The Treaty of Waitangi; or, how New Zealand became a British Colony

by Thomas Lindsay Buick

A further proclamation was issued on the same day proclaiming and declaring that all the Islands of New Zealand vested in Her Majesty, that is, including all country between 34° 30´ north to 47° 10´ south latitude and between 166° 5´ to 179° east longitude. A mistake was made in this proclamation in that it proclaimed from 34° 30´ north instead of as was intended 34° 30´ south. The ground of the proclamation over the South Island was that of discovery. Since then it has been recognised that the lands in the islands not sold by the natives belonged to the natives. All the old authorities are agreed that for every part of land there was a native owner. Two authorities may be cited. Bishop Selwyn said as follows: "Three points then seem to be clear on this subject: (1) That there was originally a distinct owner for every habitable spot in the Northern Island: (2) That these claims have been complicated by the obvious causes of inheritance and marriage without forms of conveyance or bequest: (3) That the rights of ownership whether in one or many joint proprietors were not alienable without the consent of the tribe."

The late Sir William Martin, formerly Chief-Justice of New Zealand, said: "So far as yet appears the whole surface of the islands, or as much of it as is of any value to man, has been appropriated by the natives, and, with the exception of the part they have sold, is held by them as property. Nowhere was any piece of land discovered or heard of (by the commissioners) which was not owned by some person or set of persons.... There might be several conflicting claimants of the same land: but however the natives might be divided amongst themselves as to the validity of any one of the several claims, still no man doubted that there was in every case a right of property subsisting in some one of the claimants. In this Northern Island at least it may now be regarded as absolutely certain that, with the exception of lands already purchased from the Natives, there is not an acre of land available for purposes of colonisation, but has an owner amongst the Natives according to their own customs."

The Governor and the Legislature of New Zealand accepted this position, and numerous ordinances and acts of Parliament have been passed to enable the Maoris to transmute their customary title into freehold. The position all along assumed has been that the lands are vested in the Crown, and until the Crown issues a freehold title the customary titles cannot be recognised; but that the Crown will give to all who prove that the land was theirs a freehold title. The Crown has not assumed that land could be taken or kept by the Crown from the Natives, unless the natives ceded their rights to the Crown. Thousands of purchases in both islands have been made by the Crown, and thousands of deeds of cession are in existence. The reason why the Crown did not recognise any title in the land till a grant from the Crown had issued is dealt with in the classic judgment of the late Mr. Justice H. S. Chapman, delivered in 1847 in the case of Reg. v. Symonds, and in the judgment of the then Chief-Justice Sir William Martin, who agreed with the judgment of Mr. Justice Chapman. After their judgments, the Imperial Parliament in the New Zealand Constitution Act (15 and 16 Vict. c. 72, sec. 73) recognised the native title. Section 73 of that Act is as follows: "It shall not be lawful for any person other than Her Majesty, her heirs and successors, to purchase or in any wise acquire or accept from the aboriginal Natives land of or belonging to, or used or occupied by them in common as tribes or communities, or to accept any release or extinguishment of the rights of such aboriginal Natives in any such land as aforesaid: and no conveyance or transfer, or agreement for the conveyance or transfer of any such land, either in perpetuity or for any term or period, either absolutely or conditionally, and either in property or by way of lease or occupancy, and no such release or extinguishment as aforesaid, shall be of any validity or effect, unless the same be made to, or entered into with and accepted by Her Majesty, her heirs or successors. Provided always that it shall be lawful for Her Majesty, her heirs and successors, by instructions under the signet and royal sign manual, or signified through one of Her Majesty's Principal Secretaries of State to delegate her powers of accepting such conveyances or agreements, releases, or relinquishments, to the Governor of New Zealand, or the superintendent of any province within the limits of such colony, and to prescribe or regulate the terms of such conveyances or agreements, releases or extinguishments shall be accepted."

That the Crown in New Zealand recognised that it could not treat the Native land—that is, the land over which the Natives had not given up their rights of cession—as Crown in the fullest sense is plain from various things done: (1) In 1862 the first Act to provide for the ascertainment of the ownership of Native lands, and for granting certificates of title therein, and for regulating the disposal of Native lands was passed. The preamble is as follows: "Whereas by the Treaty of Waitangi entered into by and between Her Majesty and the chiefs of New Zealand, it was among other things declared that Her Majesty confirmed and guaranteed to the chiefs and tribes of New Zealand and the respective families and individuals thereof the full, exclusive, and undisturbed possession of their lands and estates, which they collectively or individually held so long as it should be their desire to retain the same: And it was further declared that the chiefs yielded to Her Majesty the exclusive right of pre-emption over such lands as the proprietors thereof might be disposed to alienate: And whereas it would greatly promote the peaceful settlement of the colony and the advancement and the civilisation of the Natives if their rights to land were ascertained, defined, and declared, and if the ownership of such lands when so ascertained, defined, and declared were assimilated as nearly as possible to the ownership of land according to British law: And whereas with a view to the foregoing objects, Her Majesty may be pleased to waive in favour of the Natives so much of the said Treaty of Waitangi as reserves to Her Majesty the right of pre-emption of their lands, and to establish Courts and to make other provision for ascertaining and defining the rights of the Natives to their lands, and for otherwise giving effect to the provisions of the Act: And it is expedient that the General Assembly of New Zealand should facilitate the said objects by enacting such provisions as are hereinafter contained."

(2) When the natives committed rebellion or were guilty of insurrection, a special Act was passed allowing the Governor in Council to take their lands. See inter alia the New Zealand Settlements Act, 1863. A few of the sections may be cited: "2. Whenever the Governor in Council shall be satisfied that any Native tribe or section of a tribe or any considerable number thereof has since the first day of January 1863 been engaged in rebellion against Her Majesty's authority, it shall be lawful for the Governor in Council to declare that the district within which any land being the property or being in the possession of such tribe or section or considerable number thereof shall be situate, shall be a district within the provisions of this Act, and the boundaries of such district in like manner to define and vary as he shall think fit."

"3. It shall be lawful for the Governor in Council from time to time to set apart within any such district eligible sites for settlements for colonisation, and the boundaries of such settlements to define and vary."

"4. For the purposes of such settlements the Governor in Council may from time to time reserve or take any land within such district, and such land shall be deemed to be Crown land, freed and discharged from all title interest, or claim of any person whomsoever as soon as the Governor in Council shall have declared that such land is required for the purposes of this Act, and is subject to the provisions thereof."

Section 5 provided for compensation to persons whose land has been taken, provided that they had not been in rebellion.

(3) Before Native land was treated as Crown land, open for sale and settlement, proclamations were generally made so declaring the land open. See, for example, section 6 of the Immigration and Public Works Act, 1873, and section 247 of the Land Act, 1885.

It is not necessary to point out that if the Crown in New Zealand had not conserved the Native rights and carried out the treaty a gross wrong would have been perpetrated. Since the recognition of the Native rights so often made, there may have been interference by legislation with Native land, both before and after the ascertainment of title. If, however, there were such interferences, they have been based on the theory of eminent domain. There have been statutes passed providing how Native lands may be leased, but a similar kind of interference has been witnessed in the United Kingdom in the case of the Irish Land Acts and the Scottish Crofters' Statutes. Such interferences did not destroy the title of Natives. Native lands and freehold lands belonging to persons of the white race have also been taken under such a theory when it appeared it was for the interest of the State to do so. In such cases compensation has been awarded. To interfere with Native lands, merely because they are Native lands, and without compensation, would of course be such an act of spoliation and tyranny that this Court ought not to assume it to be possible in any civilised community.