MAORI - treaty principles

Question 1

THE LANDS case sets out

Answer 1

teh treaty principles

Question 2

what are teh treaty principles

Answer 2

• partnerhsip
• active protection of maori rights
• redress
• consultation

Question 3

explain - partnerhsip

Answer 3

would a reasonable good faith treaty partner do this to the other

Question 4

explain active protection

Answer 4

that p will protect maori interest to teh best of their ability - NOT TOTAL UTTER PROTECTION

Question 5

EXPLAIN the redress principle

Answer 5

govt must provide reasonable redress if another party is found to have been wronged

Question 6

explain consulation

Answer 6

if a major decsion, a reasonable partner would consult with maori regarding the implementation of any policy

Question 7

all the treaty principles are subject to

Answer 7

the governments right of kawangatanga ( ULTIMATE SOVERINTY )
- the treaty prinicples do not restrict the rights of a duly elected govt to follow it chosen policy

Question 8

clawback regime in the lands case

Answer 8

crown instructed crown to implement a system to ensure land tranfers do not breach treaty principles

Question 9

s9 of teh SOE act

Answer 9

nothing in thsi act shall permit the crown to act in a manner that is inconsistent with the treaty principles

Question 10

key takeaway from the lands case

Answer 10

if the statute under which a decsion incorperates the tow then the pinciples apply and this may be done without and incorperating provsiosn

Question 11

NZMC v Ag
broadcatsing assets case

Answer 11

governmet proposed the transferring of broadcatsing assets to SOEs
here there was no matrial impariment as the crown still had control over soe though ownership and could assue tehy would promote broadcatsing in te reo

Question 12

what test was establish in the broadcatsing assets case

Answer 12

the material impairment test
- would the transfer “now or in the furture impair a material to extent to the crowns ability to take reasonable action which it has a obliagtion to under take “

• IF YES IT IS A BREACH OF TOW PRINCIPLES

Question 13

WHAT to cinsider when looking at the material impairment test

Answer 13

• Assurances given by the Crown
• Crown’s ability to fulfill assurances
• Crown’s capacity to provide meaningful redress
• Crown’s willingness to offer redress

Question 14

ngai tai ki tamaki tribal trust v minister of conservation

Answer 14

The Minister allowed guided tours in conservation areas where NTKTT also ran tours on their ancestral lands. This broke section 4 of the Conservation Act, which requires the Crown to take positive actions. The Minister needed to reconsider the decision, as the Crown has a stronger duty to care for NTKTT’s rights.

Question 15

what is

s4 conservation act

Answer 15

this act shall be interpreted and administered as to give effect to the principles of the TOW

Question 16

WHAT WAS the diffenrce between s9 soe act and s4 conservtaion act

Answer 16

• s9 outlines negtaive obliagtions where as s4 is giving positive obligations aSection 9 imposes a negative obligation, meaning the Crown must avoid harming protected rights.
• Section 4 imposes a positive obligation, meaning the Crown must take active steps to support and protect those rights.

Question 17

matthew palmer
said

Answer 17

Judges help protect indigenous rights by using reason to apply the law to specific cases, as part of their normal role.
This adds a unique judicial perspective to the ongoing constitutional dialogue that has influenced the meaning and importance of the Treaty in nz law since 1970

Question 18

transtasman case elaborated on

Answer 18

teh treaty principles and what compliance with the treaty principles requires from the crown, potentially in the courts having less disrection in interpreting suhc provsiosns

Question 19

pros of transmans elborateion

Answer 19

more certainty, leaves the work of detrmining what the treaty principles are with parliament not the courts

Question 20

cons of transtasman elaboration

Answer 20

court has less discretion or flexibilty to interpret in a manner that proetcts indigenous rights due to a lack of overarchin obliagtion on the crown and then being exaustuve

Question 21

what was a key takeways from the FACTs of the transmasman case

Answer 21

The principle of legality means treaty provisions won’t be seen as covering everything(exhausitive) unless Parliament clearly says so. This ensures that indigenous rights aren’t limited unless it’s made explicit.