Authority of the New Zealand Parliament as a legal fiction.

sovereign:

adj. (Of a state) characteristic of or endowed with supreme authority <sovereign nation> <sovereign immunity>. n.1. A person, body, or state vested with independent and supreme authority. 2. The ruler of an independent state. - Also spelled sovran. See SOVEREIGNTY. (Black's 8th)

Black's 8th

sovereignty:

The union and exercise of all human power possessed in a state; it is a combination of all power; it is the power to do everything in a state without accountability; to make laws, to execute and to apply them: to impose and collect taxes, and, levy, contributions; to make war or peace; to form treaties of alliance or of commerce with foreign nations, and the like. Story on the Const. sect 207. (Bouvier's 1856)

Bouvier's 1856

"Parliament is recognised as sovereign (the highest authority) in the law-making process because it is accountable to the people."

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"It now seems widely accepted as a matter of colonial law and international law that those proclamations approved by the Crown and the gazetting of the acquisition of New Zealand by the Crown in the London Gazette on 2 October 1840 authoritatively established Crown sovereignty over New Zealand."

NZ Maori Council v Attorney General [1987] 1 NZLR 641 (Court of Appeal) Link

"Sovereignty and legislature are indeed convertible terms; one cannot subsist without the other."

Commentaries on the Laws of England, William Blackstone

"The agreement of the parties cannot make that good which the law maketh void."

Institutes of the Lawes of England, Edward Coke

Clausula que abrogationem excludit ab initio non valet. A clause [in a law] which precludes its abrogation is void from the beginning.

Queen Victoria's assertion of perpetual sovereignty[1] in the London Gazette (via William Hobson) is ulta vires; the Monarch's power is transitory and the monarch is not above the laws of nature. Hobson's account of Maori soveriegnty in the North Island being ceded "absolutely and without resevation"[1] is unconscionable; Ngai Tuhoe did not sign the treaty and some chiefs signed only the Maori text which referred to kawanatanga (as governorship in Roman law) and not to tino rangitiratanga (as self-determination or absolute sovereignty).

Additionally, the preamble of the treaty describes how the monarch had "deemed it necessary"[2] to acquire sovereignty over the land of New Zealand and establish a civil government, ie the stated motivation for the treaty is based on a falsehood.

"when X is "deemed" to be Y it is ordinarily conceded that X is not Y, and is known not to be Y"

Legal Fictions and Common Law Legal Theory Some Historical Reflections, Eben Moglen Link

The use of a fictional necessity is compounded by the implication of a legal doctrine which depends on opinion rather than fact. The implied doctrine is the doctrine of necessity (Bracton's maxim), which states: 'that which is otherwise not lawful is made lawful by necessity', and is found in Roman law as the iustitium[4], the suspension of law due to a threat to the republic.

"Bracton has incorporated into his book substantial portions of Roman matter"

Thomas Edward Scrutton, Roman Law Influence In Chancery, Church Courts, Admiralty, and Law Merchant

"I have only noticed two cases in which the English Common law, as stated by Coke, appears to have been modified by the Civil law otherwise than through Bracton."

Thomas Edward Scrutton, Roman Law Influence In Chancery, Church Courts, Admiralty, and Law Merchant

The problem with the doctrine is that justification of an action based on real need requires perfect knowledge of the cause-effect relationship between the threat and the possible outcomes resulting from action or inaction, and such perfect knowledge is exceptional rather than typical.

Further, civil government is indicative of a goverment constituted in terms of Roman law rather than English common law[3].

Origins of sovereign immunity:

"Sovereign immunity as a legal concept extends at least as far back as the feudal system. Its emergence was closely tied with the doctrine of rex gratia dei, king by the grace of God (Huruwitz 1981, 10). Because of the divine right of kings, one could not act against the king without in essence revolting against God. By the thirteenth century, this doctrine had taken on a more specific form in England. During the reign of Henry III, Bracton noted that it was settled doctrine that the king could not be sued in his own courts by name (Jaffe 1963, 2). However, the king was bound to follow God's law and was the fountain of justice. He was, therefore, bound to follow God's law and was the fountain of justice. He was therefore, bound by law and conscience to redress the harms done to his subjects (Jacobs 1972, 5). In fact, the oft-quoted line that "the king can do no wrong" originally meant that the king "must not, was not allowed, nor entitled, to do wrong" (Jaffe 1963, 4)."

Rights, remedies, and the impact of state sovereign immunity, Christopher Shortell

References

1: " PROCLAMATION, In the name of Her Majesty, Victoria, Queen of the United Kingdom of Great Britian and Ireland, by William Hobson, Esq. a Captain in the Royal Navy, Lieutenant-Governor of New Zealand. Whereas by a Treaty, bearing date the fifth day of February, in the year of our Lord, one thousand eight hundred and forty, made and executed by me, William Hobson, a Captian in the Royal Navy, Consul, and Lieutenant-Governor in New Zealand, vested for this purpose with full powers by Her Britannic Majesty, of the one part, and the Chiefs of the Confederation of the United Tribes of New Zealand, and the Separate and Independent Chiefs of New Zealand, not members of the Confederation, of the other; and further ratified and confirmed by the adherence of the Principal Cheifs of this island of New Zealand, commonly called the Northern Island, all rights and power of Sovereignty over the said Northern Island were ceded to Her Majesty the Queen of Great Britian and Ireland, absolutely and without reservation; Now therefore I, William Hobson, Lieutenant-Governor of New Zealand, in the name and on the behalf of Her Majesty, do hereby proclaim and declare to all men, that, from and after the date of the above-mentioned Treaty, the full Sovereignty of the Northern Island of New Zealand vests in Her Majesty Queen Victoria, Her heirs and successors, for ever. Given under my hand, at Government-house, Russell, Bay of Islands, this twenty-first day of May, in the year of our Lord, one thousand eight hundred and forty: (Signed) WILLIAM HOBSON, Lieutenant-Governor, By His Excellency's command, (Signed) WILLOUGHBY SHORTLAND, Colonial Secretary. PROCLAMATION, In the name of Her Majesty, Victoria, Queen of the United Kingdom of Great Britian and Ireland, by William Hobson, Esq. a Captain in the Royal Navy, Lieutenant-Governor of New Zealand. Whereas I have it in command from Her Majesty Queen Victoria, through Her Principal Secretatary of State for the Colonies, to assert the Sovereign rights of Her Majesty over the southern islands of New Zealand, commonly called " the Middle Island," and " Stewart's Island," and also the island commonly called " the Northern Island," the same having been ceded in Sovereignty to Her Majesty; Now, therefore, I, William Hobson, Lieutenant-Governor of New Zealand, do hereby proclaim and declare to all men, that, from and after the date of these presents, the full Sovereignty of the islands of New Zealand, extending from thirty-four degrees thirty minutes, north, to forty-seven degrees ten minutes, south, latitude, and between one hundred sixty-six degrees five minutes to one hundred and deventy-nine degrees of east longitude, vests in Her Majesty Queen Victoria, her heirs and sucessors, for ever. Given under my hand, at Government-house Russell, Bay of Islands, this twenty-first day of May, in the year of our Lord one thousand eight hundred and forty. (Signed) WILLIAM HOBSON, Lieutenant-Governor. By His Excellency's command, (Signed) WILLOUGHBY SHORTLAND, Colonial Secretary. "

London Gazette, 2nd October 1840

2: "HER MAJESTY VICTORIA Queen of the United Kingdom of Great Britain and Ireland regarding with Her Royal favour the Native Chiefs and Tribes of New Zealand and anxious to protect their just Rights and Property and to secure to them the enjoyment of Peace and Good Order has deemed it necessary in consequence of the great number of Her Majesty's Subjects who have already settled in New Zealand and the rapid extension of Emigration both from Europe and Australia which is still in progress to constitute and appoint a functionary properly authorised to treat with the Aborigines of New Zealand for the recognition of Her Majesty's Sovereign authority over the whole or any part of those islands - Her Majesty therefore being desirous to establish a settled form of Civil Government with a view to avert the evil consequences which must result from the absence of the necessary Laws and Institutions alike to the native population and to Her subjects has been graciously pleased to empower and to authorise me William Hobson a Captain in Her Majesty's Royal Navy Consul and Lieutenant Governor of such parts of New Zealand as may be or hereafter shall be ceded to her Majesty to invite the confederated and independent Chiefs of New Zealand to concur in the following Articles and Conditions."

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3: " Jus civile est quod quisque sibi populus constituit. - The civil law is that which every nation has established for its own government. Thus much I thought it necessary to premise concerning the law of nature, the revealed law, and the law of nations, before I proceeded to treat more fully of the principal subject of this section, municipal or civil law; that is, the rule by which particular districts, communities, or nations are governed; being thus defined by Justinian,[4] "jus civile est quod quisque sibi populus constituit." I call it municipal law, in compliance with common speech for, though strictly that expression denotes the particular customs of one single municipium or free town, yet it may with sufficient propriety be applied to any one state or nation, which is governed by the same laws and customs. Municipal law, thus understood, is properly defined to be "a rule of civil conduct prescribed by the Supreme power in a state commanding what is right, and prohibiting what is wrong." Let us endeavour to explain it's several properties, as they arise out of this definition. "

Commentaries on the Laws of England: Of the Nature of Laws in General, William Blackstone

4: " The specific quality of the state of exception appears clearly if we examine one measure in Roman Law that may be considered as its true archetype, the iustitium. When the Roman Senate was alerted to a situation that seemed to threaten or compromise the Republic, they pronounced a senatus consultum ultimum, whereby consuls (or their substitutes, and each citizen) were compelled to take all possible measures to assure the security of the State. The senatus consultum implied a decree by which one declared the tumultus, i.e., a state of exception caused by internal disorder or an insurrection whose consequence was the proclamation of a iustutium. The term iustitium - construed precisely like solstitium- literally signifies "to arrest, suspend the ius, the legal order." The Roman grammarians explained the term in the following way: "When the law marks a point of arrest, just as the sun in its solstice." Consequently, the iustitium was not so much a suspension within the framework of the administration of justice, as a suspension of the law itself. "

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