Declaration of The Independence of New Zealand - Legal Effect

Legal Effect

There is some debate as to whether the Declaration still has effect in New Zealand. Most legal commentators state that the claim to independence lasted only until the signing of the Treaty of Waitangi in 1840. Recently the Nga Puhi iwi in Northland requested the Waitangi Tribunal rule on whether the tribe had in fact relinquished sovereignty in 1840 when they signed the Treaty of Waitangi. Historian Paul Moon stated that the tribe is unlikely to be able to take the claim much further because "the tribe has misunderstood how treaties work."

Article 2 of the Treaty of Waitangi guarantees to the chiefs their continued chieftainship, and ownership of their lands and treasures (taonga). It also specifies that Māori could sell land only to the Crown. Most New Zealanders consider the Treaty of Waitangi as the founding document of the nation of New Zealand, with formal sovereignty vested in the British Crown (the Crown in Right of New Zealand from 1947), but the existence of different versions of the Treaty, in both Māori and English, and its brevity, leave this subject to arguments over the preferred interpretation.

But de facto, the federation of independent tribes became subsumed into a new political body after 1840, regardless of the legality or legitimacy of this process. Thus, the Treaty of Waitangi voided the Declaration for all practical purposes; the Treaty rather than the Declaration provides the legal foundation of claims for the redress of historical wrongs. For this reason, constitutional lawyers regard the Declaration as an historical document that no longer has legal force.

As of October 2010, the Ngāpuhi's claim that sovereignty was not given up in their signing of the Treaty of Waitangi is being investigated by the Waitangi Tribunal. The Waitangi Tribunal, in Te Paparahi o te Raki inquiry (Wai 1040) is in the process of considering the Māori and Crown understandings of He Whakaputanga o te Rangatiratanga / The Declaration of Independence 1835 and Te Tiriti o Waitangi / the Treaty of Waitangi 1840.

Many of the arguments being used are outlined in Paul Moon's 2003 book Te Ara Ki Te Tiriti: The Path to the Treaty of Waitangi, which argued that not only did the Maori signatories have no intention of transferring sovereignty, but that at the time the British government and James Busby did not wish to acquire it and that the developments and justifications leading to the present state were later developments. It is estimated that the hearings will last between 4 and 6 years, and may serve a serious precedent for all Maori tribal groups if the Tribunal recognizes Ngāpuhi sovereignty. A common Ngāpuhi interpretation of the Declaration of the United Tribes is that the British government was simply recognizing Maori independence and putting the world on check, merely re-asserting sovereignty that had existed from "time immemorial".