Final Reminders for LAWS101 B Flashcards
Why is tikanga important in the common law
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
Why do lawyers learn Tikanga
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
2 quotes for whanaungatanga + who by
“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
6 other values apart from Whanaungatanga
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)
Timeline for England
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
What area of England timeline to focus on when asked about development of Parliment…
Vs when asked about development of Parlimentary supremacy
Start from the Witengamont
Start from De Montfort - it started to emerge from here but originates in the witegamont.
How did NZ turn to a colony
Hobsons proclamations of soverignty then the queen declaring NZ to be a seprate colony of britian
1840
How did NZ turn into a Dominion
Kind declared us to be
How did NZ become a realm
England passed legislation allowing dominions to become realms
What does the Doctrine of Native title outline
Imperium changes do not = dominion changes
Basic timeline of treaty over the years
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
What year for Native Lands legislation + what happened
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.
What year for Wi Parata + what was decided
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
What year was Baker + what was the decision
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
What year was Nintey Mile Beach + what was the decision (+ why significant?)
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.
What year was State Owned Enterprises case + what was the decision
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
What happened in the Ngati Apa case + what years
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).
Why was the Ngati Apa case important
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
What year was the Trans Tasman case + what happened
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
What is Matike Mai
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.
What events led to England gaining power over NZ
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.
Lord Atkin neighbour principle quote
“you must take reasonable care to avoid acts or omissions which you can reasonably forsee with injure your neighbour”
Policy considerations to weave in + from who
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
Negligence
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
Privacy - Hosking
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
Privacy - Holland
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
3 fees of Litigation
Court filing fees
Daily rates for hearings
Legal fees
Solution for Litigation issues
More govt funding to civil aid so more lawyers want to do it - more pay
Promote more pro bono work
Simplifying the eligability criteria
What does Te Ao Marama do
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
Solutions for issues with Te Ao Marama
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
Who is the person to use in conclusion + what do they outline
Lord Bingham
If you cannot get in the door, it is meaningless.
