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In the recent decision of Attorney-General v NgatiApa,[1] the Court of Appeal once again reflected on the legal status of native title in New Zealand, drawing on the precedents of previous New Zealand courts stretching back to 1847. However, one of these precedents came in for particular attention. This was the New Zealand Supreme Court decision in Wi Parata v Bishop of Wellington, delivered in 1877.[2] The Chief Justice of the Court of Appeal, Elias CJ, in delivering her judgment in Ngati Apa, strongly criticised the Wi Parata judgment, arguing that the Re the Ninety-Mile Beach decision,[3] on which the High Court had relied in its Ngati Apa ruling, was 'wrong in law' precisely because of its dependence on what the Chief Justice called the 'discredited authority' of Wi Parata.[4] It was primarily on this basis, therefore, that Elias CJ felt justified in overturning the High Court's Ngati Apa ruling.[5] Hence, even today Wi Parata continues to cast a long shadow over New Zealand judicial determinations on native title. It is the continuing significance of this judgment that warrants taking a closer look at it. The Wi Parata judgment of Prendergast CJ is infamous in the annals of New Zealand legal history largely for its dismissal of the Treaty of Waitangi as a 'simple nullity'.[6] Yet the case also provided the authoritative precedent for New Zealand judicial reasoning on native title until 1912.[7] Indeed, the New Zealand courts went to great lengths to defend the Wi Parata precedent on native title over the proceeding decades, even to the extent of an open disagreement with the Privy Council in 1903.[8] Yet a closer reading of the Wi Parata judgment reveals that it did not yield a unified precedent on native title at all. Rather, it yielded not one but three precedents on native title, none consistent with the other. Indeed, on the issue of native title, the Wi Parata judgment was thoroughly confused. Yet it nevertheless managed to become the authoritative New Zealand precedent on native title for the next three decades, not least because subsequent New Zealand courts were highly selective in the way they interpreted it. In choosing one of the three precedents as authoritative, and either ignoring or failing to recognise the other two, subsequent judges gave the impression that Wi Parata had indeed yielded a unified, coherent position on native title. It is with the nature of the contradictions in Wi Parata, and its subsequent interpretation in the New Zealand courts, that this article is concerned. The question of native title, like the question of the Treaty, was a contentious one at the time of the Supreme Court's judgment in Wi Parata.[9] Yet it is important to note that the two issues are legally distinct. While the legal and political status of the Treaty is a matter of state, and so outside the jurisdiction of the courts, the question of native title had until the time of Wi Parata been considered a common law issue.[10] This placed it squarely within the jurisdiction of the courts and, conceivably, allowed for its enforcement against the Crown.
All three precedents of Wi Parata denied this common law status of native title, and therefore its enforceability against the Crown. However, as we shall see, they did so in different and mutually exclusive ways. The irony, therefore, is that the Wi Parata judgment, a judgment highly confused on the question of native title, nevertheless provided the authoritative New Zealand precedent on the matter for the next 35 years.
The Wi Parata case involved the Ngatitoa tribe, resident principally in the Porirua District, whose chiefs desired in 1848 that a school be erected on their land at Witireia.[11] Negotiations were entered into between the Chiefs and the Bishop of New Zealand concerning this school.[12] However, while it is clear that in 1850 the Crown granted land to the Bishop for the building of a school in the area, it was open to dispute in the Wi Parata case whether the Ngatitoa tribe ever ceded land to the Crown for this purpose.[13] While at various points in the declaration, the Ngatitoa tribe are referred to as the 'native donors',[14] counsel for the plaintiff argued that the Ngatitoa tribe could not legally cede their lands for this purpose, and therefore the Crown grant was illegal because the native title had not been lawfully extinguished.[15] Failing this, counsel for the plaintiff argued that the purpose for which the Crown grant was issued (the building of a school) had never been fulfilled, and therefore the grant should revert to the original owners.[16] Prendergast CJ, in delivering the judgment of the Court, found that any failure to fulfil the conditions of the grant meant that the doctrine of cy-prés would apply, and an approximation to such fulfillment take place.[17] Failing this, he argued, the land would revert back to the Crown, which he saw as the ultimate source of the Bishop's grant, not the original native owners.[18] His basis for this second conclusion were two of his three (inconsistent) rulings on native title discussed below - (i) that the Maori had no native title to cede to the Bishop;[19] or (ii) if they did have native title to cede, any cession was solely within the jurisdiction of the Crown's prerogative, and so the question of whether a lawful cession of native title had taken place was solely a matter for the Crown to determine, independent of the courts.[20] Therefore, as far as Prendergast CJ was concerned, the Crown was the donor of the land, not the Ngatitoa tribe, and the Court had no jurisdiction to inquire into any transactions with the natives prior to the Crown's grant to the Bishop.[21]
As mentioned above, each of Prendergast CJ's three precedents on native title held that native title fell outside the jurisdiction of the municipal courts, and therefore land claims based on native title were not justiciable within those courts. However each of the three precedents reached this conclusion in very different ways. Regarding what we shall call Precedent One, it did so by likening native title matters to treaty obligations. From the perspective of the courts, treaties have always been considered matters of state, thereby falling within the prerogative powers of the Crown, with which the courts have no jurisdiction to interfere.[22] By identifying native title matters with such treaty obligations, Prendergast CJ was then able to conclude that native title also fell entirely within the prerogative powers of the Crown, and so outside the jurisdiction of the courts:
Upon such a settlement as has been made by our nation upon these islands, the sovereign of the settling nation acquiring on the one hand the exclusive right of extinguishing the native title, assumes on the other the correlative duty, as supreme protector of aborigines, of securing them against any infringement of their right of occupancy... .The obligation thus coupled with the right of pre-emption, although not to be regarded as properly a treaty obligation, is yet in the nature of a treaty obligation. It is one, therefore, with the discharge of which no other power in the State can pretend to interfere. The exercise of the right and the discharge of the correlative duty, constitute an extraordinary branch of the prerogative, wherein the sovereign represents the entire body-politic, and not, as in the case of ordinary prerogative, merely the Supreme Executive power....Quoad this matter, the Maori tribes are, ex necessitate rei, exactly on the footing of foreigners secured by treaty stipulations, to which the entire British nation is pledged in the person of its sovereign representative. Transactions with the natives for the cession of their title to the Crown are thus to be regarded as acts of State, and therefore are not examinable by any Court... .Especially it cannot be questioned, but must be assumed, that the sovereign power has properly discharged its obligations to respect, and cause to be respected, all native proprietary rights.[23]
By likening issues involving native title to treaty obligations entailing acts of state, Prendergast CJ was able to withdraw native title claims from the realm of common law, and therefore from the jurisdiction of the courts, by placing them entirely within the prerogative powers of the Crown.[24] This therefore rendered the Crown, as Prendergast CJ put it, the 'sole arbiter of its own justice' on native title issues.[25]
Consequently, the first precedent that emerges from the Wi Parata judgment is one which insists that all native title matters fall within the prerogative powers of the Crown, and therefore outside the jurisdiction of the municipal courts. As Prendergast CJ put it, native title claims are something that the courts can never take account of:
On the one hand, it has always been certain that a Maori could bring trespass or ejectment in respect of land held by him under a Crown grant. On the other hand, it has been equally clear that the Court could not take cognisance of mere native rights to land.[26]
In order to insist that native title issues fall exclusively within the prerogative powers of the Crown, and so outside the jurisdiction of the courts, we have seen that Prendergast CJ likened the Crown's responsibility on native title to a treaty obligation, and the relations between the Crown and Maori to treaty partners. Yet such a strategy is fundamentally ironic, because elsewhere in his judgment, Prendergast CJ fundamentally denied any legal or political status to Maori tribes as treaty partners, and any legal or political status to the Treaty of Waitangi itself, on the grounds that Maori tribes possessed no sovereignty capable of cession, and were themselves incapable of such cession. As Prendergast CJ put it:
The existence of the pact known as the 'Treaty of Waitangi' entered into by Captain Hobson on the part of her Majesty with certain natives at the Bay of Islands, and adhered to by some other natives of the Northern Island, is perfectly consistent with what has been stated. So far indeed 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. No body politic existed capable of making cession of sovereignty, nor could the thing itself exist.[27]
Of course, in denying that Maori had sovereignty over New Zealand prior to 1840, Prendergast CJ had to confront Lord Normanby's instructions to Captain Hobson, dated 14 August 1839, which clearly indicated the contrary. These instructions asserted the need for a treaty to secure a cession of sovereignty to the Crown, stating:
We acknowledge New Zealand as a sovereign and independent State, so far at least as it is possible to make such acknowledgment in favour of a people composed of numerous, dispersed, and petty tribes, who possess few political relations to each other, and are incompetent to act, or even to deliberate in concert.[28]
Prendergast CJ responded to this clear challenge to his assumptions by insisting that Lord Normanby had simply contradicted himself. He insisted that Lord Normanby's 'qualification' in his instructions above, concerning the level of political development among the Maori tribes, effectively 'nullifies the proposition to which it is annexed'.[29] That is, Prendergast CJ believed it nullified the proposition that New Zealand was a 'sovereign and independent state' prior to the Crown's acquisition of sovereignty, and therefore nullified any presumption within Normanby's instructions that the Maori tribes exercised a sovereignty capable of being ceded by treaty.[30] Rather, Prendergast CJ said, any obligations which the Crown did have in relation to Maori arose from those '...rights and duties which, jure gentium, vest in and devolve upon the first civilised occupier of a territory thinly peopled by barbarians without any form of law or civil government.'[31] In other words, Prendergast CJ believed that it was precisely the absence of any treaty-making capacity among Maori tribes that meant that jure gentium (the law of nations) provided the foundation for Crown obligations to Maori, since Maori were incapable of giving rise to these obligations themselves. In this respect, the obligations of the Crown toward Maori which Prendergast CJ referred to above as being 'in the nature of a treaty obligation', although not arising from the Treaty itself, are the same obligations which he believed arose for the Crown on a jure gentium basis, independent of any treaty.[32] Consequently, jure gentium plays a 'substitutive' role in Prendergast CJ's judgment. On the one hand, Prendergast CJ's resort to jure gentium as the basis for Crown obligations to Maori rests on his assumption that Maori are incapable of giving rise to these obligations on their own behalf, being 'barbarians without any form of law or civil government.'[33] It was on this basis that he had denied they had any treaty-making capacity.[34] And yet on the other hand, these same jure gentium obligations are meant to place Maori tribes '... exactly on the footing of foreigners secured by treaty stipulations', and to therefore ensure that any transaction by the Crown with Maori on this basis are '... to be regarded as acts of state, and therefore are not examinable by any court....'[35] In other words, although the jure gentium proposition arises because of a purported absence of treaty-making capacity among the Maori tribes, nevertheless this same proposition is meant to give rise to outcomes identical to those which would arise if Maori had such treaty-making capabilities.
So the first precedent of Wi Parata held that native title always fell within the prerogative powers of the Crown and so was a form of title that the municipal courts could never take account of. Yet it was Prendergast CJ's confrontation with a piece of legislation seeming to imply the contrary that gave rise to Precedent Two. This was the Native Rights Act 1865, which appeared to give the municipal courts the authority to bind the Crown over to the Native Land Court on native title issues, thereby authorising the Native Land Court, and not the Crown, to ultimately determine these issues. As Prendergast CJ put it:
The higher courts having been mentioned, as it were for the sake of form, all questions of native title are by the 5th section relegated to a new and peculiar jurisdiction, the Native Lands Court, supposed to be specially qualified for dealing with this subject. To that tribunal the Supreme Court is bound to remit all such questions, and the verdict or judgment of the Native Lands Court is conclusive. If, therefore, the contention of the plaintiff in the present case be correct, the Native Lands Court, guided only by 'the Ancient Custom and Usage of the Maori people, so far as the same can be ascertained', is constituted the sole and unappealable judge of the validity of every title in the country.[36]
Prendergast CJ referred to this inference within the Act that the Crown was subordinate to the Native Land Court on native title matters as a 'most alarming consequence', since it meant that the Crown could no longer act as the 'sole arbiter of its own justice' on native title issues, but would be subject to the determinations of this statutory court. As Prendergast CJ put it:
But it may be thought that the Native Rights Act 1865, has made a difference on this subject, and by giving cognisance to the Supreme Court in a very peculiar way, of Maori rights to land, has enabled persons of the native race to call in question any Crown title in this Court. This would be indeed a most alarming consequence; but if it be the law, we are bound so to hold.[37]
However, Prendergast CJ interpreted the Act in a way that precluded any such 'alarming consequence'. As we have seen, he had already insisted in his judgment that native title matters fell within the prerogative powers of the Crown. He then interpreted the Native Rights Act 1865 as consistent with this prerogative, on the peculiarly circular grounds that any other interpretation would extinguish the prerogative:
Fortunately we are not bound to affirm so startling a conclusion. The Crown, not being named in the statute, is clearly not bound by it; as the Act, if it bound the Crown, would deprive it of a prerogative right, that namely of conclusively determining when the native title has been duly extinguished... [38]
After citing evidence in support of his claim that the legislature did not intend to bind the Crown by this legislation, Prendergast CJ again declares the Crown's prerogative intact as follows:
[W]e cite these provisions as plain intimations on the part of the Colonial Legislature that questions respecting the extinction of the native title are not to be raised either here or in the Native lands Court in opposition to the Crown, or to the prejudice of its grantees. In our judgment these enactments introduce no new principles, but merely provide a convenient mode of exercising an indubitable prerogative of the Crown.[39]
Yet what is significant about this part of Prendergast CJ's judgment is the extent to which it departs from Precedent One discussed above. At first sight, Prendergast CJ's claim that the Native Rights Act 1865 does not give the municipal courts authority to bind the Crown over to the Native Land Court once again appears to reserve native title matters entirely for the prerogative of the Crown. However the Native Rights Act clearly intended to place some native title matters within the municipal court's jurisdiction, allowing it to refer these matters to the Native Land Court.[40] Whether it intended to include within this jurisdiction native title matters involving the Crown is open to question, as Prendergast CJ's interpretation of the Act makes clear.[41] However the intent of the legislature to include at least some native title matters within the jurisdiction of the municipal courts, allowing them to refer such matters to the Native Land Court, is apparent in the Act. So Prendergast CJ's construction of the Act to exclude the Crown nevertheless still leaves all native title matters not involving the Crown within the jurisdiction of the municipal courts. Indeed Prendergast CJ's brother judge in this case, Richmond J, says as much during the course of argument with counsel. Although Richmond J excluded from the jurisdiction of the Supreme Court any native title matter in which the Crown was involved, nevertheless he expressed his belief that all other native title matters do fall within its jurisdiction, and could be referred to the Native Land Court:
The Native Rights Act 1865, declares this Court shall take cognisance of Maori custom, but the Legislature requires us to send any question of Maori title to the Native Lands Court. It is as much as to say, it is a jurisdiction we are incapable of exercising... .If you can imagine such a thing as the rights of natives inter se, questions of that kind must go to the Native Lands Court... .[However] [i]t is quite plain that we have no power to refer to the Native Lands Court the question whether the native title has been effectually extinguished by Her Majesty, and it would be a monstrous thing if we could be required to do it.[42]
In other words, Richmond J was insisting that it was only those native title matters which directly involved the Crown that fell outside the jurisdiction of the municipal courts. All other native title matters fell within that jurisdiction and so could be referred to the Native Land Court. Does Prendergast CJ follow Richmond J in insisting that the municipal courts might have jurisdiction over native title so long as the matter does not involve the Crown? Or does he consistently hold throughout his judgment to Precedent One above that the municipal courts have no jurisdiction over native title whatsoever? I think Prendergast CJ's interpretation of the Native Rights Act clearly entails the former. This interpretation, in insisting that the Crown was not bound by the Act, and so excluding from the municipal courts' jurisdiction those native title matters involving the Crown, clearly implied (in line with Richmond J's opinion above) that all residual native title matters not involving the Crown would fall within the jurisdiction of those courts. Therefore, this is a clear departure from Precedent One above, which held that all native title matters fell outside that jurisdiction, not simply those involving the Crown. However, elsewhere in his judgment Prendergast CJ departs even further from Precedent One, insisting that even native title matters involving the Crown might fall within the jurisdiction of the municipal courts so long as such jurisdiction was supported by the Crown itself. As he states:
In this country the issue of a Crown grant undoubtedly implies a declaration by the Crown that the native title over the land which it comprises has been extinguished. For the reason we have given, this implied fact is one not to be questioned in any Court of Justice, unless indeed the Crown should itself desire to question it, and should call upon the Court to lend its aid in correcting some admitted mistake.[43]
Prendergast CJ makes the same point elsewhere in his judgment as follows:
[W]e are of opinion that the Court has no jurisdiction to avoid a Crown grant, or anything therein contained, on the pretence that the Crown has not conformed in its grant to the terms on which the aboriginal owners have ceded their rights in the land, or that the native title has not been extinguished - except perhaps in a proceeding by scire facias or otherwise, on the prosecution of the Crown itself.[44]
In other words, Prendergast CJ holds that the municipal courts would have jurisdiction over native title matters involving the Crown if the Crown itself was one of the parties to the action, and sought the court's resolution on the matter. This indicates that it is only in those instances where the Crown itself curtails such a possibility, by declaring its judgment on the matter and thereby exercising its prerogative, that the courts' jurisdiction is excluded. As Prendergast CJ indicates in the passage above the existence of a Crown grant to the land in question is considered one such declaration by the Crown that the native title has been extinguished, thereby precluding the jurisdiction of the courts.[45]
Yet such a declaration could also be simply a statement by the Crown itself that a particular court proceeding on native title should not continue because the Crown is of the opinion that the native title has been extinguished. Hence in referring to some Native Land Acts, Prendergast CJ points to the provision within one of them that a notification by the Crown in the New Zealand Gazette that native title to a particular piece of land had been extinguished would be a sufficient declaration of the fact for the purposes of the Native Land Court.[46]
So the position that Prendergast CJ articulates above, that there are times when native title issues involving the Crown might fall within the jurisdiction of the municipal courts should the Crown seek to pursue them, inevitably leads to Precedent Two - that the jurisdiction of the courts is excluded in native title matters only when the Crown declares that it is so excluded, either implicitly via the existence of a Crown grant, or explicitly when it openly declares that the native title has been lawfully extinguished. Both Precedent One and Two have a common antecedent, in that they both emerge as conclusions from the premise that native title falls within the prerogative powers of the Crown. However in all other respects, Precedent One is clearly contrary to Precedent Two. In the case of Precedent One, native title falls entirely within the prerogative powers of the Crown and so is always excluded from the jurisdiction of the courts. In the case of Precedent Two, the Crown is able to exercise its prerogative powers only over native title matters which involve the Crown, and in relation to such matters, it is only when the Crown declares that native title has been lawfully extinguished, either explicitly through its own ipse dixit or implicitly through the existence of a Crown grant, that the jurisdiction of the courts is excluded. Needless to say, in most native title cases, particularly those involving the extinguishment of native title, the Crown will be involved. However there may be times when the Crown does not wish to oppose a native title claim being referred by the municipal courts for determination in the Native Land Court; or it may be, as Richmond J suggests, that a native title matter has arisen inter se between two Maori parties, not directly involving the Crown at all.[47] In either case, such matters would be precluded from appearing before the municipal courts by Precedent One, but would be allowable under Precedent Two. This is an instance of the relevant difference between the two precedents.
The third precedent arising from Wi Parata bears absolutely no relation to the previous two, and is indeed entirely contrary to them. Whereas Precedent One and Two both have a common origin in assumptions about the Crown's prerogative powers over native title, Precedent Three is entirely inconsistent with any such assumptions at all. This is because Precedent Three is effectively an assertion of terra nullius - a claim that, far from native title falling within the prerogative powers of the Crown, native title does not exist at all.[48]
Prendergast CJ's terra nullius claims in Wi Parata arose from the same source as his claims concerning the Treaty above. As we saw in the section 'Prendergast's Irony', Prendergast CJ was of the view that the Maori tribes did not have any sovereignty to cede to the Crown when the latter sought to include New Zealand as a Crown colony, and therefore could not be recognised as legitimate treaty partners of the Crown. As he put it:
On the foundation of this colony, the aborigines were found without any kind of civil government, or any settled system of law. There is no doubt that during a series of years the British Government desired and endeavoured to recognise the independent nationality of New Zealand. But the thing neither existed nor at that time could be established. The Maori tribes were incapable of performing the duties, and therefore of assuming the rights, of a civilised community.[49]
It was his denial of their status as a 'civilised community' that allowed Prendergast CJ to deny that Maori tribes had any sovereignty over their territory, capable of being ceded by treaty to the Crown.[50] It is on the same basis that he also denied that they had any customary property rights over that same territory. Referring to a section of the Land Claims Ordinance of 1841, Prendergast CJ states:
These measures were avowedly framed upon the assumption that there existed amongst the natives no regular system of territorial rights nor any definite ideas of property in land... .They express the well-known legal incidents of a settlement planted by a civilised Power in the midst of uncivilised tribes.[51]
In other words, the same purported absence of 'civilisation' among Maori tribes allowed Prendergast CJ to deny Maori both sovereignty and property over their land, thereby revealing that his dismissal of the Treaty and his terra nullius claims both shared the same premise. Ironically however, the section of the Land Claims Ordinance to which Prendergast CJ was referring in the passage above actually makes reference to 'the rightful and necessary occupation and use.. by the aboriginal inhabitants' of the 'unappropriated lands within the colony of New Zealand', and also to the Crown's exclusive right of pre-emption over these lands.[52] In this respect, the Ordinance seemed to be a clear recognition of precisely those customary property rights of Maori over their land that Prendergast CJ was using the Ordinance to deny. Yet it is clear that just as with his dismissal of Normanby's instructions, Prendergast CJ had assumed that even definite evidence contrary to his claims was of no import. This is evident elsewhere in his judgment when, confronted with further evidence that there was statutory recognition of Maori customary rights to their land, Prendergast CJ again rejected any such possibility out of hand, this time by denying the very existence of Maori customary law. Hence he criticised the reference in the Native Rights Act 1865 to the 'Ancient Custom and Usage of the Maori People', which he said was made '.. as if some such body of customary law did in reality exist.'[53] On the contrary, he argued, '...a phrase in a statute cannot call what is non-existent into being. As we have shown, the proceedings of the British Government and the legislation of the colony have at all times been practically based on the contrary supposition, that no such body of law existed; and herein have been in entire accordance with good sense and indubitable facts.'[54]
In denying the existence of Maori customary law, Prendergast CJ was effectively declaring that upon its acquisition by the Crown, New Zealand was terra nullius - i.e. devoid of pre-existing native title. According to English common law, the Crown, upon its acquisition of new territory, acquires radical title to that territory.[55] However if the Crown recognises pre-existing native property rights, such radical title coexists with native title, where the native title is a 'burden' upon the radical title and can only be extinguished in terms of that radical title when the Crown evinces a clear intention of doing so.[56] Because the native title precedes the radical title of the Crown, it is a form of title which has its basis in origins prior to the Crown - i.e. the customary laws of the native tribes.[57] It is only on this customary basis that the Crown, and indeed the common law, can recognise the native title, since it is not a form of title which derives from the Crown. Therefore, for Prendergast CJ to claim above that Maori had no 'ancient custom and usage', and therefore no customary law, that English common law or statute law could take account of, meant that he was claiming that there was no customary basis upon which the courts could recognise native title. In other words, he was asserting that New Zealand, upon its acquisition by the Crown, was terra nullius.
Prendergast CJ reinforces this terra nullius claim by concluding that the absence of Maori customary rights to land was not due to any oversight or dispossession on the part of the Crown. Rather, it is due to their non-existence in fact. As he states:
Had any body of law or custom, capable of being understood and administered by the Courts of a civilised country, been known to exist, the British Government would surely have provided for its recognition, since nothing could exceed the anxiety displayed to infringe no just right of the aborigines.[58]
So we see that, on the basis of the same set of assumptions concerning 'civilisation' (i.e. the absence of 'law or civil government' - see note 31 above) that had allowed him to deny that Maori had any sovereignty to cede to the British, Prendergast CJ was able to deny that Maori had customary rights to their land. The one led to his rejection of the Treaty of Waitangi as a 'simple nullity', and the other led to his denial of Maori native title, and therefore his assertion of terra nullius.
Paul McHugh has explained Prendergast CJ's resort to the concept of 'civilisation', to deny any sovereign status to the Treaty and any legal status to Maori native title, in terms of the influence upon the Chief Justice of various legal theories, extant at the time. As McHugh states:
In Wi Parata Prendergast had conceded that some forms of Crown-recognised title could be given effect in the colonial courts of the Crown, but these were only those of 'civilised' societies. A society met this requirement of civilisation if prior to the Crown's sovereignty it could be said to have been 'sovereign'. Being 'uncivilised', Maori society lacked this original sovereignty and hence a land tenure system and rights to land cognisable in the colonial courts.. .Prendergast's position reduced to its simplest form was this: all property rights derived from a grant by a sovereign. If a society lacked an original sovereignty, it therefore lacked any property rights upon the acquisition of its territory by the Crown. In reaching this equation Prendergast had unwittingly synthesized a number of legal traditions into one: feudal rules of land title mixed with Austinian theory and emergent unrepresentative notions of international law. Unfortunately, Prendergast's grasp of these principles was at best superficial.[59]
McHugh also insisted that as well as Prendergast CJ's understanding of these principles being flawed, he also anachronistically applied them to the facts before him. As McHugh states:
It was mentioned earlier that Prendergast's formulation also incorporated aspects of the standard of civilisation then becoming recognised by international law. According to the position taken towards the end of the nineteenth century by a very limited group of English writers, the standard of civilisation was an absolute threshold for international personality. This Austinian-influenced position ... missed the subtleties of international practice and, in any event, was not even remotely a rule of international law in 1840 when the Crown acquired the sovereignty of New Zealand. The Crown had always recognised the juridical capacity of tribal societies to make a valid grant of an imperium. The level of 'civilisation' of Maori did not nullify this recognition.[60]
However McHugh's insistence that Prendergast CJ's use of the 'civilisation' argument was due to the influence of 'a limited group of English writers' at the end of the nineteenth century ignores, I think, the more overt eighteenth century influence of William Blackstone on Prendergast CJ's reasoning.[61] Indeed, as I will demonstrate below, I think the influence of Blackstone is further evidence that Prendergast CJ articulated a definite terra nullius position at various points within his Wi Parata judgment.[62]
Blackstone's famous distinction in his Commentaries on the Laws of England (1765) between the discovery and settlement of 'desart and uncultivated' lands, and the colonisation of lands 'already cultivated', was central to the development of the doctrines of both native title and terra nullius in English common law.[63] As Blackstone stated:
Plantations, or colonies in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desart [sic] and uncultivated, and peopling them from the mother country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations. But there is a difference between these two species of colonies, with respect to the laws by which they are bound. For it is held, that if an uninhabited country be discovered and planted by English subjects, all the English laws are immediately there in force. For as the law is the birthright of every subject, so wherever they go they carry their laws with them. But in conquered or ceded countries, that have already laws of their own, the king may indeed alter and change those laws; but, till he does actually change them, the antient [sic] laws of the country remain, unless such as are against the law of God, as in the case of an infidel country.[64]
As this passage suggests, Blackstone's distinction between 'desart and uncultivated' and 'already cultivated' land had two very different legal consequences concerning the acquisition of new territories, and the status of Crown law within them.[65] Which of these legal regimes applied was determined by the status ascribed by the Crown to the land within the newly occupied territory. If the land was deemed by the Crown to be 'desart and uncultivated', then both discovery and a simple right of occupancy ('settlement') by the Crown was sufficient for the Crown to acquire full valid title to the colony and the land within it, and for all the existing laws of the Crown to immediately apply to the new territory.[66] However if the land was 'already cultivated' - that is, clearly subject to prior occupation - then the only means by which the Crown might acquire a valid title to the territory under common law was either by conquest of the original inhabitants or via a treaty of cession whereby the original inhabitants transferred sovereignty over the territory to the Crown.[67] Further, as Blackstone pointed out in the passage above, in such 'already cultivated' territory, far from the Crown laws applying in full, pre-existing laws were recognised unless they were expressly annulled by the Crown. Blackstone's concept of 'desart and uncultivated' land clearly refers to a situation of terra nullius because the absence in 'desart and uncultivated' land of pre-existing laws recognised by the Crown (including customary property laws) meant that the Crown was not bound to acknowledge pre-existing property rights. This meant that upon discovery and occupation of 'desart and uncultivated' land, the Crown acquired not only sovereignty but full beneficial ownership over all territory, its laws applying in full. Only in 'already cultivated' lands did pre-existing laws continue to apply unless expressly overturned by the new sovereign. But in using the phrase 'desart and uncultivated', was Blackstone applying terra nullius only to lands which were literally uninhabited? The fact that he uses the phrase 'uninhabited country' later in the same passage to refer to these 'desart and uncultivated lands' is evidence that this was his intention.[68] However as we shall see below, in line with the evolution of the doctrine of terra nullius to include land with indigenous inhabitants (as in Australia), the legal consequences that Blackstone associated with his conception of 'desart and uncultivated' land came in time to be applied by English judicial authorities to inhabited lands as well.[69] Regardless of whether Blackstone himself intended that his conception of 'desart and uncultivated' land be extended to inhabited land as well, nevertheless once it was, Blackstone's identification of terra nullius with an absence of pre-existing law in the colonised territory gave credence to the idea that the application of the doctrine of terra nullius ought to be determined less by whether land was inhabited or uninhabited and more by whether the colonising power was willing to recognise a pre-existing body of law which it would take into account in its colonising process. Indeed, it is the very existence of such pre-existing laws which Blackstone used to distinguish his model of 'already cultivated' land from his 'desart and uncultivated' alternative. In the case of 'already cultivated' land, pre-existing laws remain and are only overturned by colonial law at the behest of the sovereign.[70] But in the case of 'desart and uncultivated' land, where there are no pre-existing laws, all the laws of the colonial power are 'immediately there in force'. Therefore, it is but a short step from assuming that 'desart and uncultivated' land is land without pre-existing law, to assuming that land perceived to be without pre-existing law ought to be considered 'desart and uncultivated' (i.e. terra nullius). In other words, via this short step, the concept of 'civilisation' replaces the concept of 'habitation' as the determining principle of whether land is 'desart and uncultivated', since in the opinion of the time, an absence of pre-existing law recognisable by the Crown implied an absence of 'civilisation'.[72] In this way, Blackstone's concept of 'desart and uncultivated' land could be extended beyond uninhabited land to land which the colonising power acknowledged to be peopled by indigenous inhabitants, but without the level of civilisation deemed necessary to have acquired settled laws or rights to property.[73] In other words, by making civilisation, rather than habitation, the central fact to be considered, Blackstone's concept of 'desart and uncultivated' land was extended to inhabited land as well, with the result that the doctrine of terra nullius could be applied to existing indigenous populations, with all the consequences of dispossession that followed.
Perhaps the most telling example of the extension of Blackstone's concept of 'desart and uncultivated' land to inhabited land is the judgment of the Privy Council in Cooper v Stuart, which in the late nineteenth century applied Blackstone's doctrine to the colony of New South Wales.[74] The Privy Council did not suffer from the illusion that Australia was 'uninhabited'. Its Aboriginal inhabitants were not invisible to them. But in the following passage, one can literally see the Privy Council extending Blackstone's reference to 'desart and uncultivated' land from land literally unoccupied to land 'practically unoccupied, without settled inhabitants or settled law' (in other words, to land which was occupied but not at the requisite level of 'civilisation'). The Privy Council then claimed that New South Wales fell into this latter category:
The extent to which English law is introduced into a British Colony, and the manner of its introduction, must necessarily vary according to circumstances. There is a great difference between the case of a Colony acquired by conquest or cession, in which there is an established system of law, and that of a Colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions. The Colony of New South Wales belongs to the latter class.[75]
The Privy Council then insisted, in the passage below, that due to this absence of 'settled inhabitants' and 'settled law', there was also an absence of pre-existing property rights among the indigenous inhabitants, and so English laws applied in full (i.e. the very legal consequences that Blackstone said followed upon the discovery and occupation of 'desart and uncultivated' land). In this way, the Privy Council effectively declared that New South Wales, upon its colonisation by the Crown, was terra nullius:
There was no land law or tenure existing in the Colony at the time of its annexation to the Crown; and, in that condition of matters, the conclusion appears to their Lordships to be inevitable that, as soon as colonial land became the subject of settlement and commerce, all transactions in relation to it were governed by English law, in so far as that law could be justly and conveniently applied to them.[76]
Consequently, it was on the basis of their perception of an absence of 'settled inhabitants' and 'settled law', rather than a literal absence of people, that the Privy Council felt justified in extending Blackstone's concept of 'desart and uncultivated' land (and its full legal consequences of terra nullius) to the colony of New South Wales and its Aboriginal population. In other words, the question of 'habitation' had been replaced by the question of 'civilisation' in deciding whether terra nullius applied to Australia.
Consequently we see that, regardless of Blackstone's own use of the concept of 'desart and uncultivated' land, the criterion of 'civilisation' (as distinct from 'habitation') became central to the question of whether a newly discovered territory could be considered 'desart and uncultivated', and therefore terra nullius. As we have seen, Prendergast CJ also resorted to a criterion of 'civilisation' in his consideration of whether Maori tribes possessed either property rights or sovereignty over their land.[77] Indeed, at one point within his judgment, Prendergast CJ implicitly evoked Blackstone's distinction between 'desart and uncultivated' and 'already cultivated' (or what Prendergast CJ calls 'civilised') territories by upholding the Blackstonian claim that in the case of the latter, the pre-existing laws are recognised by the new sovereign:
On the cession of territory by one civilised power to another, the rights of private property are invariably respected, and the old law of the country is administered, to such extent as may be necessary, by the Courts of the new sovereign. In this way British tribunals administer the old French law in Lower Canada, the Code Civil in the island of Mauritius, and Roman-Dutch law in Ceylon, in Guinea, and at the Cape.[78]
Prendergast CJ contrasted this to the absence of 'civilisation' which he believed existed at the time of the Crown's acquisition of sovereignty in New Zealand, where the Crown was '...the first civilised occupier of a territory thinly peopled by barbarians without any form of law or civil government'.[79] Prendergast CJ claimed that the Crown, confronting such 'primitive barbarians', was not legally bound to acknowledge any pre-existing laws.[80] Indeed, as we have seen, he did not believe there were any such laws in existence for the Crown to acknowledge.[81] In other words, it is clear that Prendergast CJ deemed New Zealand, upon its acquisition by the Crown, to be a territory without pre-existing laws and so, in Blackstonian terms, 'desart and uncultivated'. As we have seen above, it was precisely such 'desart and uncultivated' land that was subject to the doctrine of terra nullius. It is therefore clear from Prendergast CJ's use of the Blackstonian framework that he believed New Zealand to be terra nullius upon its acquisition by the Crown.
Another Blackstonian concept that Prendergast CJ employs, and which again clearly presupposes the idea of terra nullius, is the idea of 'settlement' (or what Blackstone at n 64 above calls 'planting' and 'peopling') of new colonies. As we have seen, Prendergast CJ assumed Blackstone's distinction between 'already cultivated' land which was acquired by cession or conquest, and 'desart and uncultivated' land which was acquired by 'discovery' and 'right of occupancy', or by what Prendergast CJ refers to below (at n 85 and accompanying text) as 'settlement'.[82] The Treaty of Waitangi (1840) would appear to indicate that New Zealand was territory of the first type, acquired by cession. However, as we have seen, Prendergast CJ dismissed the Treaty as a 'simple nullity' precisely because he believed that the Maori did not have any sovereignty to cede in 1840.[83] Consequently, far from suggesting that the Crown acquired sovereignty over New Zealand by cession (as the Treaty of Waitangi would suggest) various aspects of Prendergast CJ's judgment indicates that he believed such acquisition must have been by 'discovery' and 'right of occupancy' or, as he puts it below, 'settlement'. This in turn implies that Prendergast CJ must have assumed New Zealand to have been 'desart and uncultivated' land, and therefore terra nullius, upon its acquisition by the Crown, since in Blackstonian terms, only such land can be acquired by 'discovery' and 'right of occupancy' .[84] Hence at one point in his judgment, Prendergast CJ referred to various legislative enactments of the Crown in relation to land issues, which he said assumed an absence of pre-existing property rights among Maori, and argued that these therefore '... express the well-known legal incidents of a settlement planted by a civilised Power in the midst of uncivilised tribes.'[85] In other words, in this passage 'settlement' is clearly identified by Prendergast CJ with an absence of any recognition by the Crown of indigenous rights to land. He is even more explicit in his assertion that New Zealand was acquired by 'discovery' and 'right of occupancy' when he records his agreement with an earlier judgment by Acting Chief Justice Stephen in Auckland in 1858, which, he says, '...imports that the title of the Crown to the country was acquired, jure gentium, by discovery and priority of occupation, as a territory inhabited only by savages'.[86] In these two passages, we see Prendergast CJ clearly drawing a close parallel between a territory acquired by 'discovery and priority of occupation' and a territory acquired by 'settlement'. But further, the passages show that Prendergast CJ must have assumed that New Zealand was terra nullius at the time of its acquisition by the Crown, because only 'desart and uncultivated' land could be acquired by what Blackstone called 'discovery' and 'right of occupancy' (or what Prendergast CJ called 'discovery and priority of occupation') and as we have seen, it is precisely such 'desart and uncultivated' land that subsequent legal authority has identified with the doctrine of terra nullius.
But before we proceed further to discuss what I believe are the inherent contradictions between the three precedents of Wi Parata, it is necessary to consider the possibility that there is no contradiction between them at all. As we have seen in the discussion of 'Prendergast's Irony' above, Prendergast CJ clearly believed that, in the absence of the Treaty, all Crown obligations towards Maori arose from a jure gentium (law of nations) foundation.[87] He believed that the obligations and duties of the Crown towards Maori arose from this foundation because Maori lacked any legal or treaty-making capacity to assert such rights and impose such obligations themselves.[88] Hence in the context of his rejection of Lord Normanby's claim that New Zealand, prior to its acquisition by the Crown, was a 'sovereign and independent state', Prendergast CJ says:
[T]he Crown was compelled to assume in relation to the Maori tribes, and in relation to native land titles, these rights and duties which, jure gentium, vest in and devolve upon the first civilised occupier of a territory thinly peopled by barbarians without any form of law or civil government.[89]
Clearly therefore, Prendergast CJ believed that jure gentium obligations arose for the Crown precisely because Maori lacked 'any form of law or civil government', and so lacked the legal status or capacity to assert such rights and obligations themselves.[90] Similarly, in the context of his denial of the Treaty as a 'simple nullity', Prendergast CJ again assumes that jure gentium obligations fill this gap, and impose duties on the Crown which the Treaty fails to give rise to itself:
So far as the proprietary rights of the natives are concerned, the so-called treaty merely affirms the rights and obligations which, jure gentium, vested in and devolved upon the Crown under the circumstances of the case.[91]
In other words, it is clear that Prendergast CJ sees the role of jure gentium as 'substitutive' in nature - a law of nations that is capable of giving rise to obligations among sovereign powers once they claim sovereignty over newly discovered or acquired territories, in those circumstances where the indigenous people of those territories are incapable of giving rise to those rights and obligations themselves.
However it is in the context of this substitutive role that the jure gentium proposition promises to reconcile the otherwise contradictory elements of Prendergast CJ's judgment, in particular the contradiction between his postulation of a Crown prerogative over native title on the one hand, and a terra nullius proposition which denies the existence of native title on the other. It promises to do so because both propositions serve a compatible purpose within the context of Prendergast CJ's use of jure gentium. Prendergast CJ uses the jure gentium postulate to give rise to one proposition (native title and the Crown prerogative over it) not in contradiction to, but precisely because of the presence of the other (terra nullius). It is because Prendergast CJ believed that upon the Crown's acquisition of sovereignty, Maori had no sovereignty or customary property rights, that he believed jure gentium obligations inevitably arose, 'under the circumstances of the case', because Maori lacked any capacity to give rise to those obligations, lacking both a treaty-making capacity, and a 'regular system of territorial rights' and 'definite ideas of property in land'.[92] In other words, both the postulation of native title, and the Crown prerogative over it, arises from a jure gentium foundation which, in turn, presupposes a prior context of terra nullius. In this way, both of the otherwise contradictory elements of Prendergast CJ's judgment appear to be reconciled. Indeed we can view this apparent reconciliation a lot more clearly if we perceive it in terms of the following ten point characterisation of Prendergast CJ's argument:
1. Why does the Crown have prerogative power over native title?
2. Because the obligations that native title imposes on the Crown are 'in the nature of a treaty obligation'.[93]
3. Why are these obligations 'in the nature of a treaty obligation' ?
4. Because they arise on a jure gentium basis for the Crown.[94]
5. Why do they arise on a jure gentium basis for the Crown?
6. Because Maori are incapable of giving rise to these rights and obligations themselves.[95]
7. Why are Maori incapable of giving rise to these rights and obligations themselves?
8. Because they are 'primitive barbarians' and occupy a territory 'thinly peopled.. without any form of law or civil government.'[96]
9. In Blackstonian terms (pace the extension of these terms to inhabited territories[97] ) what do we call territories 'thinly peopled...without any form of law or civil government' ?
10. 'Desart and uncultivated' or, in contemporary parlance, terra nullius.
Perceived in this way therefore, the purported contradiction between Prendergast's Crown prerogative claims (Precedent One and Two) and his terra nullius claims (Precedent Three) seem to disappear. The jure gentium postulate gives rise to one (Crown prerogative) precisely because of the existence of the other (terra nullius).
But on a closer reading we can see that, despite Prendergast CJ's use of the jure gentium postulate, the same contradictions within his Wi Parata judgment remain. The reason lies in Prendergast CJ's misunderstanding of the Blackstonian discourse he was working within. As we have seen, Prendergast CJ drew strongly on Blackstonian terminology and concepts in his judgment, particularly in his understanding of how New Zealand was acquired by the Crown and the obligations to Maori which arose from this.[98] And as the ten point format above shows, his jure gentium assumptions were also dependent on this Blackstonian discourse. Yet as we have also seen, Blackstone believed that 'upon the law of nature, or at least upon that of nations', there were only three ways by which rights and obligations could be imposed on the Crown in terms of its acquisition of new territories, and each of these depended on the type of territory acquired by the Crown and its mode of acquisition. If the Crown encountered 'desart and uncultivated' land, it could acquire the territory by 'discovery' and 'right of occupancy' only.[99] But if the land was 'already cultivated', then it could only be '... gained by conquest, or ceded to us by treaties.'[100] As we have seen in the preceding section, 'Prendergast's Use of Blackstone', Prendergast CJ clearly believed that New Zealand was acquired in the first manner, by 'discovery' and 'right of occupancy'. And yet it is only acquisition in the second and third manner (conquest and cession by treaty) that Blackstone believed could give rise to Crown recognition of pre-existing property rights among the indigenous inhabitants, - such property rights being part of the pre-existing laws which Blackstone said remained in force until expressly extinguished by the new sovereign.[101] In contrast, far from giving rise to Crown recognition of pre-existing property rights, land acquired by 'discovery' and 'right of occupancy' is, in Blackstone's terms, 'desart and uncultivated', and therefore terra nullius (i.e. devoid of all pre-existing property rights).[102] Consequently, given that Prendergast CJ situated his judgment within a Blackstonian discourse, if he believed that New Zealand was acquired by 'discovery' and 'right of occupancy', as the passages quoted earlier indicate that he did, then it is clear that he conceived of this territory as being devoid of pre-existing property rights. As such, he cannot then rely on jure gentium propositions to play a substitutive role and provide Maori with those property rights (ie native title and Crown prerogative over it) when the Blackstonian discourse he was working within (and upon which his jure gentium assumptions rely) required him to confirm that they do not exist.
Indeed, even putting Blackstone to one side, if Prendergast CJ believed 'a statute cannot call what is non-existent into being' when it comes to native title, it is difficult to see how he could believe that jure gentium propositions were capable of doing so. And so on this basis alone, the 'substitutive' role of the latter is questionable to say the least.
In this context therefore, we can conclude that it is entirely contradictory for Prendergast CJ to postulate, on a jure gentium basis, the existence of native title and a Crown prerogative over it, when those same jure gentium postulates are founded on a Blackstonian discourse which assumes that New Zealand was 'desart and uncultivated' and therefore terra nullius upon its acquisition by the Crown, and therefore devoid of native title. Consequently, once we view Prendergast CJ's jure gentium postulates from the Blackstonian perspective that he himself assumes throughout his judgment, we see the same contradiction arising in this judgment between Crown prerogative over native title on the one hand, and terra nullius assumptions which deny that native title, on the other.
Consequently, given that Prendergast CJ’sjure gentium propositions cannot reconcile both the native title and terra nullius aspects of his judgment, it is clearly apparent that the three precedents which emerge from Wi Parata are in no way compatible. The first two, emerging out of Prendergast CJ and Richmond J's assumptions concerning the Crown's prerogative over native title, lead to a claim that native title is either always outside the jurisdiction of the municipal courts, or only falls outside that jurisdiction when the Crown declares that it ought to. The difference between the two positions is significant, as in the one, Maori are automatically denied any capacity to pursue their native title claims within the municipal courts; and in the other they are only denied such capacity if they find themselves in opposition to the Crown.
However, it is the third precedent which is most contradictory in relation to the other two. Whereas the first two precedents acknowledge the existence of native title, the third denies it altogether, insisting that, as a form of traditional or customary title to land, it does not exist within New Zealand at all.
Yet what is most surprising about the Wi Parata judgment is not the existence of these contradictions, but the fact that subsequent authorities have apparently failed to notice (or at least admit to) them. As we shall see below, subsequent judicial opinion in New Zealand, in upholding Wi Parata as the authoritative precedent on native title, did not acknowledge these contradictions, but rather presented Wi Parata as a unified precedent on native title.
Contemporary legal scholars seem also to have done the same. For instance, Paul McHugh has pointed to what he sees as the 'two strands of reasoning' which informed Prendergast CJ's 'denial of any common law basis for the native title' in Wi Parata.[103] The first, he said, 'denied any status to the Treaty of Waitangi as a valid instrument of cession'.[104] As we have seen, this denial of the Treaty was premised on Prendergast CJ's denial of any legal capacity to Maori tribes, which in turn allowed Prendergast CJ to deny that Maori had either sovereignty or property rights over their land recognisable by the Crown.[105] We have identified these claims with Prendergast CJ's terra nullius position. The second strand of reasoning that McHugh refers to is '.. connected to the special status of the Crown in a colony populated with tribal inhabitants. In the conduct of those relations, [Prendergast] said, and in particular the extinguishment of the native title, the Crown was to be the 'sole arbiter of its own justice'.'[106] This is a reference to the other major precedent in Prendergast CJ's judgment - his reservation of native title for the prerogative powers of the Crown, and therefore its exclusion from the jurisdiction of the courts. What McHugh refers to as the 'two strands of reasoning' by which Prendergast CJ came to his conclusions in Wi Parata, I have viewed as three independent, and incompatible, precedents emerging from that judgment. Yet even within the context of McHugh's terminology, surely the same contradictions arise. The first 'strand' of Prendergast CJ's judgment denied any legal capacity, and therefore any native title, to Maori tribes. The second 'strand' recognised that native title existed but reserved it for the prerogative powers of the Crown. Clearly Prendergast CJ has both affirmed and denied the existence of native title within the space of a single judgment, thereby contradicting himself. Yet McHugh sees no contradiction at all. As he argues:
Prendergast's denial of any common law basis for the native title followed two strands of reasoning. The first denied any status to the treaty of Waitangi as a valid instrument of cession...[T]his approach enabled him to find that, Maori customary law being uncivilised, any property rights created by it were unenforceable in the courts. Prendergast's second ground for denial of a common law aboriginal title connected to the special status of the Crown in a colony populated with tribal inhabitants. In the conduct of those relations, he said, and in particular the extinguishment of the native title, the Crown was to be the ' sole arbiter of its own justice'. In other words, whatever rights the Maori held to their traditional lands, subsisted by Crown sufferance, by moral rather than legal necessity.[107]
Clearly, in the passage above, McHugh sees the two 'strands' of Prendergast CJ's Wi Parata judgment as leading to a compatible conclusion.[108] Whereas the first 'strand' denied any 'legal necessity' (i.e. judicial recognition) to native title, the second affirmed its 'moral necessity', upon the basis of Crown prerogative, and thereby its claims upon the conscience of the Crown.[109] Yet McHugh's reconciliation of the two 'strands' ignores the fact that the first 'strand' didn't just deny the 'legal necessity' of native title. It denied its existence in fact. Prendergast CJ insisted that Maori customary law, upon which such native title is premised, did not exist, and any reference to such customary law in statutes was not sufficient to 'call what is non-existent into being.'[110] He also went to great lengths to insist that Maori lacked the level of civilisation necessary to have any 'regular system of territorial rights' or 'any definite ideas of property in land'.[111] So Prendergast CJ's denial of the 'legal necessity' of native title was premised on a terra nullius claim - its denial at the level of fact. Concerning McHugh's second 'strand' therefore, it is difficult to see what 'moral necessity' arose for the Crown from a form of title which, as Prendergast CJ claimed elsewhere in his judgment, did not exist at all. In other words, it is impossible to avoid the conclusion that, in asserting both a terra nullius claim that native title did not exist, and also a proposition that it did exist but fell within the prerogative powers of the Crown (thereby giving rise to what McHugh calls 'moral necessities'), Prendergast CJ was simply contradicting himself.
Consequently, one can only conclude that McHugh's attempt to reconcile these two elements of the Wi Parata judgment, by asserting that Prendergast CJ's denial of native title at a legal level was consistent with his recognition of its status for the Crown at a moral level, is mistaken, because it is premised on a failure to recognise that each of these propositions is based on incompatible premises. In other words, it is a failure to recognise that Prendergast CJ's denial of native title's 'legal necessity' was premised on a terra nullius claim which was incompatible with its 'moral necessity'.[112]
But why did a judge of Prendergast CJ's eminence proceed to contradict himself three ways in Wi Parata? I think the answer lies in the overarching aim which Prendergast CJ was trying to achieve in this judgment. The terra nullius ruling on the one hand, and the two rulings premised on the Crown's prerogative on the other, each played a different role in achieving this overarching aim. That aim was nothing less than to insulate the Crown from all unwanted native title claims, and thereby ensure that all existing Crown grants were safe from native title challenge. The contradictions in his judgment arose from that which it was necessary for him to assert in order to achieve this aim.[113]
It was clear from the language which Prendergast CJ used in Wi Parata itself that he saw native title as a distinct threat which the Crown, and indeed settler society, had to be protected from. For instance, as we have seen, he described as an 'alarming consequence' the possibility that land which the Crown had already granted to settlers might be challenged by native title, and that the Crown could be subject to the determination of the courts on this issue.[114] The protection of these Crown grants from native title challenge was clearly something that Prendergast CJ wished to ensure. Yet he was confronted with two prior native title precedents in New Zealand, R v Symonds and Re Lundon & Whitaker Claims, which clearly held that native title was cognisable within common law and therefore justiciable in the municipal courts.[115] This in turn implied that the Crown could be subject to the determination of the courts on native title issues. Prendergast CJ could not easily challenge these precedents in terms of law, because one of them, the Lundon & Whitaker Claims judgment, was actually delivered by a superior Court. His only option was to challenge these precedents in terms of fact, by insisting that the very native title they referred to was, in reality, non-existent. This is the motive which, I believe, underlies Prendergast CJ's terra nullius claims in Wi Parata, even though he does not directly confront these earlier precedents in that judgment. His single reference to Lundon & Whitaker Claims involved a point of law unrelated to native title.[116] While his two references to R v Symonds either asserted that it gave rise to a precedent which conformed to his own ruling;[117] or that it was mistaken in its interpretation and citation of one of the early American precedents on native title.[118] Nevertheless, I believe it is his need to implicitly overturn the precedent upheld in both of these earlier cases which governs Prendergast CJ's resort to terra nullius in Wi Parata. Yet Prendergast CJ's terra nullius claims were only capable of dealing with the status of native title at common law. It was this status which had been upheld in both R v Symonds and Re Lundon & Whitaker Claims. However, Prendergast CJ was confronted with more than simply an assertion of native title at common law. He was confronted with an assertion of native title in statute. The Native Rights Act 1865 made clear reference to 'titles to land held under Maori Custom and Usage'.[119] Such an acknowledgement of native title in statute rendered void any assertion of terra nullius that Prendergast CJ might make at common law. This statute also held that '[t]he Supreme Court and all other Courts of Law within the Colony ought to have and have the same jurisdiction' over such titles 'as they have or may have under any law for the time being in force in all cases touching the persons and property of natural-born subjects of Her Majesty.'[120] In other words, Prendergast CJ was confronted with a clear statutory recognition of native title, and its justiciability within the municipal courts - the very proposition which he had attempted to deny at common law in his resort to terra nullius. At one point, Prendergast CJ seemed to resort to the same denial of fact as he adopted in confronting native title at common law, by asserting that'.. a phrase in a statute cannot call what is non-existent into being.'[121] Yet it was clear that the statute was calling such a title into being, and further, that it was delegating the jurisdiction over native title not to the Crown but to a statutory body, the Native Land Court, to which the municipal courts were bound to refer all native title matters coming before them.[122] Once again therefore, it seemed as if the Crown would be bound by the courts, both municipal and statutory, in the determination of native title matters, rather than retaining its prerogative power as the 'sole arbiter of its own justice'.
It is at this point that we come to understand the motive behind Prendergast CJ's other contrary set of precedents in Wi Parata - his assertion of the Crown's prerogative over native title. Prendergast CJ was confronted with a statute that, prima facie, clearly authorised the municipal courts to refer all native title matters to the Native Land Court, and which seemed to bind the Crown to abide by the rulings of the Native Land Court.[123] However if Prendergast CJ could claim that native title matters involving the Crown fell exclusively within the Crown's prerogative power, this would allow the Crown, upon a declaration on the matter, to exclude the jurisdiction of the municipal courts and thus prevent them from referring such matters to the Native Land Court. Needless to say, this is precisely what Prendergast CJ did do under Precedent Two above, which reserved all native title matters involving the Crown for the Crown's prerogative power, and allowed the Crown's declaration of that prerogative to exclude the jurisdiction of the municipal courts on any native title matter brought before them. Precedent One also reserved native title matters for the Crown's prerogative, but in its case, all native title matters, not just those involving the Crown. Yet although Precedent One and Two managed to prevent the municipal courts deliberating on native title matters, and referring them to the Native Land Court against the wishes of the Crown, nevertheless there was another New Zealand statute that still seemed to reserve for the Native Land Court a jurisdictional capacity to bind the Crown on native title matters. Section 21 of The Native Lands Act 1865 allowed native title matters to be brought before the Native Land Court entirely independently of the municipal courts, on the basis of a written notice from a native applicant.[124] Consequently, even though Precedent One and Two could preclude a municipal court from referring a native title matter involving the Crown to the Native Land Court under the Native Rights Act 1865, the same matter could appear directly before the Native Land Court under s 21 of The Native Lands Act 1865, and the Crown would still find itself falling within the Native Land Court's jurisdiction.
I believe it was Prendergast CJ's desire to avoid this possibility which gave added import to his interpretation of the Native Rights Act 1865. As we have seen, Prendergast CJ went to great lengths to insist that the Native Rights Act 1865 was non-binding on the Crown, and so did not force the Crown to submit to the determination of the Native Land Court on native title matters. He did so by insisting that the Act did not mention the Crown by name and so the legislature could not have intended to include the Crown within its scope and jurisdiction - although as we have seen, his reasoning in this regard was decidedly circular.[125] Prendergast CJ then went on to justify his assertion that the legislature did not intend to bind the Crown to the determination of the Native Land Court under this statute by citing two others - the Native Lands Acts of 1867 and 1873. Under these Acts, Prendergast CJ claimed, it was held that a declaration by the Crown in the New Zealand Gazette '.. notifying the extinction of the native title over any land therein comprised, was made conclusive proof of that fact in the Native Lands Court.'[126] In other words, on Prendergast CJ's reading, these Native Lands Acts held that a declaration by the Crown concerning a native title matter was binding on the Native Land Court, which in turn implied that the Crown's prerogative power over native title matters remained wholly intact.[127] These Acts would also be determining of the provision of s 21 of the Native Lands Act 1865 which allowed native applicants to apply directly to the Native Land Court, independent of the municipal courts. Under Prendergast CJ's interpretation of these later Native Lands Acts therefore, the Crown could still exert its prerogative to exclude any native title matter involving the Crown from appearing before the Native Land Court, even if the application to appear was made in writing, independent of the municipal courts.
Consequently, it is by imputing to Prendergast CJ an overarching purpose within his Wi Parata judgment to protect the Crown from native title claims that we can explain the overt contradictions which emerge within that judgment. When faced with common law precedents which held that native title was cognisable at common law, and therefore justiciable in the municipal courts, he asserted a terra nullius claim (Precedent Three). When confronted with a statute that upheld native title and seemed to bind the Crown to the determination of the Native Land Court, he asserted the Crown's prerogative over all native title matters involving the Crown (Precedent Two). As we have seen, Precedent Two and Three are directly contradictory, because the former asserts a Crown prerogative over a form of title which the latter claims does not exist. Yet we can see that these incompatible propositions arose from the very different purpose which each served in Prendergast CJ's overarching aim of protecting the Crown from native title claims. It is in this larger context that we can see the truly incongruous nature of what I have called 'Precedent One' within Prendergast CJ's judgment. This precedent appeared to assert that all native title matters fell within the prerogative powers of the Crown, thereby excluding native title entirely from the jurisdiction of the courts. Yet such a precedent is clearly at odds with the Native Rights Act 1865 which holds that native title matters are cognisable within the municipal courts, if only to refer them to the Native Land Court, and also that the judgment of the Native Land Court'... shall be taken as conclusive both as to fact and as to the Maori Custom or Usage....'[128] As we have seen, the only way that Prendergast CJ could exclude the Crown from the jurisdiction of this Act was to assert that it did not intrude on those native title matters which involved the Crown (Precedent Two). Yet this clearly presupposed that some native title matters might still be left for the Native Land Court, contra Precedent One. In this sense, although Precedent Two constitutes Prendergast CJ's response to the Native Rights Act 1865, Precedent One clearly goes too far for that purpose and is therefore repugnant to the wider import of that statute.
In upholding Wi Parata as the authoritative precedent on native title, subsequent New Zealand court judgments did not openly acknowledge that it gave rise to inconsistent and contradictory precedents. Rather, they all held that Wi Parata gave rise to a unified precedent on native title.
Hence in 1903, Williams J, in the Court of Appeal, referred to what he believed was 'an unbroken current of authority' on native title matters in New Zealand, which he claimed held that'.. the Native occupiers had no right to their land cognisable in a Court of law... [and] that as the Natives never had any rights cognisable in a court of law they hand no locus standi to impeach the [Crown] grant....'[129]
Such a position seemed to uphold Precedent One as the sole precedent arising from Wi Parata, where native title matters were always excluded from the jurisdiction of the courts. Yet other judges seemed to uphold Precedent Two as the authoritative precedent, ruling that it was only when the Crown declared that a native title matter had been lawfully concluded that the jurisdiction of the municipal courts to investigate the matter was excluded. Hence in 1894, Richmond J delivered the judgment of the Court of Appeal which at that time still included Prendergast as Chief Justice, as follows:
The plaintiff comes here, therefore, on a pure Maori title, and the case is within the direct authority of Wi Parata v The Bishop of Wellington. We see no reason to doubt the soundness of that decision... .According to what is laid down in the case cited, the mere assertion of the claim of the Crown is in itself sufficient to oust the jurisdiction of this or any other court in the colony.[130]
Similarly, whenever the Crown itself was a party to a native title matter before the municipal courts, it did not assert that the court's jurisdiction was automatically excluded on all native title matters (Precedent One) but only that it was excluded in those native title matters which involved the Crown and which the Crown had expressly declared to have been lawfully concluded (Precedent Two). Hence in 1902, counsel for the Solicitor-General argued along these lines as follows:
The prerogative of the Crown to declare the extinguishment of Native title has been recognised by an unbroken line of cases in the colonial courts....The Crown grant having been good when issued, the Native title was extinguished. The cession, having been accepted by the Crown, was an act of state, and cannot be inquired into.[131]
As late as 1912, the Solicitor-General in person argued a similar position before the Court of Appeal:
The nature of Native customary title has been considered in many cases, the most important being Wi Parata v Bishop of 'Wellington...and Nireaha Tamakiv Baker [12 NZLR 483]...and we ask the Court to confirm and ratify the principle acted on in those cases. That principle is - Native title is not available in any manner and for any purpose against the Crown. As against the Crown it is not a legal title at all. If, therefore, any dispute exists as to whether the land is Native customary land or Crown land the ipse dixit of the Crown is conclusive, and the question cannot be litigated in this or any other court. This is the principle that has dominated all native land law since the foundation of the colony: See Wi Parata v. Bishop of Wellington [(1877) 3 NZ Jur (NS) SC 72, 78]; Nireaha Tamaki v Baker [12 NZLR 483, 488].[132]
In passing, it is interesting to note that the Privy Council's refusal to recognise this principle that the Crown, simply on the basis of its own declaration, could exclude native title matters from the jurisdiction of the courts, did most to undermine this aspect of the Wi Parata precedent, at least in common law. In Wallis v Solicitor-General, Lord Macnaghten, delivering the judgment of the Privy Council, rejected the authority of any such Crown declarations in no uncertain terms:
The proposition advanced on behalf of the Crown is certainly not flattering to the dignity or the independence of the highest Court in New Zealand, or even to the intelligence of the Parliament. What has the Court to do with the executive? Where there is a suit properly constituted and ripe for decision, why should justice be denied or delayed at the bidding of the executive? Why should the executive Government take upon itself to instruct the Court in the discharge of its proper functions?[133]
Indeed, this statement by the Privy Council was couched in such pejorative language that the Court of Appeal took umbrage, and engaged in an official protest in 1903 precisely to reject the imputation, within the statement above, that the court, in accepting the Crown's declaration on native title as conclusive, lacked sufficient independence from the executive.[134] The other precedent arising out of Wi Parata, involving an actual terra nullius claim, tended to be ignored by subsequent judicial opinion in New Zealand. On one occasion however, during his protest against the Privy Council in 1903, Stout CJ appeared to assert something like a terra nullius position, although the evidence he cited in support of this indicated that the assertion was probably an unintentional mistake.[135] So we see that subsequent New Zealand judicial opinion reflected the divisions and contradictions within the Wi Parata precedent itself. All upheld that the Wi Parata judgment gave rise to a unified and authoritative precedent on native title, but whether this was that all native title matters always fell within the prerogative of the Crown and so outside the jurisdiction of the courts (Precedent One), or that it only did so when the matter involved the Crown and the Crown issued a declaration to this effect (Precedent Two) depended on the specific judgment itself.[136]
But why didn't subsequent judicial opinion within the New Zealand Court of Appeal openly admit to the contradictions which existed within Wi Parata? Why did they present it as a unified precedent on native title, albeit along the lines of either Precedent One or Two? I don't think it would be reasonable to assume that judges who had demonstrated the legal perspicacity sufficient for elevation to New Zealand's highest court could have been unaware of these contradictions. Consequently, another explanation is needed. I think the answer lies in the importance of the Wi Parata judgment to settler society within New Zealand. Wi Parata satisfied settler concerns about the stability and security of land tenure in New Zealand. All land held by settlers in New Zealand was held by grant from the Crown. If it was decided that native title claims were justiciable against the Crown within the municipal courts, or enforceable against the Crown in the Native Land Court, this could threaten the legality of these grants on the grounds that the native title had not been lawfully extinguished by the Crown as a prelude to their issue. In other words, native title rendered the existing system of land tenure in New Zealand, upon which colonisation had proceeded, fundamentally insecure. We have seen that a Chief Justice and a Justice of the Court of Appeal both referred to this insecurity produced by native title.[137] However a New Zealand Solicitor-General also gave open expression to these concerns as follows:
Native title is not available in any manner and for any purpose against the Crown. As against the Crown it is not a legal title at all... .If this is not the principle the Natives could go on a claim based on customary title to the Native Land Court and claim to have the title to all Crown lands investigated. There is no known method upon which the validity of a cession [of native title] can be determined, and so if the Crown's claim is not conclusive there is no method of determining its title, and the security of title to all Crown land will be jeopardised.[138]
Wi Parata prevented any such threat to existing Crown grants by asserting, under Precedent Two, that the Crown could terminate any native title claim which questioned the legality of a Crown grant by simply exercising its prerogative and declaring that the native title had been lawfully extinguished.Indeed Prendergast CJ went so far as to assert that the Crown grant itself was sufficient evidence of such a declaration.[139] Consequently, under Precedent Two, the Wi Parata judgment ensured that no Crown grant could be impugned by a native title claim because the grant was, in itself, sufficient evidence of its own lawful validity. Only if the Crown supported the claim could a native title matter involving the Crown appear before the courts.[140] Consequently, in upholding the Crown's prerogative over native title claims involving the Crown, Precedent Two ensured the stability and security of existing Crown grants by precluding the possibility of native title challenge. Indeed, Richmond J stated that' [t] he security of all titles in the country depends on the maintenance of this principle.'[141] Consequently, given the profound importance of the Wi Parata judgment to the stability and security of land tenure within New Zealand settler society, it is safe to say that any open recognition of the contradictions within that judgment would have undermined its authority, and therefore its usefulness in this respect. So if one is looking for an explanation as to why subsequent New Zealand judicial opinion did not openly acknowledge the contradictions in Wi Parata, the answer more than probably lies somewhere in the material interests which this judgment satisfied. As we have seen, some of these judges gave expression to these material interests in voicing their concerns over native title as a threat to the stability and security of land tenure.[142] And one has only to view the tenacity with which Wi Parata was defended by the members of the Court of Appeal in the face of Privy Council departures from it, in particular during the 1903 protest, to see that this judgment represented something more to these judges than simply the continuity of native title precedent in New Zealand.[143]
So we see that despite the exalted status of Wi Parata as the authoritative ruling on native title in New Zealand, at least until 1912,[144] a close reading of the judgment reveals that it was fundamentally contradictory. Far from producing one unified precedent on native title, it produced three, none of which were consistent with the other. Yet subsequent New Zealand judicial opinion ignored this, adopting either Precedent One or Two as the authoritative ruling on native title. The reasons why the New Zealand Bench was so willing to overlook these contradictions, it has been argued, lay in the basic material interests that the Wi Parata judgment served, in insulating the Crown and the grants it issued to New Zealand settlers from the native title claims that threatened them. As we have seen, the New Zealand Court of Appeal was even willing to openly challenge the Privy Council in order to defend this precedent from imperial interference, thereby asserting significant independence from this body in the process.[145] Consequently, the Wi Parata judgment, and the interests which it served, were inherently colonial in nature, premised on the interests of a settler society with its own concerns independent of the imperial ones emanating from London. These interests and concerns were clearly shared by key members of the New Zealand Bench.[146] The Wi Parata judgment, and the subsequent attempts to defend it therefore, indicate the extent to which the New Zealand Supreme Court and Court of Appeal in this period were committed to the defence of the colonial land settlement, in particular against the native title challenges brought forward by Maori, and were even willing to break from imperial authority when they considered these colonial interests to be at stake.
[*] Lecturer in Politics, School of Policy, University of Newcastle, Australia. The author would like to thank the following library personnel for their assistance in the research process associated with this paper: Ann Stokes, Ruth Talbot-Stokes, Leone Clough, and Glen Burnett, Auchmuty Library, University of Newcastle, Australia; Margaret Greville, Law Librarian, University of Canterbury, Christchurch, New Zealand.
[1] [2003] NZCA 117; [2003] 3 NZLR 643 (Court of Appeal).
[2] (1877) 3 NZ Jur (NS) SC 72.
[3] [1963] NZLR 461 (Court of Appeal).
[4] Attorney-General v Ngati Apa, above n 1, 651 (Elias CJ). See also 653-54, 663 (Elias CJ) for further references to what the Chief Justice believed were erroneous assumptions concerning Crown sovereignty, and its impact on native title, which she claimed stemmed from the Wi Parata legacy.
[5] Hence Elias CJ argued that the Wi Parata judgment gave rise to the erroneous view that, upon acquisition of sovereignty, the Crown acquired not only sovereignty (imperium) but also exclusive ownership (dominium) over New Zealand territory, the latter necessarily excluding any pre-existing native title (ibid 653-54 (Elias CJ)). Elias CJ claims that the judgment of Ellis J in the High Court in the NgatiApa case was informed by these same assumptions (ibid 668, para 84 (Elias CJ)). The Chief Justice then went on to reject Ellis J's ruling that native title on foreshore land was extinguished when the contiguous land above high water mark was no longer subject to native title (ibid 669). Ellis J's conclusion along these lines had been based on the In re Ninety Mile Beach precedent concerning foreshore rights (cf Attorney-General v Ngati Apa [2001] 2 NZLR 661, 684-85 (High Court)). Elias CJ claims that this precedent could not have been arrived at without invoking the erroneous view on sovereignty and land ownership stemming from the Wi Parata judgment (Attorney-General v NgatiApa, above n 1, 667-68). The other ruling of Ellis J, denying that native title rights could apply to the seabed, was also overruled by Elias CJ (ibid 661-62). In both instances therefore, concerning foreshore and seabed, Elias CJ refused to rule out the possibility of native title, and held that the Maori applicants were entitled to have their claims to such title investigated by the Maori Land Court (ibid 662).
[6] Wi Parata v Bishop ofWellington, above n 2,78. Some have tried to suggest that in dismissing the Treaty in this manner, Prendergast CJ was not dismissing all of it, just those aspects (the First Article) that attempted to cede sovereignty, leaving the other Articles intact (see E J Haughey, 'A Vindication of Sir James Prendergast' [1990] New Zealand Law Journal 230; Grant Morris, 'James Prendergast and the Treaty of Waitangi: Judicial Attitudes to the Treaty During the Latter Half of the Nineteenth Century' (2004) 35 Victoria University ofWellington Law Review 126, 137, 142). However as we shall see, Prendergast CJ not only denied in Wi Parata that Maori could cede sovereignty. He also at some points denied that they had any proprietary rights over their land (cf the discussion below Part IV 'Precedent Three'). This is at odds with the assumptions behind Article Two of the Treaty, which assume such rights, and so Prendergast CJ's dismissal of Article One is not 'severable' from Article Two as Haughey suggests. Consequently, although Prendergast CJ refers to the Treaty as a 'simple nullity' only '[s]o far indeed as that instrument purported to cede the sovereignty' - and thereby only refers to Article One in his dismissal of the Treaty - those aspects of his judgment which reject Maori customary proprietary rights are also an implicit rejection of Article Two as well.
[7] On Wi Parata as the authoritative precedent on native title in New Zealand, see below Part VIII 'Subsequent Opinion'. However it was in 1912 that the Court of Appeal finally broke from much of the Wi Parata precedent by insisting that if the Crown did not abide by the relevant statutory requirements concerning the extinguishment of native title, the courts could bind the Crown over to the Native Land Court should a dispute arise over the matter - cf Tamihana Korokai v Solicitor- General [1912] NZGazLawRp 230; (1912) 32 NZLR 321, 345-46 (Stout CJ); 348 (Williams J). However see also below n 144 for those aspects of the Wi Parata judgment that were retained in the 1912 judgment.
[8] See Wallis and Others v Solicitor General, Protest of Bench and Bar, (1903) NZPCC 730. See also below n 134 and 143 and accompanying text.
[9] The preceding decade of the 1860s had been dominated by war between the Crown and some Maori tribes, over land and other issues. Cf Keith Sinclair, The Origins of the Maori Wars (1961); M P K Sorrenson, 'Maori and Pakeha' in W.H. Oliver and B.R. Williams, The Oxford History of New Zealand (1987) 180-84; Claudia Orange, The Treaty ofWaitangi (1987) chapter 8.
[10] On treaty issues traditionally being seen as acts of state and so outside the jurisdiction of the courts, see Wallis and Others v Solicitor General, Protest of Bench and Bar above n 8, 732 (Stout CJ); Tamihana Korokai v The Solicitor-General, above n 7, 354-55 (Chapman J) (Court of Appeal); Te Heuheu Tukino v Aotea District Maori Land Board [1941] NZLR 590, 596-97; Mabo v Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1, 31-32, (Brennan J). On the established New Zealand precedents prior to Wi Parata which held that native title was clearly a matter of common law, and so within the jurisdiction of the courts, see below n 115.
[11] Wi Parata v Bishop of Wellington, above n 2, 72.
[12] Ibid.
[13] On the Crown grant to the Bishop, see ibid 73. In the case notes recording the argument of counsel for the plaintiff, there was a clear dispute between counsel and the Bench as to whether the tribal chiefs had ever ceded their land to the Crown for the purpose of building a school (cf ibid 74-75). However in a later Privy Council judgment concerning the same facts as the present case, the Privy Council considered a letter from the tribal chiefs to the Governor, Sir George Grey, clearly indicating that the lands were being donated to the Bishop for the purpose of building a college, as such an act of cession (Wallis v Solicitor-General [1903] AC 173, 177-78). Indeed, the Privy Council went even further and argued that the real act of cession was between the tribal chiefs and the Bishop, the Crown merely playing an intermediary or 'conveyancing' role in the process (cf ibid 179-80). This was disputed by the New Zealand Court of Appeal in its subsequent protest against the Privy Council judgment (see Wallis and Others v Solicitor-General, Protest of Bench and Bar, above n 8, 734 (Stout CJ)).
[14] See Wi Parata v Bishop of Wellington, above n 2, 73.
[15] Hence the declaration states: 'The native title to the land granted has never been lawfully extinguished. At the time of the gift, the land formed part of a reserve set apart by the Government for the exclusive use and purposes of the Ngatitoa tribe, who have never been permitted to sell or dispose any portion of the reserve; nor has any grant from the Crown been issued to them for any portion thereof. The grant, in so far as it amounts to a trust for others than the members of the tribe, is void and ultra vires, and not sanctioned by any of the statutes in force respecting the gift or alienation of lands, the Native title to which has not been lawfully extinguished.' (ibid 73). Indeed, at some points, the counsel for the plaintiff suggested that no cession was made by the tribe to the Crown for these purposes, and therefore that the land was granted to the Bishop by the Crown without the tribe's authority. (ibid 74, 75).
[16] Hence the declaration states: 'No school of any kind was ever established at Porirua, nor has any school been maintained, or any of the trusts mentioned in the grant been performed. That the said grant, so far as it purports to be a grant for the education of children, is a violation of the agreement between the donors of the lands and the Bishop of New Zealand, and is a fraud upon them. The tribe is now greatly reduced in numbers, not now exceeding between 30 and 40 persons in all, and being scattered over the North Island. Any school at or near Witireia would now be entirely useless, and the trusts upon which the land was given by the native donors are not now capable of being carried out, and the land ought therefore to revert to the surviving donors.' (ibid 73).
[17] Ibid 82 (Prendergast CJ). However, Prendergast believed that the case had already been disposed of by his prior finding that'... a Crown grant cannot be avoided for a matter not appearing upon the face of the grant, except upon a writ of scire facias, or by some analogous proceeding taken in the same or on behalf of Her Majesty....' (ibid 82). In regard to the later point, Prendergast argued that a Crown grant can only be reversed with the agreement of the Crown itself: 'It appears sufficiently clear that a Crown grant, which is voidable only for some defect not apparent on the face of the instrument, cannot be annulled except in some proceeding in which the Crown is nominal, if not actual, plaintiff. This, we say, is sufficiently clear, though it may not be certain that a scire facias is the only mode in which such a grant can be avoided in this colony.' (ibid 81).
[18] As Prendergast states: 'No case can be cited in which, on the failure of the object of charity founded by deed, a resulting trust of land has been established in favour of the heirs of the donor.' (ibid 83). If the land is to revert to the donors, Prendergast states, '... we are of opinion that in law the Crown is to be regarded as the donor, and not the Ngatitoa tribe.' (ibid). In any case, reversion to the original donors did not arise because Prendergast stated that the court would be '...prepared, if necessary...to decree the execution of the trust cy pres, rather than allow a resulting trust in favour of the donors.' (Ibid).
[19] See below Part IV 'Precedent Three' where Prendergast CJ's argument that native title is non- existent among the Maori tribes is discussed.
[20] See below Part II 'Precedent One' and Part III 'Precedent Two', where Prendergast CJ's claims concerning native title and Crown prerogative are discussed.
[21] On Prendergast CJ's claim that the Crown should be deemed the donor of the land, see Wi Parata v Bishop of Wellington, above n 2, 83.
[22] See above n 10.
[23] Wi Parata v Bishop of Wellington, above n 2, 78-79. My emphasis.
[24] Paul McHugh argues that Prendergast CJ's reasoning on this point ignores fundamental constitutional principles. The basis of Prendergast CJ's claim that the municipal courts cannot enforce native title claims against the Crown, and therefore must accept all Crown declarations concerning native title as binding, is that such matters are 'acts of state' over which the courts have no authority (see above n 23 and accompanying text). However McHugh states: 'A major difficulty with this approach was the contradiction of what was then (and remains) a fundamental constitutional principle. According to this, the Crown is unable to make or claim an "act of state" against its own subjects [cfEntick v Carrington [1765] EWHC J98; (1765) 19 St Tr 1030; Campbell v Hall (177 4) [1774] EngR 5; 1 Cowp 204, 208-10; Walker v Baird [1892] UKLawRpAC 41; [1892] AC 491 (Privy Council)]. By 1877 the Maori had been British subjects for thirty-seven years.' (Paul McHugh, Maori Magna Carta (1991) 114. Cf P McHugh, 'Aboriginal Title in New Zealand Courts' (1984) 2 Canterbury Law Review 247).
[25] Prendergast CJ makes the claim that the Crown is the 'sole arbiter of its own justice' on native title issues as follows: 'But in the case of primitive barbarians, the supreme executive Government must acquit itself as best it may, of its obligations to respect native proprietary rights, and of necessity must be the sole arbiter of its own justice. Its acts in this particular cannot be examined or called in question by any tribunal, because there exist no known principles whereon a regular adjudication can be based.' (Wi Parata v Bishop of Wellington, above n 2, 78).
[26] Ibid 79. My emphasis.
[27] Ibid 78. Needless to say, Prendergast CJ's statement that the Treaty was a 'simple nullity' moved beyond the orthodox common law doctrine, discussed above n 10, that treaties were not cognisable within the courts, unless their provisions were embodied in statute. That doctrine merely excludes the jurisdiction of the courts and makes no judgment about the validity of the treaties themselves. However Prendergast CJ's 'simple nullity' statement extends to a claim that the Treaty of Waitangi itself was devoid of all legitimacy, in so far as it purported to be a valid instrument of cession.
[28] Lord Normanby's Instructions to Captain Hobson, 14 August 1839, cited in Wi Parata v Bishop of Wellington, above n 2, 77.
[29] Ibid 77.
[30] Paul McHugh has criticised Prendergast CJ's reinterpretation of Normanby's instructions, and indeed his wider rejection of the Treaty to which this reinterpretation is linked, as a clear violation of the limits of his judicial function in the Wi Parata judgment. As McHugh states: 'In the Wi Parata case (1877) Chief Justice Prendergast was to comment that the qualification in those instructions negated the proposition to which it attached. But that surely was a judicial arrogation of the executive power. Since recognition of a state is part of an unreviewable prerogative foreign- relations power, it hardly followed even in 1877 that a court could assume the power retrospectively to tell the Crown it had concluded a treaty with a non-entity. If the Crown had elected to recognise the existence of a state, courts must act upon that recognition without question. So far as the foreign relations power is concerned, the courts must give effect to the Crown's executive actions. The Wi Parata dismissal of the Treaty of Waitangi as a "simple nullity" conflicted with the role followed by courts on matters of foreign relations. It would have been inconceivable in the late 1830s that a court should tell the Crown that it could not make a prospective treaty with the "non- sovereign" Maori tribes. Yet thirty-seven years later that was what Chief Justice Prendergast attempted to do, retrospectively.' (McHugh, The Maori Magna Carta, above n 24, 178). On the basis of McHugh's analysis, we can therefore see a wider inconsistency in Prendergast CJ's position. On the one hand, he was quite willing to appeal to the inviolability of the prerogative powers of the Crown when he wanted to exclude native title from the jurisdiction of the Courts (see above n 23 and accompanying text). On the other, as McHugh demonstrates, he was quite willing to violate that prerogative when it came to his denial of any validity to the Treaty. McHugh himself has pointed to this contradiction, referring to Prendergast CJ's willingness to '.. hide his denial of prerogative right within a broader, apparently expansive approach, towards the Crown's prerogative authority over Maori.' (P.G. McHugh, 'A History of Crown Sovereignty in New Zealand', in Andrew Sharp and Paul McHugh (eds) Histories, Power and Loss. Uses of the Past -A New Zealand Commentary (2001) 195).
[31] Wi Parata v Bishop of Wellington, above n 2, 77.
[32] Such a conclusion is supported by Prendergast CJ's claim, which immediately follows his rejection of the Treaty as a 'simple nullity', that - 'So far as the proprietary rights of the natives are concerned, the so-called treaty merely affirms the rights and obligations which, jure gentium, vested in and devolved upon the Crown under the circumstances of the case.' (ibid 78).
[33] Ibid 77.
[34] See above n 27.
[35] See above n 23.
[36] Wi Parata v Bishop of Wellington, above n 2, 80.
[37] Ibid 79. My emphasis.
[38] Ibid 80.
[39] Ibid. Four years after Prendergast CJ's Wi Parata judgment, Gillies J of the New Zealand Supreme Court articulated a position contrary to that of his Chief Justice. Far from excluding native title claims involving the Crown from the scope of the Native Rights Act 1865, Gillies J seems to hold that this Act gave Maori exactly the same rights concerning the justiciability of their land claims within the municipal courts as the settler community had at that time (Mangakahia v New Zealand Timber Co (1881) 2 NZLR 345, 351). However, as Gillies J was a junior member of the Supreme Court, his judgment would not have overruled that of his Chief Justice in Wi Parata some five years before.
[40] This is made apparent by both ss 3 and 4 of the Act. Section 3 states: 'The Supreme Court and all other Courts of Law within the Colony ought to have and have the same jurisdiction in all cases touching the persons and the property whether real or personal of the M aori people and touching the titles to land held under Maori Custom and Usage as they have or may have under law for the time being in force in all cases touching the persons and property of natural-born subjects of Her Majesty. (Native Rights Act 1865, s 3, Supplement to the New Zealand Gazette No. 40, 35). Section 5 then states: ‘In any action in which the title to or any interest in any such land is involved the Judge before whom the same shall be tried shall order that any issue or issues in such action in which such title or interest is involved whether they be issues of fact or of Maori Custom or Usage shall be tried in the Native Lands Court and the Judge of the Native Lands Court before whom the same shall be tried shall return the verdict or judgment as the case may be into the Supreme Court and such verdict or judgment shall be taken as conclusive both as to the fact and as to the Maori Custom or Usage and shall be dealt with by the Supreme Court in the same manner and shall have the same effect as the verdict of a jury in the Supreme Court.' (Native Rights Act 1865, s 5, Supplement to the New Zealand Gazette No. 40, 35).
[41] Indeed, some 25 years later, the Chief Justice of the Court of Appeal, Stout CJ, continued to uphold Prendergast CJ's interpretation of the Native Rights Act 1865 in this respect against a rival interpretation of the Privy Council, as follows: T may further point out that so far as the Native Rights Act is concerned it could not bind the Crown. Our "Interpretation Act 1888" is very explicit. It says that no Act must be read "in any manner or way whatsoever to affect the rights of the Crown unless it is expressly stated therein that the Crown is bound thereby.” ' (Hohepa Wi Neera v The Bishop of Wellington (1902) 21 NZLR 655, 667 (Stout CJ).
[42] Wi Parata v Bishop of Wellington, above n 2, 75 (Richmond J).
[43] Ibid 78. My emphasis.
[44] Ibid 77. My emphasis. See also above n 17.
[45] He makes the same point as follows: 'If this prerogative be left intact, and we hold it is, the issue of a Crown grant must still be conclusive in all Courts against any native person asserting that the land therein comprised was never duly ceded.' (ibid 80).
[46] Cf ibid 80. However it is the Crown itself who has most strongly asserted this principle, insisting via counsel, and again on the authority of Wi Parata, that its own declaration ought to be able to conclude the case by both determining that the native title has been lawfully extinguished and excluding the jurisdiction of the Court over the matter. See below n 132 and accompanying text.
[47] See n 42 above and accompanying text. .
[48] The terra nullius doctrine has historically been associated with the process of British colonisation of the Australian continent. However its origins predate this. Its definitive element involves an assertion by the colonising power that there is no prior native title extant among the indigenous inhabitants which the colonising power is bound to recognise. Brennan J, in his Mabo judgment, referred to the application of the terra nullius doctrine by European powers to newly discovered territory as follows: 'International law recognised conquest, cession, and occupation of territory that was terra nullius as three of the effective ways of acquiring sovereignty. No other way is presently relevant... .The great voyages of European discovery opened to European nations the prospect of occupying new and valuable territories that were already inhabited. As among themselves, the European nations parceled out the territories newly discovered to the sovereigns of the respective discoverers.. provided the discovery was confirmed by occupation and provided the indigenous inhabitants were not organised in a society that was united permanently for political action....To these territories the European colonial nations applied the doctrines relating to acquisition of territory that was terra nullius. They recognised the sovereignty of the respective European nations over the territory of "backward peoples" and, by State practice, permitted the acquisition of sovereignty of such territory by occupation rather than by conquest..’ (Mabo v Queensland [No. 2], above n 10, 32 (Brennan J).
[49] Wi Parata v Bishop of Wellington, above n 2, 77.
[50] For confirmation of this point, see the section 'Prendergast’ s Irony' above, in particular the grounds upon which Prendergast CJ rejects the import of Lord Normanby's Instructions.
[51] Wi Parata v Bishop of Wellington, above n 2, 77. My emphasis.
[52] Hence the section of the Ordinance quoted by Prendergast CJ is as follows: 'Declared, enacted, and ordained that all unappropriated lands within the colony of New Zealand - subject, however, to the rightful and necessary occupation and use thereof by the aboriginal inhabitants of the said colony - are and remain Crown or domain lands of Her Majesty, her heirs and successors, and that the sole and absolute right of pre-emption from the said aboriginal inhabitants vests in and can only be exercised by her said Majesty, her heirs and successors.' (The Land Claims Ordinance of 1841, s 2, cited in Wi Parata v Bishop of Wellington, at 77. Emphasis added). Indeed, the reference to pre-emption in this passage is a reference to the Crown's exclusive right to purchase land from the Maori, referred to in the second article of the Treaty of Waitangi. Needless to say, any such right of purchase on the part of the Crown clearly presumes in turn a customary proprietary right on the part of the Maori, not least because it is precisely such a right which would be transferred to the Crown upon purchase. Elias CJ has recently confirmed this in her Ngata Apa judgment, where in relation to the Land Claims Ordinance 1841 she says: 'Such pre-emption was explicable only in terms of recognition of existing property rights according to Maori custom.' (Attorney-General vNgati Apa, above n 1, 657 (Elias CJ)). It is therefore difficult to understand how Prendergast CJ could draw his precise conclusions, concerning a purported absence of Maori customary rights to land, from a passage in an Ordinance that so clearly assumes the contrary.
[53] Wi Parata v Bishop of Wellington, above n 2, 79.
[54] Ibid 79.
[55] Brennan J provides a recent expression of this traditional doctrine as follows: 'Accepting the doctrine of tenure, it was an essential postulate that the Crown have such a title to land as would invest the Sovereign with the character of Paramount Lord in respect of a tenure created by grant and would attract the incidents appropriate to the tenure....The Crown was invested with the character of Paramount Lord in the colonies by attributing to the Crown a title, adapted from feudal theory, that was called a radical, ultimate or final title.. .The Crown was treated as having the radical title to all the land in the territory over which the Crown acquired sovereignty. The radical title is a postulate of the doctrine of tenure and a concomitant of sovereignty. As a sovereign enjoys supreme legal authority in and over a territory, the sovereign has power to prescribe what parcels of land and what interests in those parcels should be enjoyed by others and what parcels of land should be kept as the sovereign's beneficial demesne.' (Mabo v Queensland [No. 2] above n 10, 47-48 (Brennan J)). A recent detailed exposition of the doctrine of radical title in New Zealand law is that of Elias CJ in NgatiApa v Attorney-General, above n 1, 654-56.
[56] Cf Mabo v Queensland [No. 2], above n 10, 51 (Brennan J); Attorney-General v Ngati Apa, above n 1, 655-56 (Elias CJ). Concerning the Crown's extinguishment of native title, some judges have insisted that native title can only be extinguished by the Crown with the consent of the indigenous holders of that title themselves - cf R v Symonds (1847) NZPCC387, 390 (Chapman J) (Supreme Court). Others such as Brennan J have insisted that the Crown has the right to unilaterally extinguish native title, without the consent of the indigenous holders, so long as the Crown evinces a 'clear and plain intention to do so' - either expressly, by openly declaring the native title to be extinguished, or impliedly, by putting the land in question to a purpose which is clearly inconsistent with the continued existence of native title (cf Mabo v Queensland [No. 2], above n 10, 64-65, 68, 69 (Brennan J), cf ibid, 89-90 (Deane and Gaudron JJ))., However for a minority view in Mabo that comes far closer to Chapman J's view in R v Symonds that consent may be required as a precondition to the extinguishment of native title, or that at least compensation should follow when this does not occur, see 193-96 (Toohey J).
[57] Indeed these customary laws (or what the Native Rights Act referred to as 'ancient custom and usage') define both the identity and content of native title. As Butterworths Australian Legal Dictionary puts it, native title is '[a] right or interest over land or waters that may be owned, according to traditional laws and customs... [T]he content and nature of the rights that may be enjoyed by the owners of native title is determined by the traditional laws and customs observed by those owners. (Peter Nygh and Peter Butt (eds) Butterworths Australian Legal Dictionary (1997)). Brennan J has also pointed to the centrality of customary law to native title as follows: 'Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.' (Mabo v Queensland [No. 2], above n 10, 58 (Brennan J)).
[58] Wi Parata v Bishop of Wellington, above n 2, 77-78.
[59] McHugh, The Maori Magna Carta, above n 24, 115. However at one point in the passage above, McHugh's reasoning does not follow. He says that a society '.. met this requirement of civilisation if prior to the Crown's sovereignty it could be said to have been "sovereign". Being "uncivilised", Maori society lacked this original sovereignty....' However, if sovereignty was the precondition of 'civilisation', as the first part of this excerpt suggests, then being 'uncivilised' could not demonstrate an absence of sovereignty. Rather, the reverse follows - an absence of sovereignty demonstrates an absence of civilisation.
[60] Ibid 116. Emphasis added. McHugh argued that these same nineteenth century theorists influenced Prendergast CJ's dismissal of the Treaty - cf ibid 113-14. My addition.
[61] Other scholars investigating the Wi Parata case have also pointed to these nineteenth century influences upon Prendergast CJ, at the expense of recognising the eighteenth century influence of Blackstone - c.f. Fredericka Hackshaw, 'Nineteenth Century Notions of Aboriginal Title and their Influence on the Interpretation of the Treaty of Waitangi' in I.H. Kawharu, Waitangi. Maori and Pakeha Perspectives of the Treaty of Waitangi (1996) 102, 111.
[62] It is in this sense that I think the influence of Blackstone in Prendergast CJ's dismissal of Maori customary property rights is far more obvious and overt than the nineteenth century influences that Paul McHugh and Frederika Hackshaw have pointed to, such as John Austin, with his claim that'... a society without a sovereign was without law and, it followed, without property rights'. (McHugh, Maori Magna Carta, above n 24, 116. Cf Hackshaw, ibid, 100-102). The influence of Blackstone is more obvious and overt precisely because, as we shall see, Prendergast CJ actually makes reference to his doctrines in his judgment, in particular the legal consequences flowing from the '.. title of the Crown to the country... acquired, jure gentium, by discovery and priority of occupation....' (Wi Parata v Bishop of Wellington, above n 2, 78). This latter was a clear reference to Blackstone's 'discovery' and 'right of occupancy', which he said were the means by which the Crown acquired 'desart and uncultivated' land, and in which there was an absence of pre-existing property rights recognisable by the Crown (see below n 64 and accompanying text). As we shall see therefore, it is Blackstone, rather than later authorities such as Austen, who provides the much more obvious intellectual foundation for Prendergast CJ's Wi Parata judgment. However for a discussion of one area of Prendergast CJ's judgment where the nineteenth century influences that McHugh and Hackshaw point to are much more apparent, see below n 83.
[63] On the influence of Blackstone's distinction, and the legal consequences that followed, on both the common law and the colonial practice of the Crown, see Mabo v Queensland [No. 2], above n 10, 32-38 (Brennan J).
[64] William Blackstone, Commentaries on the Laws of England (1765) Vol. I (1979) 104-105. For a discussion of the various British judicial judgments and official Crown statements which preceded, and no doubt informed Blackstone's views on these matters, see McHugh, The Maori Magna Carta, above n 24, 41-43, 87-90.
[65] Brennan J pointed to this connection between the Crown's mode of acquiring a colony and the status of Crown law within it, when he said: 'Although the question whether a territory has been acquired by the Crown is not justiciable before municipal courts, those courts have jurisdiction to determine the consequences of an acquisition under municipal law....By the common law, the law in force in a newly-acquired territory depends on the manner of its acquisition by the Crown.' (Mabo v Queensland [No. 2] above n 10, 32 (Brennan J)).
[66] Brennan J indicates that this Blackstonian doctrine became established doctrine within English common law as follows: 'If the land were desert and uninhabited, truly a terra nullius, the Crown would take an absolute beneficial title. to the land.. there would be no other proprietor.' (Mabo v Queensland [No 2], above n 10, 48 (Brennan J)). Such was certainly held to be the legal situation applying in Australia prior to the Mabo judgment. The Crown's title to land was deemed to extend beyond ultimate or radical title to a full beneficial ownership. Brennan J provides the following quote from Windeyer J indicating that this was considered to be the situation in the colony of New South Wales: 'On the first settlement of New South Wales (then comprising the whole of eastern Australia), all the land in the colony became in law vested in the Crown. The early Governors had express powers under their commissions to make grants of land. The principles of English real property law, with socage tenure as the basis, were introduced into the colony from the beginning - all lands of the territory lying in the grant of the Crown, and until granted forming a royal demesne.' (Council of the Municipality of Randwick v Rutledge [1959] HCA 63; (1959) 102 CLR 54, 71 (Windeyer J), cited in Mabo v Queensland [No. 2], above n 10, 27-28 (Brennan J)).
[67] For Brennan J's discussion of this doctrine in his Mabo judgment, see above n 48.
[68] For a similar claim that Blackstone's reference to 'desart and uncultivated' land was intended to refer exclusively to 'uninhabited' land, see Robert J. King, 'Terra Australis: Terra Nullius aut Terra Aboriginum?' (1986) 72 Journal of the Royal Australian Historical Society 79-80; Henry Reynolds, The Law of the Land (2nd ed, 1992) 33-34.
[69] See the discussion of the Privy Council decision in Cooper v Stuart (1889) below n 75 and 76 and accompanying text. On the extension of the doctrine of terra nullius to include inhabited lands, see the discussion in Mabo v Queensland [No. 2], above n 10, 32-34 (Brennan J).
[70] Blackstone, above n 64. A very early case to apply this doctrine of Blackstone's was Campbell v Hall (1774), where Lord Mansfield, CJ, claiming he was articulating a proposition 'too clear to be controverted', stated that'... the laws of a conquered country continue in force until they are altered by the conqueror.' (Campbell v Hall (1774) ER 252, 254 (Mansfield CJ)).
[71] Blackstone, above n 64.
[72] For instance, see the references by Prendergast CJ equating an absence of 'law' to an absence of 'civilisation' above n 31 and 51 and accompanying text, and denying Maori tribes the status of 'civilised' communities below n 86 and 88 and accompanying text.
[73] See above n 69
[74] Indeed, the Privy Council directly quoted Blackstone's famous statement concerning the legal consequences of the Crown's acquisition of 'uninhabited country' and argued that it had a 'direct bearing' on the circumstances of the case as applied to New South Wales (cf Cooper v Stuart [1889] UKLawRpAC 7; (1889) 14 App Cas 286, 291). Hence it is clear that it was the Blackstonian concept of 'uninhabited country' (or what Blackstone earlier calls in the same passage 'desart and uncultivated' land - Blackstone, above n 64) that the Privy Council was claiming to be applicable to Australia.
[75] Cooper v Stuart, above n 74, 291.
[76] Ibid 292.
[77] See the discussion in the sections 'Prendergast's Irony' and 'Prendergast's "Civilisation"' above.
[78] Wi Parata v Bishop of Wellington, above n 2, 78. As we have seen, Blackstone also insisted that pre-existing laws are recognised in this context - see Blackstone, above n 64.
[79] Wi Parata v Bishop of Wellington, above n 2, 77.
[80] See above n 31, 51, and 58 and accompanying text.
[81] See above n 31, 49, 51, 53 and 54 and accompanying text.
[82] Blackstone, above n 64. For a discussion of this link within common law between the concept of 'desart and uncultivated' land, the idea of 'settlement', and the concept of terra nullius, see Mabo v Queensland [No 2], above n 10, 36 (Brennan J). Paul McHugh has insisted that the common law concept of 'settlement' needs to be distinguished from any idea of terra nullius on the grounds that the concept had implications for Crown recognition of the rights of its European settler subjects, not its indigenous ones (cf McHugh, The Maori Magna Carta, above n 24, 43- 44. See also ibid, 88-90). McHugh therefore claims that the Colonial Office considered New Zealand to be a 'settled' colony in 1840, despite the Treaty of Waitangi, and insists that any claim that this status of 'settlement' was inconsistent with Crown recognition of indigenous rights under the Treaty is due to (a) a failure to understand that 'settlement' was irrelevant to the Crown's recognition of indigenous rights; and (b) a failure to recognise that the Crown therefore adopted two different positions in relation to the legal rights of its indigenous and non-indigenous subjects in New Zealand (ibid, 43-44). I have questioned the validity of McHugh's attempt to separate the common law concept of 'settlement' from the question of indigenous rights at n 84 below. Suffice it to say here that, as the analysis above will show, Prendergast CJ's judgment in Wi Parata definitely evinced a clear identification between the concept of 'settlement' and the status of New Zealand as 'desart and uncultivated' land, and therefore a clear identification between the concept of 'settlement' and the absence of indigenous land rights. In regard to the Wi Parata ruling therefore, it would be untrue to say, as McHugh does, that '[c]onstitutional designation of a colony [as either ceded, conquered or settled] was largely an irrelevance to the status of the non-Christian inhabitants.' (Ibid, 89. My addition). In the context of Prendergast CJ's judgment, there is no evidence of that dichotomy between 'settlement', as affecting only the rights of non-indigenous subjects under the Crown on the one hand, and the Treaty as upholding the rights of indigenous subjects on the other, which McHugh claims informed the Colonial Office view from 1839 (cf ibid, 44). Rather, as we shall see, Prendergast CJ's use of' settlement' as a description of the New Zealand colonisation process has direct implications for his ruling in regard to Maori rights. So even if McHugh is correct that, at times, Crown authorities understood the 'settled' status of colonies as affecting only the rights of non-indigenous subjects, this is in no way evident in the Wi Parata judgment, or, as we shall see at n 84 below, in a later major Privy Council judgment on native title.
[83] It is difficult to see how Prendergast CJ could dismiss the Treaty as a 'simple nullity' on Blackstonian grounds. It appears to embody a clear case of 'cession', as Blackstone would understand that term (see Blackstone, above n 64). It is here I think that the nineteenth century influences that McHugh and Hackshaw refer to come into play. McHugh has pointed to the influence of the legal theorist John Austin in Prendergast CJ's dismissal of the Treaty - in particular, Austen's assumption that sovereignty requires a sovereign capable of giving rise to a unified system of law (cf McHugh, Maori Magna Carta, above n 24, 116; Hackshaw, 'Nineteenth Century Notions of Aboriginal Title and their Influence on the Interpretation of the Treaty of Waitangi', above n 61, 100-101). In so far as Maori tribes lacked a single sovereign exercising universal authority in New Zealand in 1840, it might be possible, in Austinian terms, to declare that the Maori tribes lacked a unified sovereignty and therefore had nothing to cede under the Treaty at this time. On the other hand, one could argue that individual chiefs did exercise such sovereignty, which they ceded to the Crown within the Treaty under the name of Kawanatanga. Certainly this appeared to be the view of those colonial authorities who insisted on the Treaty as a prelude to the Crown's acquisition of sovereignty (for example see above n 28). For Paul McHugh's critique of Prendergast CJ's use of Austen and other nineteenth century authorities, see above n 59 and accompanying text.
[84] Blackstone, above n 64.I don't think Paul McHugh's intervention on the question of 'settlement' affects the issue here. McHugh refers to the legal distinction which arose from the Crown's ascription of 'settled' status to colonised land, relative to 'ceded' or 'conquered' territories. The relevant difference, he says, was that the Crown could not enact executive legislation under its prerogative power for 'settled' colonies '.. but was legally obliged to constitute a representative assembly (unless Westminster by statute authorised otherwise).' (cf P G McHugh, 'The Lawyer's Concept of Sovereignty, the Treaty of Waitangi, and a Legal History of New Zealand' in William Renwick (ed), Sovereignty & Indigenous Rights. The Treaty of Waitangi in International Contexts (1991) 175. See also McHugh, The Maori Magna Carta, above n 24,42-43, 89). Hence McHugh's argument is that the Crown's ascription of 'settled' status to some colonies with indigenous inhabitants was not an attempt to dispossess the indigenous inhabitants of their native title rights, by declaring their territory 'desart and uncultivated', but more '...a result of the claims of the settlers to their own lawmaking institutions composed of their own elected representatives.' (McHugh, 'The Lawyer's Concept of Sovereignty, the Treaty of Waitangi, and a Legal History of New Zealand', p. 175). He therefore perceives the motives behind this extension of the doctrine of 'settlement' beyond 'desart and uncultivated' territories to territories with indigenous inhabitants as relatively 'benign', a product of a desire for self-government among settlers, rather than a desire to dispossess the indigenous inhabitants (ibid). McHugh therefore rejects the latter point of view as follows: 'There is no historic evidence linking the common law designation of a colony to the status of tribal rights. The association is recent and historically inaccurate.' (ibid). It is difficult to know how McHugh can make such a claim when it is clear that this link was explicitly made not only by Prendergast CJ in Wi Parata, but also by the Privy Council in Cooper v Stuart, where it extended Blackstone's notion of 'uninhabited country' (or what he elsewhere calls 'desart and uncultivated' land) to territory inhabited by Australian Aboriginals on the basis of the Privy Council's perception of that territory as being without 'settled inhabitants or settled law' (see note 74, 75 and 76 above). This was a clear instance of the Privy Council extending the concept of 'uninhabited country', and all the legal consequences that followed (the Court even quoting B lackstone to this effect - see above n 74) to a territory on the basis of what they perceived as a complete absence of any pre-existing legal rights among the indigenous inhabitants. Indeed, the Privy Council even referred to 'settlement' in this context (see n 76 and accompanying text) and so seems to have linked its perception of the status of New South Wales as a 'settled' colony with Blackstone's idea of 'desart and uncultivated' land', and the denial of indigenous land rights which necessarily followed. Contrary to McHugh therefore, the Privy Council's judgment in Cooper v Stuart is a clear instance of'.. historic evidence linking the common law designation of a colony to the status of tribal rights.', and demonstrates that the common law concept of 'settlement', even as late as 1889, could have a direct impact on the Crown's decision to refuse to recognise pre-existing indigenous rights.
[85] Wi Parata v Bishop of Wellington, above n 2, 77. My emphasis.
[86] Ibid 78.
[87] See above n 31 and accompanying text.
[88] Hence at one point, Prendergast CJ says: 'The Maori tribes were incapable of performing the duties, and therefore of assuming the rights, of a civilised community.' (Wi Parata v Bishop of Wellington, above n 2, 77).
[89] Ibid 77.
[90] Indeed, as we have seen, Prendergast CJ argued that if 'any body of law or custom' capable of giving rise to these rights and obligations, and 'capable of being understood and administered by the Courts of a civilised country' had been known to exist, '...the British Government would surely have provided for its recognition, since nothing could exceed the anxiety displayed to infringe no just right of the aborigines.' (see aboven58 and accompanying text). It was precisely because he believed that no such law or custom existed that Prendergast CJ postulated a jure gentium foundation as the basis for imposing such obligations on the Crown.
[91] Wi Parata v Bishop of Wellington, above n 2, 78.
[92] Cf ibid 77, 78. Prendergast CJ notes this distinction as follows: In the case of 'civilised powers', he claims, 'the rights of private property are invariably respected.' (ibid, 78). But in the case of '... a territory thinly peopled by barbarians without any form of law or civil government', it is only jure gentium obligations that can impose on the Crown a duty to recognise 'native proprietary rights' and '.. to acquit itself as best it may of its obligation to respect' them (ibid, 77, 78)..
[93] See above n 23.
[94] See above n 89 and 91 and accompanying text. .
[95] See above n 49 and accompanying text, and above n 88.
[96] See above n 25 and 79 and accompanying text. .
[97] On the extension of Blackstone's notion of 'desart and uncultivated' land to inhabited territories, see the discussion in the section 'The Ghost of Blackstone' above.
[98] See the discussion in the section 'Prendergast's Use of Blackstone' above.
[99] Blackstone, above n 64.
[100] Cf ibid.
[101] Cf ibid.
[102] Cf ibid. See also above n 48 and 66.
[103] McHugh, The Maori Magna Carta, above n 24, 113.
[104] Ibid.
[105] See the discussion in the sections 'Prendergast's Irony' and 'Terra Nullius' above.
[106] Mc Hugh, The Maori Magna Carta, above n 24, 114.
[107] Ibid 113-114. Emphasis added.
[108] This is not to suggest that McHugh did not see any other problems with Prendergast CJ's judgment. Indeed he argued that the part of the judgment dealing with the non-recognition of native title was 'dubious' even at the time that Prendergast CJ delivered it (cf ibid 113). He also pointed to Prendergast CJ's mistaken assumption that the Crown could engage in acts of state in relation to its own Maori citizens (ibid 114. See also above n 24). However despite these reservations, McHugh seems to suppose that the judgment itself gave rise to a unified precedent on native title, devoid of major contradiction.
[109] As we saw, Prendergast CJ insisted that the Crown's prerogative over native title gave rise to certain 'correlative duties' which the Crown ought to respect, but that the Crown alone was to be the sole judge of whether they had been respected (see above n 23 and 25). It is precisely these duties or obligations which McHugh is implicitly referring to in his reference to 'moral necessity' above.
[110] See above n 54 and accompanying text.
[111] See the discussion in 'Terra Nullius' and 'Prendergast's Civilisation' above.
[112] At times, McHugh seems to recognise that Prendergast CJ articulated a terra nullius position in his Wi Parata judgment. For instance, at one point, McHugh states: '.. Prendergast handed his judges feudal blinkers which saw the sole title to land in the colony as nothing other than Crown-derived, there never having been any previous sovereign from whom another legally-recognisable system of title could have derived.' (McHugh, The Maori Magna Carta, aboven24, 115).Ithink this statement is intended to convey more than the conventional view that, as a result of English feudal history, or more specifically the Norman conquest, all land derives its ultimate or radical title from the Crown (see above n 55). As we have seen, such a doctrine is consistent with the survival of prior forms of title (native title) which remain as a burden on the radical title until extinguished by the Crown (see above n 56 and accompanying text). However McHugh's statement, with its reference to the absence of a prior sovereign, suggests that he believes that Prendergast CJ's doctrine, arising from Wi Parata, implies the absence of any prior native title, so that the Crown's status as the sole source of title in the colony is not only 'ultimate' or 'radical', but also 'exclusive'. In other words, it implies that the 'feudal blinkers' that McHugh says Prendergast CJ handed his judges yielded the view that upon the Crown's acquisition of sovereignty in New Zealand, there was no prior native title in existence, and so all land became subject to the full and exclusive possession of the Crown. This, of course, would amount to an assertion that, upon the Crown's acquisition of sovereignty, New Zealand was terra nullius (see above n 48 and 66). However McHugh does not seem to recognise that such a terra nullius doctrine moves beyond Prendergast CJ's denial of the 'legal necessity' of native title, to a denial of its existence in fact, thereby rendering it incompatible with any claims to what McHugh calls its 'moral necessity' (see above n 107). Therefore, despite the fact that McHugh at times recognises that Prendergast CJ is making what amount to terra nullius claims, he fails to see how these claims, when coupled with others Prendergast CJ makes concerning Crown prerogative, produce the contradiction at the heart of Prendergast CJ's judgment.
Other scholars have also failed to recognise these contradictions in Wi Parata. For instance, Fredericka Hackshaw, after recognising that Prendergast CJ had asserted in his Wi Parata judgment that New Zealand was 'technically territorium nullius', asserts that '[t]he "right", which the Chief Justice claimed was vested in the Crown on the acquisition of territory inhabited by primitive barbarians, was the exclusive right to extinguish the native title.' (Hackshaw, 'Nineteenth Century Notions of Aboriginal Title and their Influence on the Interpretation of the Treaty of Waitangi' above n 61, 111). Yet surely the status of New Zealand as territorium nullius implies a complete absence of native title in all its forms, which, in turn, is inconsistent with any assertion of the Crown's exclusive right to extinguish it? Further, Hackshaw claims that Prendergast CJ's declaration that the Crown is the 'sole arbiter of its own justice' in native title matters '... follows logically from the premise that there existed no grounds for legal recognition of aboriginal title.' (ibid, 112). She further claims that Prendergast CJ's denial of such legal recognition implied that he saw any native title rights that the Crown did exercise a prerogative over as arising from the second article of the Treaty of Waitangi (ibid, 113). But like McHugh, Hackshaw's claims fail to recognise that Prendergast CJ's denial of any legal recognition of native title was premised on a denial of its existence in fact, as well as its existence in law, which in turn renders any assertion of the prerogative rights of the Crown over native title, in particular its right to be the ' sole arbiter of its own justice' in such matters, contradictory. Regarding Hackshaw's claims concerning the Treaty, we have seen that a close reading of Prendergast CJ's judgment shows that any native title rights which he did acknowledge (in conflict with his terra nullius claims) were deemed to arise not from the Treaty (which he had dismissed as a 'simple nullity') but from the established principles of the law of nations (jure gentium) governing the acquisition of new territory by 'civilised' powers (see the discussion in 'V. Jure Gentium?' above). Indeed, as we have seen, he located Maori native title rights within this law of nations precisely because he believed that Maori lacked any capacity to claim such rights on their own account through a treaty (ibid). Only on this jure gentium basis therefore, could Crown obligations concerning native title be 'in the nature of a treaty obligation' (as Prendergast CJ claims above at n 23 and accompanying text) because he did not believe they could be so on the basis of the Treaty of Waitangi.
[113] In this sense, I am offering a very different explanation for Prendergast CJ's reasoning in his Wi Parata judgment from that offered by Paul McHugh in his contribution to the recent Histories, Power and Loss collection. In this collection, McHugh locates the purpose of Prendergast CJ's judgment within a broader context of transplanting the British Constitution to New Zealand shores. He argues that'.. during the last decades of the nineteenth century the settler polity developed a historical consciousness of itself as an expression of its growing sense of permanence.' (McHugh, 'A History of Crown Sovereignty in New Zealand', in A Sharp and P McHugh (eds) Histories, Power and Loss. Uses of the Past -A New Zealand Commentary (2001) 192). This consciousness, he claimed, was expressed in the vision of a more perfect British Constitution as the source of governance, law and legitimacy within New Zealand (ibid). McHugh then explains in terms of this set of purposes one of the contradictions in Prendergast CJ's judgment - his denial, on the one hand, of the Crown's prerogative right to declare (in the form of Normanby's Instructions) that Maori exercised legitimate sovereignty over New Zealand prior to its acquisition by the Crown, and yet his upholding, on the other, of the Crown prerogative when it came to Crown dealings with Maori lands (on this contradiction, see above n 30). As McHugh puts it: 'Why did the Chief Justice feel such a strong need to deny any previous Maori sovereignty over the islands of New Zealand? Why did he fly so willfully in the face of what was then a clear common-law rule? Why did he hide his denial of prerogative right within a broader, apparently expansive approach, towards the Crown's prerogative authority over Maori? The answer to these questions is brutally simple. His judgment was setting out the doctrinal and historiographical conditions - the constitutional basis - for a Better Britain in the South Seas; the Treaty of Waitangi and Maori political forms would be ignored; Crown sovereignty would be regarded as original and presumptively immemorial in New Zealand as it was within the realm of England; English institutions would flourish in the New Zealand soil.' (McHugh, 195).
As an explanation of Prendergast CJ's judgment, I think McHugh's analysis only takes us a short way. While it might provide a plausible explanation for Prendergast CJ's denial of Maori sovereignty, it could not explain his simultaneous denial of native title, which, as a mere 'burden' on the radical title of the Crown, and extinguishable by it, posed no threat to Crown sovereignty and the centrality of the British Constitution in New Zealand, and did not depend for its existence on the Treaty. The explanation provided in this article, on the other hand, explains both Prendergast CJ's denial of Maori sovereignty and his denial of native title (see in particular the present section 'VII. Probable Explanations'). It also explains how Prendergast CJ could couple these denials with his affirmation of Crown prerogative power over the very native title he had otherwise denied (ibid). And it does so by showing how all this contributed to a single strategy, pursued by Prendergast CJ, of protecting Crown grants from native title claims (cf ibid). In other words, the framework offered in this article is able to provide a unifying explanation for a far broader range of disparate contradictions within Prendergast CJ's judgment than can McHugh's.
[114] See above n 37 and accompanying text. In later years, other judges followed Prendergast CJ in viewing native title in a negative light, as a threat to existing Crown grants and therefore to the process of land settlement in New Zealand. For instance, commenting on some Privy Council decisions in the opening years of the twentieth century which challenged and eventually overturned much of the Wi Parata precedent, Stout C J claimed that if the obiter dicta in one of these judgments was given effect to, '.. no land title in the Colony would be safe' ( Wallis and Others v Solicitor-General Protest of Bench and Bar, above n 8, 746 (Stout CJ)). Similarly, Edwards J criticised the Privy Council in the same terms, as threatening the stability and security of land settlement in New Zealand: 'It would be easy by reference to numerous decisions of the Court of Appeal and of the Supreme Court of this Colony, and to statutes which, passed after such decisions, recognising their validity, have virtually confirmed them, to show still further that the interpretation which their Lordships have put upon the laws relating to Native lands in this Colony is subversive of the law which has prevailed from its foundation; and that if that interpretation were acted upon, and carried to its legitimate conclusion in future cases, the titles to real estates in this Colony would be thrown into irretrievable doubt and confusion.’ (ibid, 757 (Edwards J) my emphasis). For a further discussion of this perception, on the part of these New Zealand judges, that native title was a threat to the stability and security of land tenure in New Zealand, see John William Tate, 'Pre-Wi Parata. Early Native Title Cases in New Zealand' (2003) 2 Waikato Law Review 157-59. For a discussion of Prendergast CJ's personal background, and also the personal dynamics between Prendergast CJ and counsel for the plaintiff in Wi Parata, George E. Barton, which Grant Morris has said sheds some light on Prendergast CJ's hostility to native title in his Wi Parata judgment, see Grant Morris, 'James Prendergast and the Treaty of Waitangi: Judicial Attitudes to the Treaty During the Latter Half of the Nineteenth Century', above n 6, 118-20, 122-25. However given that subsequent judges also shared Prendergast CJ's view of native title as a threat, I think the source of this hostility is far wider than any personal circumstance that Morris refers to, and is situated in the colonial interests which all these judges shared with a wider settler society in New Zealand (see the discussion in 'IX. The Importance of Wi Parata' below).
[115] Hence in R v Symonds Chapman J stated: 'The intercourse of civilised nations, and especially of Great Britain, with the aboriginal Natives of America and other countries, during the last two centuries, has gradually led to the adoption and affirmation by the Colonial courts of certain established principles of law applicable to such intercourse. Although these principles may at times have been lost sight of, yet animated by the humane spirit of modern times, our colonial courts, and the courts of such of the United States of America as have adopted the common law of England, have invariably affirmed and supported them; so that at this day, a line of judicial decision, the current of legal opinion, and above all, the settled practice of the colonial governments, have concurred to clothe with certainty and precision what would otherwise have remained vague and unsettled. These principles are not the new creation or invention of the colonial Courts. They flow not from what an American writer has called the "vice of judicial legislation". They are in fact to be found among the earliest settled principles of our law; and they are in part deduced from those higher principles, from charters made in conformity with them, acquiesced in even down to the charter of our own Colony; and from the letter of treaties with Native tribes, wherein those principles have been asserted and acted upon.' (R v Symonds (1847) NZPCC 387, 388 (Supreme Court)). Thatnative title was central to the 'principles of law' that Chapman J refers to in his statement above is made clear later in his judgment when he states: 'Whatever may be the opinion of jurists as to the strength or weakness of the Native title, whatsoever may have been the past vague notions of the Natives of this country, whatever may be their present clearer and still growing conception of their dominion over land, it cannot be too solemnly asserted that it is entitled to be respected, that it cannot be extinguished (at least in times of peace) otherwise than by the free consent of the Native occupiers. But for their protection, and for the sake of humanity, the Government is bound to maintain, and the courts to assert, the Queen's exclusive right to extinguish it. It follows from what has been said, that in solemnly guaranteeing the Native title, and in securing what is called the Queen's preemptive right, the Treaty of Waitangi, confirmed by the Charter of the Colony, does not assert either in doctrine or in practice any thing new and unsettled.' (ibid, 390).
Some 25 years later, Arney CJ, delivering the judgment of the Court of Appeal, brought down a similar ruling on native title which held that it was cognisable at common law and therefore justiciable within the municipal courts. As he put it: 'The Crown is bound, both by the common law of England and by its own solemn engagements, to a full recognition of Native proprietary right. Whatever the extent of that right by established native custom appears to be, the Crown is bound to respect it.' (Re Lundon and Whitaker Claims (1872) 2 NZCA 41, 49).
[116] Cf Wi Parata v Bishop of Wellington, above n 2, 79.
[117] As Prendergast CJ put it: 'Our view of this subject is in accordance with previous decisions of this Court. In the case of the R v Symonds.. both Judges cite and rely upon the American authorities to which we have referred. Thus it is manifest that in their apprehension the case of the Maories, like that of the Indian tribes of North America, falls within those rules of the law of nations to which we have adverted.' (Ibid 78).
[118] Cf ibid 80-81. For a further discussion of Chapman J's citation of US precedents inRv Symonds, and Prendergast CJ's claim that Chapman J was mistaken in his interpretation and use of one of these precedents, seeTate, 'Pre-Wi Parata: Early Native Title Cases in New Zealand', above n 114,148.
[119] Native Rights Act 1865, s 3.
[120] Native Rights Act 1865, s 3.
[121] Wi Parata v Bishop of Wellington, above n 2, 79.
[122] See Native Rights Act 1865, s 5. This section is quoted in full at note 40 above.
[123] Cf Wi Parata v Bishop of Wellington, above n 2, 80.
[124] Section 21 states: 'Any Native may give notice in writing to the Court that he claims to be interested in a piece of Native Land specifying it by its name or otherwise describing it and stating the name of the tribe or the names of the persons whom he admits to be interested therein with him and that he desires that his claim should be investig ated by the Court in order that a title from the Crown may be issued to him for such piece of land.' (The Native Lands Act 1865, s 21, see also ss 42 and 43.)
[125] See above n 38 and accompanying text.
[126] Wi Parata v Bishop of Wellington, above n 2, 80.
[127] As Prendergast CJ put it: 'Nevertheless we cite these provisions as plain intimations on the part of the Colonial Legislature that questions respecting the extinction of the native title are not to be raised either here or in the Native Lands Court in opposition to the Crown, or to the prejudice of its grantees. In our judgment these enactments introduce no new principles, but merely provide a convenient mode of exercising an indubitable prerogative of the Crown.' (Ibid 80).
[128] Native Rights Act 1865, s 5.
[129] Wallis and Others v Solicitor General Protest of Bench and Bar, above n 8, 750 (Williams J). Williams J is mistaken in his reference to an 'unbroken current of authority', which clearly ignores the native title cases prior to Wi Parata which, contrary to that judgment, did uphold the justiciability of native title matters at common law (see above n 115). For a discussion of this and other misreadings of these early native title cases, see Tate, 'Pre-Wi Parata: Early Native Title Cases in New Zealand', above n 114, 125-30. Also for a discussion of some minor rulings in the New Zealand courts delivered after the Wi Parata judgment but prior to the Privy Council judgments in 1901 and 1903 that did depart from Wi Parata but did not displace it as the authoritative precedent on native title, see ibid, n 2, 112-113. See also above n 39.
[130] Nireaha Tamaki v Baker (1894) 12 NZLR 483, 488.
[131] Hohepa Wi Neera v Bishop of Wellington, above n 41, 659 (Gully for the Solicitor-General).
[132] Tamihana Korokai v Solicitor-General, above n 7, 331 (Solicitor-General).
[133] Wallis v Solicitor-General, above n 13, 188.
[134] Cf Wallis and Others v Solicitor General Protest of Bench and Bar, above n 8, 730 (Stout CJ); 747, 755-56 (Williams J); 757 (Edwards J).
[135] It is on these grounds that I have argued in more detail elsewhere that Stout CJ probably never intended to make this terra nullius claim, and so was fundamentally confused in his judgment to the extent that he did so - cf Tate, 'Pre-Wi Parata: Early Native Title Cases in New Zealand', above n 114, 162-64. Nevertheless in her recent Ngata Apa ruling, the current Chief Justice of the Court of Appeal has taken Stout CJ at his word in this regard -Attorney-General v Ngata Apa, above n1, 654 (EliasCJ).
[136] An important exception to this legacy was the Court of Appeal's judgment in Hohepa Wi Neera v Bishop of Wellington, above n 41. As I have discussed in more detail elsewhere, in this case the Court of Appeal was forced to affirm Wi Parata on its narrow points of law only, rather than upon its wider dicta regarding native title, because this wider dicta had recently been subject to challenge by the Privy Council in Nireaha Tamaki v Baker (1900-1901) NZPCC 371 - cf John William Tate, 'Hohepa Wi Neera: Native Title and the Privy Council Challenge' (2004) 35 Victoria University of Wellington Law Review 96-97.
[137] See above n 114.
[138] Tamihana Korokai v Solicitor-General, above n 7, 332 (Solicitor-General). My addition and emphasis.
[139] See above n 43 and accompanying text.
[140] See above n 43 and 44 and accompanying text.
[141] Nireaha Tamaki v Baker above n 130, 488.
[142] See above n 37, 42 and 114. For a much more detailed attempt to explain the legacy of Wi Parata in terms of the colonial interests of the judges who upheld its authority, see John William Tate, 'Hohepa Wi Neera: Native Title and the Privy Council Challenge', above n 136, 98-104.
[143] The ostensible reason for the protest was the injudicious language which the Court of Appeal believed the Privy Council had used in Wallis v Solicitor-General above n 13. However, it is evident that, despite these protestations, the underlying issue of contention animating the protest was the extent to which the Privy Council's judgment in Wallis v Solicitor- General (along with its previous judgment in Nireaha Tamaki v Baker, above n 136 ) broke from the precedent of Wi Parata on native title issues. All of the judges in the protest criticised the Privy Council's judgment in Wallis v Solicitor- General in these substantive terms (see Wallis and Others v Solicitor General Protest of Bench and Bar, above n 13, 732-34, 742-43, 746 (Stout CJ); 747-48, 749-50, 754-55 (Williams J); 757 (Edwards J)). Indeed, all went as far as to accuse the Privy Council of ignorance of New Zealand law on these and other matters (cf ibid, 732, 737, 743, 745, 746 (Stout CJ); 756 (Williams J); 758-59 (Edwards J)). Finally, some referred to the dangers which the Privy Council judgments presented to land settlement in New Zealand insofar as they departed from Wi Parata - see above n 114.
[144] Of course, although the Court of Appeal judgment in Tamihana Korokai v Solicitor-General, above n 7 did break substantially from the Wi Parata precedent in 1912 (see above n 7), nevertheless the native land legislation which had been passed in New Zealand by that time enshrined in statute the central Wi Parata principle that native title claims could not be brought in the courts against the Crown without the consent of the Crown itself (cf Land Titles Protection Act 1902, s 2(1); Native Land Act 1909, ss 84, 85, 88). This ensured the continuity of this element of the Wi Parata precedent despite the departure of the Court of Appeal in Tamihana Korokai. However for an explanation of the way in which the Court of Appeal in Tamihana Korokai was able to use this legislation to bind the Crown over to the Native Land Court on native title issues, thereby reaching an outcome contrary to that intended by the legislation itself, see Tate, 'Hohepa Wi Neera: Native Title and the Privy Council Challenge', above n 136, 113. It is important to note, however, that a central ruling of the Wi Parata judgment - that a Crown grant was sufficient declaration of the lawful extinguishment of native title and so could not be challenged on this basis in the courts - was upheld by the Privy Council in Nireaha Tamaki v Baker, above n 136, 383-84, and so was not departed from by the Court of Appeal in Tamihana Korokai. For a discussion of how this legacy of Wi Parata largely confined subsequent native title claims in New Zealand to relatively marginal areas like foreshores and riverbeds, see Tate, 'The Privy Council and Native Title: A Requiem for Wi Parata', [2004] WkoLawRw 7; (2004) 12 Waikato Law Review, 151-52.
[145] See the discussion of the Court of Appeal's protest against the Privy Council above n 143. In this respect, I would disagree with Paul McHugh's characterisation of the protest as showing '.. how clearly New Zealand lawyers were regarding themselves as umbilically connected both historically and doctrinally to the British constitution.' (McHugh, 'A History of Crown Sovereignty in New Zealand', above n 30, 197).
[146] For some minor exceptions, see above n 129.
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