LAWS101A master set

the state legal system we have was inherited from…?

England

7 values of inherited state legal system?

• impartiality

• precedent

• individualism

• justice

• due process

• liberty

• democracy

how would Maori society have considered themselves before the European arrival?

• different tribal nations living in one place

• didn’t think they were all one nation

what is the defining principle of tikanga?

whanaungatanga

what is whanaungatanga?

• extended family, relationships, responsibility

• kinship and connectedness

• the glue that holds the maori world and maori legal system together

• to do with whakapapa

what is mana?

• authority

• power

• control

• influence

• prestige

• all of these cumulate in leadership

what is tapu?

• sacredness, respect

• social, political and spiritual tapu

social tapu =

keeping safe

political tapu =

leadership and ceremony

spiritual tapu =

wairua, life force, spirit

opposite of tapu?

noa

what does noa mean?

state of being ordinary, not sacred

what is utu?

• reciprocity

• balance and equilibrium in the environment

• restoring the state of Ea

what is ea?

• state of being fully satisfied

• to have been settled or avenged

what is kaitiakitanga?

• stewardship

• guardianship

first law of nz…

tikanga

primary political driving force of the maori world…

the hapu

ariki

paramount chief

rangatira

chief

tohunga

skilled person with a particular expertise, had whakapapa knowledge and medical skills

kaumatua

elder, person with status within the whanau

marae

• courtyard in front of the wharenui

• significant decisions take place here

• visibility for group unity

runanga

tribal council, iwi authority, collective decision making

rahui

to put in place a temporary restriction

most common practice of maori law =

rahui

reasons for imposing rahui…

• someone has died in the area

• to restrict access to resources that are having shortages

• kauri dieback

take =

claim or right to land

ways to claim or have a right to land

• inheritance

• discovery

• gifting/cession

• conquest

concept of ahi ka?

• burning of fires

• if you aren’t burning your fire and cooking on the land then you are not nourishing yourself or the land

Ngai Tahu Act 1996

• creating a body corporate to represent the land

• has the power to purchase, hold and transfer property, to sue and be sued

• having all the rights and powers of a natural person

formalised iwi decision making? (in terms of property)

body coporate

Tuhoe Claims Settlement Act 2014

• the Crown makes a settlement and apologises for things that happened long ago

• no one owns Te Urewera - it is its own person

• adaptation of body corporate law being applied to the natural environment

who first finds nz? when?

Abel Tasman 1642

who first arrives in nz? when

James Cook, 1769

do you become the owner of land if you acquire sovereignty over it?

no

claiming empire =

declaring sovereignty

claiming dominion =

claiming land

if you discover land with no prior owner you can…

acquire both sovereignty and dominion

you can still ‘discover’ land if the people living there are…

• erratic

• scanty

• incapable of occupying the whole land

• unsettled

• savages

• made no actual and constant use of the land

did the Europeans immediately acquire sovereignty

no - 80 years of maori law

1772 - a ship arrives in… with who on board? what happens?

• Bay of Islands

• Marion du Fresne

• crew violates tapu

• maori kill 26 french

• french kill 250 maori

1831 - what appears in the BOI?

a french warship

after the warship arrives in 1813, what do maori do?

• 13 chiefs send a letter to the king to make sure the French don’t come and try to take over

what is the response to the letter the chiefs send to the king?

• 1832 - James Busby appointed British Resident in NZ to protect Maori

• he is to help them retain sovereignty

Bourke in NSW sends Busby instructions in 1833 to do what?

• promote British commercial interests

• rescue the natives from the evils of european contact

• try to create a unified native government

• keep the good will of the chiefs

Baron de Thierry - when and what?

• 1834

• wants to establish an independent government in NZ on behalf of france

what did Busby do in response to de Thierry wanting to make a seperate government?

• Busby calls a meeting of native chiefs to declare NZ an independent state under the United Tribes of NZ

Declaration of Independence - when and what

• 1835

• all sovereign power lies with the chiefs collectively

• no seperate legislative authority permitted

• meet in waitangi annually to frame laws

• acknowledges king as a parent for the infant state

1816 w- m- l-?

written maori language

1817 - what happens with crimes committed in NZ?

British criminals in NZ to be tried in England

Nationality Jurisdiction - when and what?

• 1823

• crimes committed in NZ by British to be tried in the NSW Supreme court

Letters Patent - when and what?

• June 1839

• if Britain ever gained sovereignty of NZ, NSW would be enlarged to include NZ

august 1839?

January 1840

• jurisdiction of NSW extended to NZ

• there can be some claim to sovereignty due to the “discovery” of the SI

• land can only be purchased from the crown

Treaty of Waitangi

• Feb 6 1840

• initial signing

• at Waitangi

• mostly northern chiefs

issues of translation in the treaty?

• article one - kawanatanga vs sovereignty

• article two - rangatiratanga vs governorship

the Governor of NSW says what in 1814?

Maori chiefs have the right to turn away ships from NZ

May 21 1840

• Hobson declares British sovereignty over all NZ

• NI = cession (treaty)

• SI = discovery (“uncivilised”)

• they do not have dominion/land ownership

Nov 1840

• the Queen declares NZ a seperate colony to NSW

R v Symonds - when and what?

• 1847

• affirms the right of preemption

• affirms that the treaty is not unsettled law

Native Lands Act #1 - when and what?

• 1862

• recognises native customary title

NZ Settlements Act - when and what?

• 1863

• settlements can be set up by the crown where natives have rebelled

• they can choose any borders they wish

Native Lands Act #2 - when and what?

• 1865

• establishes land court

• to “investigate the title and succession of native land”

Native Rights Act - when and what?

• 1865

• all Maori are English subjects so English jurisdiction applies over them and their property

• native title is subject to English jurisdiction

• they can go to court to get title but will have to sell the land to pay for court

Wi Pirata - when and what?

• 1877

• calls the treaty a simple nullity

• says cession was never possible because there was no body politic therefore all of NZ was discovered under Law of Nations

• even though the treaty is a literal document of cession

Baker - when and what?

• 1901

• Privy Council

• there is a tradition of maori land ownership

• WP too late to argue there is no maori customary law

• native title cannot be extinguished without maori consent

• don’t follow WP go back to Symonds

1907 NZ becomes a…

• dominon, not a colony anymore

Statute of Westminster (new) - when and what?

• 1931

• new British law made no longer has to be used in dominions

• they only use law made in their countries

Māori Land Board - when and what?

• 1941

• Privy Council

• the treaty must be incorporated into relevant legislation for the courts to recognise rights provided in the treaty

• lawyers can only argue the treaty if it is in relevant statutes

• there were no statutes referencing the treaty so there was no legal argument

• known as the orthodox rule

Statute of Westminster Adoption Act - when and what?

• 1947

• NZ finally adopts SoW

• member of the commonwealth

Ninety Mile Beach Case - when and what?

• 1963

• asks if foreshore was still Maori customary land

• COA says it isn’t

• land adjacent to the foreshore is Crown land, so the foreshore is as well

Waitangi Tribunal - when and what?

• established 1975

• permanent commission of inquiry

Treaty of Waitangi Act - when and what?

• 1975

• establishes the tribunal that;

• makes recommendations to the crown

• claims brought by maori can be heard about legislation, act or omission that was or is inconsistent with the treaty

• shall have regard to the two texts

Constitution Act - when and what?

• 1986

• cut all final ties with english law(making)

• not entrenched

• not supreme

• not written

State-Owned Enterprises Act - when and what?

• 1986

• s9 says that “nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi”

• talking about the transfer of crown land to state-owned enterprises

Maori Council v Attorney-General - when and what?

• 1987

• says ToW is a living document

• courts have the power to override statutes that go against ToW

• courts won’t easily read statutes inconsistent with the treaty

• leans on s9 of the State-Owned Enterprises Act which restricts the crown

Imperial Laws Application Act - when and what?

• 1988

• states the English statutes still in NZ law

• these include the Magna Carta, the Bill of Rights

Attorney-General v Ngati Apa - when and what?

• 2003

• the CoA was wrong because change in sovereignty does not mean transfer of land ownership

• foreshore and seabed - is there customary title here?

• unless clear, acts cannot constrain treaty principles

• tikanga and customary titles must be taken into account

Trans-Tasman Resources - when and what?

• 2021

• consideration of tikanga is required (but wasn’t given in this case)

• tikanga and customary rights are existing interests

• unless clear, acts cannot constrain ToW principles

constitutional monarchy?

• a country is ruled by a monarch whose power is limited by a constitution

colony?

• territory under immediate political control of another state

• distinct from the home territory

dominion?

• semi-independent entity

• part of the British empire

realm?

• a fully independent state with the British monarch as head of state

republic?

• fully independent nation

• supreme power lies with the people through an elected or nominated head of state

in the early 20th century, Britain gave NZ control over what countries?

• Cook Islands

• Niue

• Western Samoa

• Tokelau

NZ still has what country as a colony?

Tokelau

what countries/areas are part of the realm of NZ?

• NZ itself

• the economic zone in the ocean

• Cook Islands (self-governing)

• Niue (self-governing)

• Tokelau (colony)

• NZ Antarctic Territorial Claim (Ross Depenedency)

what is the monarch’s power in NZ constrained by?

the constitution

three main features of the constitution?

• unwritten (no single document, lots of different ones)

• not entrenched (can be repealed or amended very easily, it contains ordinary acts)

• not supreme (parliament has sovereignty over it)

a supreme constitution can…

• override other statutes that don’t agree with it

NZ Constitution Act #1 - when and what?

• 1852

• bicameral general assembly

• closely modelled on UK parliament

• Governor-General established

English Laws Act - when and what?

• 1858

• adopts English law into NZ

• only law formed after 1840 can be adpoted

Maori Representation Act - when and what?

• 1862

• Maori can vote in 4 new Maori electorates

Electoral Act #1 - when and what?

• 1893

• first country to give women the vote

• anyone over 21 that has lived in NZ for 1 year can vote

Electoral Act #2 - when and what?

• 1993

• affirms MMP voting since 1996

• used to be FFP

• 120 seats (7 are maori)

3 key principles of the legal system?

• Parliamentary sovereignty (most important)

• Rule of law (everyone is subject to the law)

• Separation of powers (divided power)

how do the courts talk about the treaty now?

as a constitutional document

treaty clauses should not be…

• narrowly construed or interpreted

what is the maori vision for constitutional transformation?

Matike Mai

how many treaty settlements have there been since 1995?

75+