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THE PRIVY COUNCIL AND NATIVE TITLE:
A REQUIEM FOR WI PARATA?
The New Zealand Supreme Court’s decision in Wi Parata v Bishop of Wellington[1] was nothing less than a watershed in New Zealand legal history. And this for reasons other than those usually thought. Chief Justice Prendergast’s Wi Parata judgment is infamous in New Zealand judicial annals for its dismissal of the Treaty as a “simple nullity”.[2] Paul McHugh has referred to this aspect of the judgment as “notorious”, and the case is widely remembered for this reason.[3] However, far from its statements on the Treaty being of overriding importance, it is the precedent which Wi Parata established for native title in New Zealand which was to have the most widespread legal ramifications over the next three decades.[4] Subsequent New Zealand Courts clung to this precedent with great tenacity, even to the point of an open breach with the Privy Council.
This article focuses on the two Privy Council decisions which, more than any other, overturned much of the Wi Parata precedent on native title. These were the judgments of Nireaha Tamaki v Baker,[5] delivered in 1900-01, and Wallis v Solicitor-General,[6] delivered in 1903. The article also focuses on the response of New Zealand’s highest Court, the Court of Appeal, to these Privy Council departures. This response took the highly unprecedented form of a formal protest against the Privy Council. This protest ostensibly concerned the provocative use of language adopted by the Privy Council in its Wallis judgment where, at one point, it suggested that the New Zealand Court of Appeal lacked sufficient independence from the New Zealand executive authorities.[7] But, as we shall see, the underlying issue motivating the Court of Appeal’s animus towards the Privy Council was the extent to which the Privy Council had departed from the Wi Parata precedent and, in the opinion of these New Zealand judges, endangered the stability and security of land settlement in New Zealand as a result.
What these conflicts suggest is that, in the late 19th and early parts of the 20th centuries, native title was not some arcane legal doctrine of little material interest to New Zealand settler society. On the contrary, it struck at the very heart of settler interests. This explains the extraordinary lengths to which the New Zealand Court of Appeal was willing to go in its defence of the Wi Parata precedent – a precedent which, it believed, guaranteed the security of land titles in New Zealand from native title challenge.
Wi Parata guaranteed the security of land titles in New Zealand primarily because it insulated the Crown from all unwanted native title claims. All land held by settlers in New Zealand was held by some form of grant issued by the Crown.[8] As a prelude to the issue of these grants, the native title to the land covered by the grant had to be lawfully extinguished by the Crown. This was recognised by the New Zealand Supreme Court in The Queen v Symonds, in 1847, and the role of the Crown in extinguishing that title was exclusive.[9] However, since the 1860s, there had been in existence a statutory body known as the Native Land Court, whose purpose was to investigate the native titles of Maori and issue a freehold certificate to all native title-holders for the land that they claimed.[10] Maori could have their native title claims investigated in the Native Land Court either by applying directly to the Court or having their case referred to that body by a municipal Court.[11] Under the legislation of the time, the decisions of the Native Land Court concerning native title were “conclusive” for the municipal Courts, and had the same legal effect as a jury verdict in the Supreme Court.[12]
It was soon realized by settlers and the Crown that if Maori could claim that existing Crown grants, already issued to settlers by the Crown, were unlawful, on the ground that the native title had not been extinguished as a preliminary to the issue of the grant, the stability and security of the existing system of land tenure in New Zealand would be in jeopardy.[13] Any Crown grant could then be challenged in the Courts and its status determined, not by the Crown, but by an independent body, the Native Land Court. The security of tenure which New Zealand settler society had always assumed they possessed over their lands would therefore be thrown into doubt.
It is clear that Prendergast CJ, and his brother judge, Richmond J, of the New Zealand Supreme Court, were fully seized of these concerns when they came to decide the Wi Parata case. In particular, they recognised that if the municipal Courts were obliged under statute to refer any native title case involving the Crown to the Native Land Court for independent determination, the status of existing Crown grants would no longer remain within the discretion of the Crown. The Crown would thereby lose control over the land settlement process, because it would no longer be able to guarantee the lawful validity of its own grants, with the result that all existing New Zealand land tenures deriving from the Crown would be in potential jeopardy. Perhaps this explains the “alarm” with which Prendergast CJ greeted this possibility. As he stated:
[I]t 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 Maori rights to land, has enabled persons of the native race to call in question any Crown title in this Court. This would be indeed a most alarming consequence; but if it be the law, we are bound so to hold.[14]
Then referring to section 5 of the Native Rights Act 1865 he 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 Maori people, so far as the same can be ascertained’, is constituted the sole and unappealable judge of the validity of every title in the country.[15]
Prendergast CJ referred to this possibility as a “startling conclusion”.[16] During the course of argument with counsel, his brother judge, Richmond J, went even further, expressing his horror that the Courts could be required to refer to the Native Land Court all questions involving native title and the Crown. He referred to this possibility as “monstrous”, and indeed, even intimated that he would be prepared to defy the will of Parliament, as expressed in statute, in his determination to resist such a possibility:
The Native Rights Act, 1865, declares this Court shall take cognizance of Maori custom, but the Legislature requires us to send any question of Maori title to the Native Lands Court. It is as much as to say, it is a jurisdiction we are incapable of exercising.... It 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.[17]
Yet the conclusions which the Supreme Court arrived at in Wi Parata avoided any such possibilities, unnerving as they were to the 19th century judicial mind, by providing assurance for the stability and security of land tenure in New Zealand. It did so by insulating the Crown from all unwanted native title claims, in the following manner.
In the first place, the Supreme Court had to deal with the threatened removal of native title matters from the discretion of the Crown by the apparent requirement, under the Native Rights Act, that all native title claims be determined by an independent statutory body, the Native Land Court. In delivering his judgment in Wi Parata, Prendergast CJ avoided such a possibility by ruling that the Crown was not required by the Native Rights Act 1865 to submit to the judgment of the Native Land Court. He did so on the ground that, because the Crown was not directly referred to in the statute, it could not be assumed that Parliament meant to bind the Crown to the statute or to the jurisdiction of the Native Land Court to which the statute referred.[18]
Indeed, far from accepting that the Crown was subject to the jurisdiction of either statutory or municipal courts on the question of native title, Prendergast CJ referred to some subsequent Native Land Acts which, he claimed, provided evidence that Parliament had allowed the Crown the right unilaterally and conclusively to declare that the native title to any piece of land had been lawfully extinguished, thus terminating any proceedings within the courts.[19] In fact, he argued that such legislation merely affirmed an existing prerogative right of the Crown to make such declarations, in a manner binding on the courts.[20] Prendergast CJ concluded that a grant issued by the Crown is itself sufficient evidence of such a binding declaration by the Crown that the native title preceding the grant has been lawfully extinguished.[21] In this way, Prendergast CJ provided for the land security which New Zealand settler society was looking for, by ruling that the very grants through which these settlers held their land from the Crown would, in themselves, be a guarantee of their own lawful validity. Existing crown grants could not, therefore, be subject to native title challenge.
Yet Prendergast CJ went even further and insisted that, even in the absence of a Crown grant, the Crown was still entitled to “declare” native title to be extinguished on any piece of land, thereby terminating proceedings within the Courts. He did so by insisting that the Crown’s obligations and responsibilities to Maori concerning native title were “in the nature of a treaty obligation”, and therefore “... 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...”.[22] Therefore any declarations by the Crown in relation to native title were to be regarded as “acts of State”, and so “are not examinable by any Court”.[23] In this respect, Prendergast CJ ruled, the Crown was the “sole arbiter of its own justice” on native title, because there was no basis upon which the Courts could interfere with the Crown’s declarations on such matters. As Prendergast CJ put it: “....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”.[24]
In other words, by insulating the Crown from the demands of the Native Rights Act 1865, by insisting that native title matters involving the Crown fell within the latter’s prerogative power and so were outside the jurisdiction of the Courts, and therefore in allowing the Crown, on the basis of this power, to “declare” the native title to any land extinguished, in a manner binding on the Courts, the Wi Parata judgment ensured that the land settlement process in New Zealand remained entirely within the control of the Crown, rather than in the hands of independent bodies like municipal or statutory Courts. It was in this way that Prendergast CJ managed to overcome the concerns animating him and Richmond J, but also no doubt New Zealand settler society, concerning the capacity of Maori to challenge existing Crown titles and the possibility that the outcome of such challenges might be outside the control of the Crown. This concern was no doubt heightened by the fact that two New Zealand Court judgments prior to Wi Parata had in fact upheld the status of native title at common law, and so presumably its enforceability against the Crown within the municipal Courts.[25]
However, despite the fact that the Supreme Court’s Wi Parata judgment on native title was at odds with existing New Zealand precedent, subsequent New Zealand judgments largely affirmed Wi Parata.[26] Indeed, the extent to which these judgments perceived Wi Parata as providing stability and security for land settlement in New Zealand was directly testified to by Richmond J in 1894 when, in delivering a judgment of the Court of Appeal (which at that time still included Sir James Prendergast as Chief Justice) he said:
The plaintiff comes here, therefore, on a pure Maori title, and the case is within the direct authority of Wi Parata v The Bishop of Wellington. We see no reason to doubt the soundness of that decision... According to what is laid down in the case cited, the mere assertion of the claim of the Crown is in itself sufficient to oust the jurisdiction of this or any other Court in the colony. There can be no known rule of law by which the validity of dealings in the name and under the authority of the Sovereign with the Native tribes of this country for the extinction of their territorial rights can be tested. Such transactions began with the settlement of these Islands; so that Native custom is inapplicable to them. The Crown is under a solemn engagement to observe strict justice in the matter, but of necessity it must be left to the conscience of the Crown to determine what is justice. The security of all titles in the country depends on the maintenance of this principle.[27]
It was the appeal which the Privy Council heard from this 1894 judgment which heralded the first significant departure from the Wi Parata precedent. The appellant from the 1894 case claimed title to a particular piece of land in the Mangatainoko Block. He did so on two grounds. First, he claimed that the land had been the subject of an order by the Native Land Court in 1871, whereby the certificate for the land was to be issued to the appellant once a proper survey of the land had been carried out. That survey was not carried out, and so the certificate had not been issued.[28] Secondly, he claimed that the native title on the land had never been extinguished and so the land still belonged to its original owners.[29]
The first ground had been rejected by the Court of Appeal ruling in 1894, which held that, because no survey had been carried out and no certificate issued, the plaintiff could base his action only on his second claim, that of a “pure Maori title”.[30] Similarly, the Privy Council ruled that the first ground could not constitute a claim to title, but was only evidence of that title, and so their Lordships too focused on the second claim concerning native title.[31] It was on the basis of a native title claim, therefore, that the appellant attempted to prevent the respondent, the Commissioner of Crown Lands for the Wellington District, from selling the land in question as Crown land or from advertising such a sale.[32] The respondent, on the other hand, argued that the Courts had no jurisdiction to investigate the matter, citing the Wi Parata precedent that native title matters are solely the concern of the Crown.[33] Consequently, the question concerning the jurisdiction of the Courts over native title matters, inherited from the Wi Parata judgment, were very much at the centre of this case.[34]
The final ruling of the Privy Council was a shock to New Zealand judicial authorities. In the first place, as we shall see, the Privy Council reversed the ruling of the Court of Appeal, holding that, in this case, the Courts did have jurisdiction to investigate native title. In the second place, it challenged several aspects of the Wi Parata precedent. For instance, it overturned the ruling of Prendergast CJ that Maori lacked native title altogether.[35] Lord Davey, delivering the judgment of the Privy Council, responded to this aspect of Prendergast CJ’s judgment as follows:
[I]t was said in the case of Wi Parata v Bishop of Wellington, which was followed by the Court of Appeal in this case, that there is no customary law of the Maoris of which the Courts of law can take cognizance. Their Lordships think that this argument goes too far, and that it is rather late in the day for such an argument to be addressed to a New Zealand Court. It does not seem possible to get rid of the express words of ss. 3 and 4 of the Native Rights Act, 1865, by saying (as the Chief Justice said in the case referred to) that ‘a phrase in a statute cannot call what is non-existent into being’... [O]ne is rather at a loss to know what is meant by such expressions ‘Native title’, ‘Native lands’, ‘owners’, and ‘proprietors’, or the careful provision against sale of Crown lands until the Native title has been extinguished if there be no such title cognizable by the law and no title therefore to be extinguished.[36]
Consequently, on the basis of the wording of the Native Rights Act 1865, with its explicit reference to native title, the Privy Council ruled that there did exist statutory rights to native title in New Zealand, enforceable against the Crown, and Maori were entitled to bring claims based upon such rights before the Courts:
It is the duty of the Courts to interpret the statute which plainly assumes the existence of a tenure of land under custom and usage which is either known to lawyers or discoverable by them by evidence. By section 5 it is plainly contemplated that cases might arise in the Supreme Court in which the title or some interest in Native land is involved, and in that case provision is made for the investigation of such titles and the ascertainment of such interests being remitted to a Court specially constituted for the purpose. The legislation both of the Imperial Parliament and of the Colonial Legislature is consistent with this view of the construction and effect of the Native Rights Act.... Their Lordships think that the Supreme Court are bound to recognize the fact of the ‘rightful possession and occupation of the Natives’ until extinguished in accordance with law in any action in which such title is involved, and (as has been seen) means are provided for the ascertainment of such a title.... Their Lordships therefore think that, if the appellant can succeed in proving that he and the members of his tribe are in possession and occupation of the lands in dispute under a Native title which has not been lawfully extinguished, he can maintain this action to restrain an unauthorized invasion of his title.[37]
This recognition of a statutory right to bring native title claims against the Crown within the municipal Courts was clearly at odds with Prendergast CJ’s view, which, as we saw, went to great lengths precisely to avoid this possibility. Yet, ironically, the Privy Council arrived at this position at odds with Wi Parata by reserving its opinion on one of the central assumptions of the Wi Parata judgment itself – the existence of the Crown’s prerogative over native title. As we have seen, it was precisely this aspect of the Wi Parata judgment which had been upheld by the Court of Appeal in 1894, when the Court insisted that “the mere assertion of the claim of the Crown is in itself sufficient to oust the jurisdiction of this or any other Court in the colony”.[38] However the Privy Council was quite clear that the reason it could arrive at its conclusion above concerning statutory rights to native title, and their enforceability in the courts, was because it did not raise the question of the prerogative.[39] For instance, it held that the respondent in the case, the Commissioner for Crown Lands, was exercising his authority under statute rather than under the prerogative power of the Crown.[40] In so far as he was exercising his power under statute, his actions fell within the jurisdiction of the courts, and the courts could thereby deliver a judgment enforceable against the Crown. However, the Privy Council reserved judgment on whether the Land Commissioner’s actions would still fall within their jurisdiction if he was exercising his authority directly under the Crown’s prerogative power over native title.[41] Admittedly, the Privy Council raised doubt as to whether this prerogative power still existed, expressing their view that all native title matters would presumably fall within the realm of statute by now.[42] Nevertheless, they did not categorically exclude the continued existence of this prerogative power, or its capacity to prevent Maori claimants from bringing native title claims before the courts, and merely held that it did not arise in the present case:
If all that is meant by the respondent’s argument is that in a question between the appellant and the Crown itself the appellant cannot sue upon his Native title, there may be difficulties in his way (whether insurmountable or not it is unnecessary to say), but for the reasons already given that question, in the opinion of their Lordships, does not arise in the present case.[43]
Finally, although the Privy Council criticized the wider dicta of the Supreme Court in Wi Parata, not least Prendergast CJ’s claim that native title does not exist, it did uphold the strict conclusions of that judgment decided on the facts of the case. This included that aspect of Wi Parata which effectively declared that Crown grants were sufficient evidence of their own lawful validity regarding the prior extinguishment of native title. As Lord Davey stated:
In the case of Wi Parata v. The Bishop of Wellington, already referred to, the decision was that the Court has no jurisdiction by scire facias or other proceeding to annul a Crown grant for matter not appearing on the face of it, and it was held that the issue of a Crown grant implies a declaration by the Crown that the native title has been extinguished. If so, it is all the more important that Natives should be able to protect their rights (whatever they are) before the land is sold and granted to a purchaser.... As applied to the case then before the Court however, their Lordships see no reason to doubt the correctness of the conclusion arrived at by the learned judges.[44]
Thus, the Privy Council’s judgment in Nireaha Tamaki v Baker was only a partial departure from Wi Parata. Although the Privy Council clearly affirmed that native title existed in New Zealand (a point at times denied by Prendergast CJ in Wi Parata[45]) and that it was cognisable within the courts and enforceable against the Crown if the Crown’s actions fell within the limit of statute, nevertheless it upheld the Wi Parata ruling concerning the lawful validity of existing Crown grants, and refused to challenge the other ruling, central to that judgment, that the Crown had prerogative power over native title, allowing it to make declarations on native title binding on the Courts. As we have seen, it was this declaratory power which gave meaning to Prendergast CJ’s claim in Wi Parata that the Crown is the “sole arbiter of its own justice” on native title issues.[46] And, as we also saw, the Court of Appeal in Nireaha Tamaki v Baker (1894) upheld this Crown prerogative over native title, and its declaratory power, insisting that “[t]he security of all titles in the country depends on the maintenance of this principle”.[47]
Yet, in failing to challenge the Wi Parata judgment concerning Crown prerogative, I believe that the Privy Council effectively “fudged” one of the fundamental issues at stake in the case before it. This issue of the prerogative was fundamental because key aspects of the Privy Council’s Nireaha Tamaki judgment required that it be placed in question, and yet the Privy Council failed to do so. This is most apparent in the Privy Council’s discussion of the Native Rights Act 1865. In the context of this discussion, the Privy Council affirmed the legality of section 5 of the Native Rights Act, stating:
By s. 5 it is plainly contemplated that cases might arise in the Supreme Court in which the title or some interest in Native land is involved, and in that case provision is made for the investigation of such titles and the ascertainment of such interests being remitted to a Court specially constituted for the purpose.[48]
In other words, the Privy Council clearly affirmed that the Native Rights Act authorized the Supreme Court to refer native title cases to the Native Land Court. And, as we have seen, it also affirmed that the Crown was subject to the Courts in these matters if the Crown’s actions fell within the scope of the relevant statutes.[49]
Yet, in Wi Parata, both Prendergast CJ and Richmond J denied that the Crown was subject to the Native Rights Act, and on this basis denied that the Supreme Court could refer native title matters involving the Crown to the Native Land Court, or that the Crown could be bound by the determinations of the Native Land Court. They did so on two grounds – first, on the ground that the Crown was not named in the Native Rights Act; and secondly, on the ground that any attempt to bind the Crown to the terms of this Act would be inconsistent with the Crown’s prerogative over native title.[50] In the following passage, Prendergast CJ implied that both grounds were inextricably connected, the assumption of the prerogative itself governing how the absence of any reference to the Crown in the statute was to be interpreted:
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....[51]
Consequently, as this passage indicates, the Supreme Court’s ruling in Wi Parata that the Crown was not subject to the Native Land Court in its determination of native title was premised on a prior assumption concerning the continued existence of the Crown’s prerogative over native title. This position was maintained by the Court of Appeal in its 1894 judgment and it was this judgment which the Privy Council was now considering on appeal.[52]
In other words, we have a clear conflict of opinion between the New Zealand Courts and the Privy Council as to whether the Crown is bound by the Native Land Court in its determination of native title cases – where the key points at issue concern their respective interpretations of the Native Rights Act 1865 and the existence of the Crown prerogative over native title. Yet the Privy Council completely avoided this issue. It avoided any consideration of Prendergast CJ’s wider interpretation of the Native Rights Act, to exclude the Crown in favour of its prerogative, merely focusing on Prendergast CJ’s “limited construction” of that Act in relation to the existence of native title.[53] Further, the Privy Council claimed that it was able to avoid this larger question of the prerogative because of its assumption that the Commissioner of Crown Lands was exercising his authority under statute.[54] Yet this larger question cannot be avoided, because, even given this statutory assumption, the Supreme Court’s claim in Wi Parata (and its implicit affirmation by the Court of Appeal in 1894) that the Crown is not bound by the Native Rights Act because it is not named in the statute, would still apply. And, as we saw, Prendergast CJ saw this claim as inextricably linked with the question of the Crown’s prerogative over native title. The question of the prerogative, therefore, cannot be avoided.
So the Privy Council’s ruling that the Crown is bound by the Native Rights Act 1865 to the determination of the Native Land Court if its actions concerning native title fall within the realm of statute, far from avoiding the question of prerogative, presupposes this question, because it still requires that the Privy Council show why the Wi Parata ruling that the Crown is not bound by the statute (as it is not named in it and because such a statutory limit would be inconsistent with its prerogative) no longer applies. By avoiding this question, and failing to refute Wi Parata, the Privy Council at best merely assumed that the Crown is subject to the Native Rights Act (and thereby to the Native Land Court), since only on this basis could they argue that Maori, under this Act, have statutory rights to native title, cognisable by the Courts and enforceable against the Crown. But they do not justify this assumption – their discussion of the Native Rights Act being confined to Prendergast CJ’s “limited construction” of that Act regarding the existence or non-existence of native title.[55] Indeed the following year, in Hohepa Wi Neera v Bishop of Wellington, the Privy Council’s failure effectively to refute the Wi Parata ruling on the Native Rights Act became apparent when the Chief Justice of the Court of Appeal, Sir Robert Stout, once again insisted that the Crown was not bound by this Act:
I may further point out that so far as the Native Rights Act is concerned it could not bind the Crown. Our ‘Interpretation Act, 1888’ is very explicit. It says that no Act must be read ‘in any manner or way whatsoever to affect the rights of the Crown unless it is expressly stated therein that the Crown is bound thereby’... I mention these facts, as they are not referred to in the judgment of Tamaki v Baker, and the Privy Council does not seem to have been informed of the circumstances of the colony when - and for many years afterwards - the Act was passed.[56]
So the very terms of the Privy Council’s judgment in Nireaha Tamaki v Baker, particularly its interpretation of the Native Rights Act 1865, required that it directly consider the full Wi Parata ruling on this Act, which in turn would have required it to deal directly with the question of the Crown prerogative over native title. Yet it chose not to do so, putting up a spurious claim that the question of the prerogative could be avoided if it was assumed that the Commissioner of Crown Land was acting under statute. It was therefore left to the next New Zealand native title judgment delivered by the Privy Council to confront Wi Parata directly over the question of Crown prerogative.
Despite the fact that the Privy Council’s departure from Wi Parata was only partial, its Nireaha Tamaki judgment sent shock waves through New Zealand colonial society, forcing the colonial authorities to take immediate action. What most concerned these authorities was the fact that the Crown could now be subject to the determination of the courts on native title issues if the courts ruled that the officers of the Crown were exercising their authority under statute. This meant that the Crown was no longer the “sole arbiter of its own justice” on native title issues, and so undermined the very protection that Wi Parata had provided in this respect. Even though the Privy Council’s Nireaha Tamaki decision had retained the Wi Parata rule that existing Crown grants were immune from native title challenge, nevertheless there was much unalienated Crown land in New Zealand which could still be subject to such challenge.
The immediate action which the New Zealand Legislature took in response to the Privy Council decision was to pass the Land Titles Protection Act 1902, which attempted to enshrine the Wi Parata precedent in statute, thereby rendering the contrary common law decision of the Privy Council null and void, at least in so far as it applied to New Zealand affairs.[57] The long title and preamble to the Act reflected the anxiety of the colonial authorities to avoid any possibility that Crown titles could now be subject to native title challenge. The long title stated that this was “AN ACT to protect the Land Titles of the Colony from Frivolous Attacks in Certain Cases”, and, as the preamble made clear, the “frivolous attacks” referred to were those arising from native title claims in the Courts:
WHEREAS several actions by Natives calling in question, after a lapse of at least thirty years, certain orders of the Native Land Court made under the provisions of ‘The Native Lands Act, 1865’, and the Crown grants and other instruments of title issued in pursuance thereof, have lately been taken in the Supreme Court of the colony: And whereas the said actions have been dismissed by the Court of Appeal, and the Native plaintiffs have been cast in costs and expenses amounting in the aggregate to at least two thousand pounds: And whereas, through the death or retirement of Judges of the Native Land Court and other responsible officers of the public service who could give official evidence, the defence of such actions may be a matter of very great difficulty, if not an impossibility: And whereas considerable alarm has been caused amongst the European landholders of the colony at such attacks upon their titles, and it is expedient that reasonable protection should be afforded to the holders of such titles: BE IT THEREFORE ENACTED by the General Assembly of New Zealand in Parliament assembled, and by the authority of the same, as follows: [58]
The preamble indicated that the colonial authorities, in their perception of the threat, seemed to be labouring under the misapprehension that the Crown titles that could be subject to native title challenge included the Crown grants to settlers. But, as we saw, the Privy Council in Nireaha Tamaki followed Wi Parata in insisting that such grants were immune from native title challenge.[59] Nevertheless the statute tried to provide the Crown with the universal immunity from native title claims which, it was believed, had been provided by Wi Parata, by ensuring that the Crown was not subject to the Native Land Court without its own consent. As section 2(1) of the Act stated:
In the case of Native land or land acquired from Natives, the validity of any order of the Native Land Court, Crown grant, or other instrument of title purporting to have been issued under the authority of law which has subsisted for not less than ten years prior to the passing of this Act shall not be called in question in any Court, or be the subject of any order of the Chief Judge of the Native Land Court under section thirty-nine of ‘The Native Land Court Act, 1894’, unless with the consent of the Governor in Council first had and obtained; and in the absence of such consent this Act shall be an absolute bar to the initiation of any proceedings in any Court calling in question the validity of any such order, Crown grant or instrument of title, or the jurisdiction of the Native Land Court to make any such order, or the power of the Governor to make and issue any such Crown grant.[60]
The response of the judiciary in the wake of the Privy Council’s Nireaha Tamaki decision was equally strident, and was also animated by a perceived threat to the security of existing Crown titles. This response was best represented by the Chief Justice, Sir Robert Stout. For instance, in 1903, referring to the Privy Council’s decision in Nireaha Tamaki, Stout CJ said that “....[i]f the dicta in that case were given effect to, no land title in the Colony would be safe”.[61] He went even further, arguing that, in the Nireaha Tamaki decision, the Privy Council had been “... ignorant ... of the Ordinances, Acts, and Charters regarding Native lands” in New Zealand.[62]
This case was adjudicated upon by the New Zealand Court of Appeal after the Privy Council’s Nireaha Tamaki decision, but before the Court of Appeal had actually received a copy of that judgment.[63] Consequently, the New Zealand Court of Appeal assessed the case in the context of its full affirmation of the Wi Parata precedent seven years before in Nireaha Tamaki v Baker (1894), and not in terms of the more recent Privy Council judgment which had emerged on appeal from this earlier decision.
The Solicitor-General v Bishop of Wellington[64] involved the same land and the same Crown grant that were in dispute in Wi Parata v Bishop of Wellington.[65] Unlike Wi Parata, however, in this case there was no dispute as to whether the land in question had actually been ceded by the Maori to the Crown for the purposes of building a school.[66] Rather, the question was whether the trustees of the grant had a right to use the money for an alternative purpose, given that no school had been built, or whether in such circumstances the grant reverted to the Crown because of the non-fulfilment of its conditions.[67]
The facts of the case concerned negotiations between the Ngatitoa tribe and the Bishop of New Zealand in 1848, for the purposes of building a college on native land.[68] This land was transferred to the Bishop by a Crown grant in 1850 - the terms of the grant indicating that the land had been ceded by the natives to the Crown for this purpose.[69] Under the terms of the Bishop of New Zealand Trusts Act 1858, the Bishop transferred this land into the hands of a trust in 1859.[70] The land was then rented and money accrued to the trust. By 1901, no college had been built, and, as many of the local Maori had moved from the area, it seemed that the building of a college would be a waste of the trust’s money.[71] Consequently, the trustees appealed to the government for permission to use the money for alternative, but related purposes.[72] The government refused, indicating that it wished to review the matter further.[73] When no review took place, the trustees appealed to the Supreme Court for permission to use the money for an alternative but related purpose.[74] The Solicitor-General (representing the Crown) opposed the motion, claiming that the lands had reverted to the Crown because the original terms of the grant (involving the use of the land to support a college) had not been fulfilled.[75] Prendergast CJ, for the Supreme Court, rejected the Solicitor-General’s claim, but, not being convinced that the original purpose of building a college on the land was defunct, reserved matters for further determination.[76] The subsequent Supreme Court case which considered these matters found for the trustees, and approved their alternative plan for the use of the trust’s money.[77]
The Solicitor-General then appealed this decision in the Court of Appeal, giving rise to the present case. Williams J, who delivered the judgment of the Court, found for the Solicitor-General on two grounds. First, he ruled that the Crown had been “deceived” in its grant to the Bishop, since the purpose of the grant had never been fulfilled.[78] Secondly, he found that the land reverted to the Crown because the “true construction” of the Crown grant to the Bishop “was in the nature of a conditional limitation” which was determinable when the purpose of the grant - religious education, industrial training, and instruction in the English language - ceased to be given in the college.[79] Finding on these two grounds that the land had become the property of the Crown, Williams J concluded that the Court had no jurisdiction to adopt the scheme proposed by the trustees.[80]
However, what is much more significant for our purposes was the Court of Appeal’s response to a late amendment to the statement of defence offered by counsel for the Solicitor-General. This late amendment was as follows:
The defendant by Hugh Gully, Crown Solicitor for the Wellington District, further amends his statement of defence filed herein by adding thereto the following paragraph: ‘That the terms of cession to the Crown by the aboriginal Natives of the lands comprised in the grants were such as to preclude the Crown from consenting to the application of the said lands and rents and profits thereof to any other purposes or objects than those expressly mentioned in the grant. And that the Crown has a duty to observe the terms of the cession to itself and the trust thereby confided by the aboriginal Natives in the Crown. And that the Executive Government has determined, so far as the matter is one for the determination of the Crown, that any departure from the precise terms of the grant by the application cy-près of the said lands and funds without the consent of the Parliament of the Colony would contravene the terms of the said cession and be a breach of the trust thereby confided in the Crown.[81]
With this statement, the Crown was claiming that, if the trust was allowed to be administered on a cy-près basis (thereby allowing the trustees to fulfil the terms of the trust by an alternative, but related, purpose), this would violate a purported duty of the Crown to the natives to ensure that the land ceded by the natives was used expressly for the purposes originally stated in the Crown grant.[82]
In its judgment, the Court of Appeal stated that it did not have to consider the matters raised in the late amendment to the statement of defence, as it had already determined the case in favour of the Crown on the two grounds cited earlier.[83] But the Court said that it would consider the issues raised, as these were matters argued at length in the case.[84] The Court’s views on the amended statement of defence, therefore, clearly fell outside its reasons for judgment in this case, and so were obiter dicta.
The Court of Appeal’s response to the amended statement of defence was to agree with the import of the statement that issues of trust and duty arising between the Crown and Maori were outside the jurisdiction of the courts, particularly as regards the cession of native land to the Crown. As the Court put it:
In the present case there are, however, circumstances which make the question of exercising the jurisdiction more difficult. The land, as appears from the grant, was ceded by Natives to the Crown. Mr. Bell, who appeared for the Solicitor-General, the representative of the Crown, made a statement at the bar as from the Crown that the terms of the cession by the Natives were such as to preclude the administration of the gift otherwise than in the direct terms of the grant......[T]he Crown therefore asserts that it has duties towards the Natives who ceded the land which could not be performed if the Court administered the trust cy-près. This would place the Court in a considerable difficulty. What the original rights of the Native owners were, what the bargain was between the Natives and the Crown when the Natives ceded the land, it would be difficult, if not impossible, for this Court to inquire into, even if it were clear that it had jurisdiction to do so.[85]
In making this statement, was the Court once again affirming the precedent of Wi Parata that issues between Maori and the Crown concerning the cession of native title were matters of Crown prerogative, over which the Court had no jurisdiction to interfere? At one level it does not appear so. This is because the Court went on to point out below that the reason it did not have clear jurisdiction in this matter was that the Crown’s special duty to protect the Natives and their title to land was a duty parens patriae. This duty seemed to be distinct from any consideration of acts of state which had been associated with the Crown prerogative in Wi Parata, since parens patriae referred to a specific obligation of the Crown to assume responsibilities for those unable to fend for themselves, where these responsibilities are administered through the Courts.[86] As Williams J put it:
The position appears to be somewhat as follows. The Crown ... as parens patriae, is under a solemn obligation to protect the rights of Native owners of the soil. When, therefore, the Crown as parens patriae, asserts that in that capacity it is under an obligation to Natives in respect of a property, can this Court, representing the Crown as parens patriae, say to the Crown, You shall not carry out this obligation, but the property you have granted shall be devoted to charitable purposes, to be determined by the Court irrespective of your obligations? We see great difficulty in holding that, in such circumstances, the Court could or ought to interfere... In the above circumstances it seems more appropriate that the matter should be dealt with by the Legislature than by this Court.[87]
So the doctrine of parens patriae seemed to be distinct from the Crown prerogative as a reason for the Court excluding its jurisdiction over the matters raised by the Crown in its amended statement of defence. The Court’s refusal of jurisdiction above, in terms of parens patriae, therefore seemed to be separate from its similar refusal in Wi Parata, on the basis of Crown prerogative. As we shall see in the section “Retrospective Re-Writing” below, Williams J would claim in his 1903 protest that the Court of Appeal was in reality defending the Wi Parata precedent, including the Crown prerogative over native title, in its discussion of the amended statement of defence in Solicitor-General v Bishop of Wellington. But I think that this is a fabrication after the fact. It seems clear that the parens patriae doctrine, as discussed by the Court of Appeal in this context, cannot be reduced to Wi Parata principles, and constitutes a separate ground for the obiter dicta that the Court has no jurisdiction to interfere with the matters raised in the Solicitor-General’s amended statement of defence.
In the wake of the New Zealand Court of Appeal’s ruling against them in The Solicitor-General v Bishop of Wellington, the trustees appealed to the Privy Council. In the resulting case, Wallis v Solicitor-General for New Zealand,[88] the Privy Council overturned the Court of Appeal’s ruling and found in favour of the trustees. While the Privy Council rejected the basis upon which the Court of Appeal had earlier found for the Crown, it reserved its strongest criticism for the obiter dicta at the end of the Court of Appeal’s judgment, where, as we saw, the Court of Appeal had discussed the late amendment and its implications concerning the Court’s jurisdiction over Crown-Maori affairs.
A fundamental difference between the reasoning of the New Zealand Court of Appeal and the Privy Council which led to their divergent judgments in The Solicitor-General v Bishop of Wellington, on the one hand, and Wallis v Solicitor-General on the other, can be traced to their very different understanding of the role the Crown played in the cession of native title by the Ngatitoa tribe. As we have seen, the Court of Appeal took the view that the Ngatitoa tribe had ceded the land directly to the Crown, and the Crown had thereupon provided a grant to the Bishop.[89] The Privy Council, on the other hand, took the view that the cession was effectively between the native tribe and the Bishop, the Crown merely playing an intermediary or “conveyancing” role in waiving its right to pre-emption and issuing a Crown grant to the Bishop.[90] As Lord Macnaghten, who delivered the judgment for the Privy Council, put it:
When the Government had once sanctioned their gift, nothing remained to be done but to demarcate the land and place on record the fact that the Crown had waived its right of pre-emption. That might have been effected in various ways. The course adopted was to issue a Crown grant. That, perhaps, was the simplest way, though the Crown had no beneficial interest to pass. After all it was only a question of conveyancing, as to which the native owners were very possibly not consulted.[91]
One reason why the Privy Council could claim that the Ngatitoa tribe had effectively ceded their land directly to the Bishop was its assumption that “....[i]t was not until 1852 that it was made unlawful for any person other than Her Majesty to acquire or accept land from the natives...”.[92] Hence, according to Lord Macnaghten, the Crown was able legally to waive its exclusive right of pre-emption, allowing for what in effect was a direct cession of land from the Ngatitoa tribe to the Bishop.[93] This enabled the Privy Council to conclude that:
The founders of the charity, therefore, were the native donors. All that was of value came from them. The transfer to the bishop was their doing.[94]
This assumption that the Crown only played an intermediary role in the transfer of land from the Ngatitoa tribe to the Bishop, never acquiring full possession of the land itself, was central to the Privy Council’s conclusions in this case. It was the basis upon which the Privy Council departed from the Court of Appeal’s opinion that the land in question should revert to the Crown due to the non-fulfilment of the purposes of the grant. The Privy Council argued that, because the Crown in its intermediary role never had full possession of the land, any argument that the land should “revert” to the Crown due to a non-fulfilment of the grant was spurious, because it was, in effect, an argument that land should revert to a party that had never possessed it in the first place.[95]
However, the main grounds for the Privy Council’s belief that the Ngatitoa tribe had directly ceded their land to the Bishop was its assumption that the Maori still had full possession of their lands as guaranteed by the Treaty of Waitangi, and therefore were fully capable of ceding land to the Bishop on their own volition (subject to the Crown’s waiver of its right of pre-emption). As Lord Macnaghten stated:
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.[96]
What is evident in the passage above is that the Privy Council was claiming that the Treaty of Waitangi, in and of itself, was the ultimate source of Maori land rights in New Zealand law. The claim is extraordinary because it moves against the well-known common law principle that treaties, in and of themselves, do not give rise to rights cognisable within municipal Courts until embodied in statute.[97] Nevertheless, with this claim, the Privy Council was definitely rejecting the legacy of Wi Parata v Bishop of Wellington, which had held that the Treaty gave rise to no such rights.[98]
As we saw above, in The Solicitor-General v The Bishop of Wellington, the New Zealand Court of Appeal found for the Crown on two grounds. The Court of Appeal found that the Crown had been “deceived” in the grant because its purposes had not been fulfilled, and that the grant itself presupposed a conditional limitation which held that the land should revert back to the Crown when these purposes were no longer fulfilled.[99] The Privy Council rejected both of these findings.
Concerning the Court of Appeal’s second finding that the grant contained a conditional limitation, ensuring that the land reverted to the Crown when it ceased to be used for the purposes described in the grant, the Privy Council stated that such a conditional limitation never came into effect, because the purposes of the grant were never fulfilled in the first place.[100]
Concerning the first ground for the Court of Appeal’s decision, that the Crown had been “deceived” in the grant, the Privy Council stated:
The learned counsel for the respondent were in much the same difficulty in attempting to support the first ground upon which the Court of Appeal relied. There too the Court had recourse to an assumption which has no basis in fact. What evidence is there that the Crown was deceived? Absolutely none. The evidence is entirely the other way.[101]
As such, Lord Macnaghten claimed that the counsel for the Solicitor-General, in the course of their argument before the Privy Council, did not feel that they could support either of the findings of the Court of Appeal in the Solicitor-General’s favour.[102] They therefore adopted an argument suggested by the Solicitor-General that “there was no general purpose of charity [in the grant] but only an intention to erect ‘a specific school on a specified site’”.[103] This meant that, in the absence of such a general purpose, the trust could not be administered cy-près, but had to fulfil its original purposes or revert back to the Crown. However the Privy Council dismissed such a position, stating that it is “a very narrow view of the transaction, at variance, in their Lordships’ opinion, with the express terms of the gift, and opposed to principles laid down in recognised authorities...”.[104]
While overturning the substantive elements of the Court of Appeal’s judgment, the Privy Council reserved its most scathing criticism for the obiter dicta on the amended statement of defence which arose at the end of that judgment. Lord Macnaghten claimed that the amended statement added to the “confusion” of the case.[105] He stated:
[O]n the hearing of the appeal the Solicitor-General applied for and obtained leave to amend his defence. A formal order for the amendment was afterwards obtained on the ground that such amendment was necessary ‘to more clearly define the grounds of defence of the Crown’. But the amendment only made the confusion worse. It was a medley of allegations incapable of proof and statements derogatory to the Court. But the Court accepted it, and treated it with extreme deference. The learned judges intimate pretty plainly that if they had not been able to find satisfactory reasons for deciding in favour of the Crown, the amendment would of itself have prevented their making an order in favour of the trustees.[106]
However, the Privy Council dismissed such “intimations” on the part of the Court of Appeal, insisting that it was “unable to follow” the Court of Appeal’s claim that it lacked jurisdiction over the matters raised in the Solicitor-General’s amended statement of defence.[107] The Privy Council was unable to follow this claim because, from the Privy Council’s perspective, the cession of native land referred to in the amended statement of defence did not involve the Crown, but rather was a direct cession of land from the Ngatitoa tribe to the Bishop. From the Privy Council’s perspective, therefore, the issues of trust or duty between the Crown and the tribe, referred to in the amended statement of defence, did not arise. As Lord Macnaghten stated:
The land was part of the native reserves, as appears from the Government minute of October 7, 1848. At the date of the cession to Bishop Selwyn the rights of the natives in their reserves depended solely on the treaty of Waitangi. There is not in the evidence the slightest trace of any cession to the Crown, or of any bargain between the Crown and the native donors.[108]
However, it was the apparent willingness of the Court of Appeal, when confronted with the amended statement of defence, to surrender its jurisdiction to the Crown, which aroused the most stinging criticism from the Privy Council. As we have seen, in response to the matters raised in the amended statement of defence, the Court of Appeal had concluded that it saw “great difficulty ... in holding that, in such circumstances, the Court could or ought to interfere”.[109] The Privy Council fundamentally rejected the proprietary of any such response, and went on to criticize the willingness of the Court of Appeal to exclude its jurisdiction at the bidding of the Crown:
The proposition advanced on behalf of the Crown is certainly not flattering to the dignity or the independence of the highest Court in New Zealand, or even to the intelligence of the Parliament. What has the Court to do with the executive? Where there is a suit properly constituted and ripe for decision, why should justice be denied or delayed at the bidding of the executive? Why should the executive Government take upon itself to instruct the Court in the discharge of its proper functions? Surely it is for the Court, not for the executive, to determine what is a breach of trust?[110]
This statement by the Privy Council was extremely significant for a number of reasons. First, and perhaps least significantly, it was a rejection of the obiter dicta put forward by the Court of Appeal in The Solicitor-General v Bishop of Wellington. Secondly, it was one of the key statements in the Wallis judgment that the Court of Appeal took umbrage at, and led to the protest against the Privy Council in 1903. Finally, and perhaps most significantly, it was a fundamental rejection of the view, which first emerged in the New Zealand Supreme Court in Wi Parata v Bishop of Wellington, that the Crown has prerogative powers over native title which, when exercised, allowed it to make declarations which necessarily excluded the jurisdiction of the Courts. By insisting that, in the face of such a claim by the Crown, the Court should have insisted on its jurisdiction, and that anything less was “not flattering” to its dignity or independence, the Privy Council was implying that the Crown had no prerogative rights in such circumstances. In other words, the Privy Council’s Wallis judgment was overturning that element of the Wi Parata ruling which the Privy Council in Nireaha Tamaki v Baker had reserved judgment on. Far from “fudging” the issue this time, the Privy Council rejected this aspect of Wi Parata in no uncertain terms. Further, it insisted that, far from a declaration by the Crown ousting the jurisdiction of the Courts in such circumstances, any Crown declarations on native title must be subject to the test of evidence within the Courts, in the same way as a claim by any other party. As Lord Macnaghten stated:
[I]f the Crown seeks to recover property and to oust the present possessors, it must make out its case just like any other litigant. All material allegations must be proved or admitted. Allegations unsupported go for nothing.[111]
If any doubt remained that the Privy Council had removed any semblance of the Crown’s prerogative powers over native title, to the exclusion of the Courts, Lord Macnaghten also insisted on the full jurisdiction of the Courts in these matters:
Notwithstanding the doubts expressed by the Court of Appeal, it is perfectly clear that the Court has jurisdiction to deal with a claim to property made on behalf of the Crown when properly brought forward. It has no right to decline jurisdiction. Still less has it a right to stay its hand at the instance of a claimant who may present a case into which it may be difficult, if not impossible, for the Court to inquire, even though that claimant be the Crown.[112]
The Privy Council’s criticisms of the Court of Appeal in Wallis v Solicitor-General (1903) drew an unprecedented response from the New Zealand Court, which engaged in an official protest against the Privy Council.[113] As Sir Robin Cooke has said, it is “the only recorded instance of a New Zealand Court’s publicly avowing its disapproval of a superior tribunal”.[114] The ostensible reason for this Protest was the injudicious use of language used by the Privy Council in the Wallis judgment, not least the imputation of improper motives to the Court of Appeal, particularly the accusation that it lacked sufficient independence from the executive.[115] As Williams J put it:
The decision of the Court of Appeal of New Zealand in the case of the Solicitor-General v Wallis [sic] has recently been reversed by the Judicial Committee of the Privy Council. Their Lordships have thought proper, in the course of their judgment, to use language with reference to the Court of Appeal of a kind which has never been used by a superior Court with reference to an inferior Court in modern times. The judgment of their Lordships has been published and circulated throughout the Colony. The natural tendency of that judgment, emanating as it does from so high a tribunal, is to create a distrust of this Court, and to weaken its authority among those who are subject to its jurisdiction.[116]
In the context of their Protest, some members of the Court of Appeal made the claim that, as an inferior court, they were not criticising the substantive content of the Privy Council’s decision in Wallis v Solicitor-General, only its manner of expressing it; while others accepted that they were criticising the content of the Privy Council’s decision, but only to the extent necessary to defend the dignity of the Court of Appeal.[117]
However, it is evident that, despite these protestations, a deeper issue of contention underlying the Protest seemed to be the clear difference of opinion which had emerged between the Court of Appeal and the Privy Council over the legal status of native title. As we saw, these differences emerged as a result of the two Privy Council rulings in Nireaha Tamaki v Baker and Wallis v Solicitor-General which departed from the Wi Parata precedent. Indeed, in the context of their response to these Privy Council decisions, all the judges in the Protest went so far as to accuse the Privy Council of ignorance of New Zealand law on native title and other matters.[118]
Consequently, the motives animating this Protest by the Court of Appeal do not seem to have been confined to wounded pride over injudicious remarks made by the Privy Council. Rather, as much of the following will indicate, a major concern of the Court of Appeal was the extent to which the Privy Council had departed from the Wi Parata precedent.
Stout CJ’s ardent desire to defend the Wi Parata precedent from the depredations of the Privy Council can be seen in the extent to which he re-asserted its principles in his protest. Indeed, Stout CJ’s stridency in doing so actually led him to overstate these principles as follows:
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.[119]
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 treaties, in and of themselves, independent of their embodiment in statute, the rest of the statement amounts to a terra nullius claim, denying the very existence of native title in New Zealand, since it implies that all title to land in New Zealand, including native land, derives from Crown grant.[120] It appears that Stout CJ did not intend to make this terra nullius claim, since the examples he then cited to support this proposition bore no relation to it, and indeed presupposed the existence of native title.[121] I think that Stout CJ merely wished to assert the conventional proposition, which he had raised elsewhere, that native title, although in existence, and a “burden” upon the radical title of the Crown, could not be recognised in the municipal Courts independent of a certificate from the Native Land Court.[122] It is possible to explain his confusion on this matter in terms of his anxiety to defend the Wi Parata precedent against the recent Privy Council decisions, which perhaps led him to overstate his case against the judicial recognition of native title.
One of the basic points of contention between the Court of Appeal judgment in Solicitor-General v Bishop of Wellington, and the Privy Council’s ruling on appeal in Wallis v Solicitor-General, concerned who were the original donors of the land to the Bishop of Wellington for the building of a school. This point was a significant one, because the question of who the land should revert to, due to the failure to fulfil the purpose of the grant, was affected by whether the land donated to the Bishop was deemed to come from the native tribes or the Crown. As we have seen, the Privy Council held that the native tribes were the original donors to the Bishop, the Crown merely fulfilling a “conveyancing” role in this process.[123] Yet, in his protest, Stout CJ fundamentally rejected this view as follows:
No doubt the Crown had agreed to reserve Witireia for the Ngatitoa tribe, and the letter quoted was a consent of the tribe to give up the occupancy of this reserve. In that sense, and in that sense only, was it the tribe’s gift. The fee-simple was in the Crown, and the Crown gave that to the Bishop. The legal title came from the Crown, and in that sense the Crown was the donor.[124]
Further on he again denied any possibility that native title had been ceded by the Ngatitoa tribe to the Bishop when he stated that “[t]he title, being in the Crown, could not have been conveyed to the Bishop save by the Crown”.[125]
In other words, Stout CJ was insisting that there was no transfer or extinguishment of native title involved in the transaction – that the land in question was a “reserve” that had been granted to the natives by the Crown and so the title had always been in the Crown. In arriving at this conclusion, he seemed to be once again reverting to his terra nullius view, expressed above, that the Crown had original title to the exclusion of native title. Yet this attempt by Stout CJ to deny the prior existence of native title encounters problems. For instance, contemporary judicial opinion holds that native title is not extinguished by the Crown’s granting of reserves to natives for their own use.[126] While judicial opinion may have differed on this question in 1903, nevertheless, only nine years later, Stout CJ himself argued that there was not a part of New Zealand which was not originally claimed by Maori tribes on the basis of customary ownership, so any “reserve” would have originally been subject to native title and would have required its extinguishment if, at that time, “reserves” were not consistent with the continued existence of native title.[127]
Also, this denial of the existence of native title is somewhat at odds with other statements which Stout CJ made in his Protest. For instance, he strongly defended the Court of Appeal’s obiter dicta in Solicitor-General v Bishop of Wellington (1901), where the Court had expressed reservations about its jurisdiction over native title matters raised in the Solicitor-General’s amended statement of defence.[128] As we have seen, these obiter dicta were subject to strong criticism from the Privy Council in Wallis v Solicitor-General, but Stout affirmed the Court of Appeal’s opinion on the grounds that any negotiations between Crown and Maori over such matters were acts of state, and therefore outside the jurisdiction of the Courts. As Stout CJ put it:
The Crown stated that the terms of cession prevented the cy-près doctrine being applied, and that it had duties toward the Natives. The Court held that the cession was an act of State, and that it was difficult, if not impossible, in 1900 to inquire – if it had jurisdiction to do so – into the act of State in 1850.[129]
Yet, as mentioned above, Stout CJ had earlier claimed that the land ceded by the Ngatitoa tribe was a reserve whose fee-simple lay with the Crown. It was therefore a cession of land which was devoid of native title. Therefore, on what grounds could this cession now be deemed by Stout CJ in the passage above to be an “act of state”? The precedent of Wi Parata v Bishop of Wellington is that only issues between the Maori and Crown involving the Treaty or native title are acts of state.[130] So although Stout CJ had earlier denied that either the Treaty or native title was involved in the transfer of land in this case, nevertheless in his reference to an “act of state” in the passage above, he is clearly referring to a cession of native title between the Ngatitoa tribe and the Crown. Once again, therefore, we see that Stout CJ’s agonistic desire to defend Wi Parata from the Privy Council’s departure (in this case, by defending the Court of Appeal’s obiter dicta in Solicitor-General v Bishop of Wellington) led him into contradiction and confusion within his protest.
Williams J was far more coherent than Stout CJ in his defence of Wi Parata from Privy Council criticisms.[131] He provided this defence in the context of his explanation of the obiter dicta which he himself delivered on behalf of the Court of Appeal in Solicitor-General v The Bishop of Wellington. As we have seen, these obiter dicta were the subject of the Privy Council’s most scathing comment. From the Privy Council’s perspective, the Court of Appeal’s view, expressed in its obiter dicta, that native title matters involving the Crown were outside its jurisdiction, showed undue deference to the executive power.[132]
In his response, Williams J made a point of noting that, at the time of the Court of Appeal’s judgment in Solicitor-General v Bishop of Wellington, the Court had not yet read the Privy Council’s decision in Nireaha Tamaki v Baker, where the Privy Council had asserted that native title in New Zealand had a statutory foundation and so was within the jurisdiction of the Courts.[133] Nor did the Court believe that at the time of the land transactions in dispute there were any statutes “regulating the extinction of native title”.[134] Williams J therefore concluded that, at the time of its obiter dicta, the Court of Appeal was justified in concluding that native title was outside the jurisdiction of the Court because an “unbroken current of authority” sustained it in this conclusion:
Whether, however, we were right or wrong, there was certainly an unbroken current of authority. First, that the Native occupiers had no right to their land cognizable in a Court of law, and that having no such right themselves they could not transfer any right to others. Secondly, that the Crown grant was not a mere piece of conveyancing, but was essential to create any right at all of which this Court could take notice, and that any such right was derived from the Crown grant, and by virtue of the grant, and from the grant alone. Thirdly, that as the Natives never had any rights cognizable in a Court of law they had no locus standi to impeach the grant, and were neither necessary nor proper parties in any proceedings between the Crown and its grantee in relation to the subject-matter of the grant...... Had we not so held we should not only have had to overrule all previous decisions, but should have differed in opinion from every Judge who has ever sat in this Court.[135]
Consequently, Williams J insisted that, at the time of the Court of Appeal’s judgment in Solicitor-General v Bishop of Wellington (1901), there was no authority that justified the Court in departing from the precedent established by Wi Parata that native title could not be recognized by the municipal Courts. He points out that the Native Rights Act referred to by the Privy Council in Nireaha Tamaki v Baker as a statutory basis for native title was not passed until 1865 –after the cession of the land occupied by the Ngatitoa tribe – and so was not applicable to the case.[136]
Williams J ended his defence of the Wi Parata precedent by claiming that it was this precedent which informed the Court of Appeal’s obiter dicta at the end of its judgment in Solicitor-General v Bishop of Wellington.[137] Given that it was Williams J who delivered the judgment of the Court of Appeal in The Solicitor-General v The Bishop of Wellington, one might presume that he had inside knowledge of the reasoning which informed the obiter dicta at the end of that case.
Yet Williams J’s assertion in his protest that it was the Wi Parata precedent which informed the Court of Appeal’s reasoning in its obiter dicta some two years before seems somewhat disingenuous. If the Court of Appeal was really referring to the Wi Parata precedent in its obiter dicta, why refer to the very different doctrine of parens patriae, as it did throughout? Why not just refer to the doctrine of Wi Parata that native title matters involving the Crown fall exclusively within the Crown’s prerogative powers and so outside the jurisdiction of the Courts, just as the Court of Appeal had earlier done in Nireaha Tamaki v Baker (1894)?[138] As we have seen, there is no obvious, or even tenuous, connection between the doctrine of parens patriae and the Crown’s obligations to Maori as defined by Wi Parata, which fall entirely within the Crown’s prerogative powers.[139]
Consequently, it is fair to assume that, despite Williams J’s assertion above, the Court of Appeal’s obiter dicta in Solicitor-General v Bishop of Wellington (1901) were not informed by the Wi Parata precedent. I think that Williams J’s claim that they were was guided by the fact that it was the Wi Parata precedent which was most under threat by the recent Privy Council decisions, and, in the context of his protest, he wished to align all of the Court of Appeal’s previous judgments in defence of this precedent in order to buttress its authority.[140]
Consequently, both Williams J and Stout CJ (with his reference to “acts of State” above”[141]) try retrospectively to assimilate the obiter dicta in Solicitor-General v Bishop of Wellington to the Wi Parata precedent, when, in fact, that precedent played little part in the obiter dicta in the first place. My evidence for this relates to the obiter dicta themselves. Within the obiter dicta, Williams J suggested that the doctrine of parens patriae made the terms of cession of native title raised in the Solicitor-General’s amended statement of defence a matter that ought more appropriately be dealt with by Parliament than the Courts.[142] Yet, if the doctrine of Wi Parata was being upheld in the obiter dicta, any matter concerning a cession of native title to the Crown would presumably be held to lie exclusively within the jurisdiction of the Crown, rather than Parliament, since it would entail an act of state, and so be subject to the Crown’s prerogative powers.[143] Indeed, in his protest, Williams J conceded this when he stated that “[w]hat the rights of any prior Native occupiers might be, or whether they had any rights, was a matter entirely for the conscience of the Crown”.[144]
So we have a clear contradiction between the reference to Parliament as the appropriate jurisdiction for the consideration of the matters raised by the Solicitor-General’s amended statement of defence – a reference that occurs within the obiter dicta - and a reference to the Crown as the appropriate jurisdiction in the explanation of the obiter dicta two years later. The contradiction is explained by the fact that two different principles are being referred to in each case, neither of which is assimilable to the other. If parens patriae is the appropriate doctrine governing the Crown’s dealing with the Ngatitoa tribe concerning the cession of native title, then, according to the Court of Appeal in 1901, Parliament is the appropriate authority for dealing with the matter. If the Wi Parata precedent concerning Crown prerogative is the appropriate doctrine, then the Crown is the appropriate authority. Consequently, the Court of Appeal’s reference to Parliament as the appropriate jurisdiction for matters involving parens patriae indicates that it was not the Wi Parata precedent which animated its obiter dicta in 1901. It was only the wish, on the part of some Court of Appeal judges, to defend the Wi Parata precedent in 1903, in their Protest against the Privy Council, which made them claim otherwise.
This agonistic desire on the part of the Court of Appeal to buttress the authority of Wi Parata by assimilating all their previous judgments to it, even those decided on different principles, is one more piece of evidence that what really animated the Court of Appeal’s Protest in 1903 was less the ostensible rationale the Court of Appeal pointed to (the Privy Council’s injudicious use of language and imputation of improper motives in Wallis v Solicitor-General) and more the defence of Wi Parata from the Privy Council’s departures – departures which threatened the principles which had guided New Zealand jurisprudence on native title for the previous twenty-five years.
So the defence of Wi Parata was the animating motive which underlay the Court of Appeal’s Protest against the Privy Council. But why was the Court of Appeal willing to go to such lengths to defend this precedent? Why was it so anxious in the face of any apparent departure from it? I think the answer lies in the material basis of New Zealand society at the time. Like any settler society, particularly a settler society whose establishment involved the peaceful or hostile displacement of indigenous inhabitants, one of the primary material concerns of New Zealand colonists was the stability and security of land settlement. The question of land, of course, had been one of the issues leading to full-scale war between the Crown and some Maori tribes in the 1860s.[145] Consequently, the stability and security of land settlement was an overriding concern within New Zealand settler society as a whole, and it would not be surprising if the same concern animated the views of the judges who sat in the municipal Courts within that same society. Indeed, as we have seen, senior members of the Court of Appeal gave expression to precisely such concerns once it was apparent that the Privy Council had departed from the Wi Parata precedent in its judgments on native title.[146]
But, as we have seen, these concerns over Wi Parata were not limited to isolated statements by individual judges. They actually gave rise to a full-scale protest by the Court of Appeal against the Privy Council in 1903. Such an act of defiance was unprecedented within the colonial structure of the British Empire at that time, where all colonial courts were subordinate to the imperial authority represented by the Privy Council.[147] The very precociousness of this action, its defiance of what was an established hierarchy of imperial authority, leads to the question of whether such an act of defiance was, in its way, a nascent act of “independence” on the part of these New Zealand judges? In asserting and defending the standards of New Zealand law against those of the Privy Council, were these judges in fact giving expression to demands for greater independence from imperial authority – demands which have become far more frequent in our own time - thereby exhibiting a “nationalist consciousness”?
Certainly, at times in their protest, the judges gave expression to sentiments that might suggest a “nationalist consciousness” on their part – a desire that New Zealand break from the imperial constraints of the Privy Council and develop its own line of law. Certainly, Stout CJ at one point in the protest suggested that the “Imperial spirit that is the true bond of union amongst His Majesty’s subjects” may have been “weakened” by the actions of the Privy Council which had given rise to the protest.[148] Williams J went even further, referring to the Privy Council as “four strangers sitting 14,000 miles away”, and even suggesting that it had displayed the characteristics of an “alien tribunal”.[149] Certainly, some of the judges in the protest made strong claims that New Zealand lawyers, rather than English ones, were far more qualified to be pronouncing judgment on New Zealand laws.[150] The distance of the Privy Council, and the associated delays in judgment, were also subject to criticism.[151] All of these sentiments might point to a veiled demand for greater independence from the Privy Council, and therefore might be considered expressions of a nascent “nationalist consciousness” on the part of the Court of Appeal judges, a consciousness which may have reflected sentiments within the wider settler society. Certainly Stout CJ, in an article he authored in the Commonwealth Law Review the following year, expressed these nationalist sentiments in no uncertain terms, insisting that greater independence from the Privy Council was a necessary step towards greater independence for New Zealand society as a whole.[152]
But while Stout CJ’s Commonwealth Law Review article clearly was animated by what we could call a “nationalist consciousness”, I think that the sentiments expressed by the Court of Appeal in their protest the year before were not. This is because any apparent “nationalist consciousness” which the Court of Appeal might appear to have given expression to in the protest was, I think, largely derivative of, and subordinate to, a wider “colonial consciousness” which most fully informed their perceptions and judgments. For instance, any expression of desire for greater independence from the Privy Council that emerges in the protest seems to be very much a function of the anger and frustration which these judges felt at what they thought was the ignorance of the Privy Council regarding their local laws and judicial precedents relating to native land, and the arrogance with which they believed the Privy Council views were expressed, at least in the Wallis judgment. It was because so much was at stake for New Zealand settler society in the maintenance of these local laws and precedents that such anger and frustration so quickly arose. In other words, it was their concern to protect these laws and precedents, and the stability and security of land settlement they ensured, which most animated the Court of Appeal in its response to the Privy Council. Such concerns were therefore essentially “colonial” in nature, dominated by the central colonial concern with land settlement and the security of settler holdings. Any expression of nationalist sentiments for greater independence within the protest were very much subordinate to these colonial concerns.[153]
In contrasting a “colonial” to a “nationalist consciousness”, I do not wish to suggest that a “colonial consciousness” implies an attitude of deference and subordinance to the imperial authorities. As we have seen, this “colonial consciousness” gave rise to interests and values which were very much at odds with those expressed in the Privy Council judgments, and led to strident criticism of and opposition to that body.[154] In this sense, a “colonial consciousness” is not the opposite of a “nationalist consciousness”, suggesting a deferential submission to imperial authority. The vigour of the Court of Appeal’s protest against the Privy Council is evidence of this.[155] Rather, it is a consciousness perhaps just as much independent, but animated by different values and concerns than a “nationalist consciousness”. Whereas a “nationalist consciousness” might demand independence from the Privy Council because such dependence is inconsistent with national self-development (the very view that Stout CJ expressed in his Commonwealth Law Review article), a “colonial consciousness” might demand such independence for the sake of the greater protection of colonial interests, where those interests, as we have seen, are primarily centred on land settlement.
In this sense, I would argue that the Court of Appeal’s defence of the Wi Parata precedent, and the New Zealand legislature’s statutory measures directed towards the same, were motivated primarily by a “colonial consciousness” on the part of these New Zealand authorities. Wi Parata provided precisely the stability and security of land settlement which these authorities wanted from the legal system in New Zealand – a stability and security which was sought largely at the expense of the indigenous Maori inhabitants. The fact that some of the Court of Appeal judges themselves admitted that any departure from Wi Parata would undermine that stability and security itself shows the wider material interests which underpinned their commitment to this precedent. Any threat to that security, even if arising from the centre of the Empire itself, was a clear challenge to colonial interests and one the colonial authorities resisted with stridency and determination. It is therefore this “colonial consciousness” which I think explains the willingness of the Court of Appeal to go to such inordinate lengths in their defence of the Wi Parata precedent, even to the point of an open breach with the Privy Council.
So were the rulings of the Privy Council in Nireaha Tamaki v Baker and Wallis v Solicitor-General a “requiem” for Wi Parata? At one level yes, and at another no. Certainly in the Court of Appeal’s next major native title judgment, Tamihana Korokai v Solicitor-General in 1912, the Court of Appeal clearly recognised a statutory basis for the recognition of native title in New Zealand Courts, and strongly suggested that there was no longer any Crown prerogative remaining over native title matters.[156] In this respect, the Court moved strongly against central elements of the Wi Parata precedent and eliminated its differences with the Privy Council over native title which had informed its protest in 1903.
On the other hand, it needs to be remembered that the Privy Council judgments did not depart from the Wi Parata precedent in every respect. As we have seen, Prendergast CJ’s declaration that a Crown grant was sufficient evidence of the lawful extinguishment of native title was left intact.[157] This meant that all existing Crown grants in New Zealand were safe from native title challenge. Secondly, as we have also seen, the New Zealand legislative response, which the Privy Council ruling in Nireaha Tamaki v Baker had initiated, enshrined in statute the basic Wi Parata principle that native title claims could not be brought against the Crown without the Crown’s permission.[158] In excluding such claims from the Courts, this legislation ensured that the Crown was effectively the “sole arbiter of its own justice” on native title issues. Both of these developments meant that any future native title claims against the Crown which the municipal (as distinct from statutory) courts would have to deal with would largely involve Crown territory not alienated by Crown grants or covered by these statutes (riverbeds, coastal foreshores) or else native customary rights that fell outside such restrictions (such as the customary collection of sea-food).[159] It is the reduction of native title claims in the municipal Courts to these marginal concerns that most exemplifies the continuing salience of the Wi Parata precedent in New Zealand.
In this respect, rather than being a “requiem” for Wi Parata, the Privy Council rulings were at best an indication of the extent to which New Zealand colonial interests had departed from the more impartial concerns of English common law on native title, and highlighted the extent to which the material interests of settlers had, from the Wi Parata judgments onwards, informed the opinions of New Zealand judges on these matters. This “colonial consciousness” received a rude shock from the Privy Council’s rulings in 1901 and 1903, and the protest was a manifestation of the resulting anger and frustration felt by the New Zealand judges towards this imperial body.
[∗] School of Policy, University of Newcastle, Australia. The author would like to thank the following library personnel for their assistance in the research process associated with this article: Ann Stokes, Glen Burnett, Ruth Talbot-Stokes and Leone Clough, Auchmuty Library, University of Newcastle, Australia; and Margaret Greville, Law Librarian, University of Canterbury, Christchurch, New Zealand.
[1] (1878) 2 NZ Jur (NS) SC 72.
[2] As Prendergast CJ notoriously put it: “The existence of the pact known as the ‘Treaty of Waitangi’, entered into by Captain Hobson on the part of Her Majesty with certain natives at the Bay of Islands, and adhered to by some other natives of the Northern Island, is perfectly consistent with what has been stated. So far indeed as that instrument purported to cede the sovereignty – a matter with which we are not here directly concerned – it must be regarded as a simple nullity. No body politic existed capable of making cession of sovereignty, nor could the thing itself exist. So far as the proprietary rights of the natives are concerned, the so-called treaty merely affirms the rights and obligations which, jure gentium, vested in and devolved upon the Crown under the circumstances of the case” (Wi Parata v Bishop of Wellington, supra note 1, at 78, emphasis added).
[3] See McHugh, Paul The Maori Magna Carta. New Zealand Law and the Treaty of Waitangi (1991) 113.
[4] The reason why I claim that Wi Parata was far more influential on subsequent judicial developments in terms of its ruling on native title than its ruling on the Treaty is because many New Zealand judges did not follow Prendergast CJ in his stronger claim concerning the Treaty above. Prendergast CJ’s dismissal of the Treaty as a “simple nullity” was not simply an assertion of the conventional rule that the Courts could not take cognizance of the Treaty unless embodied in statute. It was a much stronger claim that the Treaty itself was an illegitimate instrument for the transfer of sovereignty between Maori and the Crown. Prendergast CJ believed that no such transfer took place under the Treaty because Maori lacked the capacity to claim sovereignty over their own islands, with the result that the Treaty gave rise to no obligations on the part of the Crown towards Maori, these arising solely from a jure gentium basis independent of the Treaty (see Wi Parata v Bishop of Wellington, supra note 1, at 77, and Prendergast CJ’s statement at supra note 2). Yet subsequent judicial authorities in New Zealand did not wholly follow Prendergast CJ in this view. While they upheld the orthodox position that the Treaty had to be embodied in statute before its terms could be considered legally binding in the Courts, nevertheless they refused to view the Treaty as a “simple nullity”, giving rise to no obligations at all. Rather, they recognised the moral obligations which the Treaty imposed on the Crown, and so, by implication, presumably viewed the Treaty as a legitimate instrument for the transfer of sovereignty. See Mangakahia v New Zealand Timber Co (1881-82) 2 NZLR 345, 350, per Gillies J; Hohepa Wi Neera v Bishop of Wellington (1902) 21 NZLR 655, 662, per Stout CJ; “Wallis and Others v Solicitor General, Protest of Bench and Bar, April 25, 1903”, [1840-1932] NZPCC Appendix, 730, 732, per Stout CJ; Tamihana Korokai v Solicitor-General, [1912] NZGazLawRp 230; (1912) 32 NZLR 321, 343, per Stout CJ.
[5] (1900-01) [1840-1932] NZPCC 371.
[6] [1903] AC 173. Note that, for the sake of brevity, the term “Privy Council” will be used throughout this article to refer to the Judicial Committee of the Privy Council.
[7] See “Wallis and Others v Solicitor General, Protest of Bench and Bar, April 25, 1903”, supra note 4, at 730, per Stout CJ; at 747, 755-56 per Williams J; at 757, per Edwards J.
[8] The Crown held ultimate or radical title over the land in New Zealand, and it was on this basis that it issued grants of tenure to settlers – see The Queen v Symonds (1847) N.Z.P.C.C. (SC), 387, 388-89, 391-92, per Chapman J. On the radical title of the Crown as the foundation for its grant-making power, see Mabo v Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1, 47-48, 50-51, per Brennan J.
[9] See The Queen v Symonds, supra note 8, at 389-90, per Chapman J; ibid, at 393-95, per Martin CJ.
[10] See Native Rights Act 1865, 29 Victoriae, No. 11, s 5; Native Lands Act, 29 Victoriae, No. 71, s 5, 23.
[11] See Native Rights Act 1865, supra note 10, s 5; Native Lands Act 1865, supra note 10, s 21.
[12] See Native Rights Act 1865, supra note 10, s 5.
[13] Such concerns were expressed on behalf of the Crown as late as 1912, when the Solicitor-General stated the Crown’s position in the case of Tamihana Korokai v Solicitor-General: “Native title is not available in any manner and for any purpose against the Crown. As against the Crown it is not a legal title at all ... If this is not the principle the Natives could go on a claim based on customary title to the Native Land Court and claim to have the title to all Crown lands investigated” (Tamihana Korokai v Solicitor-General, supra note 4, at 331-32, per Solicitor-General, emphasis added).
[14] Wi Parata v Bishop of Wellington, supra note 1, at 79, per Prendergast CJ (emphasis added).
[15] Ibid, at 80, per Prendergast CJ.
[16] Ibid.
[17] Ibid, at 75, per Richmond J (emphasis added).
[18] As Prendergast CJ stated: “The Crown, not being named in the statute, is clearly not bound by it...” (ibid, at 80, per Prendergast CJ). Indeed, some 25 years later, Prendergast CJ’s successor as Chief Justice, Stout CJ, affirmed Prendergast CJ’s ruling in this respect. In his Hohepa Wi Neera judgment, Stout CJ stated: “I may further point out that so far as the Native Rights Act is concerned it could not bind the Crown. Our ‘Interpretation Act, 1888’, is very explicit. It says that no Act must be read ‘in any manner or way whatsoever to affect the rights of the Crown unless it is expressly stated therein that the Crown is bound thereby’...” (Hohepa Wi Neera v Bishop of Wellington, supra note 4, at 667, per Stout CJ). However, some years later, in Tamihana Korokai v Solicitor-General, a statement by one Court of Appeal judge, Chapman J, implied that the absence of a reference to the Crown in a statute did not necessarily mean that Parliament did not intend to bind the Crown. Rather, if the Act provided rights against the Crown, then, Chapman J implied, the Courts ought to assume that the Crown was bound by it, since any judgment to the contrary would be repugnant to those rights. As he put it: “Throughout the greater part of the history of New Zealand there have been three separate sets of statutes relating to the alienation of the lands and the privileges of the Crown – namely, the Land Acts, or, as they were formerly called, the Waste Land Acts; the Mining Acts, formerly Goldfields Acts; and the Native Land Acts. None of them are expressly declared to be binding on the Crown; all of them are from their very nature framed to create rights adverse to those of the Crown. Formerly some of these Acts contained express declarations that they did not affect the rights of the Crown.....These declarations were invariably regarded as repugnant to so much of the Acts as created titles against the Crown” (Tamihana Korokai v Solicitor-General, supra note 4, per Chapman J, at 355).
[19] As Prendergast CJ stated: “This conclusion is strongly confirmed by remarkable provisions in the Native Lands Act of 1867 and 1873. By section 10 of the former Act, a copy of the New Zealand Gazette, notifying the extinction of the native title over any land therein comprised, was made conclusive proof of that fact in the Native Lands Court. This provision is re-enacted by the 105th section of the Native Lands Act, 1873, and is extended in its effect to all Courts.....[W]e cite these provisions as plain intimations on the part of the Colonial Legislature that questions respecting the extinction of the native title are not to be raised either here or in the Native Lands Court in opposition to the Crown, or to the prejudice of its grantees” (Wi Parata v Bishop of Wellington, at 80, supra note 1, per Prendergast CJ).
[20] As Prendergast CJ stated, referring to the Native Lands Acts of 1867 and 1873: “In our judgment these enactments introduce no new principles, but merely provide a convenient mode of exercising an indubitable prerogative of the Crown” (ibid, at 80, per Prendergast CJ). For the origins of this prerogative in Prendergast CJ’s judgment, see ibid, at 79, per Prendergast CJ.
[21] As Prendergast CJ 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” (ibid, p. 78).
[22] Ibid, at 79, per Prendergast CJ.
[23] Ibid, at 79, per Prendergast CJ. For a criticism of Prendergast CJ’s conclusion that it was possible for the Crown to claim acts of state against its own Maori subjects, see McHugh, “Aboriginal Title in New Zealand Courts” (1984) 2 Canterbury Law Review 247. See also McHugh, The Maori Magna Carta, supra note 3, at 114.
[24] Wi Parata v Bishop of Wellington, supra note 1, at 79, per Prendergast CJ (emphasis added). On the Crown as the “sole arbiter of its own justice”, see ibid, at 78, per Prendergast CJ.
[25] It was the judgment of Chapman J which, in The Queen v Symonds, most fully confirmed this common law recognition of native title, although Martin CJ fully concurred with him on the matter (see The Queen v Symonds, supra note 8, at 393, per Martin CJ). Hence Chapman J said: “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” (ibid, at 390, per Chapman J). On Chapman J’s reliance on wider authorities, including English common law, in support of this recognition of native title, see ibid, at 388, per Chapman J. Similarly, some 25 years later, in In re ‘The Lundon and Whitaker Claims Act 1871’ (1872), the New Zealand Court of Appeal also upheld this common law recognition of native title. As Arney CJ said, in delivering the judgment of the Court: “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” (In re “The Lundon and Whitaker Claims Act 1871” (1872) 2 NZCA 49). Given that these earlier judgments upheld precedents contrary to his own ruling, one of them delivered by a superior Court, it is not surprising that Prendergast CJ’s references to them in Wi Parata are oblique, and failed to confront their contrary positions head-on. Hence his single reference to Lundon and Whitaker Claims involved a point of law unrelated to native title (see Wi Parata v Bishop of Wellington, supra note 1, at 79, per Prendergast CJ); while his two references to The Queen v Symonds either asserted that it gave rise to a precedent which conformed to his own ruling (ibid, at 78); or that it was mistaken in its interpretation and citation of one of the early American precedents on native title (ibid, at 80-81).
[26] Although there were some New Zealand judgments which departed from the Wi Parata precedent, even prior to the Privy Council Council judgments in 1901 and 1903, nevertheless these departures were minor and did not affect the main line of precedent on native title in New Zealand in the latter part of the nineteenth century which upheld the Wi Parata precedent. For a discussion of those minor New Zealand judgments which did depart from Wi Parata, see Tate, “Pre-Wi Parata: Early Native Title Cases in New Zealand” [2003] WkoLawRw 6; (2003) 11 Waikato Law Review 112.
[27] Nireaha Tamaki v Baker (1894) 12 NZLR 483, 488, per Richmond J, emphasis added. I have argued elsewhere that Prendergast CJ’s various conclusions regarding native title in Wi Parata are not consistent with each other, and the judgment as a whole is contradictory (see Tate, “Pre-Wi Parata: Early Native Title Cases in New Zealand”, supra note 26, at 121-25). However, in the present context, what is of concern is how subsequent authorities interpreted Wi Parata, and they did not seem to perceive such contradictions, or at least did not openly express any reservations they had in this regard (see the discussion of these subsequent authorities in ibid, at 125-30).
[28] See Nireaha Tamaki v Baker (1894), supra note 27, at 483, 484; Nireaha Tamaki v Baker (1900-01), supra note 5, at 378.
[29] See Nireaha Tamaki v Baker (1894), supra note 27, at 487-88; Nireaha Tamaki v Baker (1900-01), supra note 5, at 378.
[30] See Nireaha Tamaki v Baker (1894), supra note 27, at 488.
[31] See Nireaha Tamaki v Baker (1900-01), supra note 5, at 378.
[32] See Nireaha Tamaki v Baker (1894), supra note 27, at 483, 484-85; Nireaha Tamaki v Baker (1900-01), supra note 5, at 378-79.
[33] Indeed, in the 1894 case, the counsel for the defendant (now respondent) couched the argument which he presented to the Court of Appeal very much in terms of the Wi Parata precedent, as follows: “The Court has no jurisdiction to entertain the suit. The acts and proceedings of the Crown are conclusive that the Native title has been extinguished: Wi Parata v The Bishop of Wellington. The declaration gazetted under section 136 of ‘The Land Act, 1892’, is alone a sufficient exercise of the Crown’s prerogative in this respect” (Nireaha Tamaki v Baker (1894), supra note 27, at 486-87, per Gully for the defendant).
[34] Indeed, the Privy Council argued that this question displaced all others: “Their Lordships, however, have not now to deal with the merits of the case, or to say whether the appellant has or ever had any title to the pieces of land in question, or whether such title (if any) has or has not been duly extinguished, or to express any opinion on the regularity or otherwise of the respondent’s proceedings. The respondent has pleaded amongst other pleas that the Court has no jurisdiction in this proceeding to inquire into the validity of the vesting or.....non-vesting of the said lands or any part thereof in the Crown. An order was made for the trial of four preliminary issues of law of which two only (the 3rd and 4th) were dealt with in the order now under appeal. They are in these terms: - 3. Can the interest of the Crown in the subject-matter of this suit be attacked by this proceeding? 4. Has the Court jurisdiction to inquire whether as a matter of fact the land in dispute has been ceded by the Native owners to the Crown? Both questions were answered by the Court of Appeal in the negative” (Nireaha Tamaki v Baker (1900-01), supra note 5, at 379). As we saw, the Court of Appeal answered both questions in the negative by citing Wi Parata v Bishop of Wellington as the relevant authority in this matter (see supra note 27).
[35] Prendergast CJ had argued that Maori lacked native title because they lacked the customary laws on which such native title was based. Customary law defines the content of the native title which English common law is capable of recognizing. As Butterworths Australian Legal Dictionary states: “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 and Butt, Peter (ed) Butterworths Australian Legal Dictionary (1997) 775). Within his Wi Parata judgment, Prendergast CJ denied the very existence of such traditional laws and customs among Maori tribes. Faced with a section of the Native Rights Act 1865 which referred to the “Ancient Custom and Usage of the Maori People”, Prendergast CJ responded 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 supposition, that no such body of law existed; and herein have been in entire accordance with good sense and indubitable facts” (Wi Parata v Bishop of Wellington, supra note 1, at 79, per Prendergast CJ, emphasis added). He argued that the perceived absence of such customary law was not due to some oversight on the part of a culturally insensitive imperial power, but rather due to its non-existence in fact. As he put it: “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” (ibid, at 77-78, per Prendergast CJ). Prendergast CJ’s belief that there was an absence of customary law within traditional Maori society was informed by his wider opinion that New Zealand, prior to its acquisition by the Crown, was “....a territory thinly peopled by barbarians without any form of law or civil government” (ibid, at 77, per Prendergast CJ). He therefore concluded that “....there existed amongst the natives no regular system of territorial rights nor any definite ideas of property in land...” (ibid). In other words, Prendergast CJ’s denial of the existence of customary law within traditional Maori society forms the basis of his denial of native title. Needless to say, Prendergast CJ’s denial of the existence of native title is at odds with his recognition of that title elsewhere in this judgment, where he subordinates it to the prerogative powers of the Crown. For a discussion of this and other contradictions in the Wi Parata judgment, see Tate, “Pre-Wi Parata: Early Native Title Cases in New Zealand”, supra note 26, at 121-25.
[36] Nireaha Tamaki v Baker (1900-01), supra note 5, at 382-83.
[37] Ibid, at 382-83.
[38] See supra note 27. Although Prendergast CJ held in Wi Parata that this declaratory power of the Crown was recognised in two statutory Land Acts, he argued that these Acts merely recognised “an indubitable prerogative of the Crown” in this regard (see supra note 20). Consequently it was assumed by the New Zealand judicial authorities that such declarations by the Crown were an expression of its prerogative power over native title, and were thereby sufficient to oust the jurisdiction of the municipal Courts.
[39] Hence, in delivering its order to the lower Court, the Privy Council explicitly stated that its ruling is premised on the assumption that the status of the Crown prerogative has not been at issue in the present case: “Their Lordships are therefore of opinion that..... it not appearing that the estate and interest of the Crown in the subject-matter of this suit subject to such Native titles (if any) as have not been extinguished in accordance with law is being attacked by this proceeding, the Court has jurisdiction to inquire whether as a matter of fact the land in dispute has been ceded by the Native owners to the Crown in accordance with law....” (Nireaha Tamaki v Baker (1900-01), supra note 5, at 385, emphasis added).
[40] As Lord Davey put it for the Privy Council: “Their Lordships think that the learned Judges have misapprehended the true object and scope of the action, and that the fallacy of their judgment is to treat the respondent as if he were the Crown or acting under the authority of the Crown for the purposes of this action. The object of the action is to restrain the respondent from infringing the appellant’s rights by selling property on which he alleges an interest in assumed pursuance of a statutory authority the conditions of which (it is alleged) have not been complied with. The respondent’s authority to sell on behalf of the Crown is derived solely from the statutes and is confined within the four corners of the statutes. The Governor in notifying that the lands were rural land open for sale was acting and stated himself to be acting in pursuance of s. 136 of the Land Act, 1892, and the respondent in his notice of sale purports to sell in terms of s. 137 of the same Act. If the land were not within the powers of those sections (as is alleged by the appellant), the respondent had no power to sell the lands, and his threat to do so was an unauthorized invasion of the appellant’s alleged rights” (Nireaha Tamaki v Baker (1900-01), supra note 5, at 380-81).
[41] As Lord Davey put it for the Privy Council: “Their Lordships ... express no opinion on the question which was mooted in the course of the argument whether the Native title could be extinguished by the exercise of the prerogative, which does not arise in the present case” (ibid, at 385).
[42] As Lord Davey stated: “But it is argued that the Court has no jurisdiction to decide whether the native title has or has not been extinguished by cession to the Crown. It is said and not denied that the Crown has an exclusive right of pre-emption over native lands and of extinguishing the Native title. But that right is now exercised by the constitutional Ministers of the Crown on behalf of the public in accordance with the provisions of the statutes in that behalf, and there is no suggestion of the extinction of the appellant’s title by the exercise of the prerogative outside the statutes if such a right still exists” (ibid, at 381-82, emphasis added).
[43] Ibid, at 383.
[44] Ibid, at 383-84.
[45] See supra note 35.
[46] See the discussion in “The Legacy of Wi Parata” above.
[47] See supra note 27.
[48] Nireaha Tamaki v Baker (1900-01), supra note 5, at 382.
[49] See supra note 37 which places the Privy Council’s comments on s 5 in their broader context, and clearly indicates that the Privy Council saw s 5 as binding the Crown over to the Native Land Court in the requisite circumstances. If the Privy Council did not believe that the Crown was also subject to the Native Rights Act 1865, its reversal of the order of the Court of Appeal in the Nireaha Tamaki case, and its declaration that “....the [Supreme]Court has jurisdiction to inquire whether as a matter of fact the land in dispute has been ceded by the Native owners to the Crown in accordance with law” (Nireaha Tamaki v Baker (1900-01), supra note 5, at 385) would make little sense.
[50] See supra notes 18, 23 and 24.
[51] Wi Parata v Bishop of Wellington, supra note 1, at 80. Needless to say, Prendergast CJ’s reasoning in this passage is inherently circular. He effectively justified his claim that the statute did not limit the Crown’s prerogative on native title by claiming that any other interpretation would indeed limit that prerogative. Prendergast CJ however went on to provide further evidence for the continued existence of the prerogative in his interpretation of the Native Lands Acts of 1867 and 1873, where he held the Crown was entitled to declare, within the New Zealand Gazette, that the native title had been extinguished (see ibid, at 80). Far from suggesting that the declaratory power of the prerogative had now been extinguished in favour of its recognition in statute, Prendergast CJ claimed that these statutes merely recognised and affirmed this prior prerogative (see supra note 20).
[52] For the affirmation of the Wi Parata ruling in the 1894 judgment, see supra note 27.
[53] See Nireaha Tamaki v Baker (1900-01), supra note 5, at 382-83, 384.
[54] See ibid, at 380.
[55] See ibid, at 382-83, 384.
[56] Hohepa Wi Neera v Bishop of Wellington, supra note 4, at 667, per Stout CJ.
[57] For a discussion of this Act as a specific response by the New Zealand legislative authorities to the Privy Council’s judgment in Nireaha Tamaki v Baker, see McHugh, supra note 3, at 118.
[58] Land Titles Protection Act 1902, No 37, 2 Edw VII, Preamble.
[59] See supra note 44.
[60] Land Titles Protection Act 1902, s 2 (1).
[61] “Wallis and Others v Solcitor-General. Protest of Bench and Bar, April 25, 1903”, supra note 4, at 746, per Stout CJ.
[62] Ibid. The other response of the New Zealand judiciary to the Privy Council’s judgment in Nireaha Tamaki v Baker occurred in the first native title judgment which the Court of Appeal delivered after receiving notice of the recent Privy Council decision. This was the Court of Appeal’s ruling in Hohepa Wi Neera v Bishop of Wellington (1902), supra note 4. As I have argued elsewhere, the Court of Appeal judges displayed in this judgment a clear desire to evade the full implications of the recent Privy Council decision, thereby to preserve intact as much of the Wi Parata precedent as they could. See Tate, “Hohepa Wi Neera: Native Title and the Privy Council Challenge” (2004) 1 Victoria University of Wellington Law Review 35.
[63] As Williams J stated: “The case of Nireaha Tamaki v Baker was decided by their Lordships shortly before our decision in the present case, but the judgment had not then reached the Colony”. (“Wallis and Others v Solicitor General, Protest of Bench and Bar, April 25, 1903”, supra note 4, at 749, per Williams J).
[65] The Wi Parata case involved the Ngatitoa tribe, resident principally in the Porirua District, whose chiefs desired in 1848 that a school be erected on their land at Witireia (see Wi Parata v Bishop of Wellington, supra note 1, at 72). Negotiations were entered into between the Chiefs and the Bishop of New Zealand concerning this school (ibid). However while it is clear that in 1850 the Crown granted land to the Bishop for the building of a school in the area, it was open to dispute in the Wi Parata case whether the Ngatitoa tribe ever ceded land to the Crown for this purpose (ibid, at 73). Counsel for the plaintiff argued that the Ngatitoa tribe could not legally cede their lands for this purpose, and therefore that the Crown grant to the Bishop was illegal because the native title had not been lawfully extinguished. Failing this, the counsel for the plaintiff argued that the purpose for which the Crown grant was issued (the building of a school) had never been fulfilled, and therefore the grant should revert to the original owners (ibid).
[66] As Williams J stated in the present case: “There is practically no dispute as to the circumstances which led up to the issue of the Crown grant, nor as to what had been done under the Crown grant” (The Solicitor-General v Bishop of Wellington, supra note 64, at 677). However we can see the legacy of Wi Parata in the following statement, where Williams J effectively insists that any issues connected with the Maori cession of land to the Crown cannot invalidate the Crown grant once made – the latter being a conclusive declaration by the Crown that the native title had been lawfully extinguished (see supra note 21). As Williams J put it: “Any circumstances which led up to the issue of the Crown grant are manifestly inadmissible as evidence to contradict or vary the terms of the Crown grant, although they may be relevant on the inquiry as to what scheme should be adopted” (supra note 64, at 677).
[67] Hence there was no native plaintiff involved in this case, and so no direct claim concerning native title. The dispute was purely between the trustees and the Crown.
[68] Subsequent evidence tabled on behalf of the Solicitor-General indicated that other tribes besides the Ngatitoa were involved in the donation of the land (see ibid, at 667).
[69] Ibid, at 675.
[70] See Wallis v Solicitor-General, supra note 4, at 180.
[71] Ibid, at 181.
[72] Ibid.
[73] Ibid.
[74] Ibid.
[75] See Solicitor-General v Bishop of Wellington, supra note 64, at 676-77. Needless to say, the Solicitor-General had a series of reasons which informed his opposition to the plan put forward by the trustees. As Williams J put it, the Solicitor-General, in his statement of defense to the Supreme Court, argued that the Executive Government had been “....advised that by reason of the failure of the trusts the land and moneys have reverted to the Crown without any trust being attached to them, and submits, accordingly, that the question should be dealt with by Parliament, and that the Court has no jurisdiction”. (ibid, at 677). Hence in the first instance, the Solicitor-General’s claim that the Court had no jurisdiction had nothing to do with native title matters, but was premised on his claim that the grant had reverted back to the Crown, and so was a Crown matter. Indeed, the Court of Appeal ultimately accepted this argument, with Williams J. concluding “....the Court has no jurisdiction because the property is now vested in the Crown” (ibid, at 685). However if it had have been found that the Court did have jurisdiction over the matters relating to the trust, the Solicitor-General, in his statement of defence to the Supreme Court, adopted a second position, proposing an alternative scheme to the one proposed by the trustees (see ibid, at 677).
[76] Ibid, at 677.
[77] Ibid.
[78] Ibid, at 678-80.
[79] Ibid, at 681.
[80] Ibid, at 687.
[81] Cited in “Wallis and Others v Solicitor-General. Protest of Bench and Bar, April 25, 1903”, supra note 4, at 741.
[82] The cy-près doctrine is a doctrine within the law of charitable trusts. It operates in a case where a donor has expressed a general charitable intention that it is impossible or impractical to effect, and so the courts will allow the intention to be fulfilled as closely as possible to the original intention (cf Butterworths Australian Legal Dictionary, supra note 35, at 316).
[83] See The Solicitor-General v Bishop of Wellington, at supra note 64, at 686-87.
[84] Ibid, at 685.
[85] Ibid, at 685-86.
[86] According to Butterworths Australian Legal Dictionary, the doctrine of “parens patriae” is: “A common law doctrine by which the Sovereign has an obligation for the welfare of children and ‘lunatics’. That obligation was in return for the allegiance of the sovereign’s subjects” (Butterworths Australian Legal Dictionary, supra note 35, at 841). Williams J argued in the present case that the doctrine of parens patriae extends even further than this. He argued that the Crown is in a position of parens patriae when it comes to the administration of funds devoted to charity, to ensure that the funds are spent for the right purposes (a role administered through the courts) and that it is also in a position of parens patriae when it comes protecting the rights of Native owners of the soil (see The Solicitor-General v Bishop of Wellington, at supra note 64, at 686). So clearly the doctrine of parens patriae has been extended beyond the realm of children and lunatics over time.
[87] Ibid.
[88] Supra note 4.
[89] Supra note 66. Indeed, the whole thrust of the Solicitor-General’s late amendment, and the Court of Appeal’s conclusion, on the basis of this amendment, that a parens patriae relationship existed between the Crown and Ngatitoa tribe, is premised on the assumption that a direct cession of land had occurred between the Ngatitoa tribe and the Crown.
[90] See Wallis v Solicitor-General, supra note 4, at 179-80. In his Protest against the Privy Council’s judgment, Justice Williams clearly recognised that the most significant difference of opinion between the Court of Appeal and the Privy Council, giving rise to their divergent judgments in this case, was their disagreement over precisely this question of who had ceded the land to the Bishop of New Zealand. Williams J pointed out that the Privy Council’s judgment in Wallis “seems to have been based in the main” on the opinion that the Ngatitoa tribe ceded the land directly to the Bishop, the Crown merely fulfilling a “conveyancing” role in the process (“Wallis and Others v Solicitor General, Protest of Bench and Bar, April 25, 1903”, supra note 4, at 750, per Williams J). In response, Williams J argued that, at the time, the Maori had no legal right to their land cognizable in a Court of law, as there were no statutes at the time “regulating the extinction of native title” (ibid, at 749, per Williams J). As he put it: “If the Native occupiers had no right cognizable in a Court of law, it is difficult to see how they could transfer such a right to the Bishop” (ibid). He then pointed to the long line of legislative authority which he believed supported the Court of Appeal’s view that the Crown, and not the Ngatitoa tribe, were the donors of the land to the Bishop (ibid, at 748-49, per Williams J). He then summed up this legislative authority as follows: “Whether, however, we were right or wrong, there was certainly an unbroken current of authority. First, that the Native occupiers had no right to their land cognizable in a Court of law, and that having no such right themselves they could not transfer any right to others. Secondly, that the Crown grant was not a mere piece of conveyancing, but was essential to create any right at all of which this Court could take notice, and that any such right was derived from the Crown grant, and by virtue of the grant, and from the grant alone. Thirdly, that as the Natives never had any rights cognizable in a Court of law they had no locus standi to impeach the grant, and were neither necessary nor proper parties in any proceedings between the Crown and its grantee in relation to the subject-matter of the grant....Had we not so held we should not only have had to overrule all previous decisions, but should have differed in opinion from every Judge who has ever sat in this Court” (ibid, at 750).
[91] Wallis v Solicitor-General, supra note 4, at 179-80, emphasis added.
[92] Ibid, at 179. In the Court of Appeal Protest against this judgment, Williams J. questions this opinion, arguing that at least from 1846, Maori were not entitled to sell land to whomever they pleased (see “Wallis and Others v Solicitor General, Protest of Bench and Bar, April 25, 1903”, supra note 4, at 748, per Williams J). Indeed, the Crown’s exclusive right of pre-emption was upheld in the Treaty of Waitangi itself.
[93] Wallis v Solicitor-General, supra note 4, at 179-80.
[94] Ibid, at 179.
[95] Hence Lord Macnaghten described the Solicitor-General’s evidence before the Court of Appeal as entailing the contradictory assertion that “.....property of which the Crown was never possessed had ‘reverted’ to the Crown”. (ibid, at 186).
[96] Ibid, at 179.
[97] This principle was most famously affirmed by the Privy Council in regard to the Treaty of Waitangi some thirty-eight years later in Te Heuheu Tukino v Aotea District Maori Land Board, NZLR [1941] 590, 596-97.
[98] Supra notes 2 and 4.
[99] Supra notes 78 and 79.
[100] As the Privy Council put it: “Now as it is common ground that no school was ever established at or in the neighbourhood of Porirua, it would seem to follow that the occasion on which the trust, according to the construction placed on the grant by the Court of Appeal, was to cease and determine never arose and never could have arisen. It appears, therefore, hardly necessary to consider the second ground on which the Court of Appeal determined the case in favour of the Crown. It was not pressed at their Lordships’ bar” (Wallis v Solicitor-General, supra note 4, at 183).
[101] Ibid, at 183-84. Indeed much of the disagreement between the Privy Council and the Court of Appeal concerning whether the Crown was “deceived” in the grant turned on differing accounts of what it meant to be deceived. The position of the Privy Council was that, given that the Crown itself had drawn up the grant and included in the recitals the commitment to building a school, if the Crown had been deceived then it had effectively deceived itself (ibid, at 183-84, 184-85).
[102] Ibid, at 185.
[103] Ibid, at 185, my addition.
[104] Ibid, at 185.
[105] Ibid, at 187.
[106] Ibid.
[107] Ibid.
[108] Ibid, at 188.
[109] The Solicitor-General v Bishop of Wellington, supra note 64, at 686, cited in Wallis v Solicitor-General, supra note 4, at 188.
[110] Wallis v Solicitor-General, supra note 4, at 188-89.
[111] Ibid, at 188. Hence in regard to that part of the amended statement of defence which “....asserts that the Crown has come under some undefined and undisclosed obligations to the natives” (ibid, at 187), upon which the Court of Appeal concluded that “....this assertion must place the Court ‘in a considerable difficulty’“ (ibid, at 187) , the Privy Council response is: “Why? Why should a Court which acts on evidence and not on surmise or loose suggestions pay any attention to an assertion which, if true, could not have been proved at that stage of the proceedings, and which the evidence in the cause shews [sic] to have been purely imaginary?” (ibid, at 187). Lord Macnaghten’s claim that the Crown’s assertions were “purely imaginary” is presumably based on his belief that the effective terms of cession were not between the tribal chiefs and the Crown but between the tribal chiefs and the Bishop - with the result that the Crown’s intermediary role gave rise to no “undefined and undisclosed obligations to the natives”. Far from accepting that the Crown had taken on such obligations, as asserted in the Solicitor-General’s amended statement of defence, Lord Macnaghten stated: “According to the evidence, the only obligation which the Crown undertook was to waive its right of pre-emption”. (ibid, at 187). In the Court of Appeal’s Protest against the Privy Council’s decision, Stout CJ singled out this assumption for attack. Stout CJ argued that the Privy Council’s assertion “that the only obligation the Crown undertook was to waive its right of pre-emption” is “based on a fallacy” (“Wallis and Others v Solicitor General, Protest of Bench and Bar, April 25, 1903”, supra note 4, at 742, per Stout CJ). Stout CJ said: “[T]he Crown stood in quite a different position. It had the occupancy or possessory rights of the Maoris ceded to it that it might endow a school, and it was in a sense a trustee to give effect to that cession. Further, it gave up its title - the title in fee-simple - to the Bishop” (ibid, at 742). Needless to say, the source of the disagreement between the Privy Council and the Court of Appeal as to the facts in this instance is due to their contrary views as to whom the land was ceded to. From the Privy Council’s perspective, the land was effectively ceded by the Ngatitoa tribe directly to the Bishop. From the Court of Appeal’s perspective, it was ceded to the Crown, who then granted it to the Bishop. In the latter version of events, the Crown would be likely to undertake a series of obligations to the Ngatitoa tribe which would not have arisen in the former set of circumstances.
[112] Wallis v Solicitor-General, supra note 4, at 188.
[113] At an adjourned sitting of the Court of Appeal in Wellington on April 25, 1903, “....the Chief Justice indicated that he had something to say regarding the recent judgment of the Privy Council” (“Wallis and Others v Solicitor General, Protest of Bench and Bar, April 25, 1903”, supra note 4, at 730). Besides delivering his own protest, the Chief Justice also read a protest by his colleague, Williams J, and Edwards J also read a protest. Williams J had delivered the Court of Appeal’s judgment in Solicitor-General v Bishop of Wellington (1901) which had been overturned by the Privy Council in Wallis, and which was the subject of this protest. Interestingly, neither Stout CJ nor Edwards J was a party to this Court of Appeal judgment, both having delivered the Supreme Court judgment which this Appeal judgment overturned, and which was therefore subsequently affirmed by the Privy Council in its rejection of the Appeal judgment (see Solicitor-General v Bishop of Wellington, supra note 64, at 666; Wallis v Solicitor-General, supra note 4, at 189). Nevertheless, the issues raised by the Privy Council judgment were clearly of such moment that both judges still felt obliged to join the protest. At the end of the three readings of protest, a member of the bar, Mr W.L Travers, rose and, on behalf of the Bar, joined the justices in their protest (ibid, at 759-60). This latter statement from the Bar was described as “....a unique, impressive incident, made more impressive by reason of the fact that it was quite unrehearsed and unexpected” (ibid, at 759).
[114] Sir Robin Cooke, “The Nineteenth Century Chief Justices”, in Cooke, Robin (ed) Portrait of a Profession. The Centennial Book of the New Zealand Law Society (1969) 36, 46.
[115] Hence the Chief Justice of the Court of Appeal, Sir Robert Stout, began his address by stating: “In the judgment in a recent case before the Lords of the Judicial Committee of the Privy Council – Wallis v Solicitor-General – a direct attack has been made upon the probity of the Appeal Court of New Zealand” (“Wallis and Others v Solicitor General, Protest of Bench and Bar, April 25, 1903”, supra note 4, at 730. See ibid, 745, 746, per Stout CJ; 755-56, per Williams J; 757, 759, per Edwards J).
[116] Ibid, at 747, per Williams J.
[117] Hence Stout CJ stated: “It is not my purpose to canvass the decision of the Privy Council. My object is to show that the comments of the Council on, and its criticism of, the Appeal Court were alike unwarranted” (ibid, p. 731). However his statement then went on to challenge and question many legal aspects of the Privy Council decision. Williams J admitted it was necessary to criticise the decision of the Privy Council, but not as an end in itself. Rather, only in so far as this was necessary to defend the dignity of the Court of Appeal: “For an inferior Court to criticize the judgment of a superior Court which reversed its decision would be in general alike, unprofitable and unseemly. But where the decision of the inferior Court has been not only reversed but has been reversed with contumely – where the inferior Court has been taunted with want of independence and subservience to the Executive Government – it is right that the members of the Court who pronounced the decision in question should come forward and defend the honour of the Court they represent. In order that they may do so, it would become necessary for them to refer to their own decision, and also to criticize to some extent the decision of the superior Court. They would do this not so much with a view of justifying their decision as to show that the aspersions cast upon them by the superior Court were unjustifiable” (ibid, p. 746, per Williams J. See also ibid, at 756, per Williams J).
[118] Hence Stout CJ accused the Privy Council, in its Wallis v Solicitor-General judgment, of making statements of fact and law “....without a knowledge of our legislation” (ibid, at 732, per Stout CJ). He then said of another statement by the Privy Council in that case that it “....could not have been made by any counsel at the Bar in New Zealand, nor by any one conversant with our history”. (ibid, at 737, per Stout CJ). He referred to a particular statement of the Privy Council as having been written “through want of knowledge of our statutes” (ibid, at 743, per Stout CJ). He then pointed to other cases in which he believed the Privy Council had pronounced judgment “....under a misapprehension or an ignorance of our local laws” (ibid, at 745, per Stout CJ). Similarly, Justice Williams, referring to the Privy Council’s judgment in Wallis v Solicitor-General, pointed to “....the ignorance it has shown in this and other cases of our history, of our legislation, and of our practice...” (ibid, at 756, per Williams J). See also ibid, at 757, 759, per Edwards J.
[119] “Wallis and Others v Solicitor General, Protest of Bench and Bar, April 25, 1903”, supra note 4, at 732, per Stout C.J. 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” [ie 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 native title so long as it fell within the scope of statute (see supra notes 36 and 37).
[120] As we saw in the Wi Parata judgment, the extinguishment of native title is a necessary precondition for the issue of a Crown grant, and Prendergast CJ held that the very existence of a Crown grant was sufficient declaration by the Crown that the native title had been lawfully extinguished (see Wi Parata v Bishop of Wellington, supra note 1, at 78). On this basis, the existence of a Crown grant over a piece of land necessarily precludes the continued existence of native title. Consequently, for Stout CJ to suggest that all title to land in New Zealand derived from Crown grant, including native lands, is in effect to assert a terra nullius claim that native title in New Zealand did not exist.
[121] Hence Stout CJ referred to three Ordinances which, he claimed, “....are in accordance with the judgments in the New Zealand cases referred to” (“Wallis and Others v Solicitor General, Protest of Bench and Bar, 25 April, 1903”, supra note 4, at 732, per Stout CJ). Yet each of these Ordinances referred to the Crown’s exclusive right of pre-emption over native land – a right which presupposes the existence of native title because it is precisely that title which is extinguished when the Crown exercises its right of pre-emption (see ibid, at 732-33, per Stout CJ).
[122] Hence in his Hohepa Wi Neera judgment, Stout CJ articulated this proposition as follows: “There has since 1865 ever been a Native Land Court to investigate Native title; and the uniform rule has been, until such investigation was determined the Supreme Court did not recognise the title of any Native to sue for possession of land uninvestigated by the Court” (Hohepa Wi Neera v Bishop of Wellington, supra note 4, at 665, per Stout CJ. See also Tamihana Korokai v Solicitor-General, supra note 4, at 341, per Stout CJ). On the conventional common law view that native title co-exists with the radical title of the Crown, as a “burden” upon it, until extinguished by the Crown, see Mabo v Queensland, supra note 8, at 49, 51, 57, per Brennan J. See also Attorney-General v Ngati Apa [2003] NZCA 117; (2003) 3 NZLR 643 (CA) 655-56, per Elias CJ.
[123] Supra notes 91 and 94.
[124] “Wallis and Others v Solicitor General, Protest of Bench and Bar, April 25, 1903”, supra note 4, at 734, per Stout C.J.
[125] Ibid.
[126] Brennan J, representing a majority of the Australian High Court, argued in his Mabo judgment that the granting of reserves by the Crown to indigenous inhabitants does not extinguish native title. As Brennan put it: “.....the exercise of a power to extinguish native title must reveal a clear and plain intention to do so, whether the action be taken by the Legislature or by the Executive......A clear and plain intention to extinguish native title is not revealed by a law which merely regulates the enjoyment of native title....or which creates a regime of control that is consistent with the continued enjoyment of native title.....A fortiori, a law which reserves or authorizes the reservation of land from sale for the purpose of permitting indigenous inhabitants and their descendants to enjoy their native title works no extinguishment”. (Mabo v Queensland, supra note 8, at 64-65, per Brennan J. See ibid, at 111, per Deane and Gaudron JJ; ibid, at 196, per Toohey J).
[127] As Stout CJ said: “[I]t has been recognised that the lands in the Islands not sold by the Natives belonged to the Natives. All the old authorities are agreed that for every part of land there was a Native owner” (Tamihana Korokai v Solicitor-General, supra note 4, at 340, per Stout CJ).
[128] See “Wallis and Others v Solicitor General, Protest of Bench and Bar, April 25, 1903”, supra note 4, at 742-43, per Stout CJ.
[129] Ibid, at 742, per Stout C.J.
[130] See Wi Parata v Bishop of Wellington, supra note 1, at 78-79.
[131] Williams J’s protest was read to the Court by Chief Justice Stout. His protest was made on behalf of the judges who decided Solicitor-General v Bishop of Wellington (1901). Williams J articulated his position as follows: “The Judges of the Court of Appeal of New Zealand who decided the case in question have therefore thought it right that I, who was the Judge who presided on that occasion, should on their behalf protest publicly against the attack made on the honour of the Court they represent, and should endeavour to show that whether their judgment was right or wrong there is no ground whatever for the attack their Lordships have thought fit to make” (“Wallis and Others v Solicitor General, Protest of Bench and Bar, April 25, 1903”, supra note 4, at 747, per Williams J.).
[132] See the section “The Privy Council’s Rejection of the Court of Appeal’s Obiter Dicta” above.
[133] Supra note 63. Concerning the Privy Council’s opinion, expressed in Nireaha Tamaki v Baker (1900-01), that native title has a statutory basis in New Zealand, see supra notes 36 and 37.
[134] “Wallis and Others v Solicitor General, Protest of Bench and Bar, April 25, 1903”, supra note 4, at 749, per Williams J.
[135] Ibid, at 750, per Williams J. However see infra note 140.
[136] Ibid, at 749, per Williams J.
[137] As Williams J stated: “After we had given our decision on the grounds above mentioned, we made some remarks which were altogether independent of what we had decided. We indicated that there appeared to us in any case, and apart from our decision, to be some difficulty in administering the trust cy-près, as the Crown by its counsel had asserted that it had duties towards the Natives who ceded the land which could not be performed if the Court so administered it. We gave at length our reasons for the apparent difficulty, but expressly refrained from giving any decision on the question. 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. As was laid down in Wi Parata v Bishop of Wellington: ‘Transactions with the Natives for the cession of their title to the Crown are to be regarded as acts of State, and therefore are not examinable in any Court’......We were considering with hesitancy how far the above principle would have been applicable to the case before us. 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. If the Crown by its representatives asserted the existence of any duty to the Natives, it seemed to us that the above principles might require the acceptance by the Court of the assertion, and so have placed us in the difficulty suggested” (“Wallis and Others v Solicitor General, Protest of Bench and Bar, April 25, 1903”, supra note 4, at 754-55, per Williams J).
[138] Cf Nireaha Tamaki v Baker (1894), supra note 27, at 488, per Richmond J.
[139] See the discussion on the absence of any such connection in the section “The Solicitor-General v The Bishop of Wellington” above.
[140] The same concern underlay Williams J’s spurious claim that an “unbroken current of authority” supported the view which the Court of Appeal expressed in its obiter dicta in Solicitor General v Bishop of Wellington: that they had no jurisdiction to deal with native title matters (see supra note 135). Such a view implies that all New Zealand Court rulings were consistent with the Wi Parata view on this matter. But as we saw, there were two major New Zealand native title decisions, prior to Wi Parata, which held to a contrary view (see supra note 25). Williams J’s reference to an “unbroken current of authority” effectively ignores these, as does his claim that, in arriving at a contrary view, he would “....have differed in opinion from every Judge who has ever sat in this Court” (see supra note 135). Both claims must once again be seen as an attempt to buttress all existing New Zealand judicial authority in support of Wi Parata.
[141] Supra note 129.
[142] As Williams J stated: “In the above circumstances it seems more appropriate that the matter should be dealt with by the Legislature than by this Court” (Solicitor-General v Bishop of Wellington, supra note 64, at 686, per Williams J).
[143] In so far as prerogative powers include the capacity to summon, prorogue or dissolve parliament, they are exercised by the Crown, independent of parliament itself (see Nygh and Butt, supra note 35, at “Prerogative Powers”, 906). However Parliament may circumscribe and extinguish such prerogative powers (ibid), but this in itself would be an extraordinary measure, and “acts of state” are therefore generally held to lie within the jurisdiction of the Crown alone. As such, contrary to Stout CJ and Williams J, it is reasonable to assume that the reference in the obiter dicta to Parliament as the most likely venue for consideration of a parens patriae relationship arising between Crown and Maori means that the parens patriae doctrine does not entail acts of state, and so is not an oblique reference to the Wi Parata precedent upholding Crown prerogative powers over native title.
[144] “Wallis and Others v Solicitor General, Protest of Bench and Bar, April 25, 1903”, supra note 4, at 755, per Williams J.
[145] See Sinclair, Keith The Origins of the Maori Wars (1957); Sorrenson, “Maori and Pakeha”, in Oliver, WH and Williams, BR (ed) The Oxford History of New Zealand (1987) 175-76; Orange, Claudia The Treaty of Waitangi (1988) 159-60.
[146] Hence, as we have seen, Stout CJ said that if the dicta of the Privy Council in Nireaha Tamaki v Baker “.....were given effect to, no land title in the Colony would be safe” (supra note 61). Similarly, in the Court of Appeal judgment in Nireaha Tamaki in 1894, Richmond J, in affirming the Wi Parata precedent that the declaration of the Crown on native title is sufficient to oust the jurisdiction of the Courts, said that “[t]he security of all titles in the country depends on the maintenance of this principle” (supra note 27). Finally, Edwards J gave expression to these same concerns over the stability and security of land settlement, in the wake of the Privy Council decisions, when he said: “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” (“Wallis and Others v Solicitor General, Protest of Bench and Bar, April 25, 1903”, supra note 4, at 757, per Edwards J, emphasis added).
[147] Supra note 114.
[148] “Wallis and Others v Solicitor General, Protest of Bench and Bar, April 25, 1903”, supra note 4, at 746, per Stout CJ.
[149] Ibid, at 756, per Williams J.
[150] Certainly the strongest claim for the greater expertise of New Zealand lawyers over English ones when it came to considerations of New Zealand law was made by Edwards J, at ibid, 758-59. See also supra note 118, where the Court of Appeal refers strongly to what they perceive as the “ignorance” of the Privy Council regarding New Zealand law.
[151] See “Wallis and Others v Solicitor General, Protest of Bench and Bar, April 25, 1903”, supra note 4, at 756, per Williams J.
[152] As Stout CJ put it: “Seeing that the fullest rights of legislation and administration have been granted to the Colonies, it is illogical that the fullest rights of settling legal disputes should not also have been granted to them. Surely the making of laws, and the administering of Government affairs are as important as the interpreting of the laws we ourselves have made [?]” (Stout, “Appellate Tribunals for the Colonies” (1904) The Commonwealth Law Review 4). Indeed Sir Robert went so far as to suggest that the continuing dependence on the Privy Council may undermine the colonists’ capacity for independence in other respects. As he puts it: “The psychological effect of dependence on some external power for the performance of our highest duties as citizens of these new nations should.....not be lost sight of” (ibid, at 13).
[153] So, for instance, William J’s reference to the Privy Council as an “alien tribunal” was situated within a broader statement that was more nuanced in its demands for independence. As is clear from the following passage, it was the frustration which Williams J felt with what he saw as the “ignorance” of the Privy Council regarding local New Zealand laws, the arrogance it displayed in the Wallis judgment, and the delays in delivering its judgments, which provoked his suggestions for reform, rather than any “nationalist” desire for independence. As Williams J stated: “That the decisions of this Court should continue to be subject to review by a higher Court is of the utmost importance. The knowledge that a decision can be reviewed is good alike for Judges and litigants. Whether, however, they should be reviewed by the Judicial Committee as at present constituted is a question worthy of consideration. That Court, by its imputations in the present case, by the ignorance it has shown in this and other cases of our history, of our legislation, and of our practice, and by its long-delayed judgments, has displayed every characteristic of an alien tribunal” (“Wallis and Others v Solicitor General, Protest of Bench and Bar, April 25, 1903”, supra note 4, at 756, per Williams J). Similarly, Stout CJ’s reference to the “weakening” of the “Imperial spirit” is similarly nuanced when placed in its broader context. Like Williams J, Stout CJ paid lip service to the importance of having a higher tribunal to which New Zealand judgments may be appealed, but again, it is his frustration with the perceived ignorance of the Privy Council regarding New Zealand laws which provokes his criticisms. As Stout CJ stated: “The matter is really a serious one. A great Imperial judicial tribunal sitting in the capital of the Empire, dispensing justice even to the meanest of British subjects in the uttermost parts of the earth, is a great and noble ideal. But if that tribunal is not acquainted with the laws it is called upon to interpret or administer, it may unconsciously become the worker of injustice. And if such should unfortunately happen, that Imperial spirit that is the true bond of union amongst His Majesty’s subjects must be weakened. At present we in New Zealand are, so far as the Privy Council is concerned, in an unfortunate position. It has shown that it knows not our statutes, or our conveyancing terms, or our history. What the remedy may be, or can be, for such a state of things, it is not at present within my province to suggest” (ibid, per Stout CJ, at 746).
[154] Indeed, so effective was this criticism and opposition that, according to the Dictionary of New Zealand Biography, the protest initiated a process that eventually led to reform, when it was arranged that “... in hearing cases remitted from dominion courts the Privy Council should, if possible, have sitting with it a judge from the dominion interested” (A Dictionary of New Zealand Biography (1940) 342). The result was ironic, in that for all their criticisms of the Privy Council in their protest, both Stout CJ and Williams J were eventually elected to preside on this body themselves – Williams J in 1913 and Stout CJ in 1921 (ibid, at 342, 514).
[155] In this respect, I would disagree with Paul McHugh’s characterization of the protest as showing “... how clearly New Zealand lawyers were regarding themselves as umbilically connected both historically and doctrinally to the British constitution” (McHugh, “A History of Crown Sovereignty in New Zealand”, in Sharp, Andrew and McHugh, Paul (eds) Histories, Power and Loss. Uses of the Past – A New Zealand Commentary (2001) 197).
[156] On the statutory recognition of native title, see Tamihana Korokai v Solicitor-General, supra note 4, at 345, per Stout CJ; 351, per Edwards J; 352-53 per Cooper J; 355-56, per Chapman J. On the question of the continuation of Crown prerogative over native title, see ibid, at 345, per Stout CJ, where he mentions three methods by which the Native Land Court can be excluded in its jurisdiction over native title, and none of these relate to the Crown prerogative power. For stronger rejections of the continued existence of the Crown prerogative over native title, see ibid, at 346-48, per Williams J; 351-52, per Edwards J; 353-54, per Cooper J; and 358, per Chapman J.
[157] Supra note 44.
[158] Supra note 60.
[159] See for instance, Waipapakura v Hempton [1914] NZGazLawRp 141; (1914) 33 NZLR 1065; In Re the Bed of the Wanganui River (1955) NZLR 419; In Re The Bed of the Wanganui River (1962) NZLR 600; In Re The Ninety-Mile Beach (1963) NZLR 461; Te Weehi v Regional Fisheries Officer [1986] NZHC 149; (1986) 1 NZLR 680; Attorney-General v Ngati Apa [2003] NZCA 117; (2003) 3 NZLR 643. However as Elias CJ pointed out in Attorney-General v Ngati Apa, even in regard to these marginal concerns, the Wi Parata principle was still, at times, applied. Hence Elias CJ criticized the Court of Appeal ruling in Re the Ninety-Mile Beach (1963) NZLR 461 (CA), claiming that it wrongly applied the Wi Parata precedent to coastal foreshores and was therefore wrongly decided in law (cf Attorney-General v Ngati Apa, supra note 122, at 651, per Elias CJ).
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