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LAWS101 > Constitution and Te Tiriti O Waitangi > Flashcards

Constitution and Te Tiriti O Waitangi Flashcards

1
Q

What is NZ classified as?

A

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

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2
Q

A colony =

A

Under full political control of a state

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3
Q

A dominion =

A

Between colony and state
An autonomous entity under british soverignty

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4
Q

A realm =

A

Fully independent state

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5
Q

New Zealand is a….

A

Realm

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6
Q

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

A
  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.
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7
Q

What caused NZ to want to be a realm

A

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.

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8
Q

What are the 3 features of the NZ constitution?

A
  1. Unwritten
  2. Not-entrenched
  3. Not supreme
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9
Q

The role of the constitution in NZ is to?

A

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

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10
Q

What does the feature of Unwritten mean?

A

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

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11
Q

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

A
  1. Treaty
  2. NA BORA
  3. Magna Carta
  4. Electoral act
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12
Q

What does the feature of Non-Entrenched mean?

A

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

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13
Q

What does the feature of Not supreme mean?

A

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

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14
Q

What are the 3 key principles of the constitution?

A
  1. Parlimentary supremacy
  2. Rule of law
  3. Seperation of powers
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15
Q

What does the constitutional principle of Parlimentary supremacy mean?

A

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

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16
Q

What does the constitutional principle of Rule of law mean?

A

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.

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17
Q

What does the constitutional principle of Seperation of powers mean?

A

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

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18
Q

Parliment is, overall, ….
Not bound by:

A

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

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19
Q

What is the process of discovering tera nullius?

A

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

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20
Q

What does the doctrine of native title entail

A

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

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21
Q

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

A
  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
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22
Q

What year was Treaty of Waitangi

A

1840

23
Q

What year was R v Symonds and what was the decision

A

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

24
Q

What year was Native Lands Legislation and what was the decision

A

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

25
Q

What year was Wi Parata and what was the decision

A

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

26
Q

What year was Baker and what was the decision

A

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

27
Q

What is to note around this decision in Baker

A

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

28
Q

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

A

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.

29
Q

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

A

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”

30
Q

Info on Ngati Apa case/ Foreshore and Seabed controversy

A

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).

31
Q

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

A

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

32
Q

The 2003 Ngati Apa decision is important because…

A

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

33
Q

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

A

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

34
Q

After all went down with timeline, what came after?

A

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

35
Q

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

A

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

36
Q

What is Matike Mai?

A

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

37
Q

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

A

Tikanga
Kawa
He Whakapapa
And Te Tiriti O Waitangi

38
Q

How many models were made in the report?

A

6 indicative models were suggested

39
Q

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

A

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

40
Q

Development of Parliment in England

A

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

41
Q

Development of Parliment in New Zealand

A

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.

42
Q

Why is parlimentary supremacy an important constitutional principle

A

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

43
Q

Why is the rule of law an important constitutional principle

A

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

44
Q

What is the importance of the seperation of powers constituional principle

A

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

45
Q

What year was Symonds

A

1847

46
Q

What year was the Native lands acts

A

1860’s

47
Q

What year was Wi Parata

A

1877

48
Q

What year was the Baker decision

A

1901

49
Q

What year was Nintey Mile Beach

A

1963

50
Q

What year was SOE

A

1986

51
Q

What year range was Ngati Apa?

A

Started in 2003
Went to 2011

52
Q

KEY TIMELINE FOR ENGLAND TAKING OVER NZ

A

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

53
Q

Why is Tikanga Maori particularly relevant for the Supreme Court?

A

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.

LAWS101 (12 decks)

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