Constitution and Te Tiriti O Waitangi

Question 1

What is NZ classified as?

Answer 1

A constitutional monarchy
= a system of government in which a country is ruled by a monarch, but the monarchs power is limited by a constitution

Question 2

A colony =

Answer 2

Under full political control of a state

Question 3

A dominion =

Answer 3

Between colony and state
An autonomous entity under british soverignty

Question 4

A realm =

Answer 4

Fully independent state

Question 5

New Zealand is a….

Answer 5

Realm

Question 6

New Zealand went from a… to a… to now a….

Answer 6

1. Colony
   1840: Hobson proclaimed soverignty
   1840: The Queen delcared NZ to be a seperate colony of Britian
2. Dominion
   1907: The king declared NZ to be a dominion
3. Realm = current
   1931: England passed legislation allowing dominions to become realms BUT it took NZ until 1947 to take them up on this offer and then we became fully independent.

Question 7

What caused NZ to want to be a realm

Answer 7

No longer wanted to have the legislative council in our system
By activiating the realm status, NZ was able to abolish the legislative council easily without having to ask Britain to do so.

Question 8

What are the 3 features of the NZ constitution?

Answer 8

1. Unwritten
2. Not-entrenched
3. Not supreme

Question 9

The role of the constitution in NZ is to?

Answer 9

Establish a government institution and acts as a check on the power of government.

Question 10

What does the feature of Unwritten mean?

Answer 10

No single codified constitutional document
The principles ARE written but they are just spread over many documents

Question 11

What are 4 examples of documents in the constitution of NZ?

Answer 11

1. Treaty
2. NA BORA
3. Magna Carta
4. Electoral act

Question 12

What does the feature of Non-Entrenched mean?

Answer 12

No special criteria must be met to amend the constitution.
Only needs 51% (majority) of parliament vote/agreement.

Question 13

What does the feature of Not supreme mean?

Answer 13

Parliament is supreme in NZ, therefor the constitution is not
The constitution cannot invalidate legislation

Question 14

What are the 3 key principles of the constitution?

Answer 14

1. Parlimentary supremacy
2. Rule of law
3. Seperation of powers

Question 15

What does the constitutional principle of Parlimentary supremacy mean?

Answer 15

Parliment is the supreme authority in NZ
Has the power to, in theory, enact or change any law it likes - Only need a majority vote to enact a law
Can not be overuled

Question 16

What does the constitutional principle of Rule of law mean?

Answer 16

Everyone is a subject to the law and there is equality before the law
Lawmakers (parliament) and government are just as subject to the law as us.

Question 17

What does the constitutional principle of Seperation of powers mean?

Answer 17

Power is divided between legislature, executive and judiciary.
Branches not equal in power

Question 18

Parliment is, overall, ….
Not bound by:

Answer 18

PARLIMENT IS SUPREME
Not bound by past decisions, the constitution, the courts

Question 19

What is the process of discovering tera nullius?

Answer 19

If you discover the land with no prior peoples, you may aquire imperium AND dominion because nobody is there
BUT
If there are people there, you cannot gain dominion
BUT
You may gain imperium if they are classified as a ‘scanty population’ with no civilised system

Question 20

What does the doctrine of native title entail

Answer 20

Where soverignty changes, the new soverign power does NOT automatically aquire property
Imperium ≠ Dominion

Question 21

What is the BASIC timeline of customary land title treaty recognition?

Answer 21

1. 1840 - RECONISED
   Treaty of waitangi signed
2. 1847 - RECONISED
   R v Symonds
3. 1860’s - NOT RECONISED
   Native Lands Legislation
4. 1877 - NO RECONISED
   Wi Parata
5. 1901 - RECONISED
   Baker
6. 1963 - NO RECONISED
   Nintey Mile Beach
7. 1986 - RECONISED
   State Owned Enterprise Case
8. 2003 - RECONISED
   Ngati Apa v Attorney General
9. 2021 - Trans Tasman Resources Ltd v Taranaki-Whanganui Conservation Board
   RECONISED

Question 22

What year was Treaty of Waitangi

Answer 22

1840

Question 23

What year was R v Symonds and what was the decision

Answer 23

1847
Maori had legal rights
Ony the crown could buy Maori land and only with Maori consent

Question 24

What year was Native Lands Legislation and what was the decision

Answer 24

1860’S
NZ passed 2 different kinds of legislation aimed at changing how Maori land was owned and used.

1st one: 1862 Native Lands Act
Set up the native land court (which is now the Maori land court) that converted Maori communal land ownership into individual titles. This made it easier for the english to buy land and therefor lead to more loss of land for Maori.

2nd one: 1863 New Zealand Settlements Act
This act allowed the Crown to confiscate Maori land if they were deemed in rebellion against the crown - resisting against land loss and colonial power. Leading to further loss.

NOT RECONISED

Question 25

What year was Wi Parata and what was the decision

Answer 25

1877 Argued English discovered NZ as tera nulluis So the treaty should be treated as a simple nullity becasue Maori had no soverignty/land to cede Cannot call what is non-existant into being

Question 26

What year was Baker and what was the decision

Answer 26

1901 Approves the principle from Symonds "Rather late in the day to challenge Maori customary land" Reflects perspectives which are not suited to the soceity today

Question 27

What is to note around this decision in Baker

Answer 27

Despite this finding, the courts in NZ still continued to apply Wi Parata - concerning in terms of the doctrine of precedent as the Privy Council was our top court at the time

Question 28

What year was Nintey Mile Beach and what was the decision (why significant?)

Answer 28

1963 Said could not claim foreshore and seabed land because of Wi Parata case. Significant because the decision of the top court was ignored, only time ever done.

Question 29

What year was State Owned Enterprises case and what was the decision

Answer 29

Also known as the New Zealand Maori Council v Attorney General case 1986 Start seeing new language being used and greater confidence around Maori ownership of property The court drew greatly on S9 of the act - saying the government had a legal obligation to follow it. S9 = "nothing in this act shall permit the crown to act in a manner that is inconsistent with the principles of the TOW" The court in this case held that they need to interpret the provision widely Would be treating the treaty as a "dead letter" to interpret it in any other way - would be reminicint of an attitude of the past PARTIAL OVERRULING OF WI PARATA - not full yet SAID THAT "the treaty has to be seen as an embryo rather than a fully developed and integrated set of ideas"

Question 30

Info on Ngati Apa case/ Foreshore and Seabed controversy

Answer 30

The Ngati Apa case which triggered the Foreshore and Seabed Debate 1840 - TOW signed Maori property rights to dry lands are extinguished through legislation over the years 2004 - Ngati Apa iwi wins in the Maori Land Court which said that they might still have claims on the land and it had the jurisdiction to be able to hear and determine claims of Maori ownership of the foreshore and seabed Government appeals this up to the high court and wins - because they aligned with the Nintey Mile Beach case Ngati Apa appeals this up to the court of appeal and wins - COA said that property rights endure unless they are extinguished explicitly by legislation - there was not a clear law doing this Also finally ruled that the Wi Parata decision was bad law - saying the crown did not gain imperium when they gained dominion. Labor party government immediately responds to this by enacting the Foreshore and Seabed act 2004 - trying to have clear legislation that removes Maori land courts jurisdiction to hear claims about foreshore and seabed land Huge political upheaval - protests etc. 2011 - National/Maori party coalition government gets into power and passes the Marine and Coastal Area Act 2011 to repeal the foreshore one - says that NOBODY owns the foreshore and seabed but it allowed for Maori to pursue claims to get customary title (better than nothing for the Maori as there is now a POSSIBILITY).

Question 31

What year was Ngati Apa v Attorney General and what was the decision

Answer 31

2003 Conclusively overules Nintey Mile Beach and Wi Parata cases and re-aligns with Symonds.

Question 32

The 2003 Ngati Apa decision is important because...

Answer 32

It answers the core questions for the legal system around soverignty and property being distinct Understanding the principle of parlimentary supremacy

Question 33

Although, the Ngati Apa decision also led to what problem?

Answer 33

A nation divide as the beaches are seein as part of NZ's identity. Led to a lot of international action and political upheval

Question 34

After all went down with timeline, what came after?

Answer 34

Trans Tasman Resources Ltd v Taranaki Whanganui Conservation Board They sought to mine iron sand from the seabed - this area was important to Maori as they had customary fishing rights and connection to the sea. High court ruled that "any applicable law" does include tikanga and the treaty needs to be considered when making decisions on cases like this

Question 35

What was the problem with the state owned enterprises act BUT what was the decision following

Answer 35

The vaugeness of it caused problems But the courts ruled that the treaty can no longer be treated as a dead letter becasue to do so would be reminicing of an attitude that has now passed. The treaty should be treated as an embryo rather than a fully developed set of rules

Question 36

What is Matike Mai?

Answer 36

An independant working group that are trying to transform the constitution They want to develop and implement a model for an inclusive constitution of NZ Wanted to sought a discussion. Attempted to seek a concillatory and consensual democracy rather than the authorotarian democracy we currently have

Question 37

What is Matike Mai trying to make a constitution based on?

Answer 37

Tikanga Kawa He Whakapapa And Te Tiriti O Waitangi

Question 38

How many models were made in the report?

Answer 38

6 indicative models were suggested

Question 39

What is our constitution usually structured around? And what is Matike Mai trying to structure it around?

Answer 39

Usually structured around rights But Matike Mai is trying to construct a constitution around our responsibilities to: - Place/ envrionment - Community - One another

Question 40

Development of Parliment in England

Answer 40

1264-1265: Members of the De Montfort Parliment were elected 1295: King Edward I's model parliment is summoned to westminister (first representative assembly) 1340: King Edward III agreed that taxes cannot be imposed without Parliments consent Power struggles 1688/89 - BORA signed by William III - established supremacy of Parliment

Question 41

Development of Parliment in New Zealand

Answer 41

1840: TOW was signed + Hobs procs 1841: Legislative council is established 1852: NZ Constitution Act passed which stated that NZ would have the same infastructure of Parliment that they had - first NZ parliment 1858: English laws act was passed which formally adopted English laws after 1840 into NZ - as long as explicit in legislation 1947: Statute of Westminister - makes NZ a self governing realm. + NZ constitution Amendement act 1951: Legislative council abolished - only have house of reps 1986: Constitution Act - independent parliment.

Question 42

Why is parlimentary supremacy an important constitutional principle

Answer 42

Gives elected representatives the final say which ensures that laws reflect the will of the public (through elections) Ensures fast decision making and response to societal changes/ crisis Solidifys NZ's independence as it means no foriegn power ir extrnal court can overide our law - affirming our soverignty Helps to maintain stability and the rule of law

Question 43

Why is the rule of law an important constitutional principle

Answer 43

Protects individuals from arbitary use of power. Safegaurd for abuses of authority - everyone is liable Upholds fairness, equality and cohesion Public confidence

Question 44

What is the importance of the seperation of powers constituional principle

Answer 44

Prevents any one branch of government from becoming too powerful or having power abuse Promores a system of checks and balances - overseeing eachother Public trust + fairness

Question 45

What year was Symonds

Answer 45

1847

Question 46

What year was the Native lands acts

Answer 46

1860's

Question 47

What year was Wi Parata

Answer 47

1877

Question 48

What year was the Baker decision

Answer 48

1901

Question 49

What year was Nintey Mile Beach

Answer 49

1963

Question 50

What year was SOE

Answer 50

1986

Question 51

What year range was Ngati Apa?

Answer 51

Started in 2003 Went to 2011

Question 52

KEY TIMELINE FOR ENGLAND TAKING OVER NZ

Answer 52

1642 - First European contact with Abel Tasman - he leaves though due to a clash with Maori 1769 - James Cook's voyage, establishes contact with Maori Early 1800's - Living alongside eachother European presence increasing 1831 - French Influence resulting in Maori appeaing to the British for protection 1835 - Declaration of independence 1837 - Language around how Maori are described begins changing - up until this point they had been cohesive 1840 - Treaty signed 1840 - NZ Becomes a British colony

Question 53

Why is Tikanga Maori particularly relevant for the Supreme Court?

Answer 53

It is the highest court and therefor has a pinacle duty to make binding precedent that reflects our country's values. Helps to produce a more inclusive, culturally sensitive system. It is the way of the future, and if the supreme court didn't enagage with it then it would't grow in the way it should.