Tuesday, July 5, 2011

Something New

We feature each week Nicholas Reid's reviews and comments on new and recent books.

“A SIMPLE NULLITY? – The Wi Parata case in New Zealand law and history” David V.Williams (Auckland University Press $49:99 ) ISBN978 1 86940 484 0

According to popular legend, in 1877 New Zealand’s Chief Justice, James Prendergast, delivered a “notorious” judgement in a case involving Maori land ownership.  The litigant, Wi Parata, was attempting to overturn Anglican Church possession of the Whitireia block of land and have it returned to the Ngati Toa. But, says the legend, the Chief Justice ignored the litigant’s pleas, turned down his claim, and in the process declared the Treaty of Waitangi to be a “simple nullity”.
Quoted out of context, the phrase “a simple nullity” has repeatedly been condemned in recent times. It is seen as evidence of  Pakeha legal insensitivity to Maori customary title, as shoving aside the nation’s founding document and as opening the way for even more confiscations of Maori land than had already taken place.
David V.Williams is both a Professor of Law and an ordained Anglican priest, as well as a full supporter of current Waitangi Tribunal processes. He is in no way attempting to return to old insensitivities, but he is concerned with historical accuracy.
In this judicious and carefully-argued book, he shows how most of the popular legend about the Wi Parata case is wrong. Among other things, the oft-quoted judgement wasn’t the work of the Chief Justice, but of the assisting judge, Christopher Richmond. More importantly, the case did not merely involve a Maori litigant and a church trust. Government interests hoped to wrest the disputed block out of church ownership and into government ownership. Had the judgement gone the other way, the Whitireia block would not have returned to Ngati Toa ownership.
Is this, then, merely the study of an obscure case of law?
Not at all.
The more he considers the details, the more Williams is able to show how wrongly the modern imagination has judged issues of  Maori land ownership and the law in the 19th century. With plenty of supporting evidence, he offers the view that, in terms of 19th century law, the “simple nullity” judgement was the correct one. The Treaty of Waitangi did not then have the legal force that it has only recently acquired. As he says in his introduction “aboriginal title as common law and the central role given to the Treaty in New Zealand law is an invention of the 1980s. A good invention – but an invention nevertheless.
These are not the words of a man who wants to turn the clock back, but a man who wants to help us understand how the past really happened.
Double Bravo for that.

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