Nu Tireni · Evidence Series · Part 11 · August 1840 – May 1841
How did an assertion of sovereignty become a functioning colonial government?
Imperial legislation, the 16 November 1840 Royal Charter, a Governor, Executive Council and Legislative Council converted Britain's sovereignty claim into governing machinery.
Constitutional machinery
Once Britain treated sovereignty as acquired, the next problem was institutional: who would govern, under what authority, and through which legislature?
In August 1840 the Imperial Parliament authorised the Crown to separate New Zealand from New South Wales. On 16 November 1840 Letters Patent known as the Charter for erecting the Colony of New Zealand created New Zealand as a separate Crown colony. Further instruments appointed Hobson Governor and provided Royal Instructions for the administration of government.
When the new arrangements became operational in New Zealand in May 1841, the Crown had an executive and legislative structure capable of making and administering colonial law.
This is the distinction that matters for tracing authority. The source of the Charter's legal force is British imperial constitutional authority. The Charter is not another Treaty with hapū, and it does not record a later nationwide grant of tino rangatiratanga to the colonial legislature.
That does not make the colonial institutions imaginary or legally ineffective within the legal system Britain established. It means only that the institutional question and the original-consent question are different questions.
The Crown's legal chain is now increasingly easy to trace: proclamation, imperial approval, imperial legislation, Royal Charter, Governor, Executive Council, Legislative Council and courts.
From this point forward, most constitutional instruments answer “how is Crown government organised?” rather than “what did rangatira agree to surrender?”
Acquisition question
The Charter proceeds on the premise that sovereignty has already been acquired.
Government question
It creates the institutions through which that asserted sovereignty can be exercised as colonial government.
Primary and official sources
Manatū Taonga / NZHistory — New Zealand officially becomes a British colony ↗