Chapter 4: The Legal Status of the Treaty
5. THE LEGAL STATUS OF THE TREATY
5.1 The Treaty of Waitangi has always assumed great importance in the eyes of the Maori. He believes that by the solemn agreement made with the Queen of England the peaceful colonisation of New Zealand became possible. He believes also that the Land Wars that occurred later in New Zealands history were not the result of the Treaty but the result of failure to abide by it. We do not propose to go into the accuracy of those beliefs in this judgement, because the point arises squarely in another claim now before us and we will face that difficult matter in dealing with the claim (to the Manukau Harbour).
5.2 The European on the other hand generally regarded the Treaty as an historical event which does not have much impact on modern New Zealand. This view springs largely from the judicial decisions in cases when the legal consequences of the Treaty have been in question and which have led to the conclusion that it has no place in New Zealand law. Since the passing of the Treaty of Waitangi Act 1975, that conclusion may require reconsideration as we shall go on to explore later in this Finding of the Tribunal.
5.3 The legal effect of the Treaty of Waitangi has been described by the Privy Council in a passage frequently cited on this subject in the case of Hoani Te Heu Heu v Aotea District Maori Land Board  AC 308 at p 324:
.It is well settled that any rights purporting to be conferred by such a treaty of cession (sc The Treaty of Waitangi) cannot be enforced in the Courts, except insofar as they have been incorporated in the municipal law
This has generally been taken to mean that the Treaty of Waitangi does not create any legal rights that the Courts can enforce.
(It should be noted that the authority thereafter cited in the judgement refers to rights that inhabitants of a territory may have had under the previous ruler, and acknowledges that any rights recognised by the new sovereign or its officers may be made good in the municipal Courts. This point may assume some importance as we proceed in this matter. See Lord Normanbys instructions to Capt Hobson referred to in para 5.6.7 below.)
5.4 About 20 years later adopting the principle in the case just cited the New Zealand Court of Appeal re-affirmed it in Re the Bed of the Wanganui River  NZLR 600, at p 623 per Turner J:
Upon the signing of the Treaty of Waitangi the title to all land in New Zealand passed by agreement of the Maoris to the Crown; but there remained an obligation upon the Crown to recognise and guarantee the full exclusive and undisturbed possession of all customary lands to those entitled by Maori custom. This obligation, however, was akin to a treaty obligation, and was not a right enforceable at the suit of any private person as a matter of municipal law by virtue of the Treaty of Waitangi itself. The process of recognition and guarantee was carried into effect by a succession of Maori Land Acts.
5.5 Through the years there have been a number of examples of the Crowns solicitude towards the spirit of the Treaty. The Land Acts contained particular provisions for the protection of Maori customary and freehold land and for judicial supervision of alienations. More recently the Town & Country Planning Act 1977 has recognised the special relationship of Maori people with their ancestral land. (Sec 3(1)(g)). Similarly the fisheries legislation from early times down to the current Fisheries Act 1983 has included a saving provision to protect existing customary fishing rights. When the claim was made to the bed of the Wanganui River it was defeated by a general provision as to the ownership of river beds in the Coal Mines Act 1925 (and its predecessor in 1903). Parliament therefore passed the Maori Purposes Act 1951 (and its successor in 1954) so as to empower the Court of Appeal to ascertain whether for the purposes of admitting a claim for compensation, the Maori claimants had been deprived of their rights to the river bed by a side-wind rather than by express enactment. (T A Gresson J on the subject of the foreshore in Re Ninety Mile Beach  NZLR 461 at 4778).
Another example of the care of the Crown to observe the spirit of the Treaty of Waitangi may be found in the statute that creates our own Waitangi Tribunal.
5.6 While it has been generally accepted that the Treaty creates no rights enforceable in a Court of Law, Mr P G McHugh, a Fellow of Sidney Sussex College, Cambridge, appeared before us to give us the benefit of his extensive researches which have led him to a contrary opinion. He produced to us a carefully written submission of considerable scholarship taking up 108 pages of typescript accompanied by 26 pages of footnotes. We have studied this material with the care it deserves and we now attempt to summarise his argument in the following propositions:
5.6.1 The Colonial policy of the British Crown included punctilious recognition of the rights of indigenous peoples wherever the British flag was raised.
5.6.2 That policy was demonstrated as far back as 1609, and as it was put to us:
The Colonial Office insisted upon and constantly recognised the land rights of native peoples in the Crowns colonies although it was not until the late nineteenth century that any substantial body of English case law began to develop on the matter
5.6.3 The Crowns right of pre-emption to be found in the Treaty of Waitangi emerged as a policy as early as 1618 in Englands first colony in North America (Virginia).
5.6.4 The Privy Council in the 18th century acknowledged this policy in the case of the colony of Connecticut when it recognised Indian rights to land and the sole capacity of the Crown to extinguish such rights and so imported into English law the beginnings of a body of Colonial law.
5.6.5 A Royal Proclamation of 1763 affecting the North American Colonies recognised the lawful right of North American Indians to their land and declared that such land could be acquired by fair purchase or by voluntary cession and not otherwise.
5.6.6 Recognition of aboriginal title to land is also to be found in the West African settlements where treaties were concluded with native peoples in 1788, 1791, 1807, 1818, 1819, 1820, 1821, 1825, 1826, and 1827 all of which can be seen as forerunners of the Treaty of Waitangi. Similar arrangements were made from time to time in South Africa.
5.6.7 By 1840 it was a settled principle of colonial law that the land rights of aboriginal people were protected by the Crown as evidenced by Lord Normanbys Instructions to Hobson:
(the Maori) title to their soil and to the sovereignty of New Zealand is indisputable and has been solemnly recognised by the British Government
5.6.8 For nearly forty years after the signing of the Treaty New Zealand Courts recognised and accepted these principles of colonial law as to the land rights of the Maoris.
5.6.9 After the Land Wars of the 1860s New Zealand Courts departed from these principles and in the case of Wi Parata v The Bishop of Wellington (1877) Prendergast CJ enunciated the proposition that the Treaty of Waitangi
could not transform the natives right of occupation into one of legal character since, so far as it purported to cede the sovereignty of New Zealand, it was a simple nullity for no body politic existed capable of making cession of sovereignty.
5.6.10 The proposition contained in the case just cited was wrong being based on a concept of international law and not on the established principles of colonial law. All cases that followed it were similarly wrong for the same fundamental reason. The dictum of the Privy Council in Hoani Te Heu Heu v Aotea District Maori Land Board does not refer to the principles of colonial law, but to international law and is not material to the issue to be decided in that case.
5.7 We feel bound to say that there is much force in Mr McHughs argument. For example the statement of principle in Wi Parata was criticised by the Privy Council much later in 1902 in the case of Nireaha Tamaki v Baker  NZPCC 371 in the following passage:
It was said in the case of Wi Parata v Bishop of Wellington which was followed by the Court of Appeal in this case (ie, the judgement under appeal) that there is no customary law of the Maoris of which the Courts of Law can take cognisance. Their Lordships think that this argument goes too far, and that it is rather late in the day for such argument to be addressed to a New Zealand Court... It is the duty of the Courts to interpret the statute which plainly assumes the existence of a tenure of land under custom and usage which is either known to lawyers or discoverable by them
This dictum was not referred to in the advice given in the case of Hoani Te Heu Heu v Aotea District Maori Land Board (above) (para 5.3).
5.8 But so far as land rights are concerned the principle in Wi Parata came to receive a measure of statutory recognition by the Native Land Act 1909 which provided that Maori title to customary land was not to avail against the Crown and went on expressly to declare that the Crown had power to extinguish Maori title to customary land.
5.9 Nevertheless Mr McHugh goes one step further. He argues that although the 1909 Act tends to make all that happened in the Courts before that date (so far as the land ownership is concerned) a matter of historical interest only, yet the principles of colonial law which he identifies still apply to aboriginal property rights other than land, for example, to fisheries which were not affected by the Native Land Act 1909 and its successors in the legislation. He says that the Fisheries Act 1983 (Sec 88(2)) expressly protects Maori fishing rights and that as a consequence the Ngati Pikiao people have a legal basis for their claim to protect their fisheries in the Kaituna River resulting from applying the proper principles of colonial law to the Treaty of Waitangi.
5.10 No counsel appearing at our sittings made submissions in reply to Mr McHughs arguments, and we did not hear an answer from the Justice Dept., the Crown Law Office, or any of the Government Ministries represented. The breadth of research may have presented them with a task too daunting to discharge in the time available, which is understandable. But the proposition advanced deserves close study because of its importance to all of us.
5.11 Tempting though it may be to reach a final conclusion on Mr McHughs interesting argument, we do not propose to make any ruling on the matter. Our statutory authority is to make a finding as to whether any action of the Crown, or any statute of Order in Council is inconsistent with the principles of the Treaty. This wide power enables us to look beyond strict legalities so that we can in a proper case, identify where the spirit of the Treaty is not being given due recognition. Furthermore it may be that the very issues raised by Mr McHugh will come before the Courts again and it would not be seemly for this Tribunal to make a legal finding on a matter that may require the attention of the High Court, the Court of Appeal or (even more likely) the Privy Council itself.
5.12 Notwithstanding that attitude, we wish to record our indebtedness to Mr McHugh for his care and thoroughness which have helped us greatly to see the Treaty of Waitangi in its full historical perspective.