Public law - tikaka

define constitutionalism

legitimate ways public power is defined, exercised and limited

what are three western constitutional values

1. ROL

2. Process legitimacy (democracy)

3. Human rights

two reasons maori political autonomy matters

• Te Tiriti guarantee (tino rangatiratanga)

• Legitimacy requires Maori participation and institutions (partnership) → if we want to give maori a political voice we have to take their ideas and views into account

what are 5 core tikanga concepts and their constitutional function

1. whanaungatanga: connection together, political unity → defines the collective exercising power (identity of the individual and collective taken together)

2. Mana: Personal authority from status and prestige, misuse (loss of mana) → more political sway, who has authority to speak

3. Manaakitanga (kaitiakitanga): selfless generosity, responsibility for others, how mana should be exercised → if you have mana should use it in a way that is selfless and generous to others

4. Tapu and noa: Tapu is a justification and regulation of power (restriction), Noa is freedom from the restriction that we may impose because that thing is tapu

5. Utu: reciprocity and balance, consequence for wrongs, maintains and restores mana, authority

in what way to the core tikanga operate, what does this reflect

• as a system, not in isolation

• they are contextual, not prescriptive

• this reflects that it is an adaptive system, to get a solution we dont have to follow a strict pattern, must just align with the values in some way

what did the COVID checkpoints show

• tikaka grounded and a expression of rangatiratanga

• eventually became Maori-Crown partnerships (with police)

• a model for a bicultural legal system

three diferences between Maori vs Western privacy

• collective → whanau, hapu, iwi each hold autonomous interests and standing. Whakpapa links all → basis of collective privacy. Cf western (individual only)

• Maori view is not bound by linear time → dead ancestors keep privacy interests. Cf only “identifiable individuals” (living only).

• Data carries Mauri (life essence), misuse in turn has wider effect, information may be taonga. Cf western that says anonymised data = not personal information

which section of the privacy act 2020 brings in tikaka

• s 21[c] → useful example of how public power and exercise of public power can be shaped by tikaka.

• this section explicitly requires the public body to take tikaka matters into account when exercising their public power

why is s 21[c] limited

• equal weight with other factors

• act limited to living identifiable individuals

• commissioner is “kneecapped from outside” by the acts scope.

what did the Hospital case illustrate

• Wrong information passed to patients father, patient worried false information would cause a rift in the whanau (as privacy is in the collective not the individual)

• Framed as harm to the taonga of the whanau and loss of patients mana

• Commissioner recommended a hui hohou i te rongo, peacemaking (utu for loss of mana) → remedy framed as utu

→ case shows the down stream effect of the Privacy commissioner reading the act through tikaka → means agencies have to do the same, otherwise they might be in breach of privacy act 2020

what is the role of the privacy commissioner

• Hears complaints, investigates, enforces → s 21(c] must take into account cultural perspectives of privacy (intended to capture tikaka)

• provides complience guidance to agencies (downstream affect)

• Policy work with govt

what arre the 5 categories of norms (he poutama)

1. Structural (whanaungatanga, whakapapa)

2. relational (mana, tapu, noa)

3. responsibility (manaakitanga, kaitiakitanga)

4. prescriptive (utu, ea)

5. procedure (kawa, behaviours, practices)

what are the 3 steps of the He Poutama guide for engaging with tikanga

1. identify relevant tikanga → a. structural → b. relational → (mana and its source, tapu/noa?) → c. responsibilities → d. take - utu - ea → e. other concepts → f. relevant kawa

2. Korero tuku iho and matauranga

3. similar situations (as guidance how is tikanga applied there, not precedent) → tikanga is contexual, as long as decision aligns with values

what was the finding in Te Pou Matakana

• Request for Maori vaccination data → could not exercise rangatiratanga if didnt have the information → health is a taonga

• Request denied by ministry of health on basis that it would breach individuals privacy (imposed western view without considering tikaka privacy concepts)

• held tikaka a explicit consideration to engage with, health is taonga, TOW requires the personal data is handed over (AP)

note: He Poutama only a starting guide, should consult pukenga, outcomes must fit context and underlying concepts

why do we need to know who holds mana

need to know who to talk to, how do we know they have the right to make decisions

mana whenua evidence factors

must be proved in accordance with tikaka (oral evidence is legitimate) → Factors considered in Ngai Te Hapu Inc:

• ancestral (whakapapa connections)

• continuous use and occupation

• proximity

• cultural ties and history

• how the place is used

• kaitiaki obligations fulfilled

• exercise of tikaka over the place

• corroberating evidence (petitions)

• recognitiion by other iwi

what is the “rule of reason” approach

Once mana whenua affirmed → evidence goes to relative authority on the matter at hand

pipi bed illustrates what

He poutama application figuring out who holds primary mana and why

• Ngati Tuatoru (first discovery→ tupuna title)

• Tuawha by agreement and tomo

Both held mana, both were to be consulted → Hui with both hapu → done because council had to regulate pipi bed

what does the waitangi tribunal regarding a check on public power

• uses its exclusive jurisdiciton over treaty principles to reveiw if crowns actions are consitent wiht principles/TOW

• its recommendations shape but dont bind the crown

what did the Maori prisoners voting report state regarding principle breaches

• removing vote from all sentenced prisoners had a disproportionate disenfranchisement

• Held it was a breach of principles of AP, equity and partnership/good faith.

• didnt consider the disproportionate impact, didnt engage maori

what was the recommendation and response following the Maori Prisoners Voting report

• Recommendation: Repeal and full re-enfranchisement of prisoners, plus support for maori prisoners to enrol, developed with maori

• Reponse: Electoral Amendment Act 2020 restored the pre 2010 (under 3 years) position partial compliance only

what was the impacts of the disqualification (electoral amendment act 2010)

• Maori heavily overrepresented in prisons → disproportionate disenfranchisement

• Many never re-enrol

• Maori interests less represented

• Disconnection from whanau, hapu and iwi from political life → negative impacts on well being of whanau and hapu by removing their contribution to the collective - exclusion breaks the tie between

→ diminishes Mauri of Maori individuals by denying their civic engage,emt and sense of value

• Ongoing loss of mana → many dont re enroll after. Once punishment is over ea is served, the ongoing loss of mana is problematic

tikaka lens on disenfranchisement

violates fundamental tikanga principles of connection, balance, status and responsibility

• restoring these rights is essential for upholding the mana and mauri of maori individuals and collectives

• we should be trying to foster a legal system that genuinely reflects a bicultural future bu prioiritising relationships and collecgive well being

tikanga as consitutionalism → parralels with western values

• power is exercised collectively for civic ends (collective defined contexually by whakapap) → loots a lot like a legitimate scope of public power (ROL)

• broad based participation (hui - everyone has a say) → looks like process legitimacy (democracy)

• respect for the standing (mana) of those involved → looks like having regard to special interests (rights)

why doesnt NZBORA mention tikaka

1. liberal individualism (about individual freedoms)

2. Maori wary of losing control if tikaka is incorporated into a western rights instrument

where may there be room for tikaka in NZBORA

• s 19 (freedom from discrimination: race, ethnicity, religious belief) → remove barriers to participating in society as Maori (using te reo with the state)

• s 20 (right of minorities: culture, religion, language) → genuine tikaka practice likely taken seriously

• s 5 (justified limits) → tikaka can be a reasonable limit on other rights → main balancing mechanism

what is the limit/issue with s 19 and tikaka

• not all tikaka meets the “right” threshold

• Tikaka based differentiation may itself be discrimination (gendered speaking rights at state ceremony)

what is the s 20 problem with tikaka

conceptual mismatch: Maori are indiginous, not an ordinary minority

• maori are not looking for affirmative action, looking for recognition for who they are as maori (no recognition of self determintation or proactive development)

s 5 double edge relating to tikaka

• Nothing requires courts to consider tikaka in s 5

• can equally limit tikaka based rights under ss 19-20

• e.g if we take ss 19 and 20 as examples of where tikana is treated as a possible right, s 5 can come and say there are limitations to it