- Title
- The privy council and native title: a requiem for Wi Parata?
- Creator
- Tate, John William
- Relation
- Waikato Law Review Vol. 12, p. 101-152
- Relation
- http://www.waikato.ac.nz/law/wlr/2004/
- Publisher
- University of Waikato
- Resource Type
- journal article
- Date
- 2004
- Description
- 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.
- Subject
- privy council; Wi Parata; New Zealand; native title
- Identifier
- uon:872
- Identifier
- http://hdl.handle.net/1959.13/26444
- Identifier
- ISSN:1172-9597
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