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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

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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

Colony –> Dominion –> Realm

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7
Q

What are the 3 features of the NZ constitution?

A
  1. Unwritten
  2. Not-entrenched
  3. Not supreme
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8
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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9
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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10
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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11
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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12
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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13
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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14
Q

What does the constitutional principle of Parlimentary supremacy mean?

A

Only need a majority vote to enact a law

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15
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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16
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
Overlap does occur

17
Q

Parliment is, overall, ….
Not bound by:

A

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

18
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

19
Q

What does the doctrine of native title entail

A

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

20
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 - RECONISED
    Native Lands Legislation
  4. 1877 - NO RECONISED
    Wi Parata
  5. 1901 - RECONISED
    Baker
  6. 1963 - NO RECONISED
    Nintey Mile Beach
  7. 1933 - RECONISED
    State Owned Enterprise Case
    Te Ture Whenua Maori act
  8. 2003 - RECONISED
    Ngati Apa v Attorney General
21
Q

What year was Treaty of Waitangi

A

1840

22
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

23
Q

What year was Native Lands Legislation and what was the decision

A

1860’S
Reconised Maori customary land title BUT there were no clear owners of Maori Land
Established Maori land courts which enabled the transfer of Maori customary title into free hold title (which could be transfered to new owners)

24
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

25
Q

What year was Baker and what was the decision

A

1901
“Rather late in the day to challenge Maori customary land”
Reflects perspectives which are not suited to the soceity today

26
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.

27
Q

What year was State Owned Enterprises case and Te Ture Whenua Maori Act and what was the decision

A

S18 - Maori land court has jurisdiction to define whether any land is Maori customary land or not.
Aknowledged existance of customary land title

28
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.

29
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

30
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

31
Q

After all went down with timeline, what came after?

A

State owned enterprises act
First time parliment incperated treaty into legislation.
S9 states that “nothing in this act should allow the crown to act in a manner that is inconsistent with the treaty of waitangi principles”

32
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

33
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

34
Q

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

A

Tikanga
Kawa
He Whakapapa
And Te Tiriti O Waitangi

35
Q

What are the 7 values in one of the Matike Mai Constitutional Models?

A
  1. Tikanga
  2. Community
  3. Belonging
  4. Place
  5. Concilliation
  6. Structure
36
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

LAWS101 (8 decks)

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