I am currently reading David V. Williams’ latest book, “A Simple Nullity? The Wi Parata Case in New Zealand Law and History” and it has provoked my thinking about Te Tiriti and it’s treatment by the Courts in this country. The book is a fascinating read and I would highly recommend it to anyone with an interest in Māori history and law. The true value of this work arises in Williams in-depth analysis of the historical and political circumstances that led up to the Court case. This discussion allows us to place the judgment of Chief Justice Prendergast in its proper historical context.
Without giving too much away, Williams’ central thesis is that modern jurists have failed to properly engage with the Wi Parata decision. It is all to easy to hold up this case as an example of the negative settler attitudes towards Māori and, in one broad stroke, demonise an entire generation of New Zealanders to further our own aims of Tino Rangatiratanga. So pervasive is this analysis of Wi Parata, I am constantly hearing ad nauseam, the following argument presented by law students in my tutorial groups: “Chief Justice Prendergast in Wi Parata said that Māori are barbarians and that Te Tiriti is a “simple nullity”, therefore the colonial state was racist and Māori have to fight this injustice.” Now, there is nothing inherently wrong with such an argument, however it is a gross over-simplification of the true meaning of Wi Parata. Before continuing, let me categorically state that this is not intended as a critique of my first year law students. This is an argument that will be put forward by 99% of the legal profession when discussing the Wi Parata case. The reference to the students is to demonstrate that this argument has become so indoctrinated within the legal profession that it is being taught uncritically at our law school. Ironic given the prominent position that David V. Williams holds at the University of Auckland Law School.
If we take a step back and look at what Chief Justice Prendergast said in Wi Parata, you will find a statement that many Māori of that time, and indeed today, would agree with. The Chief Justice did not state that Te Tiriti was a nullity, his reference was instead focussed on Te Tiriti as a cession of sovereignty. To quote:
So far indeed as that instrument purported to cede the sovereignty – a matter with which we are not directly concerned – it must be regarded as a simple nullity.
If you read Te Tiriti you will see no reference to any cession of sovereignty. The English translation of Te Tiriti purported to cede sovereignty, but that document should not be considered to have any legal effect in Aotearoa. Here, the Chief Justice was stating that even The Treaty could not be regarded as a Treaty of cession. The very position that Māori have been arguing for the past 170 years. Yes, his reasoning was that Māori were a “barbaric” society and therefore lacked the political capacity to enter into international treaties but again, this statement should be considered in light of the meaning of the term at the time it was written. While “barbaric” certainly held negative connotations in the 1870s, this was not the only meaning of the term at the time. To simplify European attitudes towards indigenous societies, “Barbarian” societies was any society that did not resemble an European State. Legal thinking of the time conceptualised a very formal state structure and if no such structure could be identified, then such a society was considered to be “Barbarian”. To assume that the term was only applied to Māori because of the perceived warring between iwi is a failure to properly recognise the legal meaning of the term at the time.
So what does this tell us about the status of Te Tiriti? Wi Parata stands for the principle that Te Tiriti is not a treaty of cession. In other words, the British Crown did not acquire sovereignty by virtue of Te Tiriti. In fact, as far as I am aware, no court in Aotearoa/New Zealand has stated that sovereignty was acquired through Te Tiriti despite the clear wording of the English translation.
If not Te Tiriti, then how did the British acquire sovereignty over New Zealand? That is, if they have at all? In the famous Lands Case, Justice Richardson referred to the 1840 Proclamations as being the final act of the acquisition of sovereignty by the British, a notion which is prima facie absurd. One cannot simply declare the acquisition of sovereignty. Emeritus Professor Jock Brookfield prefers the doctrine of efficacy to justify British sovereignty, others argue that sovereignty was acquired through conquest and yet more will tell you that sovereignty was acquired through settlement. Listen to Prime Minister John Key and it does not matter how sovereignty was acquired, what is important is that Aotearoa/New Zealand is now governed by a representative democracy and that institution is here to stay. In presenting its evidence to the Waitangi Tribunal’s hearings in the Te Paparahi o Te Raki inquiry into the meaning and effect of He Whakaputanga (The Declaration of Independence 1835) and Te Tiriti o Waitangi, even the Crown could not present a coherent case justifying the point in time in which sovereignty was acquired by the British. Māori continue to assert that sovereignty was never ceded. The issue is far from settled.
Over the coming months I plan on further addressing the question of sovereignty, as it will potentially form the basis of a Masters of Laws dissertation in the next 1-2 years. It is a fascinating question and Wi Parata provides a useful contribution to resolving the 170 year old question.
As to the legal effect of Te Tiriti, Wi Parata stated that it cannot be treated as a treaty of cession and the commonly accepted response of the Courts to Te Tiriti is that is has no legal standing unless it has been incorporated into a relevant piece of legislation. However, in R v Symonds, a seemingly forgotten case from 1847, a New Zealand Court upheld the Treaty as a valid legal document including rights that can be enforced by the courts. Interesting.