Before 1840[edit]

Before 1840 there was no formal legal system in New Zealand. Māori chiefs held the power
to punish people for misdeeds but this power, though dependent on custom and the broad
support of the rest of the iwi, was arbitrary rather than based on a code of
laws. Tohunga (priests) could also use supernatural means to punish those who violated
the code of tapu, a spiritual belief system which controlled much of pre-Christian Māori life.
The arrival of Europeans from the late eighteenth century undermined the power of both
chief and tohunga. Europeans did not believe in tapu and widely violated it, and this, along
with the influence of Christian missionaries, led Māori to doubt the effectiveness of the
tohunga. The transient nature of many Europeans also made it difficult for chiefs to impose
justice on them. As a result, New Zealand became increasingly lawless.

Treaty of Waitangi[edit]
Main articles: Treaty of Waitangi and Principles of the Treaty of Waitangi
The Treaty of Waitangi, signed in 1840, is widely believed to have established British law in
New Zealand. However, there are numerous problems with this theory. Firstly,
the Māori and English language versions of the Treaty are substantially different. The
English version transfers sovereignty to Queen Victoria (in clause one) and grants Māori
the rights of British subjects (in clause three). Although no specific mention is made in the
Treaty of any legal system, these two clauses seem to imply that British law would be
established in New Zealand. The Māori version, however, states that Victoria
receives kawanatanga (governorship) while the chiefs retain tino rangatiratanga (absolute
chieftainship) in clause two as opposed to the property rights promised in the English
version. Although the third clause of the Māori version says that the Queen would treat
Māori the same as people in England, many historians argue that Māori believed that the
new governor would exercise his powers over the Europeans only, and that the chiefs
would continue to rule over Māori. In the eyes of some modern Māori, the New Zealand
legal system is invalid as it violates the Treaty's promise of tino rangatiratanga
(chieftainship).
Another problem with the idea that the Treaty established the rule of British law is that in
1840 Māori still controlled New Zealand. Although the British had sent a governor, they had
not backed him up with troops and for the first few years of supposed British sovereignty,
Europeans were significantly outnumbered and outgunned by Māori. Māori generally
obeyed British law in European settlements and when they or their chiefs chose to, but
there was nothing to make them obey the law in areas they controlled, which until about the
1860s was most of the country. British law, and later New Zealand law as passed by
the New Zealand Parliament was slowly established over the country, but it remained
ineffective in Māori-controlled areas until the late nineteenth century at least. In practical
terms, British-based law was established in New Zealand not through the Treaty of
Waitangi but through conquest and settlement.
Although the Treaty had never been incorporated into New Zealand municipal law,[1] its
provisions were first incorporated into legislation as early as the Land Claims Ordinance
1841 and the Native Rights Act 1865. [2] However, in the 1877 Wi Parata v Bishop of
Wellington judgement, Judge Prendergast argued that the Treaty was a "simple nullity" in
terms of transferring sovereignty from Māori to the United Kingdom. [3] This remained the
legal orthodoxy until at least the 1970s.[4] Māori have since argued that Prendergast's
decision, as well as laws later based on it were a politically convenient and deliberate ploy
to legitimise the seizure of Māori land and other resources.[5]
The Treaty finally received limited recognition in 1975 with the passage of the Treaty of
Waitangi Act 1975, which established the Waitangi Tribunal, but this initially had very
limited powers to make findings of facts and recommendations only. [6] The Act was
amended in 1985 to enable it to investigate Treaty breaches back to 1840, [6] and also to
increase the Tribunal membership. The membership was further increased in another
amendment in 1988.[7]
The Treaty was incorporated in a limited way into New Zealand law by the State Owned
Enterprises Act 1986. Section 9 of the act said "Nothing in this Act shall permit the Crown
to act in a manner that is inconsistent with the principles of the Treaty of Waitangi". [8] The
government had proposed a transfer of assets from former Government departments
to state-owned enterprises, but because the state-owned enterprises were essentially
private firms owned by the government, there was an argument that they would prevent
assets which had been given by Māori for use by the state from being returned to Māori by
the Waitangi Tribunal and through Treaty settlements.[9] The Act was challenged in court in
1987, and the judgement of New Zealand Maori Council v Attorney-General defined the
"Principles of the Treaty" and the proposed sale of government assets was found to be in
breach of this proviso. This allowed the courts to consider the Crown's actions in terms of
compliance with the Treaty and established the principle that if the Treaty is mentioned in
strong terms in a piece of legislation, it takes precedence over other parts of that legislation
should they come into conflict.[8] The "Principles of the Treaty" became a common topic in
contemporary New Zealand politics,[10] and in 1989, the Fourth Labour
Government responded by adopting the "Principles for Crown Action on the Treaty of
Waitangi" a similar list of principles to