The Treaty of Waitangi Is 'A Simple Nullity'

ACKNOWLEDGEMENTS appreciative of the resources of the Davis Law Library and the attentiveness to my requests shown by Mary-Rose Russell, Stephanie Carr and their staff. In the international community of scholars with a special interest in legal history and/or indigenous peoples’ rights, there are many from whom I have learnt and with whom I have engaged in interesting conversations. Without being Introduction at all exhaustive, I would like to mention Hamar Foster and John McLaren from Victoria, British Columbia; Joshua Getzler, Paul McHugh and Andrew Sharp in the United Kingdom; and friends at the University of Dar es Salaam, Tanzania, who inspired me in the past and continue to do so today, especially TheT reaty of Waitangi is ‘a simple nullity’ Chris Maina Peter. Above all, though, I owe a significant debt to people at the Law Faculty of Victoria University of Wellington – the university that first nurtured my intellectual life in the 1960s – and to the New Zealand Law Foundation ‘Lost Cases Project’. I have been assisted by comments from Mark Hickford, Shaunnagh Dorsett, Grant Morris, Richard Boast (who also has worked long and hard for Ngati Toa in his law practice), Claire Charters and Anaru Erueti. I offer special thanks to Megan Simpson for her skills in unearthing important information. I began writing up my research whilst I was a Visiting Fellow at Exeter College, University of Oxford – a college of which Hugh Kawharu was a graduate and an Honorary Fellow. I had a wonderful two terms at Exeter and greatly enjoyed time n the 1840s, there were a number of Ngati Toa settlements with the Rector, Frances Cairncross, and members of the Senior Common Room. along the Kapiti coast, on the offshore islands of Kapiti and Mana, Whilst in the United Kingdom I connected with Allan Davidson, a leading New and across the strait in Te Tau Ihu – the northern regions of the Zealand church historian, and he offered helpful comments on two chapters. South Island. For two decades Ngati Toa had interacted with small For taking my manuscript and turning it into this book, I am much obliged Inumbers of Pakeha whalers, sealers and traders, but from 1840 they began to the Auckland University Press Board and to the wonderful enthusiasm and to acquire some new neighbours. The New Zealand Company established expertise of Sam Elworthy, Anna Hodge and other staff at AUP. The book’s final formal settlements for British immigrants on the shores of Port Nicholson, form was enhanced by the work of Mike Wagg and the index prepared by Diane and Church of England missionaries began to teach and preach along the Lowther. I also acknowledge with gratitude a grant from the New Zealand Law nearby Kapiti coast. Unlike the men of commerce before them, these new Foundation to assist with publication costs. neighbours desired to obtain possession and ownership of large areas of Throughout it all, the love of my wife, Helen McNeil, and of our children, grandchildren and other family members has been hugely important to me. land. A dispute about one piece of land on the Whitireia peninsula near Family time, and community events in the Earthsong eco-neighbourhood where Porirua resulted in a Ngati Toa rangatira, Wiremu Parata Te Kakakura, Helen and I live, continue to remind me that there are many other important taking the Bishop of Wellington, the Rt Rev. Octavius Hadfield, to court in things in life – in addition to my passion for legal history and the writing of this 1877. The court case is known as Wi Parata v Bishop of Wellington. book. Today in New Zealand, few people know of the plaintiff, the defendant, or the facts of this case. But the Parata case has become a landmark decision David V. Williams in New Zealand law for its dismissal of the Treaty of Waitangi. ‘So far indeed February 2011 as that instrument purported to cede the sovereignty – a matter with which we are not here directly concerned – it must be regarded as a simple nullity,’ went the judgment of James Prendergast, the Chief Justice of New Zealand. viii 1 a simple nullity? the treaty of waitangi is ‘a simple nullity’ In the Court’s view, the Maori chiefs who had signed the Treaty in 1840 at governments evaded or flagrantly breached the terms of the Treaty. After the invitation of representatives of the British Crown were ‘semi-primitive 1987, however, it has become conventional to elevate the legal and political barbarians’ who did not possess the legal capacity to enter a treaty: ‘No body status of the Treaty from the nadir to which, it is said, it had been consigned politic existed capable of making a cession of sovereignty.’ Instead, ‘the title by Parata. Far from being ‘a simple nullity’, the Treaty of Waitangi is now of the Crown to the country was acquired, jure gentium, by discovery and held up as ‘the founding document of New Zealand’, ‘a grand constitutional priority of occupation, as a territory inhabited only by savages’.1 compact’, ‘simply the most important document in New Zealand’s history’, In contemporary New Zealand, the language of the Court and its ‘essential to the foundation of New Zealand’, ‘part of the fabric of New Zealand seemingly casual dismissal of the Treaty of Waitangi as ‘a simple nullity’ society’, and ‘of the greatest constitutional importance to New Zealand’.6 Sir are frequently attacked as reprehensible. David Baragwanath, a judge in the Robin Cooke (then President of the Court of Appeal and later Lord Cooke Court of Appeal, in 2008 noted that Parata was ‘excoriated by this Court in of Thorndon) wrote an introduction to a special issue of theNew Zealand Ngati Apa’ in 2003 and summarised current legal wisdom:2 Universities Law Review in 1990. Sitting in the Codrington Library, Oxford, near a statue of the famous common lawyer William Blackstone, Cooke Wi Parata is now known to all law students as a case in which a court, imagined that ‘the shade of Blackstone seemed to come down from his statue’ which included a Chief Justice who had been Attorney-General at the and say: ‘I do not doubt that your Treaty of Waitangi has become in some time of the land wars, unjustly deprived Maori of their legal rights. sense a grand constitutional compact akin to our Magna Charta.’7 A century and a half removed from that era we see the Crown’s role Lawmakers have turned this lofty rhetoric into some sort of reality differently and as subject to the rule of law. through both legislation and case law. From 1975 on, the legislature has incorporated the ‘principles of the Treaty of Waitangi’ into numerous Acts. Some of the commentary on the ‘infamous’ phrase attributes extra- And, beginning with the landmark 1987 Court of Appeal case NZ Maori ordinarily wide-ranging consequences to the judges’ short utterance on Council v Attorney-General, the courts have given interpretative life to the the status of the Treaty. Following Prendergast’s ‘finding’, a government principles of the Treaty and accorded them a significant place in New Zealand museum website concludes, ‘From then on, native title to land was non- law.8 It is now seen as grossly misguided to doubt that the Treaty is, and existent’.3 A geography academic has written that as a result of Prendergast’s always should have been, of central importance in the constitutional life of statement ‘land and food gathering places were progressively removed from the nation. tribal control and government regulations intruded into all aspects of tribal Yet the law found in judgments and reports by the Court of Appeal, the life’.4 In the examination script of a first-year New Zealand law student Privy Council and the Waitangi Tribunal since the 1980s does not openly awarded an A+ grade mark in 2007 the student wrote: ‘In Wi Parata v acknowledge that this central role for the Treaty and the rejection of Parata Bishop of Wellington in 1877, Prendergast CJ declared the Treaty a simple is a recent invention. On the contrary, ‘This is not a modern revision’ wrote nullity and in that simple statement sanctioned the theft of Maori land by Chief Justice Elias in 2003 when the Court of Appeal recognised the right fraud.’ Three words – ‘a simple nullity’ – have attracted such an avalanche of Maori to have their customary property interests to the foreshore and of adverse criticism from a multitude of commentators that legal historian seabed investigated in the courts.9 Recognition of aboriginal title, it is now Grant Morris has described the judgment as ‘the most notorious in New asserted, has a long history in New Zealand common law and the Treaty Zealand’s history’.5 of Waitangi is the foundation document of the nation that established a The attacks on the Parata judgment are rooted in our contemporary partnership between Maori and the Crown. The Treaty partners have a understandings of the Treaty of Waitangi. Since 1840, the Treaty has been duty to act reasonably and in good faith towards each other and there has much discussed and colonial legislators on occasion attempted to reflect always been a duty on the Crown actively to protect Maori rights. From the Treaty as they understood it in statute law. More frequently, successive this contemporary point of view, the Prendergast remarks are useful only 2 3 a simple nullity? the treaty of waitangi is ‘a simple nullity’ in order to show how crass, offensive and incorrect were the opinions of (later a Supreme Court judge), in his opening submissions on the Waitara nineteenth-century settler colonial judges.

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