31.       In reality therefore (as opposed to “in principle”) it is conceivable that a particular act of confiscation might not be in breach of Treaty principles, or that one particular act of confiscation is qualitatively different from another, in terms of Treaty breach. Confiscation must be viewed not only in light of Article 2, but also in light of Article 1. Those two Articles may on occasion come into conflict. A balance between them must then be struck.

32.       It is plain that the need for such a balance was to the forefront of the Crown’s mind in the 1860s. For example its proclamation to the Chiefs of Waikato on 15 July 1863 (published in the New Zealand Gazette (1863) pp 227-278) stated –

Those who wage war against Her Majesty, or remain in arms, threatening the lives of Her peaceable subjects, must take the consequences of their acts, and they must understand that they will forfeit the right to the possession of their lands guaranteed to them by the Treaty of Waitangi, which lands will be occupied by a population capable of protecting for the future the quiet and unoffending from the violence with which they are now so constantly threatened.

Te hunga e whawhai ana ki te Kuini, e hapai tonu ana ranei i te patu, he whakawehi i nga tangata e ata noho ana, ka whiwhi ratou ki nga utu mo a ratou mahi. Kia mohio pu hoki, ki te tohe ratou ki ena he, ka noa te tikanga i pumau ai o ratou whenua, ki a ratou, ara, te tikanga i whakatakotoria e te Tiriti o Waitangi. Ka tangohia aua whenua ka hoatu kia nohoia e tetahi hunga e kaha ana ki te tiaki i nga tangata ata noho, i nga wa a takato aka nei, kei mate i te kino e whakatakotoria tonutia nei mo ratou.

33.       The reasonableness of the balance that was ultimately struck in Tauranga therefore becomes the critical question.

34.       The Crown considers that, judged in context (as it must be), the Governor was justified in perceiving that some Tauranga Maori were in rebellion against the Crown’s authority in 1864. It follows that it is also the Crown’s position that the confiscation of land that subsequently occurred in Tauranga was lawful.