Notes on Wi Parata is Dead, Long Live Wi Parata

Introduction

  • Title references the continuity of constitutional legitimacy.
  • Historical context: Proclamations made in succession, e.g., "The King is dead, long live the King."
  • Discussion of the relevance of the Wi Parata v Bishop of Wellington (1877) case on Māori customary rights and its influence on contemporary legal and political contexts in New Zealand.

Historical Context

  • The enactment of the Foreshore and Seabed Act 2004 (FSA) and Resource Management (Foreshore and Seabed) Amendment Act 2004 analyzed.
  • The chapter argues that this is an "old frontier" rather than a new one; historical precedents set the stage for current events.
  • Overview of past governmental policies aimed at assimilating Māori culture and land tenure systems.

Radical Title, Aboriginal Title, and Māori Customary Rights

  • Colonial New Zealand focused on land acquisition for European settlers; land and immigration policies crucial to settlement.
  • Indigenous systems of customary law (tikanga Māori) contrasted with colonial policies; Māori did not conceive land in terms of permanent alienation.
  • Hohepa's interpretation of "whenua" emphasizes the spiritual connections between Māori and the land.
The Crown's Radical Title
  • The radical title is declared by Crown over all unappropriated lands, defining tenure as confrontational to Māori customary rights.
  • Historical debates within the Colonial Office and early governance around the extent and recognition of Māori land rights and custom.

Wi Parata Case Analysis

  • Wi Parata judgment emphasized the Crown's radical title and the dismissal of Māori customary rights as justiciable matters.
  • The Court's rejection of the Treaty of Waitangi as a legally valid cession of sovereignty.
  • The judgment essentially replaced legal recognition of Māori rights with moral obligations for the executive branch.
  • Criticisms from contemporary court bodies, including remarks from the Privy Council challenging the notions established by Wi Parata.

The Legacy of Assimilation Policies

  • Post-1840 policies promoted assimilation and integration, neglecting Māori knowledge systems.
  • Sir Apirana Ngata's evolution from supporting English-only education to advocating for revitalization of Māori culture and language in schools.
  • The term "cultural genocide" arises from Māori perspectives on historical policies from the 1840s to 1970s.

Contemporary Challenges: Foreshore and Seabed

  • The trigger for recent controversy: Court of Appeal's Ngati Apa declaration that customary rights regarding foreshore and seabed could be examined by the Māori Land Court.
  • Government's reaction involved introducing legislation to assert Crown ownership and extinguish Māori customary claims effectively.
  • Major opposition from Māori groups to the FSA and its implications for customary rights.

Parliamentary Sovereignty vs. Judicial Authority

  • Sovereignty in New Zealand is held exclusively by Parliament, affecting the treatment of Māori customary rights in legislation.
  • The focus on parliamentary sovereignty, as articulated by officials, indicates a lack of acceptance of judicial activism concerning Māori legal rights.

Conclusion

  • The Wi Parata legal doctrines are presented as still influencing contemporary governmental policy despite being overruled formally.
  • Calls for recognition of Māori customary rights continue to face significant historical and political resistance, maintaining a cycle of discontent and assimilation policies.
  • The government's stance echoes the colonial era's assumptions, reflecting on the ongoing struggle for Māori rights in New Zealand's legal framework.