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Tate, John William --- "Pre - Wi Parata: Early Native Title Cases in New Zealand" [2003] WkoLawRw 6; (2003) 11 Waikato Law Review 112


PRE-WI PARATA:

EARLY NATIVE TITLE CASES IN NEW ZEALAND

BY JOHN WILLIAM TATE[∗]

The question of native title was a contentious issue within the New Zealand judicial system from 1847 to 1912. Following the New Zealand Supreme Court’s decision in Wi Parata v Bishop of Wellington[1] in 1877, both the Supreme Court and the New Zealand Court of Appeal held tenaciously to the precedent on native title which they believed this case had established.[2] This precedent was that native title matters involving the Crown fell entirely within the jurisdiction of the Crown’s prerogative powers, and so were outside the jurisdiction of the municipal Courts.[3] This meant that native title claims were not enforceable against the Crown within these Courts, nor could these Courts refer such matters to the Native Land Court against the wishes of the Crown. Rather, the Crown was to be the “sole arbiter of its own justice” on native title matters.[4] The New Zealand judiciary clung to this precedent, even in the face of an open breach with the Privy Council over this issue.[5] It was not until the decision of the New Zealand Court of Appeal in Tamihana Korokai v The Solicitor-General[6] that the New Zealand judiciary revealed it was willing to openly break with the Wi Parata precedent.[7]

Yet the irony of this almost unqualified commitment to Wi Parata on the part of the New Zealand judiciary is that the case itself was preceded by two judgments which delivered fundamentally different opinions on native title. The judgment of the New Zealand Supreme Court some thirty years earlier in The Queen v Symonds, and of the Court of Appeal in In re ‘The Lundon and Whitaker Claims Act 1871’, were the earliest New Zealand decisions delivered on native title.[8] Far from insisting that native title matters involving the Crown fell exclusively within the Crown’s prerogative powers, both cases defended the justiciability of native title within municipal courts, by insisting that it fell within the parameters of common law.[9]

Yet what is doubly ironic is that although both cases clearly provided a contrary precedent to the later judgment of Wi Parata v Bishop of Wellington, nevertheless in the wake of the Wi Parata precedent, these earlier cases were read by the New Zealand judiciary and Crown law officers as consistent with Wi Parata. In other words, there was a clear reluctance on the part of most of the New Zealand judiciary and the Crown to retrospectively read the legal history of native title in New Zealand as anything other than a clear endorsement of the Wi Parata judgment. This paper attempts to provide some explanation for this paradoxical state of affairs. On what basis could otherwise highly qualified legal authorities misread these clearly contrasting precedents in such a manner as to perceive them as consistent with each other? Was this misreading deliberate? Or did it point to the existence of a “colonial consciousness” which shaped the way in which issues of land settlement were understood within settler societies? All these possibilities will be considered in what follows.

I. CONTRASTING PRECEDENTS

1. The Queen v Symonds and In re ‘The Lundon and Whitaker Claims Act 1871’

At first glance, it would seem that when it comes to native title, there could hardly be more divergence between the precedent of The Queen v Symonds and In re ‘The Lundon and Whitaker Claims Act 1871’, on the one hand, and that of Wi Parata on the other. Chapman J in The Queen v Symonds gave a ringing endorsement of the common law status of native title as follows:

The intercourse of civilized 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.[10]

In this statement, Chapman J referred to “principles of law”, “settled principles of our law”, and the “common law of England” as the foundation for indigenous rights in the colony. To the extent that Chapman J saw the foundation of indigenous rights as lying in English common law, he saw these rights as justiciable in the municipal courts. This would presumably include the indigenous right most at issue in the present case - native title - since this was the sole basis upon which indigenous inhabitants could claim customary rights to the occupation of traditional land under common law.[11]

Similarly, some twenty-five years later, in In re ‘The Lundon and Whitaker Claims Act 1871’, during the course of a discussion concerning the distinction between “Crown lands” and “Native lands”, the Court of Appeal also affirmed the common law status of native title, and therefore its justiciability within the Courts. As Arney CJ stated, in delivering the judgment of the Court of Appeal:

No doubt there is a sense in which “Native lands” are not “Crown lands”. 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. But the fullest measure of respect is consistent with the assertion of the technical doctrine, that all title to land by English tenure must be derived from the Crown; this of necessity importing that the fee-simple of the whole territory of New Zealand is vested and resides in the Crown, until it be parted with by grant from the Crown. In this large sense, all lands over which the Native title has not been extinguished are Crown lands.[12]

With these words, the Court of Appeal was simply recognising the common law principles that native title is a “burden” on the radical title of the Crown, but does not displace that radical title, and that all other titles to land derive exclusively from the Crown.[13]

2. Wi Parata v Bishop of Wellington

Prendergast CJ’s Wi Parata judgment, on the other hand, came to very different conclusions on native title. In fact, despite the iconic status which this judgment attained for later New Zealand authorities, the judgment itself was highly contradictory on the question of native title. At one level, Prendergast CJ seemed to deny the legal existence of native title altogether, asserting what amounts to a claim of terra nullius. At another level, he recognized the existence of native title, but insisted that when such matters involve the Crown, native title falls within the Crown’s prerogative powers and so outside the jurisdiction of the Courts. We will deal with each of these aspects of the Wi Parata judgment in turn.

As mentioned above, at one level, Prendergast CJ appeared to deny the existence of native title altogether, articulating what amounts to an extraordinary claim of terra nullius – usually associated with the larger land mass across the Tasman. For instance, in the context of his judgment, Prendergast CJ referred to the Native Rights Act, 1865, and criticised its reference to the “Ancient Custom and Usage of the Mâori People”, “... as if some such body of customary law did in reality exist”.[14] In denying the existence of this customary law, Prendergast CJ effectively denied the existence of native title in New Zealand, because it is precisely such “ancient custom and usage” that native title is premised upon, as a form of customary ownership which pre-dates the Crown’s acquisition of sovereignty.[15] Indeed, Prendergast CJ entirely rejected the existence of any such pre-existing customary law, stating that “... 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 suppositions, that no such body of law existed; and herein have been in entire accordance with good sense and indubitable facts”.[16]

Indeed, even when faced with Crown statutes which clearly implied such customary ownership, in so far as they made reference to “the rightful and necessary occupation and use” of land by the “aboriginal inhabitants”, as in the Land Claims Ordinance of 1841, Prendergast CJ blankly denied that they implied Crown recognition of native title. As he stated: “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”.[17]

Prendergast CJ also insisted that the absence of such “territorial rights” or “definite ideas of property in land” among Mâori was due not to any oversight on the part of the Crown. Rather, it was simply due to their non-existence in fact. He stated: “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”.[18] It was therefore this purported absence of a “body of law or custom” relating to property within Mâori society which, Prendergast CJ believed, rendered English law incapable of recognising any native title rights to which Mâori tribes might be able to lay claim.

The Chief Justice’s claims in the passages above are nothing less than extraordinary. To insist that Mâori had no settled customary law or property in land capable of being recognised by the Crown is effectively to claim that, upon its occupation by the Crown, New Zealand was terra nullius.[19]

Yet Prendergast CJ then contradicted this position above, in so far as he clearly made reference to native title elsewhere in his judgment. As we see in the passage below, Prendergast CJ affirmed the existence of native title but insisted that it falls entirely within the prerogative powers of the Crown, and so outside the jurisdiction of the Courts. As he put it:

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 Mâori 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.[20]

Prendergast CJ therefore clearly recognised the existence of native title, but firmly placed its protection and extinguishment within the prerogative powers of the Crown, claiming that such matters are “in the nature of a treaty obligation” on the part of the Crown towards Mâori tribes.[21] Prendergast CJ made this claim despite the fact that, elsewhere in his judgment, he held that Mâori lacked the sovereign capacity to engage in treaty negotiations, with the result that, in his view, the Treaty of Waitangi, to the extent that it purported to be an instrument of cession, was a “simple nullity”.[22]

It is on these grounds – that native title matters involving the Crown are an affair of state and so fall within the prerogative powers of the Crown – that Prendergast CJ insisted the Crown must be the “sole arbiter of its own justice” on this issue.[23] As he stated in his concluding sentence in the passage above, it is on this basis that the Courts cannot question, but can only assume, that the Crown has acted properly in native title matters. The result, Prendergast CJ believed, is that native title claims involving the Crown are judicially unenforceable, because for the Courts to enforce such claims would be to intrude on the Crown’s prerogative.[24]

3. Prendergast CJ’s Contradiction

However for our purposes, the central point in the passages above is that Prendergast CJ recognized the existence of native title, to the extent that he recognized the Crown’s prerogative over it.[25] This recognition is entirely at odds with those parts of his judgment where he denied the existence of native title altogether, and which amounted to assertions of terra nullius. We therefore see a fundamental inconsistency in his judgment.

Some scholars have not seen any inconsistency at all. For instance, Paul McHugh has argued that although Prendergast CJ denied any legal status to native title in Wi Parata, nevertheless his reference to the Crown’s prerogative over the matter is a recognition that “.... whatever rights the Mâori held to their traditional lands subsisted by Crown sufferance, by moral rather than legal necessity”.[26] In other words, McHugh reconciles the two contrary poles of Prendergast CJ’s Wi Parata judgment by claiming that one is a reference to the absence of any legal status for native title, and the other a reference to its moral status, at least from the perspective of the Crown.

However McHugh’s attempted reconciliation fails to resolve the issue. It is very clear from the language which Prendergast CJ used above that his denial of native title is a denial of its existence in fact, as well as in law. Prendergast CJ asserted above that such title literally does not exist.[27] So contrary to McHugh, it is difficult to see what “moral necessities” Prendergast CJ could possibly believe arose for the Crown from a form of customary title which, Prendergast CJ claimed, was non-existent. If, as Prendergast CJ said, “a phrase in a statute cannot call what is non-existent into being”, on what grounds could he believe that a purported moral obligation of the Crown would do so? Consequently, for McHugh to imply 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, since it fails to recognize that Prendergast CJ’s rejection of native title was a rejection of its existence in fact as well as in law. Once this double rejection is acknowledged, then it is evident that in referring in Wi Parata to both an absence of native title and also to the Crown’s prerogative over that title, Prendergast CJ was, even within the terms of his own judgment, simply contradicting himself.

Yet why did he contradict himself? Why did Prendergast CJ advance two clearly incompatible propositions concerning native title in the same judgment? I think the answer to this is that each of these propositions served a different purpose in realizing Prendergast CJ’s overall aim. This aim was nothing less than to protect the Crown from native title claims. It was clear from his use of language in his judgment that Prendergast CJ was gravely concerned that land which the Crown had already issued to settlers, in the form of Crown grant, might be challenged by native title. This is evident in the following passage where he refers to such a possibility as an “alarming consequence”:

But it may be thought that the Native Rights Act, 1865, has made a difference on this subject, and by giving cognizance to the Supreme Court, in a very peculiar way, of Mâori 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.[28]

Such native title challenge to Crown grants was clearly something that Prendergast CJ wished to avoid. Yet he was confronted with two prior New Zealand native title judgments that clearly upheld the status of native title at common law, and hence its justiciability in the Courts. He could not challenge these judgments in law, because one of them, the Lundon and Whitaker Claims judgment, was actually delivered by a superior Court (the Court of Appeal). He therefore had to challenge these judgments on the basis of fact, by denying the very existence of the native title they referred to. This was the purpose behind Prendergast CJ’s terra nullius claims.

Yet these terra nullius claims could only carry Prendergast CJ’s defence of the Crown so far. Although it might be possible, on this terra nullius basis, to claim that “a phrase in a statute cannot call what is non-existent into being”, nevertheless Prendergast CJ was clearly confronted by a statute – The Native Rights Act 1865 – which appeared to hold that the Native Land Court, and not the Crown, was the ultimate authority on native title matters in New Zealand. As Prendergast CJ stated:

[A]ll 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 Mâori 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.[29]

So whereas native title might provide a threat to Crown grants at common law, the Native Land Court clearly provided such a threat at the level of statute. However while Prendergast CJ’s terra nullius claims might have been sufficient to deal with the former, they were clearly not sufficient to deal with the latter, as the statutory existence of the Native Land Court, and its exclusive focus on native title, provided credence for the existence of such title, Prendergast CJ’s terra nullius assertions notwithstanding.

It is in terms of his need to respond to what he perceived as the threat to Crown title posed by the Native Land Court that Prendergast CJ’s claims concerning Crown prerogative acquire meaning. If Prendergast CJ could claim that all native title matters involving the Crown were subject to the Crown’s prerogative, this would exclude the jurisdiction of the municipal Courts, and so undermine their capacity to refer native title matters to the Native Land Court under the Native Rights Act 1865. Further, if he could claim that this Act itself was not intended to intrude on the Crown’s prerogative, the jurisdiction of the Native Land Court would be limited as well. And indeed, this is what Prendergast CJ did do. As he states in the passage below, he interpreted the Native Rights Act 1865 as non-binding on the Crown, thereby reserving to the Crown its prerogative powers over native title. Indeed, he effectively admits in this passage that he adopted this interpretation of the Act because any other interpretation would have undermined precisely those powers (in other words, a clearly circular piece of reasoning). As Prendergast CJ stated:

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.[30]

Therefore, by having to confront the Native Rights Act 1865 in his Wi Parata judgment, Prendergast CJ was forced to recognize the legal existence of native title and thereby forced to carve out whatever exceptions he could make for the Crown by asserting its prerogative powers over it. But in so doing, his claims for a Crown prerogative over native title clearly conflicted with his terra nullius claim that native title did not exist. We therefore see that the contradiction in Wi Parata between two incompatible propositions on native title arose from the fact that each of these propositions was meant to serve a different purpose in Prendergast CJ’s overriding aim of protecting the Crown from native title claims.

The fact that, with one exception considered below, subsequent New Zealand judicial authority did not follow Prendergast CJ in his terra nullius position shows that this position was not consistent with the other proposition concerning Crown prerogative which emerged from his judgment. It was this later proposition concerning Crown prerogative which subsequent judges tended to follow.

The contrast between Wi Parata and the earlier native title cases in New Zealand is therefore clear. From Prendergast CJ’s perspective, native title claims, to the extent that they involved the Crown, fell entirely within the Crown’s prerogative powers, and so were excluded from the jurisdiction of the Courts. The result was that Mâori tribes had no recourse to the Courts in order to enforce native title claims against the Crown. The latter alone became the sole determinant of justice on this issue. Nothing could be more at odds with the earlier judgments of the New Zealand Supreme Court and Court of Appeal in The Queen v Symonds and In re ‘The Lundon and Whitaker Claims Act 1871’, both of which recognized the status of native title in common law, and so its justiciability within the Courts.

II. SUBSEQUENT (MIS)READINGS

Contrary to the New Zealand judgments on native title that would follow his, Prendergast CJ recognized in Wi Parata that The Queen v Symonds embodied a precedent contrary to his own. Hence although he tried (somewhat problematically) to enlist the support of The Queen v Symonds for his views on the Treaty of Waitangi and the “law of nations”, he nevertheless recognized that Chapman J’s citation of American cases in support of the idea that the Courts could take cognizance of native title claims was clearly contrary to his own view.[31]

Yet subsequent readings by the New Zealand Bench in the wake of Wi Parata interpreted these early native title judgments as consistent with Wi Parata itself. In Hohepa Wi Neera v The Bishop of Wellington, Stout CJ (in a judgment which was concurred with by Edwards and Conolly JJ) cited The Queen v Symonds in support of the view that the Courts could only recognize titles to land deriving from the Crown, thereby excluding native title from the jurisdiction of the Courts.[32] He stated:

The earliest decision of the Supreme Court on the subject is, I believe, that of McIntosh v Symonds [sic] [N.Z. Gazette (1847), p. 63]. In the very able and learned judgment of the late Mr Justice Chapman, approved of by the Chief Justice Sir William Martin, it was held that the Supreme Court could not recognise any title not founded on the Queen’s patent as the source of private title. This decision was followed in several cases, the most important of which was Wi Parata v Bishop of Wellington.[33]

Consequently, Stout CJ clearly identified both cases as forming a common precedent.[34] In the formal Protest of the New Zealand Court of Appeal against the judgment of the Privy Council in Wallis v Solicitor-General, Stout CJ continued to identify The Queen v Symonds and Wi Parata as providing this common precedent as follows:

The root of title being in the Crown, the Court could not recognize Native title. This has been ever held to be the law in New Zealand: see Reg v Symonds, decided by their Honours Sir William Martin, C.J., and Mr Justice Chapman in 1847; Wi Parata v Bishop of Wellington, decided by their Honours Sir J. Prendergast and Mr Justice Richmond in 1877, and other cases.[35]

And in 1912, Stout CJ again identified both cases as providing this common precedent when he stated:

The decision of Wi Parata v The Bishop of Wellington... only emphasized the decision in Reg. v Symonds that... Native customary title was a kind of tenure that the Court could not deal with.[36]

Needless to say, as Chief Justice of the Court of Appeal, Stout CJ’s opinions on native title precedent carried some weight. Yet other Court of Appeal judges, such as Williams J, referred in 1903 to an “unbroken current of authority” in New Zealand on native title matters.[37] While Edwards J, also of the Court of Appeal, referred in 1903 to “the laws relating to Native lands in this colony” which have “prevailed from its foundation”.[38] So clearly with the hindsight of 1903, it appeared to these judges that there was no discontinuity between Wi Parata and the earlier native title cases.[39]

So given the evidence above, it seems that by reading the precedent of The Queen v Symonds as identical with that of Wi Parata (and by effectively ignoring In re ‘The Lundon and Whitaker Claims Act 1871’) New Zealand judges, in the wake of Wi Parata, were able to look back to what they believed was a consistent and continuing line of authority, from the inception of common law in New Zealand, unanimous in its conclusion that native title cases, to the extent that they involved the Crown, were excluded from the jurisdiction of the municipal Courts.[40]

What we see here in this assertion of an “unbroken current of authority” is the Wi Parata precedent being read retroactively to impose its authority over earlier as well as later judicial decisions. Hence Williams J implied that all New Zealand judicial authority points in the direction of Wi Parata, when he insisted that:

It has always been held that any transactions between the Crown and the Natives relating to their title by occupancy were a matter for the Executive Government, and one into which the Court had no jurisdiction to inquire. ... We considered, as every authority justified us in considering, that the root of all title was in the Crown. What the right of any prior Native occupiers might be, or whether they had any rights, was a matter entirely for the conscience of the Crown. In any case they had no rights cognizable in this Court. Nor could this Court examine in any way what their rights were.[41]

Yet as we shall see below, all of these readings of The Queen v Symonds were misreadings, premised on isolating specific passages in Chapman J’s judgment and interpreting them independently of their broader context within the judgment as a whole. One indication of this is the very different reading The Queen v Symonds received in the Privy Council, allowing that body to come to very different conclusions concerning the precedent on native title established in that case. Hence in Nireaha Tamaki v Baker, Lord Davey, delivering the opinion of the Privy Council, stated:

In an earlier case of The Queen v Symonds, it was held that a grantee from the Crown had a superior right to a purchaser from the Natives without authority or confirmation from the Crown which seems to follow from the right of pre-emption vested in the Crown. In the course of his judgment, however, Chapman, J., made some observations very pertinent to the present case. He says: ‘Whatever may be the opinion of jurists as to the strength or weakness of the Native title,... 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’. And while affirming ‘the Queen’s exclusive right to extinguish it’ secured by the right of pre-emption reserved to the Crown he holds that it cannot be extinguished otherwise than in strict compliance with the provisions of the statutes.[42]

Consequently, Lord Davey affirmed precisely those elements of Chapman J’s judgment which endorsed native title rights against the Crown, and which subsequent New Zealand judicial authorities had ignored in their haste to assimilate The Queen v Symonds to Wi Parata. In providing this endorsement however, Lord Davey did not go so far as to affirm Chapman J’s claim that native title fell within the jurisdiction of common law. Rather, he insisted that the Crown was now bound by statute on this matter.[43] Nevertheless the above passage from the Privy Council judgment shows that it was possible for judges to engage in a transparent reading of The Queen v Symonds, rather than assimilating it to a subsequent (and contrary) precedent.

The irony of the New Zealand judiciary’s response to The Queen v Symonds is not that this judgment was conveniently forgotten (as it might have been, given that it upheld a contrary precedent to Wi Parata) but rather that it was misread in such a way that it was assimilated to this contrary precedent, thereby establishing an apparently “unbroken current of authority” on native title.[44] A good example of this assimilation process in relation to the other early native title case, In re ‘The Lundon and Whitaker Claims Act 1871’, is the following statement from the Solicitor-General during his presentation of the Crown’s evidence in Tamihana Korokai v The Solicitor-General. He stated:

The principle of Wi Parata v Bishop of Wellington... has been reaffirmed in the following cases: Hohepa Wi Neera v Bishop of Wellington; Teira te Paea v Roera Tareha; Mueller v Taupiri Coal-Mines (Limited). The only dictum to the contrary is in Lundon and Whitaker Claims, but it could not have been meant to conflict with the judgment in Wi Parata v Bishop of Wellington.[45]

Here we have the somewhat comic instance of a case decided five years prior to Wi Parata which, although it gave rise to dictum contrary to Wi Parata, is nevertheless interpreted in terms that it “could not have been meant to conflict” with it. Short of clairvoyance on the part of the judges in Lundon and Whitaker Claims, it is not apparent how they could have “meant” any such thing. Yet nothing more clearly indicates the overwhelming desire on the part of the Crown (and also, as we have seen, the Courts) to assimilate all native title judgments to Wi Parata, even the earlier ones.

Yet the fatuous nature of the Solicitor-General’s statement is understandable when we realise there were few other ways for the Crown (or the Courts) to overcome the uncomfortable fact that there were two cases prior to Wi Parata which clearly conflicted with its judgment on native title. At least the Solicitor-General was forthright enough to admit that In re ‘The Lundon and Whitaker Claims Act 1871’ did conflict with Wi Parata. As we have seen above, senior elements of the New Zealand Bench were not so forthcoming in their interpretation of The Queen v Symonds, viewing it as entirely consistent with the later Wi Parata precedent.[46]

III. POSSIBLE EXPLANATIONS

What possible explanation could there be for such an obvious (and consistent) misreading of the early native title cases of The Queen v Symonds and In re ‘The Lundon and Whitaker Claims Act 1871’, relative to the later precedent of Wi Parata? I think it is possible to highlight two.

Firstly, there are clear elements of Chapman J’s judgment in The Queen v Symonds which, if read selectively and to the exclusion of other elements in his judgment, could give rise to perceptions that would support the subsequent misreading indulged in by the New Zealand Bench. As we shall see, it is only when Chapman J’s judgment is read in a broader (largely unarticulated) framework presupposed by his judgment, that any resolution is achieved between its apparently conflicting elements.

However unlike The Queen v Symonds, In re ‘The Lundon and Whitaker Claims Act 1871’ does not have conflicting elements, relating to native title, that can be read in isolation. So while contrary elements within Chapman J’s judgment may explain some subsequent misreadings of The Queen v Symonds, it does not explain how In re ‘The Lundon and Whitaker Claims Act 1871’ could have been effectively overlooked by the New Zealand Bench in their subsequent reading of all New Zealand judicial authority as consistent with Wi Parata. As such, a second explanation for this is needed, and I think one can be found if we interpret these attempts to assimilate all judicial authorities to Wi Parata (and the misreadings of earlier judgments which this entails) as exhibiting a distinct “colonial consciousness” on the part of senior elements of the New Zealand Bench.

I define a “colonial consciousness” as an outlook informed by the material interests of a settler society. Foremost among these interests is a necessary concern for the process of land settlement, since it is this process which, more than anything else, defines a “settler” society. These material concerns were exacerbated in New Zealand society because of the open military conflict that had erupted between Mâori tribes and the Crown over precisely this issue in the middle decades of the nineteenth century.

Needless to say, it would be highly unusual if the members of the New Zealand Bench were immune from these interests and concerns to the point where they never intruded on their legal outlook or judgment in native title cases. I argue below that such concerns did indeed intrude on their judgment, and it is these concerns which help explain the decisions they arrived at concerning native title during these years. In particular, this “colonial consciousness” explains the Court of Appeal’s tenacious commitment to the precedent of Wi Parata, its willingness to misread previous native title cases as consistent with this precedent, and its willingness to defend Wi Parata even to the point of an open breach with the Privy Council.[47] The postulation of a “colonial consciousness” explains all of this because it highlights the material interests which a judgment such as Wi Parata satisfied, and therefore reveals the incentives which existed to maintain this precedent in the face of all opposition.

So there are two explanations as to why senior elements of the New Zealand Bench were willing and able to misread The Queen v Symonds and overlook In re ‘The Lundon and Whitaker Claims Act 1871’ in such a way that they could assimilate these early New Zealand native title judgments to Wi Parata. These were 1. contrary elements in The Queen v Symonds and 2. the existence of a “colonial consciousness” among senior elements of the New Zealand Bench which affected their adjudication on native title issues. The following will consider each of these in turn.

1. Contrary Elements in The Queen v Symonds

The first major judicial decision to deal with native title in New Zealand was The Queen v Symonds. This judgment was foundational in the sense that later New Zealand judgments on native title generally referred to this case, along with Wi Parata, as authoritative precedent. As we have seen above, in the wake of Wi Parata, the New Zealand Court of Appeal referred to The Queen v Symonds as one of the authorities for holding that municipal Courts had no jurisdiction over native title matters involving the Crown. They did so on the basis of isolated passages within The Queen v Symonds where Chapman J had stated that municipal Courts could only recognise land titles deriving from the Crown.[48]

Yet as we shall see, the use of these passages as the basis for such a conclusion is premised on a selective reading of The Queen v Symonds. There are some statements by Chapman J which, read in isolation, could give reason for claiming that he held that the municipal Courts could not recognise any title to land other than those deriving from the Crown - thereby excluding native title. However as we shall see below, if such statements are read in the broader context of Chapman J’s judgment as a whole, and are supplemented by the judgment of Martin CJ in the same case, it is evident that the Supreme Court’s decision in The Queen v Symonds did hold that the municipal Courts could recognize native title, thereby affirming that native title matters fell within their jurisdiction. By implication therefore, the judgment rejected the presumption that native title was purely a matter of Crown prerogative and so outside the jurisdiction of the Courts.

Nevertheless it is impossible to deny that Chapman J’s judgment does suffer from a bifurcation between his insistence at some points that the municipal Courts can only recognise land titles deriving from the Crown, and his apparent affirmation elsewhere in the judgment of the jurisdiction of the Courts over native title. The selective reading of The Queen v Symonds by subsequent judicial authorities is made possible by these contrary aspects of the original judgment. The following discussion attempts to outline these contrary aspects of Chapman J (and Martin CJ’s) judgments, and provide some explanation for them. It will be argued that these contrary aspects can be reconciled so long as the judgment is read in the context of a broader explanatory framework which, it is claimed, was largely unarticulated by either judge in the case, but which must be presumed in order to make sense of these conflicting elements within their judgments as a whole.

(a) An Initial Denial of Native Title?

The appeal to The Queen v Symonds as precedent for claiming that the municipal Courts had no jurisdiction over native title is somewhat ironic given that Chapman J began his judgment with the passage quoted above, at the beginning of the section entitled “Contrasting Precedents”, which appears to be a clear statement that all matters involving indigenous inhabitants and the Crown are matters of common law, and therefore fall well within the jurisdiction of the municipal Courts. As argued above, this clearly includes native title.

Yet immediately following this claim, Chapman J went on to make a series of statements concerning the Crown’s relationship to land in the colony which seemed to deny the legal status of native title, and therefore its recognition by the Courts. And it is these passages that subsequent New Zealand judicial authorities focused on in order to read The Queen v Symonds as consistent with Wi Parata. These passages seem to deny the legal status of native title because, within them, Chapman J insisted that all title to land in the colony must derive from the Crown alone, in the form of a grant authorised by Letters Patent, and he insisted that the Courts cannot recognise any title to land which does not conform to this procedure.

Chapman J asserts these claims in stages. Firstly, he invoked the conventional doctrine of the Crown having ultimate (radical) title over all land in the colony:

It is a fundamental maxim of our laws, springing no doubt from the feudal origin and nature of our tenures, that the King was the original proprietor of all the lands in the kingdom, and consequently the only legal source of private title.... In the language of the year-book – M. 24, Edw. III – ‘all was in him, and came from him at the beginning’. This principle has been imported, with the mass of the common law, into all the colonies settled by Great Britain; it pervades and animates the whole of our jurisprudence in relation to the tenure of land....[49]

This claim is not, in itself, controversial. It had certainly long been the case in English common law that all land is held in the form of tenure from the Crown.[50] This notion, deriving from the feudal doctrine that all land was originally distributed by the King to his vassals, entails the assumption that the Crown is the source of all title to land, and therefore holds the ultimate (radical) title to this land.[51] But this notion becomes somewhat controversial when it is imported to new colonies where there are pre-existing landholders, who have hitherto held land outside the Crown’s authority. In what position do these prior landholders now stand in relation to a Crown insisting on the feudal notion that all title to land in the colony now derives exclusively from it? Sir William Blackstone held that the answer to this question depended on whether the land in question is perceived by the Crown as “cultivated” or “desart”, and therefore to be acquired by conquest/cession or by discovery and occupation.[52] Contrary to the view of Prendergast CJ in Wi Parata, New Zealand is clearly a colony that was acquired by cession, through the instrument of the Treaty of Waitangi.[53] In such a context, the pre-existing land titles of the indigenous inhabitants were deemed by Blackstone to be recognised by the new sovereign until expressly extinguished by him.[54]

Yet Chapman J then went on to make statements which seem, at face value, to deny that the municipal Courts can recognise pre-existing land titles held by the indigenous inhabitants. Such a denial is based on his claim above that, according to the feudal principles imported from Britain, the Crown is the exclusive source of all title. As Chapman J stated:

As a necessary corollary from the doctrine, ‘that the Queen is the exclusive source of private title’, the colonial Courts have invariably held (subject of course to the rules of prescription in the older colonies) that they cannot give effect to any title not derived from the Crown (or from the representative of the Crown, duly authorized to make grants), verified by letters patent. This mode of verification is nothing more than a full adoption and affirmation by the colonial Courts of the rule of English law; ‘that (as well for the protection of the Crown, as for the security of the subjects, and on account of the high consideration entertained by the law towards Her Majesty) no freehold, interest, franchise, or liberty can be transferred by the Crown, but by matter of record’... that is to say, by letters patent under the great seal in England, or (what is equivalent thereto in the Colony) under the public colonial seal. In the instruments delegating a portion of the royal authority to the Governors of colonies, this state of the law is without any exception, that I am aware of, universally and necessarily recognized and acted upon. In some cases the authority and powers of the Governor are set out in his Commissions... but in this Colony the Governor derives his authority partly from his Commission, and partly from the Royal Charter of the Colony – Parl. Paper, May 11, 1841, p. 31 – referred to in and made part of such Commission. In this Charter, we find the invariable and ancient practice followed: the Governor, for the time being, being authorized to make and execute in Her Majesty’s name, and on her behalf, under the public seal of the Colony, grants of waste lands, &c. In no other way can any estate or interest in land, whether immediate or prospective, be made to take effect; and this Court is precluded from taking notice of any estate, interest, or claim, of whatsoever nature, which is not conformable with this provision of the Charter; which in itself is only an expression of the well-ascertained and settled law of the land.[55]

This statement by Chapman J seems to imply a definite ruling that native title, being a form of title that does not derive from the Crown under the authority of the letters patent, cannot be recognised by the Courts as a source of title to land. It is therefore clearly contrary to Chapman J’s earlier claim above that the principles governing the intercourse between “civilised nations” and the “aboriginal Natives”, not least the question of land ownership, are settled principles of law cognisable by the courts.[56]

(b) Chapman J’s Recognition of Native Title

Yet at a further point in the same judgment, Chapman J seemed to revert to the spirit of his opening remarks, insisting on the full judicial recognition of native title as follows:

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 pre-emptive 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.[57]

Presumably it is because Chapman J perceived both native title and the Crown’s exclusive right of pre-emption as established principles in common law that he can maintain that the Treaty of Waitangi does not assert “any thing new and unsettled” by reaffirming these principles in its clauses.[58] In any case, their status at common law certainly places them within the jurisdiction of the municipal Courts.

Consequently, we see a clear contradiction in Chapman J’s judgment between an endorsement of the common law status of native title in the early and later stages of his argument, and yet in the middle an apparent denial of native title in his insistence that the Crown alone is the sole source of all land title in the colony, with the result that the Courts only have jurisdiction to recognise titles deriving from the Crown.

(c) An Explanation of Chapman J’s Contradiction

So was Chapman J’s assertion of these contrary principles a clear case of contradiction in his judgment? The answer, I think, lies in what I call the “dual relationship” between the Crown and its subjects which I believe Chapman J implicitly assumes in his judgment. On some issues, the Mâori tribes clearly stood in a different legal relationship to the Crown relative to the Crown’s non-indigenous subjects, with the result that some Crown laws affected them differently. For instance, the Crown’s exclusive right of pre-emption over Mâori land was intended to limit only the non-indigenous subjects of the Crown in their land dealings with Mâori. In regard to Mâori, it left them free to deal with each other under traditional Mâori custom, just as before.[59] Clearly therefore, there were some laws under which Mâori and Pakeha stood in a dual relationship with the Crown, with different rights accorded to each.

Consequently, the apparent contradiction which emerges in Chapman J’s judgment - between his obvious recognition of native title on the one hand, and on the other, his insistence that the Crown is the sole source of all title (thereby apparently excluding native title from the recognition of the Courts) – can only be resolved by interpreting these apparently contrary positions in terms of this “dual” relationship, where indigenous and non-indigenous subjects stand in a different legal relationship to the Crown. For instance, as will be discussed in the next section, when Chapman J referred to the Crown as the sole source of title and limited the Courts’ jurisdiction to the recognition of titles deriving from the Crown, he was referring to the law as it applied to the Crown’s non-indigenous subjects. When he referred to native title, and the capacity of the Courts to recognise its status in law, he was referring to the law as it applied to the Crown’s Mâori subjects. In other words, this “dual” relationship allows apparently contradictory statements on native title to be made, because each statement applied to a different subject population, who stood in a different legal relationship to the Crown on this issue.

The apparently contradictory nature of the statements in Chapman J’s judgment are therefore resolved once we recognize that each statement was meant to apply to a different audience. Yet Chapman J never made this dual relationship explicit in his argument. As we shall see below, we are left to infer its existence from his apparently contradictory remarks concerning the Crown and native title, as the only way of making sense of them and resolving their differences.

(d) Chapman J’s “Dual Relationship”

Why did Chapman J implicitly resort to a “dual relationship” as the broader, unarticulated context within which he presented his views in this case? The answer lies in the facts of the case itself.[60] This case considered the claim of a C Hunter McIntosh, who insisted he had a valid title to land he had purchased directly from the Mâori owners, on the strength of a certificate from Governor Fitzroy purporting to waive the Crown’s exclusive right of pre-emption over such land. This certificate was not issued under the public seal of the Colony, and had none of the features of a patent, but was issued by Proclamation by the Governor, whose terms the claimant faithfully complied with.[61] Yet McIntosh’s claim was disputed on the grounds that the Crown had since issued the defendant with a grant to the same land, the grant being issued under the public seal of the Colony.[62] As Chapman J stated: “The question which this Court has to determine is, Did the claimant... acquire by the certificate and his subsequent purchase (admitted to have been in all respects fair and bona fide) such an interest in the land, as against the Crown, as invalidates a grant made to another, subsequently to the certificate and purchase?”[63]

The Supreme Court’s judgment came down in favour of the defendant, and therefore against McIntosh, on the grounds that the Crown always retained the exclusive right of pre-emption over native lands, which it could not waive in another’s favour.[64] But in order to justify this decision, both judges went into some detail concerning the legal foundation of the Crown’s exclusive right of pre-emption. It is in this context that Chapman J’s statements above concerning the Crown as the sole source of land title become meaningful, because as the following passage shows, his insistence on the Crown’s exclusive right of pre-emption, and its inability to waive this in another’s favour, is dependent on the Crown’s status as the sole source of all land title in the colony:

It seems to flow from the very terms in which the principle, ‘that the Queen is the only source of title’, is expressed, that no subject can for himself acquire new lands by any means whatsoever. Any acquisition of territory by a subject, by conquest, discovery, occupation, or purchase from Native tribes (however it may entitle the subject, conqueror, discoverer, or purchaser, to gracious consideration from the Crown) can confer no right on the subject. Territories therefore acquired by the subject in any way vest at once in the Crown. To state the Crown’s right in the broadest way: it enjoys the exclusive right of acquiring newly found or conquered territory, and of extinguishing the title of any aboriginal inhabitants to be found thereon...The rule, therefore, adopted in our colonies, ‘that the Queen has the exclusive right of extinguishing the Native title to land’ is only one member of a wider rule, that the Queen has the exclusive right of acquiring new territory, and that whatsoever the subject may acquire, vests at once, as already stated, in the Queen. And this, because in relation to the subjects, the Queen is the only source of title.[65]

The passage above makes clear that the Crown’s exclusive right of pre-emption (that is, its sole right to purchase land from Mâori) is premised on its legal identity as the exclusive source of title. Yet as pointed out previously, this “exclusivity” seems to preclude native title, because native title is not a title whose source derives from the Crown. Yet at the same time, we see in the passage above that such “exclusivity” is the precondition of the Crown’s right of pre-emption, a right which in turn presupposes the existence of native title, because it is this title that the right of pre-emption is exercised upon. So how can this contradiction be resolved?

The answer lies in the “dual relationship” that Chapman J implicitly presupposed in the above passage. When he stated that “... in relation to the subjects, the Queen is the only source of title”, Chapman J was referring to the Queen’s non-indigenous subjects. This is evident from the whole import of the passage, which was a discussion of the relationship between those “subjects” on the one hand, and what he referred to as “Native tribes” or “aboriginal inhabitants” on the other, concerning the acquisition of the latter’s land. The passage insisted that the Crown has an exclusive right of pre-emption in relation to such lands, and this right of pre-emption limits the capacity of non-indigenous subjects to privately acquire land from Native tribes.

But it is the justification of this exclusive right of pre-emption which most clearly demonstrates the “dual relationship”. As we have seen, the Crown’s right of pre-emption is “exclusive” only against its non-indigenous subjects, because in relation to indigenous subjects, it leaves them free to acquire land from each other just as before.[66] Yet just as the Crown’s right of pre-emption only applies to non-indigenous subjects, so the justification of this right only applies to them too. In the passage above, Chapman J justified the Crown’s exclusive right of pre-emption on the grounds that the Crown is the sole source of title. But if the Crown has no exclusive right of pre-emption against Mâori, then it also has no claim to be the sole source of title in relation to them, because Mâori can continue to purchase traditional native land from other Mâori independently of the Crown, just as they did prior to the Crown’s acquisition of sovereignty. In relation to Mâori therefore, the Crown must recognize forms of title (native title) which do not have their exclusive source in the Crown.[67]

Consequently, we can see the “dual” relationship between indigenous and non-indigenous subjects of the Crown clearly emerging in Chapman J’s judgment. The Crown stands in a very different legal relationship to each of them. In relation to its non-indigenous subjects, the Crown is the sole source of all title, and so these subjects have no right to acquire property independent of the Crown. In relation to Mâori, the Crown is not the sole source of title because its claims to an exclusive right of pre-emption necessarily recognizes a source of title (native title) whose roots precede the Crown, and which allows Mâori to continue to exchange traditional property, subject to native title, independent of the Crown. [68]

Therefore the apparent contradiction cited above - where on the one hand the Crown’s exclusive right of pre-emption presupposes native title, and yet on the other the justification of that right (in terms of the Crown as the sole source of all title) seems to preclude it - is overcome once we recognise that in each instance, the Crown is referring to a different subject population. In relation to its non-indigenous subjects, the Crown is the sole source of all title, but in relation to its indigenous subjects, it also recognizes native title.

Therefore once we adopt this dual perspective, the apparent contradiction referred to above is resolved. The Crown both is and isn’t the exclusive source of all land title, because the Crown both does and doesn’t recognize sources of title preceding the Crown, depending on whether the Crown is confronting its indigenous or its non-indigenous subjects.

(e) Native Title and “Seisin in Fee”

One of the most obvious manifestations of this “dual relationship” in Chapman J’s judgment is in his discussion of native title and “seisin in fee”. In the following passages, Chapman J argued that the same land can be subject to native title, and yet at the same time be subject to Crown title under “seisin in fee”, even though “seisin in fee” is usually thought to extinguish any prior claim to native title.[69] While this appears to be a contradiction, it is once again resolved when we interpret Chapman J’s statements in terms of the wider “dual relationship” which he presupposes between the Crown and its indigenous and non-indigenous subjects.

The first passage in which Chapman J clearly recognised native title as co-existing with the Crown’s “seisin in fee” is as follows:

In order to enable the Court to arrive at a correct conclusion upon this record, I think it is not at all necessary to decide what estate the Queen has in the land previous to the extinguishment of the Native title. Anciently, it seems to have been assumed, that notwithstanding the rights of the Native race, and of course subject to such rights, the Crown, as against its own subjects, had the full and absolute dominion over the soil, as a necessary consequence of territorial jurisdiction. Strictly speaking, this is perhaps deducible from the principle of our law. The assertion of the Queen’s pre-emptive right supposes only a modified dominion as residing in the Natives. But it is also a principle of our law that the freehold never can be in abeyance; hence the full recognition of the modified title of the Natives, and its most careful protection, is not theoretically inconsistent with the Queen’s seisin in fee as against her European subjects. This technical seisin against all the world except the Natives is the strongest ground whereon the due protection of their qualified dominion can be based. This extreme view has not been judicially taken by any colonial Court that I am aware of, nor by any of the United States’ Courts, recognizing the principles of the common law. But in one case before the Supreme Court in the United States there was a mere naked declaration to that effect by a majority of the Judges.[70]

It would seem that the term “seisin in fee”, when applied to the Crown in the passage above, is somewhat misleading. “Seisin in fee” refers exclusively to freehold estates, and so is a form of tenure held from the Crown.[71] Because the Crown does not have a tenure relationship with itself, it cannot have a “seisin in fee” over the land it holds. Rather, when the Crown holds land it either has absolute ownership, “... called ‘allodial title’ or ‘allodium’ (meaning the entire property)”.[72] Or else it has “radical title” to the land.[73] In cases of terra nullius, there being no prior owners of the land, the Crown comes to assume full beneficial (allodial) title over the land rather than merely radical title.[74] At all other times, radical title is adopted by the Crown, as not inconsistent with the continued existence of a prior native title.[75] At times, as in the passage of Chapman J above, judges seem to have mistakenly conflated “seisin in fee” with “allodial title”.[76]

Nevertheless, despite this mistaken terminology, we see in the passage above another example of the “dual relationship” which forms the unarticulated background framework within which Chapman J’s judgment acquires meaning. Once again, the indigenous and non-indigenous subjects of the Crown stand in a different relationship to the Crown under the law. As Chapman J stated, in relation to her non-indigenous subjects, the Queen does have “full and absolute dominion over the soil” (what Chapman J has mistakenly referred to above as a “seisin in fee as against her European subjects” but what is perhaps better described as an allodial title) because, in relation to these non-indigenous subjects, the Crown is the sole source of title. Yet Chapman J pointed out that this “technical seisin” is good against all the world “except the Natives”.[77] Why did he make an exception for “Natives”? Because in relation to these indigenous subjects, the Crown does not have “full and absolute dominion over the soil” since, in their case, it recognizes a prior native title, which “... is not theoretically inconsistent with the Queen’s seisin in fee as against her European subjects”.[78] Consequently, once again, this “dual relationship” emerges in the passage above, where the Crown both is and isn’t the sole source of land title depending on whether it is confronting its indigenous or its non-indigenous subjects.

Admittedly, Chapman J is rather unusual in claiming that native title co-exists with the Crown’s claim to land as a “seisin in fee” (or what is better referred to as an allodial title). Usually, native title and allodial title are perceived as incompatible, allodial title being a full and complete title to land which excludes all others.[79] It is the Crown’s “radical title” with which native title is usually deemed to co-exist.[80] But it is because he perceived the relationship between the Crown and its subjects in a “dual” manner that Chapman J was able to make this unusual claim, and avoid the contradiction that would otherwise arise. For Chapman J, the Crown’s recognition of native title and its claim to “seisin in fee” (allodial title) are compatible because, on the one hand, the Crown’s recognition of native title clearly does not apply to those subjects (non-indigenous) to whom it asserts its possession of land as a “seisin in fee”, and on the other hand, its assertion of “seisin in fee” does not apply to those subjects (indigenous) to whom it recognises native title. As such, no contradiction arises.

(f) The Question of Court Jurisdiction

But what of Chapman J’s earlier claim above that the Courts are only entitled to recognise land titles deriving from the Crown?[81] Surely this is a clear indication that native title is excluded from the Courts, and therefore for all intents and purposes, the Crown is the exclusive source of all title at common law? Once again, the answer to this question rests on the “dual relationship” that, I have argued, Chapman J presupposed as the implicit framework of his judgment. As the following passage makes clear, although the Courts will not recognise native title in suits brought by non-indigenous plaintiffs, Chapman J claimed that they will do so in suits brought by indigenous ones:

The practice of extinguishing Native titles by fair purchases is certainly more than two centuries old. It has long been adopted by the Government in our American colonies, and by that of the United States. It is now part of the law of the land, and although the Courts of the United States, in suits between their own subjects, will not allow a grant to be impeached under pretext that the Native title has not been extinguished, yet they would certainly not hesitate to do so in a suit by one of the Native Indians. In the case of the Cherokee Nation v State of Georgia [(1831) [1831] USSC 6; 5 Peters 1] the Supreme Court threw its protective decision over the plaintiff nation, against a gross attempt at spoliation; calling to its aid, throughout every portion of its judgment, the principles of the common law as applied and adopted from the earliest times by the colonial laws.....[82]

Regardless of the extent to which Chapman J mistook this American precedent as authority for his own position, nevertheless it is evident that in the context of his evocation of this precedent he was once again assuming a “dual relationship”, arising from the fact that the Crown stands in a different legal relation to its indigenous and non-indigenous subjects when it comes to native title. Chapman J claimed that while the US Courts will not consider a claim to native title arising in a suit between any of their own subjects, they “would certainly not hesitate to do so in a suit by one of the Native Indians”.[83] It must be noted that American Indians occupy a different legal status in the US compared to Mâori in New Zealand.[84] However the same distinction still holds. Chapman J assumed (erroneously in the case of Cherokee Nation v State of Georgia) that the US Courts would adopt a different position on native title depending on whether the suit was brought by a native or non-native plaintiff. In affirming this American precedent and its application to New Zealand, Chapman J was implying that the same dual relationship applied here, so that New Zealand municipal Courts do have jurisdiction over native title, as long as the suit in question is brought by Mâori subjects of the Crown.

Once again therefore, we see the “dual relationship” arising. Just as Chapman J’s statement that the Crown is the sole source of all title only applies to non-indigenous subjects, so also does his claim that Court jurisdiction is limited to recognizing only those titles deriving from the Crown. In relation to indigenous subjects on the other hand, the situation is very different. The fact that, in their case, the Crown is willing to recognize native title means that, from their legal perspective, the Crown is not the sole source of all title, nor are the Courts limited to recognizing only those titles deriving from the Crown.

(g) The Reason for Chapman J’s “Dual Relationship”

But why did Chapman J not explicitly articulate this “dual relationship” as the framework within which his otherwise contrary statements could be resolved? Why are we left to assume the implicit existence of this framework as the only means by which we can make sense of his judgment? One answer is that the facts of the case led to a judicial concentration on the legal relationship of the Crown with its non-indigenous subjects, rather than encouraging a comparison between this relationship and the Crown’s other legal relationship with its indigenous subjects. The result was that the binary and distinct relationship of the Crown with its indigenous subjects on the one hand, and its non-indigenous subjects on the other, was assumed rather than explicitly articulated throughout the judgment.

But why did the facts of the case lead to an overriding focus on the relationship of the Crown with its non-indigenous subjects? The answer is as follows. The case involved the status of the Crown’s right of pre-emption and whether it could be waived in favour of non-indigenous settlers. Chapman J was concerned to insist that the Crown could not waive this right, and was therefore anxious to justify this in terms which would discourage other settlers from attempting to acquire native land by private purchase.[85] He therefore insisted strongly on the Crown as the exclusive source of title, in order to preclude any claim that such title could be acquired by settlers independently of the Crown, through private purchase from Mâori tribes. His insistence that the Courts would only recognize titles deriving from the Crown also needs to be understood in this context – as once again directed towards settlers in an attempt to discourage them from violating the Crown’s exclusive right of pre-emption. Any such violation, Chapman J was suggesting, would be overturned by the Courts, because in relation to settlers, the Courts would only recognize titles deriving from the Crown.

Consequently, because the case was concerned with the status of the Crown’s exclusive right of pre-emption, the judicial focus was on the legal relationship between the Crown and the settler (non-indigenous) population against whom that right was exercised. In this context, there was a strong emphasis on the Crown as the exclusive source of title and the Courts as recognising only titles deriving from the Crown. Chapman J’s other statements within his judgment, concerning native title, appeared to contradict this view. But this contradiction is resolved when we recognize that these statements were directed not at non-indigenous settlers, but rather toward the Crown’s Mâori subjects, over whom the Crown did not exercise an exclusive right of pre-emption, and therefore to whom a contrary set of legal assumptions applied. Because the facts of the case emphasized the former set of legal circumstances rather than the latter, they mitigated against both sides of this dual relationship being explicitly articulated within the judgment as a whole.

(h) Martin CJ’s Judgment

Martin CJ indicated that he was in full accordance with the opinion of Chapman J in this case, but provided further affirmation of the legal status of native title by citing American authorities as follows:

I shall content myself with citing two passages from the well-known Commentaries on American Law, by Mr Chancellor Kent, of the State of New York. I quote this book, not as an authority in an English Court, but only as a sufficient testimony that the principle contained in the rule of law above laid down – and which same principle, with no other change than the necessary one of form, is still recognized and enforced in the Courts of the American Union, is understood there to be derived by them from the period when the present States were Colonies and Dependencies of Great Britain. ‘The European nations’, says Mr. Chancellor Kent, Vol. 3, p. 379, ‘which respectively established Colonies in America, assumed the ultimate dominion to be in themselves, and claimed the exclusive right to grant a title to the soil, subject only to the Indian right of occupancy. The Natives were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it and to use it according to their own discretion, though not to dispose of the soil at their own will, except to the Government claiming the right of pre-emption’.[86]

Therefore we see that Martin CJ insisted (on the authority of Chancellor Kent) that the Crown’s “exclusive right to grant title in the soil” was always subject to the recognition of native title. Martin CJ clearly indicated that in expressing such a view he was in accord with the judgment of Chapman J in the present case.[87]

However in the passage immediately following the one above, Martin CJ once again cited Chancellor Kent, but this time to apparently opposite effect. Whereas the passage above indicates that native title survives the Crown’s acquisition of sovereignty in the new colonies and is a burden on the Crown’s claim to “ultimate dominion”, and also insists on the legal right of the “Natives” to retain possession of that land, the following passage implies that the Courts do not have jurisdiction to enforce native title claims at law:

Those governments asserted and enforced the exclusive right to extinguish Indian titles to land inclosed [sic] within the exterior lines of their jurisdictions, by fair purchase, under the sanction of treaties; and they held all individual purchases from the Indian, whether made with them individually or collectively as tribes, to be absolutely null and void. The only power that could lawfully acquire the Indian title was the State, and a Government grant was the only lawful source of title admitted in the Courts of justice. The Colonial and State Governments, and the Government of the United States, uniformly dealt upon these principles with the Indian nations dwelling within their territorial limits.[88]

Once again we see an apparent contradiction similar to that in Chapman J’s judgment above, where on the one hand there is an apparent affirmation of native title, and its legal status in common law, and yet on the other, an insistence that the Courts can only recognise title deriving from the Crown, to the apparent exclusion of native title. However the fact that Martin CJ directly juxtaposed these two apparently contrary statements indicates that he did not conceive them as contradictory. Indeed, like the apparent contradiction in the judgment of Chapman J, this one is also resolvable by placing it in the broader context of the facts of the case.

Like Chapman J, Martin CJ emphasised the Crown’s exclusive right of pre-emption. Such an emphasis was necessary in order to reject the argument of the claimant that the Crown had waived this right in his favour. In this context, a close reading of the two passages from Chancellor Kent, cited by Martin CJ above, indicate that while the first refers to the legal situation prior to the Crown’s exercise of its exclusive right of pre-emption, the second is referring to the legal situation which arises after that right has been exercised, and the native title had been extinguished. It is in this context that we must understand Chancellor Kent’s claim that “... a Government grant was the only lawful source of title admitted in the Courts of justice”.[89] Such was certainly the case after the native title to the land in question had been extinguished. But prior to this, as Chancellor Kent points out in the first passage, “[t]he Natives were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it and to use it according to their own discretion ...”.[90]

(i) Conclusion

To conclude therefore, the subsequent reading of The Queen v Symonds by New Zealand judicial authorities, and their elevation of this precedent to a major authority justifying the exclusion of native title from the jurisdiction of the municipal Courts, is based on a selective citation of some of Chapman J’s comments, and a failure to interpret these comments in the broader context of his judgment as a whole. In particular, it represents a failure to understand that Chapman J’s reference to the Crown as the sole source of all title, and the inability of the Courts to recognize any title not deriving from the Crown, was a statement of law meant to apply to the Crown’s non-indigenous subjects only. In relation to its indigenous subjects, Chapman J held that the Courts were willing to recognize the legal existence of native title. By abstracting Chapman J’s comments on these matters from this wider context, subsequent Courts were able to erroneously claim that The Queen v Symonds provided, along with Wi Parata, authority for refusing to recognize native title claims brought before the Courts by indigenous subjects of the Crown.

However this selectivity is encouraged by Chapman J’s failure to articulate the implicit “dual” relationship within which his apparently contradictory statements acquired their broader resolution. The result is that his judgment does read as if he is upholding contrary and apparently contradictory claims concerning native title and its recognition in the Courts. Subsequent New Zealand judicial authorities have therefore focused on some of these claims, without attempting to resolve their meaning in terms of the others.

2. Colonial Consciousness

However even if the “dual” relationship which provides the background framework to Chapman J’s judgment was not spelt out in his reasoning, nevertheless it is clear upon even a cursory reading of his judgment that it contains contrary (and apparently contradictory) statements regarding native title. Therefore what requires explanation is why, in the wake of Wi Parata, subsequent New Zealand judicial authorities would selectively adopt some of Chapman J’s statements as authoritative precedent, and yet pointedly ignore those others that yield a contrary point of view? The answer lies in terms of the “colonial consciousness” which I believe shaped New Zealand judicial opinion on native title from Wi Parata onwards.[91]

Native title raised a significant material threat to New Zealand settler society, and it did so for the following reasons. Firstly, native title could act as a legal barrier to settler expansion, since native title had first to be extinguished before the Crown could issue grants to land. If Mâori chiefs refused to consent to such extinguishment, for instance by refusing to sell land to the Crown, this could limit the amount of land available for settlement. Secondly, land settlement in general in New Zealand was a highly volatile issue in the second half of the nineteenth century, with large-scale wars between some Mâori tribes and the Crown erupting during the 1860s.[92] Indeed, in his judgment in Hohepa Wi Neera v Bishop of Wellington, Stout CJ referred to judicial decisions on native land questions actually having the potential to fan the flames of war during this period.[93] Finally, native title issues threatened to throw all existing settler titles to land into legal doubt. If it was found by the Courts that (contrary to Wi Parata) the Crown did not have a prerogative power over native title, this meant that the Crown’s declaration concerning the extinction of native title over any particular piece of land might not be binding on the Courts. This in turn meant that all land held by Crown grant could conceivably be subject to native title claims, because the Crown grant itself would not be held by the Courts to be sufficient proof that the previously existing native title over that land had been lawfully extinguished by the Crown. If the Crown could not simply declare such native title claims void, and if the Courts were not bound to accept the Crown’s declaration as binding, then the holders of existing Crown grants might have their title to land declared invalid if the Courts found that native title had not been lawfully extinguished by the Crown prior to the issue of the grant. In other words, from the perspective of New Zealand settler society, any judicial suggestion that the Crown did not have full prerogative power over native title inevitably threw all existing titles to land in New Zealand into doubt.[94]

Consequently, it would not be surprising if such wider issues weighed heavily on the minds of New Zealand judges when they adjudicated on native title issues. It is this that I see as characteristic of a “colonial consciousness” – a sense of the material interests at stake in any land settlement issue given the wider commitments and concerns of the settler society.

The attribution of an overriding “colonial consciousness” to judicial perceptions on native title provides a possible explanation as to why senior New Zealand judicial authorities, in the wake of Wi Parata, isolated specific statements made by Chapman J to give the misleading impression that The Queen v Symonds anticipated Wi Parata in excluding native title from the jurisdiction of the Courts. Such actions can be explained in terms of the material interests which were served for settler society in legally concluding that the Courts could not recognize (and therefore could not enforce) native title claims against the Crown. Such a conclusion would deny Mâori tribes any native title rights against the Crown enforceable in common law. It would therefore provide the means for resolving the land settlement issue entirely in the Crown’s favour, by leaving all native title issues to the “conscience” of the Crown alone. Indeed this is precisely what the Wi Parata precedent did do. The selective focus on isolated statements within The Queen v Symonds was therefore a convenient means for subsequent Courts to reinforce this Wi Parata precedent by reading the earlier Queen v Symonds judgment as consistent with it.

Such a “colonial consciousness” not only explains how The Queen v Symonds could be systematically misread by New Zealand judicial authorities in the wake of Wi Parata. It also explains how the other early New Zealand native title case, In re ‘The Lundon and Whitaker Claims Act 1871’, could be effectively ignored by these same authorities in so far as it too upheld judicial conclusions contrary to Wi Parata. Indeed, we have seen that this colonial consciousness gave rise to a commitment to Wi Parata that was so strong that, at one point, the New Zealand Solicitor-General argued that In re ‘The Lundon and Whitaker Claims Act 1871’ “could not have been meant to conflict with the judgment in Wi Parata v Bishop of Wellington”, despite the fact that Lundon and Whitaker Claims was decided five years earlier.[95]

However to impute this “colonial consciousness” to New Zealand judges during this period is effectively to accuse them of extreme partiality. It is to suggest that these judges consistently favoured settler over indigenous interests in any legal case involving land issues. Such an accusation therefore places the judicial integrity of these judges in question, in so far as such integrity presupposes impartiality and judicial independence, which in turn is inconsistent with any prior commitment to the interests of particular groups over others in colonial society. Indeed it was precisely this integrity and independence which the New Zealand Court of Appeal felt bound to defend against the Privy Council in 1903. The very tenor of this Protest indicates that New Zealand judges themselves did not perceive their outlook to be distorted by colonial interests. Rather, they suggested the opposite, claiming that their close proximity to New Zealand affairs provided them with a wisdom and insight into New Zealand law which was denied a more distant and remote Privy Council.[96]

Nevertheless it seems that such a presumption of partiality is the only way to explain some of the peculiarities of the New Zealand judiciary’s position on native title during this period, in particular their systematic misreading of The Queen v Symonds in the wake of Wi Parata, and their agonistic desire to defend the Wi Parata precedent at all costs, even at the expense of an open breach with the Privy Council.[97]

Further evidence that such a “colonial consciousness” animated the views of these judges arises from two other sources. These are the expressions of concern, articulated by some Court of Appeal judges, about the “stability” and “security” of land settlement in New Zealand during this period; and the isolated instances where two New Zealand judges actually articulated a doctrine of terra nullius in response to Mâori native title claims.

(a) “Stability” and “Security” of Land Settlement

Within a “settler society”, the acquisition and settlement of territory defines the colonial process. Therefore a central political and legal issue in any settler society is the security of land tenure - and it is concern over this issue which is therefore a defining feature of “colonial consciousness”. One of the clearest pieces of evidence that senior elements of the New Zealand judiciary, from the time of Wi Parata, were informed by this “colonial consciousness”, involves statements by some Court of Appeal judges which clearly reflect these concerns. At various points these judges defended their commitment to Wi Parata, and therefore rejected any attempt to enforce native title claims against the Crown, on the grounds that any movement away from the Wi Parata precedent would undermine the “stability” and “security” of land settlement in New Zealand.[98]

So for instance, in the New Zealand Court of Appeal’s judgment in Nireaha Tamaki v Baker (not to be confused with the Privy Council’s judgment on this case some six years later), Richmond J delivered the judgment of the Court, and argued that the “security of all titles in the country” depends on the “maintenance” of the principle cited in Wi Parata that native title is purely a matter of Crown prerogative, and that the Crown alone must be the sole determinant of justice in such matters.[99]

Similarly, in their Protest against the Privy Council in 1903, the Court of Appeal judges again insisted that any departure from the Wi Parata precedent would threaten the “stability” and “security” of land settlement in New Zealand. Hence in the context of his Protest, Stout CJ said that if the Privy Council dicta in Nireaha Tamaki v Baker were given effect, “... no land title in the Colony would be safe”.[100] Edwards J articulated a similar sentiment, insisting that the Privy Council’s position on native title (involving the rejection of the Wi Parata precedent) placed New Zealand land settlement in jeopardy:

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, recognizing 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.[101]

In all of these statements, there is a clear concern for the stability of colonial land settlement in New Zealand - a settlement which by the late nineteenth century had not only been secured through landmark decisions such as Wi Parata but also through the Crown’s military victory over various Mâori tribes. Not surprisingly therefore, the maintenance of this settlement was an interest which dominated colonial society, and the statements above show that it also animated the views of some of the Court of Appeal judges in their deliberations on native title. Such concerns are a clear example of a “colonial consciousness” at work, in so far as that consciousness is defined by an overriding concern for the material interests of settler society.

(b) Isolated Assertions of Terra Nullius

The doctrine of terra nullius is usually associated with New Zealand’s neighbour across the Tasman. It is rarely associated with New Zealand because the existence of the Treaty, the clear references to native land ownership in successive Crown statutes and ordinances from the time of settlement, and also the existence of the Native Land Court from the 1860s onwards, indicate that Mâori occupation of large segments of New Zealand, on a customary basis that preceded the Crown, was a legally recognised fact.[102] Nevertheless at two points in the history of New Zealand judicial deliberations on native title, New Zealand judges have articulated views which amount to a complete denial of the existence of native title – that is, an assertion of terra nullius. The instances I refer to are aspects of Chief Justice Prendergast’s judgment in Wi Parata, and a view expressed by Stout CJ in his Protest against the Privy Council in 1903. I have already discussed Prendergast CJ’s assertion of terra nullius above. The following is therefore devoted to Stout CJ’s position on the same.

In its judgment in Wallis v Solicitor General for New Zealand, the Privy Council clearly ruled that the Treaty of Waitangi was the legal basis for Mâori land rights in New Zealand.[103] It was this claim which drew some of the most vigorous responses from the Court of Appeal in its “Protest” in 1903. For instance, in the following statement, Stout CJ denied that the Treaty had any status in New Zealand law. But what is even more significant is that in the context of this claim, he went even further and insisted that native title lacks any such existence as well:

It is an incorrect phrase to use to speak of the Treaty as a law. The terms of the Treaty were no doubt binding on the conscience of the Crown. The Courts of the Colony, however, had no jurisdiction or power to give effect to any Treaty obligations. These must be fulfilled by the Crown. All lands of the Colony belonged to the Crown, and it was for the Crown under Letters Patent to grant to the parties to the Treaty such lands as the Crown had agreed to grant. The root of title being in the Crown, the Court could not recognize Native title. This has been ever held to be the law in New Zealand: see Reg v Symonds, decided by their Honours Sir William Martin, C.J., and Mr Justice Chapman in 1847; Wi Parata v Bishop of Wellington, decided by their Honours Sir J. Prendergast and Mr Justice Richmond in 1877, and other cases. Nor did the Privy Council in Nireaha Tamaki v Baker entirely overrule this view, though it did not approve of all the dicta of the Judges in Wi Parata’s case.[104]

The legal position articulated by Stout CJ in this statement is nothing short of extraordinary. While the first part of the statement reflects the conventional and uncontentious view that the Courts have no jurisdiction to take account of the Treaty of Waitangi in and of itself, independent of its embodiment in statute, the rest of the statement amounts to a complete denial of the very existence of native title, thereby according with that element of the Wi Parata judgment which asserted a doctrine of terra nullius.

How did Stout CJ deny the existence of native title in the statement above? His claim that “[t]he root of title being in the Crown, the Court could not recognize Native title” could simply be one more selective (mis)reading of The Queen v Symonds judgment, and Stout CJ did cite this case in the passage above as support for this view. Yet it is not this aspect of the passage above which amounts to a complete denial of native title. Rather it is Stout CJ’s claim that “[a]ll lands of the Colony belonged to the Crown, and it was for the Crown under Letters Patent to grant to the parties to the Treaty such lands as the Crown had agreed to grant”. Such a statement entirely excludes the possibility of native title because it effectively claims that after the Crown’s acquisition of sovereignty in New Zealand, any legal title to land held by either party to the Treaty had to be acquired from the Crown by Crown grant issued under the Letters Patent. Crown grants necessarily exclude the coexistence of native title because the extinction of native title is generally held to be the precondition for the issue of a Crown grant to any piece of land.[105] Consequently, for Stout CJ to claim in the passage above that upon the Crown’s acquisition of sovereignty, all title to land derived from Crown grant, means that he is denying the very existence of native title. Therefore the passage is effectively an assertion that upon the Crown’s acquisition of sovereignty, the territory of New Zealand was rendered terra nullius.

In his statement above, Stout CJ was going much further than Chapman J in The Queen v Symonds. Chapman J had argued that upon the Crown’s acquisition of sovereignty, the Crown had “full and absolute dominion over the soil” in the form of a “seisin in fee” – a full beneficial title which excludes native title.[106] But as we saw, Chapman J’s judgment implied that this absolute title of the Crown only applied to the Crown’s relationship with its non-indigenous subjects. In relation to its indigenous subjects, the Crown recognised the existence of native title.

Similarly, in those parts of Wi Parata where Prendergast CJ accepted the existence of native title but asserted that the Courts could not recognise it, he still allowed that native title could be recognized by the Crown, through its prerogative powers.[107] In contrast, Stout CJ seemed to be in accord with that other aspect of Prendergast CJ’s judgment in suggesting native title does not exist at all.

Consequently, in the context of his assertion of terra nullius in the passage above, Stout CJ’s contention that “[t]he root of title being in the Crown, the Court could not recognize native title”, takes on a new meaning. Rather than following the Wi Parata precedent that the Courts could not recognize native title because it was a matter for the Crown’s prerogative and so outside their jurisdiction, Stout CJ seemed to be saying that the Courts could not recognize native title because native title does not exist at all.

How can Stout CJ claim in his passage above that all title to land derived from Crown grant when it would have been clear that prior to and even after the establishment of such institutions as the Native Land Court, there were vast tracts of land occupied by Mâori to which no Crown grant had been issued, not to mention the various statutes and ordinances which made specific reference to “native lands”? The answer I think is that Stout CJ was thoroughly confused when he made his statement above. He was confused because the three Ordinances which he goes on to cite in support of his view bare absolutely no relation to it.

After Stout CJ cited both The Queen v Symonds and Wi Parata in support of his view that all land title in New Zealand derives from Crown grant, he went on to claim:

There are three Ordinances of the New Zealand Parliament dealing with the subject. These enactments are in accordance with the judgments in the New Zealand cases referred to.[108]

However the passages which Stout CJ quoted from these Ordinances refer not to his claim that all titles to land derive from Crown grant; nor to his claim that only such titles can be recognised in the Courts. Rather, each passage refers to the Crown’s exclusive right of pre-emption over native lands, and the inability of settlers to privately purchase land from Mâori individuals or tribes, when the land of these individuals or tribes is not held under Crown grant.[109]

In other words, Stout CJ’s purported Ordinance evidence, intended to substantiate his claim that all title to land derives from Crown grant, in fact proves the contrary. First, these Ordinances deal with the Crown’s exclusive right of pre-emption over those Mâori lands that do not derive from Crown grant. And secondly, they detail the restrictions placed on settlers when dealing with these same Mâori lands. In other words, these Ordinances clearly presuppose the existence of a form of title (native title) that does not derive from Crown grant, but rather precedes such grants.

Stout CJ concluded that had the Privy Council known of these Ordinances, they would not have made the claim above in Wallis v Solicitor-General concerning native rights under the Treaty of Waitangi, but would “... have said that the natives were not entitled to dispose of lands that had not been granted to them by Crown grant or Letters Patent”.[110] While this is a fair summing up of the legal import of the Ordinances, it certainly does not substantiate Stout CJ’s claim that these Ordinances confirm his earlier proposition that “[a]ll lands of the Colony belonged to the Crown, and it was for the Crown under Letters Patent to grant to the parties to the Treaty such lands as the Crown agreed to grant”.[111] On the contrary, the references in the Ordinances to the Crown’s exclusive right of pre-emption necessarily confirms the existence of native title as a form of title not deriving from Crown grant, since it is this title that the Crown’s pre-emptive right is exercised over. Further, Stout CJ’s claim that these Ordinances meant that “... natives were not entitled to dispose of lands that had not been granted to them by Crown grant or Letters Patent”, far from denying native title, simply refers to the restrictions imposed on Mâori tribes should they attempt to extinguish their native title to any party other than the Crown.

Consequently, Stout CJ’s citation of these Ordinances as substantiation for a statement which denies the existence of native title altogether, is clear evidence of his confusion on the matter, since these Ordinances clearly affirmed the contrary. Either Stout CJ did not understand what was required to support his denial of native title, or he never intended to deny native title in the first place. Perhaps he only meant to affirm the conventional precedent which subsequent Courts derived from Wi Parata - that native tile exists, but is subject to the exclusive prerogative of the Crown? Yet his statements above make no mention of that view. Rather, his claim that, after the Crown’s acquisition of sovereignty, all land title derived from Crown grant, is a clear reference to the sort of terra nullius doctrine which applied in Australia, where the Crown had full and beneficial title to land, unencumbered by any prior native title, and all private property tenures were therefore held of the Crown, in the form of some sort of Crown grant.[112]

In each of these instances, the assertion of terra nullius by Prendergast CJ and Stout CJ was juxtaposed with other elements of their judgments which clearly affirmed the contrary. This would indicate that these assertions were perhaps the outcome of unclear thinking rather than specific intent. But why were such assertions of terra nullius even suggested, when the doctrine was so clearly contrary to all other features of the Mâori-Pakeha settlement in New Zealand and should have appeared anomalous from the start?

Again, I think the only explanation is in terms of the workings of a “colonial consciousness”. The material interests at stake in New Zealand land settlement clearly animated the minds of these judges in ways which were highly defensive of settler interests against any assertions of native title by the indigenous inhabitants. Terra nullius was of course a legal doctrine which had the effect of organising land settlement entirely in the interests of settlers, since it denied the very existence of native title, and therefore removed any problem of its legal recognition or accommodation. One can only assume that both Prendergast CJ, and Stout CJ, in articulating a terra nullius position which departed from the otherwise clearly recognised legal situation in New Zealand (and from other elements of their own judgments) were simply over-zealous in their defence of settler interests, and therefore allowed their “colonial consciousness” to momentarily get in the way of their better legal judgment. In Stout CJ’s case, this occurred in the heat of his Protest against the Privy Council, a Protest which was animated precisely by such settler interests, in the form of a defence of the Wi Parata precedent against recent Privy Council departures.[113]

IV. CONCLUSION

There is clear evidence that significant senior elements of the New Zealand judiciary were fundamentally influenced by an overriding “colonial consciousness” in their rulings on native title in the last quarter of the nineteenth and first decade of the twentieth century. This is most clearly evident in their agonistic desire to uphold the Wi Parata precedent during this period, and the lengths to which they were willing to go in order to do so. This included a systematic misreading of the early native title cases in New Zealand to ensure that they accorded with the later Wi Parata judgment; and also a willingness to engage in open breach with the Privy Council in defence of this precedent. It was not until the Court of Appeal’s judgment in Tamihana Korokai v Solicitor-General, that the New Zealand judiciary ultimately broke from the Wi Parata precedent, in so far as they acknowledged a limited jurisdiction of the municipal Courts over native title issues.[114] But Tamihana Korokai v Solicitor-General did not return to the recognition of native title under common law which had characterised The Queen v Symonds and In re ‘The Lundon and Whitaker Claims Act 1871’. Rather, it only recognized native title on the basis of statute – a position which had characterised the Privy Council’s judgment in Nireaha Tamaki v Baker.[115] According to some authorities, it was not until the High Court’s decision in Te Weehi v Regional Fisheries Officer[116] that the New Zealand Bench finally recognised the status of native title in common law and so finally returned to the opinion of The Queen v Symonds.[117]

Nevertheless the early native title cases which preceded Wi Parata were pioneering in a New Zealand context, particularly in their willingness to uphold a position on native title, and its status in common law, which clearly recognized Mâori rights against the Crown. Indeed, from the perspective of later judicial authorities, these early cases were a little too pioneering, and in the wake of Wi Parata, these later authorities were forced into a state of denial concerning the import of these early cases for native title. However this state of denial was of a peculiar nature. Far from suffering an eclipse, The Queen v Symonds was copiously cited by subsequent New Zealand authorities, but always in a context which systematically focused on those isolated (and therefore misleading) statements which appeared to give credence to the view that the Courts could only recognize land titles deriving from the Crown. This misreading was encouraged by the desire to assimilate The Queen v Symonds to the later Wi Parata precedent, but it was made possible by the Symonds judges’ failure to articulate the background context against which these isolated statements acquired their broader, and very different, meaning.

But ultimately this misreading of The Queen v Symonds, along with the effective overlooking of In re ‘The Lundon and Whitaker Claims Act 1871’, in the years after Wi Parata, can only be explained in terms of a wider “colonial consciousness” which animated the outlook of key senior elements within the New Zealand judiciary at this time, and fundamentally influenced their perceptions on native title. This wider “colonial consciousness” was also demonstrated in the clear concern that some of the judges of this period manifested for the “stability” and “security” of land settlement in New Zealand, where such “stability” and “security” was understood primarily in terms of insulating this settlement from native title claims. It was also revealed in the two isolated instances where New Zealand judges actually went so far as to assert a doctrine of terra nullius within New Zealand law – denying the existence of native title altogether - despite the very different settlement that the Crown had reached with New Zealand’s indigenous tribes, compared to the Crown’s less honourable actions in Australia.

In all these respects therefore, the early native title cases of New Zealand stand as a beacon of judicial independence and fair-mindedness compared to the fate which awaited native title in the years after. They demonstrate such qualities because they reveal no trace of that “colonial consciousness” which had such a distorting influence on judicial perceptions of native title as the century progressed. Whether the judges who delivered these judgments were personally immune from the material interests of the settler society of which they were a part, or whether these interests had yet to coalesce into a series of firm legal predispositions, these cases affirming the common law status of native title were prescient not only for their own time but for over a century afterward, as is evident from the fact that it was not until the 1980s that the New Zealand judiciary finally returned to a common law recognition of native title.


[∗] School of Policy, University of Newcastle, Australia. I would like to thank Neil Foster from the School of Law, University of Newcastle, and Elise Histed, Pamela O’Connor and Sharon Rodrick from the Faculty of Law, Monash University, Australia, for their valuable assistance in helping to decipher the more arcane aspects of “seisin in fee” as it relates to the Crown. I would also 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 Melda Shay, Auchmuty Library, University of Newcastle; Margaret Greville, University of Canterbury, Christchurch.

[1] (1878) 3 NZ Jur (NS) SC 72.

[2] See Nireaha Tamaki v Baker (1894) 12 NZLR 483, at 488, per Richmond J; The Solicitor-General v The Bishop of Wellington and Others (1901) 19 NZLR 665, at 685-86, per Williams J.; Hohepa Wi Neera v The Bishop of Wellington (1902) 21 NZLR (CA) 655 at 667, per Stout CJ; and ibid, at 671-72, per Williams J. Yet although the Wi Parata precedent was upheld by the main line of New Zealand judicial authority until the early years of the twentieth century, there were some minor exceptions. In Mangakahia v The New Zealand Timber Company (1881) 2 NZLR (SC) 345 at 350, Gillies J went so far as to base native title rights on the Treaty of Waitangi: “Theoretically the fee of all lands in the colony is in the Crown, subject nevertheless to the ‘full, exclusive and undisturbed possession of their lands’, guaranteed to the natives by the Treaty of Waitangi which is no such ‘simple nullity’, as it is termed in Wi Parata v Bishop of Wellington...” Gillies J’s suggestion that the Treaty is a legal guarantee of native rights is a position not only at odds with Prendergast in Wi Parata, but also with most subsequent New Zealand judicial authority which has argued that the Treaty (and the rights it embodies) has no force in law independent of the Treaty’s embodiment in statute (See “Wallis and Others v Solicitor General, Protest of Bench and Bar, April 25, 1903”, [1840-1932] NZPCC Appendix, 730, at 732, per Stout CJ; Tamihana Korokai v The Solicitor-General [1912] NZGazLawRp 230; (1912) 32 NZLR 321 (CA), at 354-55, per Chapman J; Te Heuheu Tukino v Aotea District Mâori Land Board [1941], NZLR, 590, at 596-97). Nevertheless, almost 20 years later, Edwards J affirmed Gillies J’s conclusion. (Mueller v The Taupiri Coal-Mines (Limited) (1900) 20 NZLR 89 (CA), at 122). Indeed, Edwards J goes further and argues that the rights embodied in the Treaty of Waitangi, referring to the “full, exclusive, and undisturbed possession” of land, had actually received legislative recognition in the Native Lands Act, 1862 and the Native Rights Act, 1865 (ibid). The clear implication of this claim is therefore that these native title rights, because of their legislative basis, are binding on the Crown. Consequently, it is somewhat contradictory for Edwards J, later in the same paragraph, to also affirm the precedent of Wi Parata - that native title is subject to the prerogative power of the Crown and so is not binding upon it. Nevertheless he does so as follows: “No doubt .... transactions with the Natives for the cession of their title to the Crown are to be regarded as acts of State, and are therefore not examinable by any Court; and any act of the Crown which declares, or, perhaps, merely assumes, that the Native title has been extinguished is conclusive and binding upon all Courts and for all purposes.” (ibid, at 123). Nevertheless, these departures from the Wi Parata precedent are minor ones, because the main line of New Zealand judicial authority, and certainly the one that reached the Privy Council in Nireaha Tamaki v Baker (1900-01) [1840-1932] NZPCC 371 and Wallis v Solicitor General for New Zealand [1903] AC 173, fully affirmed Wi Parata as the authoritative precedent on native title in New Zealand.

[3] See Wi Parata v Bishop of Wellington, supra note 1, at 78-79.

[4] Ibid, at 78.

[5] The ostensible reason for the Court of Appeal’s breach with the Privy Council in 1903 was the injudicious language which the Court of Appeal believed the Privy Council had used in Wallis v Solicitor General for New Zealand, supra note 2, to describe obiter dicta which the Court of Appeal had offered in a previous judgment which the Privy Council was overturning on appeal in this case (see “Wallis and Others v Solicitor General, Protest of Bench and Bar”, supra note 2, at 730, per Stout CJ; at 747, 755-56 per Williams J; at 757, per Edwards J). However it is evident that, despite these protestations, the real 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) broke from the precedent of Wi Parata on native title issues. All of the judges in the Protest, despite their protestations above, criticized the Privy Council’s judgment in Wallis v Solicitor-General in these substantive terms (see ibid, at 732-34, 742-43, per Stout CJ: at 747-48, 749-50, 754-55, per Williams J; at 757, per Edwards J). Indeed, all went as far as to accuse the Privy Council of ignorance of New Zealand law on these and other matters. (ibid, at 732, 737, 743, 745, 746, per Stout CJ; at 756, per Williams J; at 758-59, per Edwards J).

[6] Tamihana Korokai v The Solicitor-General, supra note 2.

[7] Hence in Tamihana Korokai, the Court of Appeal finally followed the Privy Council in acknowledging the statutory enforceability of native title claims against the Crown (see ibid, at 344-45, per Stout CJ). However Paul McHugh points to the face-saving manner in which they did so (see McHugh, “Aboriginal Title in New Zealand Courts” (1984) 2 Canterbury Law Review 251; The Mâori Magna Carta. New Zealand Law and the Treaty of Waitangi (1991) 121).

[8] The Queen v Symonds (1847) N.Z.P.C.C. (SC), 387, and In re ‘The Lundon and Whitaker Claims Act 1871’, 2 NZ CA (1872).

[9] See The Queen v Symonds, supra note 8, at 388, 390, per Chapman J; and at 393-94, per Martin CJ; In re ‘The Lundon and Whitaker Claims Act 1871’, supra note 8, at 49-50, per Arney CJ.

[10] The Queen v Symonds, ibid, at 388, per Chapman J.

[11] That Chapman J included native title among the indigenous rights to which he refers as part of the “settled principles of our law” and the “common law of England” is evident elsewhere in his judgment (see infra, note 82).

[12] In re ‘The Lundon and Whitaker Claims Act 1871’, supra note 8, at 49-50. Paul McHugh points out that the full bench of the Court of Appeal, which decided this case, included Justice Chapman, who had previously delivered one half of the Supreme Court’s decision in The Queen v Symonds (“Aboriginal Title”, supra note 7, at 245).

[13] These principles are fundamental to native title in English common law. As Brennan J stated in the Mabo case: “Where a proprietary title capable of recognition by the common law is found to have been possessed by a community in occupation of a territory, there is no reason why that title should not be recognized as a burden on the Crown’s radical title when the Crown acquires sovereignty over that territory.” (Mabo v Queensland [No. 2] (1992) 175 CLR 1, at 51). So under English common law, native title precedes the Crown’s acquisition of radical title and is a “burden” on it until extinguished by the Crown. All other land titles are not a “burden” on the radical title of the Crown because (unlike native title) they derive directly from the Crown’s radical title (see ibid, at 47-48, per Brennan J).

[14] Wi Parata v Bishop of Wellington, supra note 1, at 79.

[15] “Ancient custom and usage” defines both the identity and content of native title. Native title is “[a] right or interest over land or waters that may be owned, according to traditional laws and customs.... The 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.” (Nygh, Peter E and Butt, Peter (eds) Butterworths Australian Legal Dictionary (1997) 775).

[16] Wi Parata v Bishop of Wellington, supra note 1, at 79.

[17] Ibid, at 77.

[18] Ibid, at 77-78.

[19] Both Paul McHugh and Frederika Hackshaw have pointed to these elements of Prendergast CJ’s judgment in Wi Parata which deny the existence of native title altogether. They have attempted to explain them in terms of the influence on Prendergast of various legal schools of thought, influential in the later part of the nineteenth century (McHugh, Mâori Magna Carta, supra note 7, at 113-14, 116; Hackshaw, “Nineteenth Century Notions of Aboriginal Title and their Influence on the Interpretation of the Treaty of Waitangi”, in Kawharu I H (ed) Waitangi. Mâori and Pakeha Perspectives of the Treaty of Waitangi (1989) 99-101,111). However neither McHugh nor Hackshaw points to the inherent contradiction within Wi Parata between this aspect of Prendergast CJ’s judgment and his subsequent recognition of native title in his discussion of the Crown’s prerogative powers over that title. As we shall see in the text below, McHugh actually sees these two elements in Prendergast CJ’s judgment as complementary rather than contradictory. I discuss what I believe to be the problems with McHugh’s position in the section “Prendergast’s Contradiction” below.

[20] Wi Parata v Bishop of Wellington, supra note 1, at 78-79.

[21] Issues involving sovereign acts of state, such as treaty negotiations between the Crown and indigenous inhabitants, or methods by which the Crown acquires sovereignty in new territories, have generally been held by the Courts to be within the prerogative powers of the Crown and so outside the jurisdiction of the Courts (see Te Heuheu Tukino v Aotea District Mâori Land Board, supra note 2, at 596-97; Mabo v Queensland, supra note 13, at 31-32, per Brennan J).

[22] As Prendergast CJ infamously put it, so far as the Treaty purports to be an instrument of cession by which sovereignty was transferred between Mâori tribes and the British, “... it must be regarded as a simple nullity.” (Wi Parata v Bishop of Wellington, supra note 1, at 78). Prendergast CJ’s reason for arriving at this conclusion was as follows: “No body politic existed capable of making cession of sovereignty, nor could the thing itself exist” (ibid). Consequently, as with his terra nullius claims, where Mâori tribes were deemed incapable of claiming property in their land due to what Prendergast CJ perceived to be an absence of customary law, Prendergast CJ refused to concede that Mâori tribes possessed sovereignty over their land, or possessed the level of political organization and sophistication necessary to formally treat with the Crown for the cession of that sovereignty. Indeed it is this aspect of Prendergast CJ’s judgment, not his contradictory views on native title, for which the Wi Parata case is most notorious.

[23] Wi Parata v Bishop of Wellington, supra note 1, at 78. Paul McHugh has criticized Prendergast CJ’s conclusion that the Crown’s dealings with Mâori over native title were “acts of state”, on the following grounds: “By 1877 the Mâori’s status as British subjects had been long fixed – how then could an ‘act of state’ be made by the Crown against its own subjects?” (McHugh, “Aboriginal Title”, supra note 7, at 247). McHugh points out that a long line of judicial authority had established “... that as between the sovereign and a subject there can be no act of state on British territory....” (ibid, note 55, at 247). See also McHugh, The Mâori Magna Carta, supra note 7, at 114.

[24] Hence elsewhere in his judgment, Prendergast CJ referred to the Crown’s prerogative right of “conclusively determining when the native title has been duly extinguished” (Wi Parata v Bishop of Wellington, supra note 1, at 80). He argued that the exercise of such a prerogative (for instance, in 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).

[25] There are some judicial authorities who interpret the Wi Parata judgment as insisting that the municipal Courts cannot recognize any native title claims whatsoever (see “Wallis and Others v Solicitor General, Protest of Bench and Bar”, supra note 2, at 732, per Stout CJ; at 754-55, per Williams J). Certainly this is how Paul McHugh interprets the Wi Parata precedent, stating: “... Prendergast handed his judges feudal blinkers which saw the sole title to land in the colony as nothing other than Crown-derived....”

(McHugh, Mâori Magna Carta, supra note 7, at 115. See also ibid at 113). And there are times when Prendergast CJ seemed to give some credence to this view, such as when he stated that “...it has been equally clear that the Court could not take cognizance of mere native rights to land.” (Wi Parata v Bishop of Wellington, supra note 1, at 79). However I think such an interpretation of the Wi Parata precedent is too wide. Setting aside those instances in the Wi Parata judgment where Prendergast CJ adopted a fully blown terra nullius position (which as we have seen, was inconsistent with other aspects of his judgment) his references to the municipal Courts being excluded in their jurisdiction over native title generally referred to those instances where the Crown is directly involved, and thereby likely to exercise its prerogative. Hence in discussing the jurisdiction of the Native Land Court, under the Native Rights Act 1865, Prendergast CJ did not exclude all native title matters being referred to that statutory body by the municipal Courts. Rather, he only excluded those matters which directly involve the Crown - since “[t]he Crown, not being named in the statute, is clearly not bound by it” (ibid, at 80). Indeed, he even conceived of a situation where the municipal Courts would have jurisdiction over native title, this being cases where such jurisdiction was actively supported by the Crown. As he put it: “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.” (ibid, at 78, my emphasis). And in addition to such instances where the Court’s jurisdiction was supported by the Crown, Richmond J also suggested that the municipal Courts would have jurisdiction over native title if the Crown was not involved in the claim, allowing the matter to be judicially referred to the Native Land Court: “The Native Rights Act, 1865, declares this Court shall take cognizance of Mâori custom, but the Legislature requires us to send any question of Mâori 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.” (ibid, at 75, per Richmond J, my emphasis). Consequently, I would suggest that far from excluding native title from the jurisdiction of the municipal Courts in total, the Supreme Court in Wi Parata, at those points where it recognised the existence of native title, only excluded it from the jurisdiction of the municipal Courts in those cases where the Crown had indicated it was willing to exercise its prerogative rights in such a way as to exclude that jurisdiction. Prendergast CJ claimed that the existence of a Crown grant was, in itself, sufficient indication of such an intention (see ibid, at 78 and 80. See also supra note 24 and infra note 94).

[26] McHugh, Mâori Magna Carta, supra note 7, at 114.

[27] The most pointed evidence that Prendergast CJ intended his denial of native title to be a denial in fact as well as in law, is that when he was confronted with clear references to native title in law, his response was to deny the existence of such title in fact. This is the meaning behind his statement that “... a phrase in a statute cannot call what is non-existent into being.” (Wi Parata v Bishop of Wellington, supra note 1, at 79).

[28] Ibid, at 79.

[29] Ibid, at 80.

[30] Ibid, at 80.

[31] See ibid, at 80. Prendergast CJ also claims, I think correctly, that Chapman J was mistaken in his understanding of the precedent to which he believed these US authorities gave rise. See infra note 82.

[32] A finding that the Courts can only recognize titles deriving from the Crown necessarily excludes native title from Court jurisdiction because native title is the one form of legal land title that does not derive from the Crown (see Mangakahia v The New Zealand Timber Co, supra note 2, at 350-51, per Gillies J; Mabo v Queensland, supra note 13, at 64, per Brennan J). Rather, because native title derives from traditional laws and customs which precede the Crown, it pre-exists the Crown as a form of title. Native title is therefore a “burden” on the Crown’s radical title once the Crown acquires sovereignty, rather than deriving from that radical title as all other land titles in colonial territory do (Mabo v Queensland, ibid, at 51, per Brennan J). It is because he sees native title as a form of title which precedes the Crown, that Justice Brennan in the Mabo judgment can refer to native title as “surviving” the Crown’s acquisition of sovereignty (ibid, at 69).

[33] Hohepa Wi Neera v The Bishop of Wellington, supra note 2, at 665-666, per Stout CJ.

[34] On the Crown as the source of all private title, as referred to in Stout CJ’s passage above, see infra notes 49 to 51.

[35]Wallis and Others v Solicitor General, Protest of Bench and Bar”, supra note 2, at 732, per Stout CJ.

[36] Tamihana Korokai v Solicitor-General, supra note 2, at 344, per Stout CJ.

[37]Wallis and Others v Solicitor General, Protest of Bench and Bar”, supra note 2, at 750, per Williams J.

[38] Ibid, at 757, per Edwards J.

[39] Needless to say, such a conclusion by Edwards J was somewhat at odds with his position in Mueller v The Taupiri Coal-Mines (Limited), discussed supra note 2, where he held that the native land rights in the Treaty of Waitangi had received legislative recognition (a position very much at odds with Wi Parata). Yet as we saw, he also attempted, at the risk of severe contradiction, to uphold the Wi Parata precedent in the same judgment.

[40] For evidence that such “unanimity” was largely appearance rather than fact, see the reference to Gillies J’s judgment in the Mangakahia case, supra note 2.

[41]Wallis and Others v Solicitor General, Protest of Bench and Bar”, supra note 2, at 754-55, per Williams J.

[42] Nireaha Tamaki v Baker, supra note 2, at 384.

[43] See Ibid, at 382.

[44] In this respect I would disagree with David Williams’ claim that The Queen v Symonds “....suffered a long period of total eclipse and only now in these latter days [has] waxed once again.” (Williams, “The Queen v Symonds Reconsidered” (1989) 19 Victoria University of Wellington Law Review 385). Such a statement assumes that the precedent of The Queen v Symonds was effectively ignored or forgotten by subsequent judicial authorities. On the contrary, as we have seen, this judgment was copiously cited, but in a selective manner which allowed the judgment to be interpreted as authority for what it was not. In this respect I would say that The Queen v Symonds suffered not so much a “total eclipse” as a long period of selective (mis)interpretation.

[45] Tamihana Korokai v The Solicitor-General, supra note 2, at 332, per Solicitor-General.

[46] This capacity to see the two precedents as consistent is even more astounding when one considers the broad context of the two cases. Wi Parata was a case where the Supreme Court refused to bind the Crown on native title matters, on the grounds that this would be a gross intrusion on the Crown’s prerogative powers. It held, therefore, that such matters were outside its jurisdiction. In the case of The Queen v Symonds however, far from the Court excluding native title matters involving the Crown from its own jurisdiction, the entire case was an exercise of such jurisdiction. The issue in The Queen v Symonds was whether the Crown could waive its exclusive right of pre-emption over native title. Far from accepting the Crown’s declaration on the matter at face value, as the Court would be obliged to do if they considered native title matters a question of Crown prerogative, both judges in this case adjudicated on the issue at hand. By this example alone they clearly affirmed their belief that matters of native title fell within the jurisdiction of the municipal Courts, even when they involved the Crown.

[47] Despite the more ostensible pretexts for the Court of Appeal’s Protest against the Privy Council in 1903, the real factors animating the Protest was the desire to defend the Wi Parata precedent against recent Privy Council departures (see supra note 5).

[48] See the section “Subsequent (Mis)Readings” above.

[49] The Queen v Symonds, supra note 8, at 388, per Chapman J.

[50] Under the English system of common law, land is held as an “estate” from the Crown, rather than possessed outright, because the doctrine of “tenure” within common law means that one does not own land but rather possesses an “estate” in it, derived from the Crown: “Ownership of an estate in land is to be distinguished from ownership of the land itself, which in theory resides solely in the Crown.” (Nygh and Butt, supra note 15, 1060). Effectively therefore, all landholders hold “estates” in land derived from the Crown, and so are theoretically “tenants” of the Crown (see Chambers, Robert, An Introduction to Property Law in Australia (2001) 89).

[51] As Blackstone stated: “[I]t became a fundamental maxim, and necessary principle (though in reality a mere fiction) of our English tenures, ‘that the king is the universal lord and original proprietor of all the lands in his kingdom; and that no man doth or can possess any part of it, but what has mediately or immediately been derived as a gift from him, to be held upon feudal services’. For, this being the real case in pure, original, proper feuds, other nations who adopted this system were obliged to act upon the same supposition, as a substruction and foundation of their new polity, though the fact was indeed far otherwise.” (Blackstone, Commentaries on the Laws of England. Vol. II (1979) ch. 4, 51; see Mabo v Queensland, supra note 13, at 46-47, per Brennan J). The contemporary outcome of this doctrine is that the Crown is considered to have ultimate or radical title over all land, and others merely “hold” their land as a form of tenure from the Crown.

[52] Concerning newly discovered territory, Blackstone made a fundamental distinction between “desart and uncultivated” land, where a right of discovery and occupancy (“settlement”) is sufficient to validate the Crown’s claim to possession, and land “already cultivated”, where conquest or cession are the only valid means of the Crown acquiring possession. As Blackstone states: “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.” (Blackstone, Commentaries on the Laws of England, Vol. 1, supra note 51, at 104-105). Blackstone’s reference to “desart and uncultivated” lands clearly refers to a situation of terra nullius, where the Crown acquires not only sovereignty but full beneficial title to all territory upon discovery, occupation and settlement, and where the laws of the Crown apply in full (see Mabo v Queensland, supra note 13, at 32, 48, per Brennan J; at 77, per Deane and Gaudron JJ; at 180, per Toohey J). But in using the phrase “desart and uncultivated”, was Blackstone ascribing 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 (see King, Robert J, “Terra Australis: Terra Nullius aut Terra Aboriginum?”, (1986) 72, 2, Journal of the Royal Australian Historical Society, 79-80; Reynolds, Henry, The Law of the Land (2ed 1992) 33-34). However, regardless of Blackstone’s own intentions, the legal consequences that he associated with his conception of “desart and uncultivated” land came in time to be applied by English judicial authorities to some inhabited lands as well, such as Australia, thereby expanding the doctrine of terra nullius (and all its legal consequences) to include the indigenous inhabitants of these colonial territories (see Cooper v Stuart Vol. XIV, J.C. (1889), 286 at 291).

[53] However for a contrary view, see McHugh, “Aboriginal Title”, supra note 7, at 239, who claims that New Zealand was perceived by colonial authorities at the time as a “settled” colony – that is, one in which the Crown’s sovereignty and title derived from discovery and settlement alone.

[54] See the passage from Blackstone, supra note 52.

[55] The Queen v Symonds, supra note 8, at 388-89, per Chapman J.

[56] Ibid, at 388, per Chapman J.

[57] Ibid at 390, per Chapman J. Despite this apparent assertion of native title by Chapman J, David Williams has argued that Chapman J’s reference to the Australian Waste Lands Act 1842 (see ibid at 392-93), as an additional basis for rejecting McIntosh’s claim in the Symonds case, undermines any “affirmation of Mâori rights and the Treaty of Waitangi” associated with that case (see Williams, supra note 44, at 395). However Williams’ reasoning is not self-evident here. Firstly, in interpreting s. 5 of the Australian Waste Lands Act as extending the “formalities prescribed by the Act” to land subject to native title, Chapman J clearly distinguishes such land from waste land itself. The native title is an example of the “less estate or interest” which Chapman J referred to, whereas “waste land” is land “the [Crown] title to which was complete” (The Queen v Symonds, supra note 8, at 392-93, per Chapman J). So in extending the Act to land subject to native title, Chapman J was not saying that this native title is now in some way extinguished, because the land in question is now “waste land” of the Crown. He was simply extending the requirements of the Act to land subject to “any less estate or interest” (ibid, at 393). Further, in claiming that McIntosh’s land only becomes waste lands of the Crown after the native title has been extinguished by McIntosh’s purchase (see ibid at 393), Chapman J was once again distinguishing land subject to native title from waste lands of the Crown. Consequently, Chapman J’s extension of the Australian Waste Lands Act to the facts of the case was in no way inconsistent with his broader defence of native title at common law elsewhere in his judgment.

[58] Similarly, in referring to the Crown’s exclusive right of pre-emption over Mâori lands, which is upheld in the Treaty of Waitangi, Martin CJ stated that the principle itself does not derive its authority from the Treaty, but rather was already accepted legal practice, and so already bound the Crown and its subjects, independent of any treaty negotiated with the Mâori tribes: “This right of the Crown, as between the Crown and its British subjects, is not derived from the Treaty of Waitangi; nor could that Treaty alter it. Whether the assent of the natives went to the full length of the principle, or (as is contended [by the claimant in the present case]) to a part only, yet the principle itself was already established and in force between the Queen and Her British subjects.” (ibid, supra note 8, at 395, per Martin CJ, my addition).

[59] As Chapman J stated: “The legal doctrine as to the exclusive right of the Queen to extinguish the Native title... operates only as a restraint upon the purchasing capacity of the Queen’s European subjects, leaving the Natives to deal among themselves, as freely as before the commencement of our intercourse with them....” (ibid, at 391, per Chapman J).

[60] David Williams has pointed out that the facts of the case were politically contrived by the colonial authorities of the time in order to settle the disputed legal status of the Crown Pre-emption Certificates that had been issued under the previous governorship of Captain Robert Fitzroy (Williams, supra note 44, at 388. See also Spiller, “Chapman J. and the Symonds Case” (1990) 4 Canterbury Law Review 259-60; Hackshaw, supra note 19, at 102-105). Both the claimant and the defendant agreed to undergo legal proceedings in order to resolve this issue. The Governor, Captain George Grey, issued a Crown grant to John Jermyn Symonds, the Native Secretary and Protector of Aborigines, precisely for this purpose (Williams, supra note 44, at 389-90). The grant deliberately ceded land which already fell within the Crown Pre-emption Certificate previously acquired by C Hunter McIntosh, who had been Secretary to the Land Commission during the previous governorship of Captain Fitzroy (ibid, at 388). The legal conflict requiring resolution had thereby been created.

[61] See Queen v Symonds, supra note 8, at 388-89, per Chapman J.

[62] See ibid, at 387, per Chapman J.

[63] Ibid, at 388, per Chapman J.

[64] See ibid, at 392, per Chapman J, at 398, per Martin CJ.

[65] Ibid, at 389-90, per Chapman J. Chapman J qualifies this claim by pointing out that any private action on the part of a subject to purchase land from indigenous inhabitants, thereby violating the Crown’s exclusive right of pre-emption, is not an entirely futile action. Such a purchase would conceivably be upheld in law against any party other than the Crown. As Chapman J states: “To say that such purchases are absolutely null and void, however, is obviously going too far. If care be taken to purchase off the true owners, and to get in all outstanding claims, the purchases are good as against the Native seller, but not against the Crown. In like manner, though discovery, followed by occupation vests nothing in the subject, yet it is good against all the world except the Queen who takes. All that the law predicates of such acquisitions is that they are null and void as against the Crown: and why? because ‘the Queen is the exclusive source of title’” (ibid, 390. My emphasis).

[66] See supra note 59.

[67] This is evident in the nature of the Crown’s exclusive right of pre-emption itself, which is a right over a source of title (native title) which does not derive from the Crown. Yet it is important to clear up a possible source of confusion here. When I state in the text above that the Crown is not the sole source of title in relation to Mâori, I mean that the Crown recognizes among Mâori a native title which is based on sources (customary law) which precede the Crown’s acquisition of sovereignty. In this respect, native title does not “derive” from the ultimate or radical title of the Crown, as all other land titles do. Rather, it precedes this ultimate title of the Crown and is a “burden” upon it (see supra notes 13 and 32). Yet in claiming that the Crown is not the sole source of title in relation to Mâori, I am not claiming that the Crown does not exercise radical or ultimate title in relation to them. Such radical or ultimate title is just as enforceable against the Crown’s Mâori subjects as against its Pakeha ones (see Mabo v Queensland, supra note 13, at 63-65, 69-70, per Brennan J on the Crown’s capacity to extinguish native title on the basis of its radical title). As such, my point is that although the Crown is the ultimate source of title in relation to Mâori, it is not the “sole” or “exclusive” source of title, because in the case of Mâori, the Crown recognizes forms of title (“customary” or “native” title) which do not directly “derive” from the Crown’s ultimate title, but rather “precede” that title, having been in existence prior to the Crown’s acquisition of sovereignty.

[68] Indeed, this “dual relationship” is also evident in Governor Fitzroy’s Proclamation, upon which the claimant, Mr McIntosh, relied for his claims, and whose concluding passage is quoted by Martin CJ in his judgment as follows: “The public are reminded that no title to land in this Colony, held or claimed by any person not an aboriginal Native of the same, is valid in the eye of the law, or otherwise than null and void, unless confirmed by a grant from the Crown.” (The Queen v Symonds, supra note 8, at 398, per Martin CJ). In this statement, Governor Fitzroy clearly assumes that it is only in relation to non-indigenous subjects that all land titles must derive from the Crown. “Aboriginal Natives” are excepted.

[69] “Seisin in fee” is often thought to extinguish any prior claim to native title, because it refers to a freehold estate derived from the Crown (see infra note 71). Given that freehold is the most complete form of tenure one can hold from the Crown, it would in ordinary circumstances be presumed to have extinguished any prior incompatible titles attached to the same land. Hence in the Mabo judgment, it was widely held that the Crown’s alienation of land, through the issue of a land grant, automatically extinguished the native title, since the granting of such tenure clearly indicated an intention on the part of the Crown to extinguish any previously existing incompatible titles (see Mabo v Queensland, supra note 13, at 64-65, 69-70, per Brennan J; at 89-90, per Deane and Gaudron JJ).

[70] The Queen v Symonds, supra note 8, at 391-92, per Chapman J.

[71] See Nygh and Butt, supra note 15, at 1060. See also Chambers, supra note 50, at 90. Indeed, the only form of title which is not held in the form of tenure from the Crown is native title, because native title does not derive from the Crown, and so is not held in the form of a Crown grant (see Nygh and Butt, supra note 15, at 1157. See also supra note 13 and 32).

[72] Chambers, supra note 50, at 86.

[73] Radical title does not refer to such an absolute or full (allodial) possession of the land. Rather, as Brennan J states, “[T]he radical title, without more, is merely a logical postulate required to support the doctrine of tenure (when the Crown has exercised its sovereign power to grant an interest in land) and to support the plenary title of the Crown (where the Crown has exercised its sovereign power to appropriate to itself ownership of parcels of land within the Crown’s territory).” (Mabo v Queensland, supra note 13, at 50, per Brennan J. See also ibid, at 47-48, per Brennan J). Because radical title does not, in itself, give rise to the full or absolute possession of the land on behalf of the Crown (only providing the means for the Crown to acquire this full title if it wishes) it is consistent with the maintenance of native title (see ibid, at 50-51, per Brennan J. See also supra note 13 and 32).

[74] Brennan J distinguished the allodial title of the Crown from radical title in cases of colonization as follows: “If the land were deserted and uninhabited, truly a terra nullius, the Crown would take an absolute beneficial title (an allodial title) to the land.....there would be no other proprietor. But if the land were occupied by the indigenous inhabitants and their rights and interests in the land are recognized by the common law, the radical title which is acquired with the acquisition of sovereignty cannot itself be taken to confer an absolute beneficial title to the occupied land.” (Mabo v Queensland, supra note 13, at 48, per Brennan J.).

[75] See supra note 13 and 32.

[76] Whereas Chapman J appears to confuse “seisin-in-fee” with allodial title, other judges have confused or conflated “seisin in fee” with radical title, referring to the two as if they were synonymous. This is evident in the Privy Council’s judgment in Nireaha Tamaki v Baker, supra note 2, at 379, where Lord Davey uses the two terms as if they were interchangeable: “[T]he Native title of possession and occupancy [is not] inconsistent with the seisin in fee of the Crown. Indeed, by asserting his Native title, the appellant impliedly asserts and relies on the radical title of the Crown as the basis of his own title of occupancy or possession.” (my addition). Indeed, the mistaken tendency for judges to define the Crown’s or (in the case of the United States) the state’s radical title as “seisin-in-fee” goes back a long way. For instance, Marshall CJ made the following claim in one of the earliest American Indian title cases: “It was doubted whether a state can be seized in fee of lands, subject to the Indian title... The majority of the court is of opinion that the nature of the Indian title, which is certainly to be respected by all courts, until it be legitimately extinguished, is not such as to be absolutely repugnant to seisin in fee on the part of the state.” (Fletcher v Peck 10 US [1810] USSC 10; (6 Cranch) 87 (1810), at 142-43). Again, for the reasons outlined earlier, I think it is misleading for the Crown/state’s radical title to be defined as “seisin-in-fee”. As we have seen, “seisin-in-fee” is a form of tenure (freehold estate) that the Crown issues to its subjects in the form of a Crown grant, subject to the continuing radical title of the Crown. This indicates that “seisin-in-fee” and “radical title” are in no way synonymous. Perhaps what the authors of the erroneous statements above meant to convey is that the Crown has sufficient title over the land to issue grants in fee to others, allowing these others to then be “seised” of them. Such a statement would have meaning in law, but is quite different from the ostensible (and erroneous) import of the statements above - that the Crown’s ultimate or radical title to land is itself a form of “seisin-in-fee”.

[77] The Queen v Symonds, supra note 8, at 391, per Chapman J.

[78] Ibid.

[79] See supra note 73 and 74.

[80] See supra note 13 and 32.

[81] As Chapman J stated above: “As a necessary corollary from the doctrine, ‘that the Queen is the exclusive source of private title’, the colonial Courts have invariably held (subject of course to the rules of prescription in the older colonies) that they cannot give effect to any title not derived from the Crown (or from the representative of the Crown, duly authorized to make grants), verified by letters patent.” (The Queen v Symonds, supra note 8, at 388).

[82] Ibid, at 390, per Chapman J. However as Prendergast CJ pointed out in his Wi Parata judgment some thirty years later, Chapman J erroneously cited the US Supreme Court in support of his position here (see Wi Parata v Bishop of Wellington, supra note 1 at 81). I believe Prendergast CJ is correct that Chapman was mistaken in his interpretation of this US precedent. Although within this US case Marshall CJ recognized the native title of Indian tribes (see The Cherokee Nation v The State of Georgia (1831), 30 US [1831] USSC 6; (5 Pet) 1 at 17), nevertheless he did not believe that they had the capacity to enforce such title within the Supreme Court. This is because, although he held that these tribes have the status of “domestic dependent nations” (ibid), nevertheless they lacked the status of “foreign states” over which, under the Constitution, the Supreme Court would have “original jurisdiction” in any case arising (see The Constitution of the United States, Article III, Section 2). As Marshall CJ put it: “The Court has bestowed its best attention on this question, and, after mature deliberation, the majority is of opinion that an Indian tribe or nation within the United States is not a foreign state in the sense of the Constitution, and cannot maintain an action in the courts of the United States” (The Cherokee Nation v The State of Georgia, ibid, at 20). Hence Marshall CJ concludes: “If it be true that the Cherokee Nation have rights, this is not the tribunal in which those rights are to be asserted. If it be true that wrongs have been inflicted, and that still greater are to be apprehended, this is not the tribunal which can redress the past or prevent the future.” (ibid).

[83] The Queen v Symonds, supra note 8, at 390, per Chapman J.

[84] The primary difference in the legal status of American Indians compared to New Zealand Mâori arose from the early Indian cases adjudicated on by the US Supreme Court. The Court indicated very early that it considered the Indian tribes of the United States to have the status of “domestic dependent nations” – or in other words, to be “nations” within a nation. As Marshall CJ put it in 1831: “Though the Indians are acknowledged to have an unquestionable, and, heretofore, unquestioned right to the lands they occupy until that right shall be extinguished by a voluntary cession to our government, yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations.” (The Cherokee Nation v The State of Georgia, supra note 82, at 17). However this status of “domestic dependent nations” did not imply that the Indian tribes had sovereignty relative to the United States as a whole. On the contrary, as Marshall CJ stated: “They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connection with them, would be considered by all as an invasion of our territory, and an act of hostility.” (ibid, at 17-18).

[85] Indeed, Chapman J justified this concern to discourage such acts of private purchase by pointing to the deleterious effects that he believed such a practice could have on the welfare of the Mâori tribes, through the rapid dispossession of their land (see The Queen v Symonds, supra note 8, at 391, per Chapman J). He therefore presented the maintenance of the Crown’s exclusive right of pre-emption as a humanitarian principle protective of Mâori welfare (ibid). However David Williams has challenged the idea that the Crown’s exclusive right of pre-emption worked in this manner, insisting that it often had the opposite effect, placing the Crown in a monopoly position in relation to the sale of Mâori lands, to the disadvantage of the Mâori themselves (see supra note 44, at 395-98). Williams insisted that the real purpose behind the Crown’s insistence on its exclusive right of pre-emption was “as a device to maintain Crown control over colonization [rather] than to protect Mâori interests” (ibid, 397, my addition). Indeed, the reasoning of Martin CJ in the Symonds case comes far closer to this view of the matter, when he justifies the “rule” concerning the Crown’s exclusive right of pre-emption precisely in terms of the Crown’s desire to control the colonisation process. He stated: “It may well be presumed that a rule so strict and apparently severe, and yet so generally received, must be founded on some principle of great and general concernment.... The principle is apparently this: that colonization is a work of national concernment, a work to be carried on with reference to the interests of the nation collectively; and therefore to be controlled and guided by the Supreme Power of the nation.” (The Queen v Symonds, supra note 8, at 395, per Martin CJ).

[86] Ibid, at 393-94, per Martin CJ.

[87] As Martin CJ stated: “The very full discussion of this subject in the judgment of my learned brother, Mr. Justice Chapman, renders it superfluous for me to enter further upon the question” (ibid, at 393).

[88] Chancellor Kent, Commentaries on American Law, Vol 3, at 385, cited in The Queen v Symonds, supra note 8, at 394, per Martin CJ.

[89] Supra note 88.

[90] See supra note 86.

[91] The few minor exceptions to Wi Parata’s judicial legacy in the second half of the nineteenth century are outlined in supra note 2.

[92] See Orange, Claudia, The Treaty of Waitangi (1989) ch. 8.

[93] Hence Stout CJ referred to the Native Rights Act, 1865, and said: “It ought to be remembered that, if this Act had been read as an Act authorising an individual Mâori to sue for possession of tribal land, the result of an interference by the Supreme Court with such land would have in some instances created a civil war.” (Hohepa Wi Neera v The Bishop of Wellington, supra note 2, at 666). Indeed he points out: “It is well known that in many parts of the colony the sittings of the Native Land Court had to be suspended after 1865 in order that the peace might be preserved.” (ibid). This was the wider political context in which New Zealand judicial decisions on native title were arrived at in the latter half of the nineteenth century, and it would not be surprising if it exerted some influence on New Zealand judges in their deliberations on the legal issues before them.

[94] Prendergast CJ gave voice to this concern in the Wi Parata judgment when he suggested that any interpretation of the Native Rights Act 1865 which gave the Courts power to enforce native title claims against the Crown “would be indeed a most alarming consequence”, because it would enable “... persons of the native race to call in question any Crown title in this Court.” (Wi Parata v Bishop of Wellington, supra note 1, at 79). Needless to say, the Chief Justice avoided any such possibility in Wi Parata, firstly by declaring that the Crown was not bound by the Native Rights Act 1865 (see ibid, at 80); and secondly by declaring that the very existence of a Crown grant was itself sufficient declaration by the Crown that the native title had been lawfully extinguished, and that this declaration was binding on the Courts (ibid, at 78). In this way, the Wi Parata precedent ensured against the possibility that existing Crown grants might be challenged on the basis that the prior native title had not been lawfully extinguished, because the precedent held that the very existence of the grants themselves was sufficient proof of their own lawful validity.

[95] See Tamihana Korokai v The Solicitor-General, supra note 2, at 332, per Solicitor-General.

[96] See “Wallis and Others v Solicitor General, Protest of Bench and Bar”, supra note 2 at 758-59, per Edwards J. See also supra note 5, which details those points in the Protest where the Court of Appeal judges accused the Privy Council judges of ignorance concerning New Zealand law.

[97] See supra note 5 which explains that the underlying motive animating the Court of Appeal’s Protest against the Privy Council in 1903 was indeed the Privy Council’s departure from the Wi Parata precedent in Nireaha Tamaki v Baker and Wallis v Solicitor General (supra note 2).

[98] See supra note 94, where Prendergast CJ expresses the same concerns concerning “security” of land settlement in New Zealand, and the threat posed to it by native title.

[99] See Nireaha Tamaki v Baker, supra note 2, at 488.

[100]Wallis and Others v Solicitor General, Protest of Bench and Bar”, supra note 2, at 746, per Stout CJ.

[101] Ibid, at 757, per Edwards J. Needless to say, the Crown shared these concerns about the stability and security of land settlement. In his presentation of the Crown’s evidence in Tamihana Korokai v The Solicitor-General, supra note 2, at 331-32, the Solicitor-General asserted the view that “Native title is not available in any manner and for any purpose against the Crown”, and defended this principle in terms of the security of existing land title, stating: “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.” (my emphasis). The Solicitor-General then concluded that this outcome could only be avoided if the principle that the Crown is the ultimate judge of its own conduct in native title matters (in other words, the Wi Parata precedent) were maintained. As he put it: “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.....There is no known method upon which the validity of a cession 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 jeopardized.” (ibid, at 331, 332, my emphasis).

[102] Indeed, as Chapman J stated in his Tamihana Korokai judgment: “The creation of [the Native land Court] shows that Native titles have always been regarded as having an actual existence.” (ibid, at 356 per Chapman J, my addition).

[103] As Lord Macnaghten put it: “As the law then stood under the Treaty of Waitangi, the chiefs and tribes of New Zealand, and the respective families and individuals thereof, were guaranteed in the exclusive and undisturbed possession of their lands so long as they desired to possess them, and they were also entitled to dispose of their lands as they pleased, subject only to a right of pre-emption in the Crown.” (Wallis v Solicitor-General, supra note 2, at 179).

[104]Wallis and Others v Solicitor General, Protest of Bench and Bar”, at 732, per Stout CJ. See ibid at 747-48, per Williams J. Stout CJ’s claim at the end of this passage that the judgment of the Privy Council in Nireaha Tamaki v Baker “does not entirely overrule this view” [that is, that “[t]he root of title being in the Crown, the Court could not recognize Native title”] is clearly disingenuous since Lord Davey insisted that the Courts could recognize (and enforce) native title so long as it fell within the boundaries of statute (see Nireaha Tamaki v Baker, supra note 2, at 382-83).

[105] See supra note 69.

[106] The Queen v Symonds, supra note 8, at 391, per Chapman J. On the problems associated with Chapman J describing the Crown’s ultimate title to land as a ‘seisin in fee’, see the section “Native Title and ‘Seisin in Fee’” supra.

[107] See Wi Parata v Bishop of Wellington, supra note 1, at 78-79.

[108]Wallis and Others v Solicitor General, Protest of Bench and Bar”, supra note 2, at 732, per Stout CJ.

[109] On this latter point see the Native Land Purchase Ordinance, 1846, s. 1, cited by Stout CJ, ibid, at 733.

[110] Ibid, at 733, per Stout CJ.

[111] Ibid, at 732, per Stout CJ.

[112] See Cooper v Stuart, supra note 52, at 291, 292; Mabo v Queensland, supra note 13, at 26-28, per Brennan J.

[113] See supra note 5 as to the underlying motive for this Protest.

[114] See supra note 7.

[115] See Nireaha Tamaki v Baker, supra note 2, at 382. Indeed it was precisely because the judges in Tamihana Korokai v Solicitor-General did not recognise the status of native title in common law that they refused to accept that the municipal Courts had jurisdiction to inquire into native title as an end in itself. Rather, they insisted that the jurisdiction of the municipal Courts only extended to binding the Crown over to the Native Land Court under the terms of the Native Land Act 1909. As Edwards J stated in that case: “The Supreme Court has no jurisdiction to inquire into purely Native titles, nor can it investigate questions arising out of the procedure and practice of the Native Land Court so long as that Court confines itself within the limits of its peculiar jurisdiction. The Supreme Court has, however, jurisdiction to interpret the statutes to which the Native Land Court owes its existence and its jurisdiction; to confine that Court within the limits of that jurisdiction if it is being exceeded; and to compel that Court to exercise its jurisdiction if, for some fancied reason not arising out of Native customs and usages, it refuses or fails to do so.” (Tamihana Korokai v The Solicitor-General, supra note 2, at 349, per Edwards J.).

[116] [1986] NZHC 149; [1986] 1 NZLR 680 (HC).

[117] See McHugh, The Mâori Magna Carta, supra note 7, at 130-31. However Frederika Hackshaw has argued that although Te Weehi v Regional Fisheries Officer recognized traditional Mâori fishing rights at common law, “[t]he finding does not.....affect the statutory bar which operates against the enforcement of customary rights based on aboriginal title to land.....” (Hackshaw, supra note 19, at 116). This “statutory bar” refers to the various attempts by the New Zealand legislature to enshrine the Wi Parata precedent in legislation by protecting the Crown from native title claims. Such an attempt was evident in section 84 of the Native Land Act 1909 which stated: “Save so far as otherwise expressly provided in any other Act the Native customary title to land shall not be available or enforceable as against His Majesty the King by any proceedings in any Court or in any other manner.” (Native Land Act [1909] 9 Edw VII. No. 15, s 84, in The Statutes of the Dominion of New Zealand [1909] at 181). However it is important to note that this Act and the statutes which came after it did not deny the existence of native title, and therefore are not an attempt to reassert the terra nullius aspects of Wi Parata. Rather, as Stout CJ argued in Tamihana Korokai v Solicitor General, supra note 2, at 344, 345, the 1909 Act constitutes a statutory recognition of native title, and requires the Crown to abide by specific procedures for its extinguishment. Indeed far from denying native title, section 90 of the Act reserved to the Native Land Court the “.....exclusive jurisdiction to investigate the title to customary land, and to determine the relative interests of the owners thereof.” (Native Land Act 1909, section 90).


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