Thursday, April 07, 2005

Recalling Prendergast

In his latest piece of pandering to the redneck vote, Don Brash is promising amendments to the Foreshore and Seabed Act to ensure that "the beaches belong to everyone". One change would be to "remove the jurisdiction of the Maori Land Court to hear claims for the foreshore and seabed". Given that the Maori Land Court is a specialist jurisdiction and claims of aboriginal title are precisely its area of competence, this is tantamount to an admission that the law is not on the government's side. It also displays a rather disturbing view (shared by many on the right) that the High Court would be less sympathetic to Maori claims - which given that the two courts interpret exactly the same law, says something about their views on judicial impartiality. But it's the second part which is the worst bit: removing rangatiratanga (authority) and kaitiakitanga (guardianship) as a basis for a customary rights claim.

To see why this is a Bad Thing, we have to unpack it a little. According to the doctrine of aboriginal title, indigenous peoples have property rights which survive a transfer of sovereignty. Such property rights are determined by whatever law or custom prevails at the time of settlement. In the case of Maori, that basically boils down to occupation and usage - or rangatiratanga and kaitiakitanga. In other words, what Don Brash is saying is that Maori never had property rights.

This is a staggering view, both in its sheer ignorance and implicit racism, and one which is more characteristic of the nineteenth century than the modern era. In fact, what it most recalls is the ruling of Justice Prendergast in Wi Parata v Bishop of Wellington. In that case, Prendergast famously declared the Treaty to be "a simple nullity", as deals with "savages" and "barbarians" were not binding. However, he also argued that Maori could not possibly have property rights, because

[h]ad 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

- a proposition which nowdays would be treated with the scorn it deserves. But Prendergast wasn't serious in his assertion of government infalliability, as his treatment of the Native Rights Act 1865 shows. When faced with an explicit provision recognising "property, whether real or personal, of the Maori people" and "land held under Maori custom and usage", he airily declared that "a phrase in a statute cannot call what is non-existent into being". Maori could not own property, unless it had been granted to them by the crown.

New Zealand has moved on since then, but as with so many other things, Brash seems to remain firmly mired in the past.


You omit to say that Prendergast gave his famous and often (mis)quoted decision in 1877. We have moved on since then as you rightly say, but there are still some prominent in the legal debate on the Treaty and Maori rights who argue that Prendergast still holds, regardless of the alternative views of the Law Lords in a remote country far removed from an understanding of the isuses and the context.

Posted by Anonymous : 4/07/2005 11:53:00 PM

I'm sure there are. But it's not just the Privy Council that has rejected Prendergast's view, but our own native jurisprudence. And it's not just a recent thing either - our courts have been resiling from Wi Parata since 1900. The explicit deprecation in Ngati Apa is just the final act in this long saga. And the reason is pretty obvious: in 1840 and since, the settler government acted as if Maori really did own property. They didn't just move in and take stuff (or at least, not that often), but "acquired title" by deed or purchase. Even at the height of the Land Wars, they followed this principle; the land of "rebellious" Maori was confiscated. The property rights were widely recognised, if only in the breach. Prendergast's doctrine didn't even make sense as a product of its own era, let alone the modern one.

Posted by Idiot/Savant : 4/08/2005 08:19:00 AM