Unjust: the story of James Prendergast

In 1877 Chief Justice James Prendergast ruled the Treaty of Waitangi was "a simple nullity", in part because it was signed by "simple barbarians" and "savages". Those words have seen him condemned as an arch-villain of NZ history, but was he really?

He really is as close as we have to a legal villain

"A simple nullity" - three words which damned the man who uttered them to become the most reviled judge in New Zealand history.

The quote referred to the Treaty of Waitangi and were part of a ruling which helped justify the separation of Māori from their lands for more than a century. Other words in that ruling include "simple barbarians" and "savages".

James Prendergast arrived in New Zealand during the Otago gold-rush in 1862.

The son of a judge, he trained as a lawyer at Cambridge University and rose rapidly through the ranks of the New Zealand legal profession. He was appointed Attorney General just three years after arriving in the country.

"That is just a classic colonial ," says Grant Morris, Victoria University legal historian and author of Prendergast: Legal Villain? "They just don't have the people with enough experience to fill these roles, or at least they only have a few so there is not a lot of competition."

In the role of Attorney General, Prendergast provided legal justification for horrific acts of the New Zealand Wars, including the use of 'dead or alive' bounties for Māori leaders.

In one legal opinion he wrote that "the revolt has now been carried out in defiance of all the laws of nature, and there can be no doubt that all who have taken part in it have forfeited all claim for mercy."

He also dismissed the legitimacy of Māori grievances against the Crown saying:

"The Māoris now in arms have put forward no grievance for which they seek redress. Their objective, so far as can be collected from their acts, is murder, cannibalism and rape. They form themselves into bands and roam the country seeking prey"

- James Prendergast

"There were definitely people in the colony at the time who saw his opinions as being overly harsh," says Grant Morris. "Some would have seen them as not even abiding by the law of the time."

Prendergast served as Attorney General until 1875 when he was appointed Chief Justice.

In that role, alongside a fellow judge - William Richmond, he presided over the Wi Parata case. As part of his ruling he declared the Treaty of Waitangi was a "simple nullity" insofar as it purported to cede sovereignty to the Crown because the Crown's sovereignty came from 'discovery and occupation' rather than the Treaty…

Go to this episode on rnz.co.nz for more details