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In 1877, in the case of Wi Parata v Bishop of Wellington, the justices of the New Zealand Supreme Court infamously dismissed the Treaty of Waitangi as ‘a simple nullity’. Castigated by judges, lawyers and commentators in recent years, the decision has been viewed as a symbol of the neglect of Maori rights by settlers, government and the law in New Zealand.

In this book, launched on 2 June 2011, Professor David Williams takes a fresh look at the Wi Parata case. The factual background to the case, he argues, tells us much about nineteenth-century Maori acting as they thought best for their people and about debates in Pakeha jurisprudence over the recognition or rejection of customary Maori rights. Behind the apparent dismissal of the Treaty as a “simple nullity” lay deep arguments about the place of Maori and Pakeha in Aotearoa New Zealand. Those arguments are as relevant now as they were then.

He says, “This is a book in which I reflect as a Pakeha academic scholar on some legal history issues of importance. Seeking understanding and arguing about various versions of the past, that the peoples of this land both share and contest, is important work in my estimation. The stories are of interest in themselves, but also they resonate with contemporary issues and they are relevant to future directions.”

“Arguments about religious education do not seem very important in the twenty-first century, but tensions concerning Crown/Maori relationships remain contentious. This is no more apparent than in the 2003–2004 and 2010-2011 controversies over customary rights to the foreshore and seabed coastal marine lands.”

These days, in attempting to foster better contemporary Crown/Maori relationships, it is fashionable to distance ourselves from “racism” and “unfair dealings” in the past. If the phrase about the Treaty of Waitangi being “a simple nullity” had not been included in the 1877 Parata judgment, then scholars and commentators no doubt would have found some other lightning rod to express our discontent with the nineteenth-century past.

Williams has drawn on archival resources, as well as his own personal understandings derived from a long involvement in contemporary Treaty claims issues, to reconstruct a picture of who the key actors were in the Parata v Bishop of Wellington dispute.

He asks: Who were the Maori donors and what did they hope to achieve? Who were the missionaries and why did their church hold on to the land with such determination? Who were the Crown representatives and what role did they play? Who were the lawyers and the judges and what background did they bring to the court case. Why did one of the lawyers finish up in gaol for contempt of court? Who actually wrote the infamous judgment? [Not the much maligned Chief Justice James Prendergast, as it turns out, but the other judge: William Richmond.]

For legal scholars, there is a substantial chapter that challenges the orthodoxy that the “common law” doctrine of aboriginal rights was sympathetic to Maori rights. Rather, Williams argues, “it was a doctrine designed to narrow Maori property rights to something more limited than was provided for in the Treaty of Waitangi, and its main purpose was to allow for the extinguishment of Maori land rights as rapidly as possible.”

The NZ Law Foundation contributed $10,000 towards this publication.

Dr David V Williams is a Professor of Law at The University of Auckland, Aotearoa New Zealand. He has university qualifications in history, law and theology. In the 1990s he was an independent researcher and barrister specialising in Treaty of Waitangi legal history research. He is the author of “Te Kooti Tango Whenua”: The Native Land Court 1864-1909 (1999) and co-editor of Waitangi Revisited: Perspectives on the Treaty of Waitangi (2005).

A Simple Nullity? is available through Auckland University Press and is available in bookshops nationwide.

ISBN 978 1 86940 484 0