Wednesday 7 February 2024

When was sovereignty properly established here?


So here's a quiz question for you: When did Britain legally acquire sovereignty over the New Zealand isles? (Supplementary questions: What IS sovereignty? And was it EVER ceded by the locals?)

  • Was it when Cook first planted his flag in 1760 and 1770?
  • Or in 1787, when Captain Phillips was installed as governor of NSW "and adjacent isles"?
  • Perhaps in 1813, when NSW Governor Macquarie issued his General Order "purporting to bring the natives of certain Pacific islands, including New Zealand, under the protection of His Majesty" — followed by the appointment here of magistrates in 1814 and 1819?
  • Maybe in 1823, when the jurisdiction of Australian courts was extended here to deal with miscreant British subjects?

All this activity reveals there was already a great deal of legalistic British engagement with the place loooong before Hobson landed here for the first time in 1837. (No, not a typo.) But none really convey sovereignty as we understand it, i..e, the exercise of legitimate power by a recognised state. 

In that respect, some argue that 14 January 1840 is the important date, marking the day when NSW Governor Gipps proclaimed the extension of NSW's boundaries to NZ,  English laws applying here for the first time. Or 30 January of that year when Hobson landed and proclaimed himself Lieutenant-Governor.

Even after Hobson re-landed here in January 1840, he and his ship's captain reckoned on the one hand that sovereignty was acquired peacemeal -- the northern parts after the northern signings (Hobson issued a proclamation on 17 Feb 1840 on that basis), and thence from Auckland north after a signing there on 4 March, 1840 ("thus confirming to Her Majesty the Sovereignty of this Island to this Parallel," wrote his ship's captain.)

On the other hand, Hobson also reckoned that "the Treaty which forms the base of all my proceedings was signed at Waitangi on the 6th February 1840 ... This instrument I consider to be de facto the Treaty, and all  the signatures that are subsequently obtained are merely testimonials of adherence to the terms of the original document." 

This looks contradictory. Yet the two views can be easily reconciled: in Hobson's mind, it was not the Treaty that confirmed sovereignty, but his proclamations largely on the basis of those signatures-- the most important being on 21 May 1840 when he proclaimed sovereignty over the whole place (and clumsily claimed the Treaty's signing date to be 5 February).

It's all a bit of a mess.

Many years ago, Auckland University's senior history professor James Rutherford had a crack at answering that question: When exactly did Britain acquire sovereignty over the New Zealand isles?

Turns out there's not exactly a straightforward answer.

Rutherford dismisses all those early dates with ease.

  • Cook's flag-planting was never ratified by the British Parliament, and not followed up by occupation.
  • Both Phillip and Macquarie probably overstepped themselves here, and once again their declarations were not followed up by immediate occupation.
  • The 1823 ordnances only applied to British subjects (and only if caught)
  • Gipps himself said his 1840 Proclamation was "only intended to give warning" that Hobson and pens and parchment were on their way to New Zealand, not to suggest he was already ruling here. It was "anticipatory" of sovereignty; it did not establish it.
So when Hobson arrived here in January 1840 to "treat with the Aborigines of New Zealand for the recognition of Her Majesty's Sovereign authority" he arrived only as Consul, no matter what he read out when he landed. 

He would only legally become Lieutenant-Governor when or if sovereignty could be properly established.

And when was that?

Well, it's complicated because of the confused legal status of the Treaty/Tiriti. As of 1949, when Rutherford was giving his opinion, even the date of 6 February 1840 could not be admitted:

Thus we come to Hobson's proclamations of 21 May 1840. He issued two:

The first proclamation (a) recites that Hobson was authorised to proclaim sovereignty over the South Island on the grounds of Discovery [although Hobson did not know, on 21 May, that a number of South Island chiefs had signed the Treaty. Their signatures imply that the Treaty applies to the South Island as well as the North Island], and that the North Island had been ceded in sovereignty to Her Majesty. The second (b) recites more fully that by the Treaty of Waitangi the chiefs have ceded all rights and powers of sovereignty to the Queen absolutely and without reservation. 
    Hobson's action in issuing these proclamations is clearly one of the important definitive acts of State for which we are looking. For the first time during the period of transactions under review, an accredited government agent, acting, it may be said, reasonably in accordance with instructions received, proclaims British sovereignty over the whole of New Zealand. 
    His action is still subject to the approval of the Crown. 
    In event of such approval being given, it will be reasonable and, I think, correct to date back the acquisition of British sovereignty over the whole of New Zealand to this date. ...
    Whereas the first proclamation clearly implies that sovereignty is asserted over the South Island on and as from 21 May 1840, sovereignty over the North Island is specifically asserted 'from and after the Date of the above-mentioned Treaty.' ... 
Hobson regarded the treaty proper as that which was signed at Waitangi on 6 February, the later signatures being merely supplementary. It is doubtful how far such a view can be taken as correct. If accepted, however, it has the effect of dating back the assertion of British sovereignty over the North Island to 6 February 1840.
Alternatively, it is possibly correct to consider that, as the chiefs signed the Treaty, they were recognising the sovereignty of the Queen over their tribal lands and were thereby fulfilling that political condition which H.M. Government had laid down to their consul, Hobson, as a prerequisite to his assertion of British sovereignty, which he could then proclaim at his convenience. 
Which he did.

However, we're still not there yet. (Did I say it was complicated?)

By 21 May around 400 chiefly signatures had been acquired on Hobson's various sheets of parchment, although not all had signed, and not all those signatures were yet in his kitbag. (The mail was awfully slow back then.) He acted quickly, before he was truly ready, because Wakefield's settlers at Port Nicholson were starting to make noises about republicanism.

So two things must at once be admitted, says Rutherford, about Hobson's assertion of sovereignty over the North Island in May 1840: 
(1) that it was premature, in the sense that the process of treaty-making was still incomplete; and (2) that in extending sovereignty over the whole of the North Island, as well as the South, Hobson was probably exceeding both what the strict letter of his instructions authorised, and what the Treaty, even in its finished state in October, warranted.
And then on June 5, in the South Island, having acquired several chiefly signatures, but spying many foreign vessels sunning themselves in Port Underwood, claimed the South Island on the basis of cession, and Stewart Island (being empty) on the basis of discovery. (Adding nothing to what Hobson had already claimed on 21 May but at least bolstering it.)

But as Rutherford points out, "Sovereignty could, in the last resort, be established only by the sanction of the Crown, and the form that Crown sanction took was approval of the terms of Hobson's May proclamations. ... The essential political condition of the assertion of British sovereignty was the 'free and intelligent' consent thereto of the Maori chiefs of the North Island. This was obtained in a considerable measure by means of the Treaty of Waitangi (February-October 1840)."

And thus by October 1840 the British Government could be sufficiently satisfied that its instructions to Hobson had been successfully carried out, and was able to give official approval. And so, Rutherford concludes, 
Not until they were satisfied that there was a general measure of native consent to British sovereignty did the British Government take any definitive legal step to assert or confirm sovereignty. Prior to the formal approval of 2 October of Hobson's May proclamations, all their actions were of a  preparatory sort. 
    The decision to assert sovereignty was based (i) upon the political facts that Hobson had secured a considerable measure of native consent by the Treaty; (il) in respect of the South Island and Stewart Island, partly upon native consent, partly upon rights of discovery, and partly on the fact of settlement; and (iii) in the North Island, in so far as native consent was withheld, upon rights of settlement or occupation. 
.   The Treaty of Waitangi is not recognisable as a treaty in international law, and is not part of municipal law; therefore the legal position is that New Zealand was acquired by an act of State, and falls in the category of colonies acquired by occupation. The definitive acts of State are Hobson's proclamations of 21 May 1840, and H.M. Government's approval of 2 October 1840.
Maybe we should make 2 October the National Day?

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