New Zealand scholar, Paul McHugh, argues that the policy of Britain through the eighteenth and into the nineteenth centuries was to acquire colonies only with the consent of the inhabitants. This was evident in the negotiation of treaties in North America, but examples can be found elsewhere, such as 'the grant of diwani (1765) from the Mughal Emperor and the cession of Fiji (1874)':
'The Treaty of Waitangi represents the application of the contractual theory as the basis of the Crown's sovereignty over the Maori tribes. Throughout the 1830s the Crown consistently refused to establish an imperium over British subjects, much less the Maori inhabitants of New Zealand, without formal tribal permission.'
In 1837 Lord Glenelg rejected a proposal that British sovereignty simply be proclaimed. He wrote:
'1. It is difficult or impossible to find in the History of British Colonisation an Example of a Colony having ever been founded in derogation of such aboriginal Rights, whether of Sovereignty or of Property, as are those of the Chiefs and People of New Zealand. They are not Savages living by the Chase, but Tribes who have apportioned the country between them, having fixed Abodes' with an acknowledged Property in the Soil, and with some rude approaches to a regular System of internal Government. It may therefore be assumed as a basis for all Reasoning and all Conduct on this Subject, that Great Britain has no legal or moral right to establish a Colony in New Zealand, without the free consent of the Natives, deliberately given, without Compulsion, and without Fraaud. To impart to any Individuals an Authority to establish such a Colony, without first ascertaining the consent of the New Zealanders, or without taking the most effectual security that the Contract which is to be made with them shall freely and fairly be made, would, as it would seem, be to make an unrighteous use of our superior Power.'
When Britain did assume sovereignty, it was on the basis of the Treaty of Waitangi of 1840.
Keywords: colonisation, Maori, New Zealand (Aotearoa), sovereignty, treaties, Treaty of Waitangi, 1840 , 1840
McHugh, PG 'Constitutional Theory and Maori Claims', in I H Kawharu (ed) 1989, 'Waitangi. Maori and Pakeha Perspectives of the Treaty of Waitangi', Oxford University Press, pp 30-31.
Author: Nettheim, Garth