treated with as many of the native chiefs as he was able to muster and after much debate for and against (as was forecast by Normanby in his instructions) they signed the various iterations of the Treaty of Waitangi making it clear beyond any doubt that by virtue thereof sovereignty over New Zealand passed to the Crown. Nothing in article 3 derogates from that. It is merely a specific recognition that the passing of sovereignty did nothing to adversely affect existing ownership of land and other valuable assets, and that is also the significance of the right of Crown pre-emption of land purchases which the Crown also negotiated at the time of signing. The cases which came before the courts over the ensuing years and numerous Acts of Parliament dealing with native lands universally approbate this interpretation of events. I know of no evidence to the contrary.
As a postscript it seems to me equally idle to now contend (as I understand does the Waitangi Tribunal) that the only sovereignty obtained by Britain was in relation to those chiefs who signed the Treaty. The fact is that since the signing of The Treaty New Zealand has been governed as one sovereign state with, until recently the acquiescence of the overwhelming body of its peoples. As a lawyer would say that is both a de facto and a de jure recognition of a settled state of affairs and cannot now be called into question.