Chief Justice declares Treaty 'worthless' and a 'simple nullity'

17 October 1877

Sir James Prendergast’s statements, made when delivering a reserved judgment in the case of Wi Parata v The Bishop of Wellington, would influence government decision-making on Treaty of Waitangi issues for decades.

Born in London in 1826, Prendergast came to New Zealand in 1862 and quickly became a prominent figure in colonial politics and law. Appointed to the Legislative Council in July 1865, he became Attorney-General in Edward Stafford’s Cabinet a few months later. When the Attorney-General’s Act 1866 changed the position into a non-political one, Prendergast was forced – much to his regret – to give up his Legislative Council seat. He remained Attorney-General (outside Parliament) until 1875, when he became Chief Justice of the Supreme Court, a position he held until 1899.

In the 1877 Wi Parata case, which involved Māori land at Porirua, Prendergast ruled that the courts lacked the ability to consider claims based on aboriginal or native title. He described the Treaty of Waitangi as ‘worthless’ because it had been signed ‘between a civilised nation and a group of savages’. In his view, the Treaty had no judicial or constitutional status because Māori were not a nation capable of signing a treaty. Since the Treaty had not been incorporated into domestic law, it was a ‘simple nullity’. The Privy Council overturned many of Prendergast’s conclusions by the beginning of the 20th century.

Image: James Prendergast