Hohepa Wi Neera: Native Title and the Privy Council Challenge

Abstract

The case of Hohepa Wi Neera illustrates an unprecedented clash of judicial approaches to native title claims. On the one hand, the New Zealand Court of Appeal was determined to continue the line of reasoning most notably enshrined in Wi Parata v Bishop of Wellington. On the other hand, the Privy Council, in Nireaha Tamaki v Baker had partially overturned Wi Parata by insisting that native title fell within the jurisdiction of the courts, at least when prerogative powers were not involved. The author argues that in Hohepa Wi Neera, the Court of Appeal quite deliberately tried to avoid the implications of the Privy Council's decision. In doing so, it exhibited a marked "colonial consciousness" which it was prepared to defend even to the extent of open breach with the Privy Council. The 1912 case of Tamihana Korokai v Solicitor-General, however, showed the extent to which the Court of Appeal was capable of shedding that "colonial consciousness" and embracing the earlier Privy Council ruling. The author demonstrates that this apparent irony sheds light on our understanding of the earlier cases.