Final Reminders for LAWS101 B

Question 1

Why is tikanga important in the common law

Answer 1

Continues to regulate lives
Is the first law - reflecting values older than our nation
Embodies our history
The common law must serve all - including Maori
Courts have applied it as a source of enforceable rights for many years

Question 2

Why do lawyers learn Tikanga

Answer 2

Courts say relevant - Ellis
Parliment says relevant - references in legislation
NZ Law commision + soceity say it is relevant
Clients want it
Way of the future - Need to be equipped to deal with it

Question 3

2 quotes for whanaungatanga + who by

Answer 3

“Kinship is the revolving door between the human, physical, and spiritual realms”

“It is the glue that holds the Maori world together”

Justice Jo Williams

Question 4

6 other values apart from Whanaungatanga

Answer 4

Kaitikitanga
Responsibility/ gaurdianship for the envrionment

Mana
Authority and leadership

Noa
Free from the extensions of tapu

Tapu
Sacred, respect, different roles like social, political etc

Utu
Balance/ repricority - cancelling out bad things with good things to maintain equalibirum

Manaakitanga - to extend aroha to others (love)

Question 5

Timeline for England

Answer 5

Code of Hammurbi

Roman Law

Anglo Saxons + their witengamont

1066 - William the Conquerer
- Witengamont –> Curia Regis

1154 - Henry II, writt system and trial by jury

1215 - Magna Carta

1265 - De Montfort

1295 - Edward I Model Parliment

1340 - Edward III no taxes change without parliment consent

Power struggles

1688/89 - BORA

Question 6

What area of England timeline to focus on when asked about development of Parliment…
Vs when asked about development of Parlimentary supremacy

Answer 6

Start from the Witengamont

Start from De Montfort - it started to emerge from here but originates in the witegamont.

Question 7

How did NZ turn to a colony

Answer 7

Hobsons proclamations of soverignty then the queen declaring NZ to be a seprate colony of britian
1840

Question 8

How did NZ turn into a Dominion

Answer 8

Kind declared us to be

Question 9

How did NZ become a realm

Answer 9

England passed legislation allowing dominions to become realms

Question 10

What does the Doctrine of Native title outline

Answer 10

Imperium changes do not = dominion changes

Question 11

Basic timeline of treaty over the years

Answer 11

1840 - RECONISED
Treaty of waitangi signed

1847 - RECONISED
R v Symonds

1860’s - NOT RECONISED
Native Lands Legislation

1877 - NO RECONISED
Wi Parata

1901 - RECONISED
Baker

1963 - NO RECONISED
Nintey Mile Beach

1986 - RECONISED
State Owned Enterprise Case

2003 - RECONISED
Ngati Apa v Attorney General

2021 - RECONISED
Trans Tasman Resources Ltd v Taranaki-Whanganui Conservation Board

Question 12

What year for Native Lands legislation + what happened

Answer 12

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.

Question 13

What year for Wi Parata + what was decided

Answer 13

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 14

What year was Baker + what was the decision

Answer 14

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 15

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

Answer 15

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 16

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

Answer 16

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

Question 17

What happened in the Ngati Apa case + what years

Answer 17

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 18

Why was the Ngati Apa case important

Answer 18

Answers the core questions for the legal system around property and soverignty being different
Understanding importance of parlimentary supremacy, MP’s on their side, and the system of appeal to get rid of bad law like Wi Parata

Question 19

What year was the Trans Tasman case + what happened

Answer 19

2021

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 20

What is Matike Mai

Answer 20

Group who focused on constitutional transformation
Trying to make one based on Maori values like tikanga and whanaungatanga.
Wants to reduce the constitional focus on rights and instead focus on responsibilties to the envrionment, the community, and each other.

Question 21

What events led to England gaining power over NZ

Answer 21

First interaction - with Abel Tasman but he left after a clash

1769
Then cook arrived and made the first British claim to NZ - setting the stage for future colonial interest

Early 1800’s
Lived alongside each other peacefully for many years - whaling stations established, Maori going to NSW etc.

1830’s
French influence - arrived and unknowlingly violated Tapu which resulted in Maori retaliating by killing some French but then the french then killing even more Maori. They then left before another french ship was sighted later on. Maori were scared and went to the king for protection

1830’s
James Busby was appointed as a British resident - for protection and mediation

1830’s
Declaration of independence - Busby encouraged after realising the aims of the French

1837
Language began to change in how Maori were described

1840
TOW signed

1840
Hobsons proclamations: after the North island had signed and the south Isand was in the process of signing - he claimed soveirgnty over the North Island through cession and then soverignty over the south island through discovery - in the concept of tera nullius

1841
Queen declared NZ as a British Colony

1858
English Laws Act = we adopted all of their laws.

Question 22

Lord Atkin neighbour principle quote

Answer 22

“you must take reasonable care to avoid acts or omissions which you can reasonably forsee with injure your neighbour”

Question 23

Policy considerations to weave in + from who

Answer 23

Lord Buckmaster and Dilhorne:
Consequence on businesses
Floodgates

Lord Atkin + Reid :
Common sense to provide a remedy here
The law is for citizens so needs to meet their needs

Question 24

Negligence

Answer 24

DOC:
Neighbour principle - D v S
Reasonable expectation of intermediate examination breaks DOC - D v S

Expands principle to more than just food + drink - G v A
Inspectable but not detectable - G v A

Expands principle relationship beyond manufacterers - H v S
Inspectable and detectable but not reasonable - H v S

Duty is not owed to the world at large - P + Bourhill

Physcial proximity can establish a DOC - Dorset, Bolton, Miller

Sufficient warning can break DOC - Kobalach

BREACH:
Take reasonalbe care, not all possible care, just need to do what reasonable person would have done - Donoghue

Balancing act - have to do what is reasonable in a balance with the risk associated - Donoghue

Egg shell skull rule, still liable for damage - Grant

Damage has to be probable for there to be a breach - Bolton, Miller

CAUSATION:
Vicarious liability as long as acting within employment at the time - Donoghue, Dorset

Coincidence is not enough, there must be a temporal connection - Grant
Contributionary negligence - Grant

Interaction has to be unreasonable for Volenti to apply - Russel

The new act/ omission must be something very likely to happen if it can be applied as novus - Dorset

Question 25

Privacy - Hosking

Answer 25

PUBLICATION:
Does not need to be widespread - Henderson

PRIVATE FACTS:
Tombstone not private - Wingnut
Private facts are those that are not known to the world at large - Andrews
Public figure + their children = less of an expectation of privacy - Hosking
If they are volentarily public figures = even less of an expectation - Hosking
An expectation of no additional publicity is valid - Hosking + Andrews
Even if something is not inheritnley private, if it should be protected by soceity in this digital age it is private - Henderson
Finances, relationships etc are easily private - Henderson

OFFENSIVE:
Plaintiff has to identify where it was truley humiliating or distressful - Hosking
Have to be able to identify offensiveness - Andrews
Plaintiff culpability - Andrews
Bad blood can play into motive - Henderson
Not centre of attention = not offensive - Wingnut

DEFENCE:
There is a defence of legitimate public concern - Hosking
Public concern is things that will impact society, not just gossip or celebrity news - Hosking
A publication to less people is less likely to be public concern - Henderson

Question 26

Privacy - Holland

Answer 26

INTENTIONAL + UNAUTHORISED INTRUSION:
Intrusion must be an affirmative act, not just a careless one - Holland
Can intrude into info, not just affairs - Henderson

EXPEC OF PRIVACY:
Take from Hosking - Jenkin + Holland

OFFENSIVE:
Bad blood plays into motive - Henderson
Take from Hosking - Jenkin + Holland

DEFENCES:
Unlikely to be public concern when there is no publucation - Henderson

Question 27

3 fees of Litigation

Answer 27

Court filing fees
Daily rates for hearings
Legal fees

Question 28

Solution for Litigation issues

Answer 28

More govt funding to civil aid so more lawyers want to do it - more pay
Promote more pro bono work
Simplifying the eligability criteria

Question 29

What does Te Ao Marama do

Answer 29

Mainstram therputic justice and the lessons from specialist courts
Influse Tikanga and Te Reo Maori in its processes
Talk in plain language, tone down formalities, involve everyone

Question 30

Solutions for issues with Te Ao Marama

Answer 30

Implement mandatory training programs that focus on Maori culture
Implement it through the country so it is not exclusive to only some areas
Regular consultation and collaboration with Maori leaders, iwi and hapu

Question 31

Who is the person to use in conclusion + what do they outline

Answer 31

Lord Bingham
If you cannot get in the door, it is meaningless.