Author(s): David Williams
In 1877, the NZ Supreme Court decided the case of Wi Parata vs. Bishop of Wellington, centred on the ownership and use of the Whitireia Block near Porirua, which had been granted by Ngati Toa to the Anglican Church for a school that was never built. Refusing jurisdiction over the case, the Court also denied the legal relevance of the Treaty of Waitangi in NZ law. The judges wrote: “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.” Over the past 20 years, judges, lawyers and commentators have castigated the “simple nullity” view of the Treaty in this “infamous” case as a sign of the historic neglect of Maori rights by settlers, government and the law in New Zealand. The case was used as a point of reference, in order to repudiate it, in the major Ngati Apa case that led to the Foreshore and Seabed legislation. Williams takes a fresh look at Wi Parata with insights into Maori/Pakeha relations and into the legal meaning of the Treaty. The case, he argues, tells us much about the power of 19th-century Maori as agents and about debates in Pakeha jurisprudence over the different potential legal sources of customary Maori rights (jure gentium and aboriginal title). Behind the apparent dismissal of the Treaty as a “simple nullity” lay deep arguments about Maori and Pakeha in Aotearoa NZ.
David V Williams is Professor of Law at The University of Auckland. He has been a Treaty researcher for many years and is author of Te Kooti Tango Whenua: The Native Land Court 1864-1909 (Huia) and co-editor of Waitangi Revisited: Perspectives on the Treaty of Waitangi (OUP, 2005).