A Simple Nullity: The Wi Parata Case in New Zealand Law and History, by David V. Williams (Auckland University Press, 2011), 288 pp., $49.99.
Grossly misunderstood in both its legal context and factual matrix, Wi Parata v The Bishop of Wellington (1877) is the single most infamous case in New Zealand legal history.[i]A solitary passage in the joint decision of Chief Justice James Prendergast and Justice William Richmond (most likely written by Richmond) to the effect that the Treaty of Waitangi was ‘a simple nullity’ has rendered it the whipping boy of modern biculturalism, a deformity of the common law recurrently surfacing to spook liberals until our present Chief Justice Sean Elias finally euthanised it in the 2003 Ngati Apa decision.[ii]
Wi Parata revolved around a Whitireia land grant of approximately 500 acres engineered in 1847–8 by Ngati Toa as a gift to the Bishop of New Zealand, George Selwyn. The intermediaries for the gift were were Octavius Hadfield (‘Te Harawira’, from 1870 the Bishop of Wellington) and two young Christian rangatira, Katu Tamihana Te Rauparaha (son of Te Rauparaha) and Henare Matene Te Whiwhi-o-te-rangi. Under the doctrine of Crown pre-emption, the Governor had a monopoly on all land dealings with Māori. Any such gift required the Governor first to accept the land gratuitously from Māori and then grant it to the Bishop on trust. The terms of that trust, known as the Porirua Trust, were that the Bishopric establish a college of higher learning and religious instruction for the education of all races: ‘hei Kareti mo nga tamariki Maori Pakeha’. When the College did not eventuate, later generations of Ngāti Toa unsuccessfully sought return of the land in Court, following the refusal of Parliament and various Commissions of Inquiry to provide a remedy.
As Auckland legal historian Professor David V. Williams brilliantly and sensitively shows, Wi Parata, for all its infamy, was largely rightly decided. As a demurrer, the case purely involved a question of law rather than fact. That question was whether the Court would enquire into such discretionary freedoms of the executive arm of government as the Crown’s prerogative to issue land grants. In public law, the answer is typically no, other than where the discretion is fettered by statute and an error of law, reason or procedure occurs, or, hypothetically, where some moral outrage spurs the judiciary into activism.
Acknowledging that the Māori concept of ‘tuku whenua’ is very different from the European concept of ‘gifting’ land into a charitable trust, Professor Williams shows that the grant was moreover factually no fraud on the donor. In Wi Parata, the judges in obiter remarks dubiously determined that the donor was the Crown, not Ngāti Toa, on account of the doctrine of Crown pre-emption. However, even if Ngāti Toa had been recognised as the donor, there was still no fraud. Authorised by rangatira signatories led by the tribe’s non-Christian paramount chief Te Rauparaha at the behest of his Christian son, the gift was strategically designed to raise the mana of Ngāti Toa in the eyes of the Crown. From 1846–8, Te Rauparaha had been (illegally) detained by Governor Grey, following the tribe’s 1843 conflict with the New Zealand Company in Marlborough. More generally, Ngāti Toa’s genocidal raids on South Island iwi in the 1830s, for which Te Rauparaha gained his latter-day notoriety, had tarnished the tribe’s reputation. The gift was a fusion of Realpolitikand genuine Christian zeal, a conscious act of diplomacy and piety.
Complicating the picture, increasing tension between sectarian and secular views of education in the colony, and popular resentment at the Church’s expansive land-holdings from tribal gifts like the Whitireia grant, resulted in political pressure for Parliament to divest the Church of its assets where the terms of the educational trusts were unfulfilled. This would free up the land for private enterprise. Hadfield, the great moral dissenter during the New Zealand Wars (he was cross-examined by the House of Representatives for four hours), as trustee was also a jealous guardian of the gifted land. This was despite the fact that the block had been leased for grazing, with profits held on trust until such time as a school could begin, or loaned to other Christian collegial enterprises. According to Professor Williams, in fact, ‘Bishop Hadfield probably felt rather less under attack in the 1877 Whitireia Court case than in most of the other inquiries and commissions’ (p. 115).
Not only was Wi Parataconsistent with the precedent authority on executive powers expediently set by Governor Grey in R v Symonds (1847),[iii]it also reflected norms at international law. International treaties, whether the Treaty of Waitangi or the Trans-Pacific Partnership Agreement, do not become binding until ratified by Parliament as domestic law. However cringeworthy the ‘simple nullity’ phrase may be to contemporary ears, with the advent of a New Zealand parliament in 1854 the immediate sources of law were the traditional ones: statute, equity and the common law. The text of the Treaty of Waitangi was not directly incorporated as domestic law, and to that extent was indeed a legal nullity.
For a number of constitutional historians, including Professor Williams, colonial New Zealand was a battleground for competing neo-Roman paradigms of the rule of law, jus gentium and jus civilis. Jus gentium, the law of nations, determined the conduct of advanced governments in respect of first nations people, reaching its 1831 apotheosis in US Chief Justice John Marshall’s judgment, Cherokee Nation v State of Georgia.[iv] In obiter remarks, Justice Marshall wrote that ‘the relationship of the tribes to the United States resembles that of a “ward to its guardian”.’ Indian tribes were to be regarded ‘domestic dependent nations’. Dominant at the time the Treaty was signed (when Māori significantly outnumbered Pākehā), jus gentium emphasised the role of the Crown as protector and friend of Māori, and observed tino rangatiratanga.
If jus gentiumindirectly resulted in the notorious ‘Trail of Tears’ in the US as much as the Treaty in New Zealand, jus civilisproduced colonial policies of assimilation, homogeneity and equal subjection to the rule of law, ‘promoting’ Māori into New Zealand citizens ostensibly with the same rights as Pākehā and to a significant extent eradicating their culture. The major proponent of jus civilis in New Zealand was Sir George Grey. Under Grey’s governance, the English language became the mandatory language of education for all citizens of the colony. Stridently opposed by Hadfield, this policy was supported not only by many Pākehā but also by ‘Queenites’ like Wi Parata Kakakura, an epochal fusion of Ngāti Toa rangatira, Member of the House of Representatives, Christian, political activist and community leader, and faithful disappointed advocate of European-style due process.
Professor Williams does not argue for a moment that the Treaty is not now part of New Zealand domestic law. The existence of the Treaty of Waitangi Act 1975, which established the Waitangi tribunal, as well as Treaty sections in a wide range of other legislation, would make any such position nonsense. His jurisprudential contention, rather, is that there is no ‘golden thread’ at New Zealand common law linking putative nineteenth-century judicial identifications of aboriginal title with those of the present. In the nineteenth century, aboriginal title was thought extinguished by Crown pre-emption, a domestic doctrine derived from international law, and the Court, preserving its comity with the Crown, would not look into how the Crown exercised its discretions. Wi Paratawas one part of a kaleidoscope of cases to this effect. While this position puts Professor Williams at odds with eminent judges like Sir Robin Cooke and Dame Sian Elias, the weight of historical evidence in A Simple Nullity? suggests he is almost certainly right.
However much Wi Paratamay have been correctly decided in law, Professor Williams is by no means blind to the moral injustices flowing from the Crown’s failure to honour its obligations as friend and protector of Māori. The rigours of the law became the cogs of oppression, degenerate racism dressed up as public policy and due process. There is distinct admiration for the resilience of Ngāti Toa and fighters like Wi Parata, but Professor Williams is also respectful of right-wing conservative intellectuals like William Richmond as men of their time and context. An outstanding scholarly contribution to both New Zealand history and legal thought, A Simple Nullity? with all its quirks deserves widespread recognition as a landmark text.
[i] Parata v The Bishop of Wellington(1877) 3 NZ Jur (NS) 72
[ii]Attorney-General v Ngati Apa and others 3 NZLR 643 (Court of Appeal)
[iii]R v Symonds (1847) NZPCC 387 (Supreme Court)
[iv]Cherokee Nation v State of Georgia(1831) 30 US 1 (US Supreme Court)
RICHARD REEVE recently moved to Westport to practise law. He holds a PhD in English on New Zealand poetic reality, and has published four books of poetry. Forthcoming volumes are Horse and Sheep and Generation Kitchen. He is also co-editor with Mick Abbott of the essay anthology Wild Heart: The Possibility of Wilderness in Aotearoa New Zealand (Otago, 2011).
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