New Zealand Becomes a Colony
The various steps of legal significance associated with New Zealand's inception as a British colony make a confusing story – and there has been uncertainty as to their overall legal implications. Two separate, if related, issues were involved. The first was the need to assert British sovereignty over the New Zealand islands and thus to establish British title to New Zealand from the point of view of international law. The second concerned the manner in which British legal authority – or jurisdiction – was to be asserted over the new British territory. The two formal documents with which Hobson set out recognised these two issues. He held a commission appointing him Her Majesty's Consul in New Zealand for the purpose of negotiating for the recognition of the Queen's sovereignty by the chiefs of New Zealand. He also held a warrant appointing him Lieutenant-Governor over such parts of New Zealand as might be acquired in sovereignty. His appointment as Lieutenant-Governor was evidently regarded as contingent on the successful outcome of his negotiations as Consul.
The Colonial Office were still maintaining the pretence that New Zealand was a sovereign and independent state, but its intentions were laudable in that it was anxious that, at least in the North Island, “the free intelligent consent of the natives, expressed according to their established usages, shall be first obtained”. In accordance with instructions to this effect, Hobson negotiated the Treaty of Waitangi, which was signed by about 50 chiefs on 6 February 1840 and by over 500 chiefs throughout New Zealand before 15 October 1840. On 8 February a salute of 21 guns was fired “to commemorate the cession to Her Majesty of the right of sovereignty in New Zealand”, but Hobson took more definitive action when on 21 May 1840 he issued two proclamations, – one, relying on the Treaty of Waitangi and the subsequent adherence of “principal Chiefs”, proclaimed that sovereignty over the North Island had been ceded to Her Majesty as from the date of the Treaty; the other asserted, as from its date, sovereignty over “the Islands of New Zealand”, the claim to the North Island being based on cession and to the South Island on discovery. After Hobson's dispatches reporting these proclamations reached London, the British Government gave its formal approval to the assertion of sovereignty over New Zealand by publication of the proclamations in the London Gazette of 2 October 1840. The better view would appear to be that the Treaty of Waitangi is not to be regarded as an agreement between sovereign states in accordance with the usages of international law and, accordingly, that the complicated series of events which preceded that Gazette notice made both the main Islands of New Zealand a British colony by occupation rather than by cession.
These events effectively established British sovereignty over New Zealand so far as international law was concerned; but a different series of events was necessary if provision were to be made for the establishment of a system of government in the newly acquired territory. This need was anticipated when on 15 June 1839 letters patent were issued in London altering the definition of the boundaries of New South Wales to include “any territory which is or may be acquired in sovereignty by Her Majesty … within that group of Islands in the Pacific Ocean, commonly called New Zealand”. It thus became clear that, in the first instance at least, the British Government proposed that New Zealand should begin its constitutional life as an appendage of the Colony of New South Wales, rather than as a separate colony. Just before Hobson departed from Sydney, Governor Sir George Gipps issued a proclamation declaring that the boundaries of New South Wales were extended to include such territory in New Zealand as might be acquired in sovereignty. The authority of the Legislative Council of New South Wales was first asserted when on 16 June 1840 the Council passed an Act extending to New Zealand the laws of New South Wales. The Council also established customs duties and courts of justice for New Zealand. It became clear, however, that the relationship of the new colony with New South Wales was intended as a convenience to cover the period during which British sovereignty was being asserted over New Zealand. Even before Hobson's dispatch reporting his proclamations had reached London, an Imperial Act had authorised the Crown to make New Zealand into a separate colony and to constitute a nominated Legislative Council. This legislation became effective on 16 November 1840 under letters patent described as the “Charter for erecting the Colony of New Zealand …”.