A Simple Nullity?

The Wi Parata Case in New Zealand Law & History

David V. Williams

• Publisher: Auckland University Press
• Year: 2013
• Print ISBN: 9781869404840
• eBook ISBN: 9781775580089
• Topic: Law
• Subtopic: Australian & Oceanian History
• Index: Law

When the New Zealand Supreme Court ruled on Wi Parata v the Bishop of Wellington in 1877, the judges infamously dismissed the relevance of the Treaty of Waitangi. During the past 25 years, judges, lawyers, and commentators have castigated this "simple nullity" view of the treaty. The infamous case has been seen as symbolic of the neglect of Maori rights by settlers, the government, and New Zealand law. In this book, the Wi Parata case—the protagonists, the origins of the dispute, the years of legal back and forth—is given a fresh look, affording new insights into both Maori-Pakeha relations in the 19th century and the legal position of the treaty. As relevant today as they were at the time of the case ruling, arguments about the place of Indigenous Maori and Pakeha settlers in New Zealand are brought to light.

Chapter One

The arrival of Christianity on the Kapiti coast

Young men with a vision

During the course of 1846 and 1847, four Christian men spoke and wrote to each other in the dominant language of the time – te reo Maori – about their vision for Trinity College. This was to be a Christian college of higher education and they hoped to establish it somewhere within the Ngati Toa domain along the Kapiti coast. The four men were all relatively young and passionate leaders of their respective peoples. Katu Tamihana Te Rauparaha of Ngati Toa was about 28 years old. His close relative Henare Matene Te Whiwhi-o-te-rangi of Ngati Raukawa was in his late thirties. The missionary on the Kapiti coast whom they addressed as Te Harawira [Rev. Octavius Hadfield] was 33. The Bishop of New Zealand whom they knew as Te Herewini [Rt Rev. George Augustus Selwyn] was 38.1 These men intended to found a college that was in some senses to be a new venture and in new territory for all four of them, though they were from very different backgrounds. None of them had been born on the Kapiti coast.

Te Herewini

Selwyn was the first and, in 1847, the only bishop of the Church of England and Ireland in New Zealand – then usually known as the Church of England, and now known as the Anglican Church of Aotearoa, New Zealand and Polynesia. Educated at Eton College and St John’s College in Cambridge University, Selwyn was just 32 years old when he was consecrated bishop in 1841. He arrived in New Zealand in 1842 and was based at first at the Waimate mission station near the Bay of Islands. He soon moved south and established St John’s College at Purewa [more correctly Pourewa], a little distance from the colonial capital at Auckland. However, for much of his time as bishop he travelled indefatigably throughout the length and breadth of New Zealand on his episcopal visitations:2

He was the missionary bishop par excellence, combining zeal and energy with vision and a genius for organisation. His several visitations to all parts of his vast diocese have justly been acclaimed as feats of dedication and endurance. His first visitation was characteristic. It lasted six months [and] Selwyn visited every settlement and mission station in the North Island; [during that journey] he travelled 2,277 miles – 1,180 by ship, 249 in canoes or boat, 86 on horseback and 762 on foot. Selwyn once remarked that he averaged about one confirmation for every mile of travel. His second episcopal tour took him 3,000 miles, mostly by sea in tiny schooners, and he visited all the settlements in the South Island, including the isolated sealing stations on Ruapuke and Stewart Islands, and the remote Chathams.

In addition to these lengthy journeys in New Zealand, between 1847 and 1851 Selwyn also made four annual cruises among the islands of Melanesia that by accident (or as he saw it, by providence) had been included within the bounds of his diocese. In those four cruises in a 17-ton schooner named Southern Cross he travelled more than 24,000 miles. Selwyn provided some of his thoughts about the newness of New Zealand and the context of the times in these remarks written in 1848 to an English friend and relative:3

I am in the midst of everything new; even the steep and barren hills are of recent formation; the inhabitants tracing their descent to a migration dating only a few generations back; our colony, only six years old, and yet administered in its brief life, by six Secretaries of State at home, and four Governors here, all succeeding one another with such rapidity, that their doings and undoings, like the +’s and -’s in an involved equation, have left but a miserable value of x after all.

Selwyn visited the Kapiti coast mission stations on a number of occasions and resided at Waikanae for a period during the warfare between the colonial government and some of the tribes in that district in 1845. Details of his 1848 and 1849 visits to the Kapiti coast are discussed in chapter three. The bishop’s meetings with Christian communities and tribal leaders during those visits are of critical importance to unravelling the disputed history of Whitireia.

Katu Tamihana Te Rauparaha

Katu was born in about 1819 or 1820 in northern Taranaki whilst his Ngati Toa tribe, originally from Kawhia in the Waikato region, were being led south by his warrior father Te Rauparaha. In a number of expeditions over the next few years, the first known as Te Heke Tahutahuahi, the second as Te Heke Tataramoa, a pattern of migration emerged. Ngati Toa in alliance with other tribes from the Waikato (Ngati Raukawa) and from Taranaki (Te Atiawa [or Ngati Awa],4 Ngati Mutunga and Ngati Tama) moved south, engaging in warfare against all who stood in their path; returned north to further internecine warfare; turned south again, and eventually conquered and settled a number of southern areas including Kapiti Island, Otaki, Waikanae, Mana Island and Porirua along what is now known as the Kapiti coast. It was this coast that became the new homeland for many hapu of Ngati Toa, Ngati Raukawa and Te Atiawa. Being on the move in expeditions and warfare, rather than settled living in any one place, was a notable feature of Katu’s upbringing in the 1820s and 1830s.

The survival skills of Katu’s father and his tribe during this era of warfare ought to be well known to countless people throughout the world. It is Te Rauparaha’s vibrant haka – ‘Ka mate, ka mate’ – that is frequently performed by New Zealand’s national rugby union representatives, the ‘All Blacks’, prior to international test matches. Regrettably, few indeed of those who have seen or heard that famous haka are aware that, in the version used by the All Blacks, its origins ought to be attributed to Te Rauparaha’s close shave with an early death. The fame of the haka has evolved from the frequent re-enactment by his Ngati Toa tribe of Te Rauparaha’s exultation at his good fortune in escaping pursuing enemies. Even fewer will be aware of the connections between the people of that war-related haka and the passive resistance campaigns by the Parihaka prophets, Te Whiti-o-Rongomai and Tohu Kakahi, to colonial land confiscations in the late nineteenth century. Katu Te Rauparaha and his successor as the leading Ngati Toa chief a generation later, Wiremu Parata Te Kakakura, were men who played major roles in Maori movements seeking peace, rather than celebrating survival in war.

Henare Matene Te Whiwhi-o-te-rangi

Te Whiwhi-o-te-rangi was born in the northern ancestral home of his Ngati Raukawa tribe at Maungatautari, near modern Cambridge, before their migration south with Te Rauparaha and Ngati Toa to the Cook Strait region. He is said to have travelled on the first stage of the mass migration known to his people as Te Heke Tahutahuahi. Thus, as a young man – a little older than Katu his close relative – he too had lived through and participated in the turmoil caused by the movement of his Waikato kin and their Taranaki allies to the south of the North Island and the north of the South Island in the 1820s and 1830s, leading to the displacement or subjugation of other peoples who prior to these musket wars had resided in those regions. By the end of the 1830s, immediately prior to the advent of British colonial rule in 1840, both of these two young men of chiefly lineage were usually residing at Otaki. As the political and economic significance of Kapiti Island as a military expeditions headquarters and a whaling station waned, Otaki had become the primary focus for gatherings of Ngati Toa and Ngati Raukawa in their southern North Island lands. At Otaki the two cousins formed very close bonds of friendship that lasted for the rest of their lives.

Over the years, they were to work very closely together in the politics of enhancing the mana of their tribes. They were the men who invited the Church Missionary Society to establish a presence on the Kapiti coast in 1839; they were close allies in carrying out negotiations with the British colonial state from 1846 to the 1850s; they undertook Christian missionary journeys together in the 1840s; in the 1850s they propounded and promoted the vision of Kingitanga – a Maori King movement – to unite the tribes. And yet they remained committed to striving for peace rather than taking sides in war when civil and imperial conflicts engulfed their country from 1860 to 1872. A consistent thread connecting all their joint efforts over several decades was the avoidance of further war and bloodshed between their peoples and those of other tribes, including colonial settlers. Their commitment to these goals was grounded in the Christian faith that they both embraced as young adults. One of their journeys together was to the Bay of Islands in 1839 and on this visit they first met the Rev. Octavius Hadfield.

Te Harawira

Hadfield was a sickly young man from the Isle of Wight who had had to leave Charterhouse School and Pembroke College, Oxford University, without completing his studies at either on account of ill health. He became a Church Missionary Society [CMS] missionary, nevertheless, and in January 1839 was the first person to be ordained a priest in New Zealand. Though again in poor health when Katu and Te Whiwhi arrived at the Waimate CMS station, he offered to spend what little time might remain of his life to become a missionary amongst the people of the Kapiti coast. In fact, though, he was to serve as a pastor to Te Atiawa, Ngati Toa and Ngati Raukawa people of the Kapiti coast for over 30 years until 1870. The primary base for Hadfield’s missionary endeavours in that period was the beautiful and famous Rangiatea church at Otaki. Then from 1870 Hadfield became Bishop of Wellington and continued to exercise episcopal oversight over the Maori mission whilst he served as bishop until 1893. By virtue of being the bishop, Hadfield was the chairman of the Porirua College Trust Board that came to administer the land at Whitireia. Thus it was he who was named as the defendant in the Supreme Court action brought by Wiremu Parata in 1877 for the return of Whitireia to Ngati Toa. In 1847, though, that was all in the future and in this book it is a matter for later chapters. During that year, Hadfield was in chronically poor health and lived in Wellington. He kept in touch with the Maori leaders at the mission stations by letters written in Maori, and some of those letters are of vital relevance to the Whitireia story.

The spread of Christian values

The spread of Christian values and precepts in early and mid-nineteenth century Aotearoa and Te Waipounamu [the North and South Islands] was only in part a result of the efforts of the various European missionaries. There had been a CMS (Anglican) presence in the country from 1814, the Wesleyan Missionary Society (Methodist) began work in 1823, and the Society of Mary (Catholic) arrived in 1838.5 These societies brought in a number of missionaries from Great Britain, France and various parts of what later became Germany. Nevertheless, elements of the Christian message were spread from tribe to tribe well in advance of the arrival of those European missionaries in the various regions of the islands. By the 1830s, Maori who had converted to, or been influenced by, Christianity began to make major contributions to spreading the new ideas.6 There has been debate on the issue, but historian Jamie Belich is probably right to doubt the depth of commitment to Christian values in the mass ‘conversions’ of the 1830s. He notes the eclecticism of some of the indigenous missionaries in blending Maori concepts into their ‘instant Christianity’.7 Be that as it may, much effort by Maori missionaries was directed towards ending the huge loss of life in musket warfare between and within tribes. This warfare, so much more devastating than classic pre-musket conflicts, was endemic during the period that Katu, Te Whiwhi and their contemporaries grew up.8 One outcome of missionary efforts for peacemaking, as the level of warfare diminished and the number of baptisms increased, was that tribal leaders were encouraged to free slaves that had been captured in wars. Indeed, the freeing of slaves became a feature of Maori social change in the 1830s even if some of the older chiefs did not fully embrace the new religion.

Tarore’s Te Rongopai a Ruka

One indigenous missionary for peace and freedom was a freed slave, Ripahau Matahau. He was a Ngati Raukawa man captured and enslaved by Ngapuhi during one of their military expeditions in the 1820s. After release from slavery in the north, on the death of his Ngapuhi master, he spent some time receiving an education in Christian literacy at the Paihia mission station of the CMS run by the long-serving missionary Henry Williams. Then, in 1836, he began travelling south to rejoin his relatives – who by now were no longer living in the Waikato, but at Otaki and other places along the Kapiti coast. During this journey, he passed through Rotorua in the central North Island.

A little earlier, a Te Arawa raiding party in the Kaimai ranges, led by a chief Uita, had killed a young woman, Tarore, daughter of a Waikato chief, Ngakuku. Uita returned to Rotorua from the raid with some booty that included an object that lay beside Tarore. When Ripahau arrived in Rotorua he was called upon by Uita to explain what the object was that had been taken from Tarore. It was a printed book called Te Rongopai a Ruka – the Good News [Gospel] of Luke, Ripahau told Uita and his people. He explained how to ‘read’ the markings on a book, then read from the gospel, and talked about its message of love and peace to his audience.

A CMS missionary, A. N. Brown, who was then stationed at Matamata, had given Te Rongopai a Ruka to Ngakuku and his daughter Tarore. Owing to the unsettled conditions at that time – of which the raiding party that killed Tarore was an instance – he moved the mission station to Tauranga in 1838 and spent the rest of his life based there. Brown attended the tangi for Tarore. His journal translated with approbation what Ngakuku said at the tangi:9

There lies my child; she has been murdered as a payment for your bad conduct. But do not you rise to seek payment for her. God will do that. Let this be the finishing of the war with Rotorua. Now let peace be made.

Shortly after hearing Ripahau’s reading of the gospel book, Uita and a group of his people went to Matamata. Ngakuku’s hopes for peace came to pass probably more quickly than he would have dared to hope. This time Uita came not to raid but to seek reconciliation between his people and those of Ngakuku. After some robust debate this outcome was achieved, and both chiefs became prominent Christians in later years. Ngakuku is especially remembered in the Anglican Church for his leading role in the founding of the Opotiki mission station and for his many years of missionary work to the Mataatua peoples in that region.

Meanwhile, Ripahau had continued on to Otaki. There he soon became a teacher to Ngati Toa and Ngati Raukawa people wishing to learn how to read and write in Maori. His most diligent pupils were Katu Te Rauparaha and Te Whiwhi-o-te-rangi. To assist in the literacy lessons, Tarore’s gospel book was sought from Uita and it was duly sent to Otaki. Ripahau, Katu and Te Whiwhi moved to Kapiti Island for a period to engage in intensive study, to deepen their acquisition of the new modes of learning, and to find out more about the new knowledge systems opened up by literacy.

By 1839, Katu and Te Whiwhi were anxious to broaden their understanding of the new ways. Together they travelled north to the Bay of Islands mission stations where Ripahau had studied. Rather than intending to study there themselves, however, they came with a request to the CMS. Perhaps it was more than a request – more like an expectation that a missionary would return home with them immediately and that he would set up a new mission station on the Kapiti coast within their own tribal region. As noted above, they succeeded in their objective. Octavius Hadfield volunteered to move from Waimate to Otaki and travelled south with Henry Williams, Katu and Te Whiwhi. This event, the advent of Christianity on the Kapiti coast, was celebrated with the erection of a jubilee pole at Otaki in 1880. Later the pole was replaced by a concrete monument that now sits adjacent to the monument to Te Rauparaha in the urupa beside the Rangiatea church.10

Te Harawira’s first baptisms

The first person baptised by Hadfield, immediately on his arrival in 1839 and before Henry Williams continued on with his journey, was Ripahau Matahau. Ripahau took the Christian name Hohepa [Joseph]. He later married the daughter of the senior Te Atiawa chief Te Rangitake. He personally handwrote his name as Hohepa Matahau (rather than drawing his facial moko facsimile, or marking a plain cross beside his name which were the more usual modes of adhering to this treaty) on the Treaty of Waitangi sheet signed at Waikanae on 16 May 1840. Appropriately enough, the witnesses of his signature on that day were the two CMS missionaries who had officiated at his baptism – Williams and Hadfield.11 Afterwards, as far as written history goes, Hohepa Matahau ‘recedes from the historical record’.12 Not so his father-in-law Te Rangitake. Known after his CMS baptism as Wiremu Kingi [William King], this leading chief of Te Atiawa who had moved south with his Ngati Toa and Ngati Raukawa allies in the earlier migrations decided to return from Waikanae to Waitara in Taranaki to protect and defend Te Atiawa ancestral lands there. In defending those lands he was forced into a position where he felt obliged to resist the colonial military invasion of Te Atiawa territory in 1860. As will be mentioned further on in this narrative, Hadfield became enormously unpopular in settler c...

Table of contents

• Cover Page
• Title Page
• Dedication
• Contents
• Acknowledgements
• Introduction: The Treaty of Waitangi is ‘a simple nullity’
• Chapter One: The arrival of Christianity on the Kapiti coast
• Chapter Two: An ‘exemplary haven’ in a troubled land
• Chapter Three: A fraud on the donors?
• Chapter Four: A gift or a grant?
• Chapter Five: Why did the Church cling to the gifted land?
• Chapter Six: ‘Because of what I heard said at Kohimarama’
• Chapter Seven: In the Supreme Court at Wellington
• Chapter Eight: The long (and continuing) aftermath
• Chapter Nine: Revisionist legal history
• Chapter Ten: Contemporary comments
• Notes
• Bibliography
• Glossary
• Index
• Copyright Page
• Backcover