Nu Tireni · Evidence Series · Part 28 · 1835–1840
Did Britain create New Zealand, or establish a colony over an existing Nu Tireni?
Britain unquestionably claimed sovereignty and built colonial government. The harder question is what the documentary chain shows about the political authority that existed before that claim, what was actually agreed in February 1840, and what legal step converted that position into the general territorial sovereignty proclaimed in May.
Controlled constitutional inquiry
The starting point is before the colony
He Wakaputanga o te Rangatiratanga o Nu Tireni was first signed by 34 northern rangatira on 28 October 1835. By July 1839 another 18 signatures had been added. Archives New Zealand records that the later signatories included Te Hāpuku of Ngāti Te Whatuiāpiti in Hawke’s Bay and Te Wherowhero of Waikato–Tainui, later the first Māori King, and describes those final two accessions as extending the reach of He Wakaputanga considerably.
Archives New Zealand describes the 52 rangatira as asserting that Aotearoa New Zealand was an independent Māori state, that power resided fully with Māori, and that foreigners would not be allowed to make laws. The British Crown formally acknowledged He Wakaputanga in 1836.
1839 — Britain still framed sovereignty as something to be acquired
Queen Victoria’s June 1839 Letters Patent altered the boundaries of New South Wales so they could include “any territory which is or may be acquired in sovereignty by Her Majesty” within the islands commonly called New Zealand.
That language matters. It created imperial machinery capable of receiving territory if sovereignty was acquired. It did not itself identify a completed Māori cession of New Zealand.
Lord Normanby’s instructions then required Hobson to seek the free and intelligent consent of Māori for recognition of the Queen’s authority over the whole or such parts as they were willing to place under Crown dominion.
February 1840 — what did the signatories agree to?
The Waitangi Tribunal’s Stage 1 finding is deliberately limited to the rangatira who signed Te Tiriti at Waitangi, Waimate and Mangungu in February 1840. For those rangatira, the Tribunal concluded that they did not cede sovereignty — meaning they did not transfer authority to make and enforce law over their people or territories.
The Tribunal found instead that they agreed to the Governor having authority to control British subjects, while rangatira retained their independence and full chiefly authority. Where Māori and Pākehā populations intermingled, questions of relative authority remained to be negotiated case by case.
What Britain intended
Britain entered the negotiations intending to acquire sovereignty and the power to make and enforce law over Māori and Pākehā.
What the Tribunal says was agreed
The relevant February signatories did not agree to that complete transfer. They agreed to a Crown sphere of authority while retaining tino rangatiratanga.
21 May 1840 — claim and source must be separated
Hobson then issued proclamations asserting British sovereignty over the North Island on the basis of cession and over the southern islands by right of discovery. He did so while Treaty signatures were still being collected.
The Tribunal’s Stage 2 report later concluded that the wording of the May proclamations shows that Britain considered a cession of sovereignty to have occurred. For the northern island, the Tribunal found that proclaiming sovereignty in that way was inconsistent with the guarantees of Te Tiriti signed by Te Raki rangatira.
A proclamation establishes that sovereignty was claimed. It does not, merely by declaring the result, answer the separate evidential question of where the authority claimed came from.
Then came the Colony of New Zealand
On 16 November 1840 the imperial Crown issued the Charter for erecting the Colony of New Zealand, separating New Zealand from New South Wales and constituting colonial governmental machinery, including a nominated Legislative Council.
This creates a distinction the series must preserve:
The country and its existing authority
Nu Tireni / New Zealand as the territory, peoples and political relationships that existed before the imperial colony was erected.
The colonial governmental construct
The Colony of New Zealand as the British constitutional machinery created after the Crown had asserted territorial sovereignty.
The Crown’s legal position was that sovereignty had been acquired and the colony therefore governed the territory. The alternative proposition exposed by He Wakaputanga and the Tribunal’s Stage 1 finding is narrower: Crown kāwanatanga may have been agreed as a governmental jurisdiction without an informed transfer of all Māori law-making authority.
That alternative proposition is a question to be tested, not a conclusion to be assumed.
The chronology
1835 He Wakaputanga declares rangatiratanga, Kīngitanga and mana and restricts unauthorised law-making and Kawanatanga within the Confederation’s lands.
1835–1839 Further rangatira accede; 52 signatures are recorded by July 1839.
1836 Britain formally acknowledges He Wakaputanga.
June 1839 Imperial Letters Patent contemplate New Zealand territory that “is or may be acquired in sovereignty”.
February 1840 Te Tiriti is signed at Waitangi, Waimate and Mangungu; the Tribunal later finds those rangatira did not cede sovereignty.
21 May 1840 Hobson proclaims sovereignty over the North Island by cession and the southern islands by discovery.
16 November 1840 The imperial Crown erects the separate Colony of New Zealand.
The missing-instrument test
From this point, each constitutional instrument should be tested against the same questions:
- Who issued it, and under what pre-existing authority?
- What territory did it purport to affect?
- Which people did it purport to govern?
- Did it acquire sovereignty, create governmental machinery, recognise an existing fact, or merely assert one?
- If Māori consent was said to supply the authority, what document or conduct establishes that consent and its scope?
- Does a later instrument depend upon an earlier assertion whose legal basis still requires proof?
Did Britain establish kāwanatanga within an existing Nu Tireni and subsequently treat that jurisdiction as sovereignty over Nu Tireni itself? The documents must answer that question; the series will not assume it.
Primary and official sources
Archives New Zealand — He Wakaputanga o te Rangatiratanga o Nu Tireni ↗
Archives New Zealand — He Wakaputanga signatories and later accessions ↗
Manatū Taonga / NZHistory — 1839 Letters Patent and Treaty sequence ↗
Waitangi Tribunal — Stage 1 finding on He Wakaputanga, Te Tiriti and sovereignty ↗
Waitangi Tribunal — Stage 2 findings on the Crown’s May 1840 assertion ↗
Manatū Taonga / NZHistory — Hobson’s 21 May 1840 proclamations ↗
Manatū Taonga / NZHistory — Charter erecting the Colony of New Zealand ↗