On 13 December 1642 the Dutch navigator, Abel Tasman, sighted “a great land uplifted high”. When its people proved to be inhospitable he sailed away after calling the new country Staten Landt, later to be renamed Nieuw Zeeland, after a Dutch province. International law of the day would have given the Dutch an “inchoate title” to their discovery, but they did not see sufficient commercial advantage in occupying the territory and so converting that title into formal sovereignty.

James Cook was the next captain to sight the New Zealand islands and on 15 November 1769 (at Mercury Bay) and 31 January 1770 (at Queen Charlotte Sound) he took possession of the country in the name of King George III. The British Government, like the Dutch Government, made no attempt to substantiate the claims made on its behalf. Indeed, in the early nineteenth century the Imperial Parliament expressly repudiated British sovereignty.

The whalers, the traders, the missionaries, and the settlers who came after Cook entered a country in which there was no central authority to enforce law and order, the Maoris being politically organised on a tribal basis only. In this situation the early years of settlement were marred by lawlessness and bitter tribal warfare. Australian Governors felt some responsibility for these events and there were claims that references in the Commission of the Governor of New South Wales to “islands adjacent in the Pacific Ocean” gave some legal basis for this responsibility. Nevertheless, when Governor Macquarie in 1814 appointed Thomas Kendall, a missionary, as a Justice of the Peace in New Zealand, he was almost certainly acting without authority. The inclination of the Colonial Office in London to adopt the subterfuge of regarding New Zealand as “a Foreign Power under a regular Government” was shown by the appointment in 1833 of a British Resident, James Busby. Busby was to “claim the protection and privileges … accorded in Europe and America to British subjects holding in foreign states situations similar to [his]”. He was expected to apprehend escaped convicts and send them back for trial, to encourage trade, and to establish friendly relations with the Maoris on a permanent basis – all by moral persuasion. He failed, but it was in keeping with Colonial Office and his own pretensions that he should in 1834 arrange a meeting of 30 chiefs at Waitangi to adopt a national flag of New Zealand. The British Government ruled that the flag was to be recognised, and Busby granted New Zealand built vessels certificates of registration in the name of the independent tribes of New Zealand. In 1835 a further gathering of 35 chiefs declared the islands “an independent state under the designation of the United Tribes of New Zealand” with an elaborate constitution providing for a representative Parliament, counties, and towns on the English model. This action was officially stigmatised as “silly and unauthorised” and it did not ever have any practical effect. Thus Busby's activities came to nothing. A period of intense agitation ensued in which the Colonial Office's considered policy of doing as little as possible was encouraged by disputes between the missionaries (who, in their concern for the Maoris, sought British sovereignty but not large-scale colonisation) and the “systematic” colonisers, inspired by Edward Gibbon Wakefield. Eventually, in August 1839, Captain William Hobson, R.N., sailed for New Zealand with instructions to acquire sovereignty over New Zealand.