Part 5 Cases Flashcards
NZ Maori Council v AG (lands case)
Facts:
- Decision to transfer land to state owned enterprises
- NZ Maori council challenged the transfer of land
Law:
- SOE Act s 9: can’t act inconsistent with TOW principles
Held:
- Treaty principles =
1. Partnership
2. Active Protection
3. Redress
4. Consultation
- Claw back system
- When land must be given back based on recommendation of the waitangi tribunal
NZ Maori Council v AG (broadcasting assets case)
Facts:
- Govt intending to transfer broadcasting assets to SOEs
- NZMC argued this would have a detrimental effect in the Māori language
Law:
- SOE Act s 9: can’t act inconsistent
Held:
- Principle of active protection limited to what is reasonable
- Material impairment test - would this act impact the crown’s ability to provide later redress?
- Crown also gave assurances
- Broadcasting assets are substitutable in a way land is not
Ngāi Tai Ki Tāmiki Tribal Trust v Minister of Conservation
Facts:
- Permits granted to another tour group
Law:
- Conservation Act s 4: give effect to treaty principles
Held:
- Error of law as minister did not think s 4 allowed here to decline applications
- Phrasing of statutes may require a stronger duty of care from the crown
- Minister needs to re-look
- Can give a concession but must prioritise Māori interests
Trans Tasman Resources Ltd v Taranaki-Whanganui Conservation Board
Facts:
- Marine mining consents
- Were maori interests “existing interests” under EEZCS Act s 59?
Law:
- EEZCS Act s 59
- Elabotated treaty section specifying the compliance needed
Held:
- Elaborated treaty provisions will not be treated as exhaustive unless parliament explicitly says it is exhaustive
- Parliament added these provisions so decision maker needs to go out of way for these specific elements, does not limit compliance needed in other areas
- Tikanga must be taken into account as “other applicable law” under an Act where appropriate
Te Pou Matakana Ltd v AG
Facts:
- Health agency seeking data on unvaccinated Māori during covid
- Data declined
- TPM claimed legitimate expectation
Held:
- LE existed
- Govt and MoH expressly comitted to uphold ToW principals
- ToW principles (Active protection + partnership) and tikanga (tino rangatiratanga +kaitiakitanga) required MoH to provide information
- Having regard to Tikanga is an integral part of considering and applying ToW principals
Ngāti Whātua Ōrakei Trust v AG 2022
Facts:
- Agreement to settle historic claims between NWO and crown 2006
- Right of refusal across various properties in Auckland including crown properties
- Same landoffered to another iwi as part of a redress package
Held:
- Crown not bound by tikanga but has a duty to understand and respect it
- Not bound to act in acordance with a specific group’s tikanga
- Crown will not make declarations regarding tikanga if there is conflict between iwi and hapū ideas on rights
Wairarapa Moana Ki Pouākani Inc v Mercury
Facts:
- Land given as compensation for other land lost
- Crown compulsorily acquired part of land to build a power station
- WM applied to WT
- WT find that land should be returned to WM despite not having mana whenua
- Crown and other mana whenua holders oppose
Held:
- The WT did not uphold tikanga of mana whenua
- BUT there are other relevant tikanga principles to consider such as utu
- WM granted the land
- In claw-back cases, the WT can determine what tikanga demands
Ngāti Whātua Ōrakei Trust v AG 2018
Facts:
- NWO had right of first refusal over certain land
- Same land offered as redress by crown to another Iwi
- The tikanga differed between these iwi
Held:
- Courts generally do not want to get involved
- Up to the Iwi to sort it out
Matthew Palmer: “Indigenous Rights, Judges and Judicial Review”
MMP
- Allows broad representation of society
Constitutional arrangements
- Specific interests in NZ never met
Judiciary
- Constitutional role of interpreting and applying the law
- Have had an important role in shaping the content and status of the treaty
- But overall parliament is supreme
Briefly outline structure for ToW provisions?
Is there a ToW incorporating provision?
- If yes: This provision acts as a legal constraint on the decision maker
- Did the decision maker act ultra vires or not?
How strong is the incorporating provision?
- Strong – tamaki tribal trust (positive obligation)
- Weak – lands case (negative obligation)
- Ambiguous = more likely to be interpreted broadly through tikanga
R v Ellis 2022
Facts:
- Ellis convicted of 16 counts of SA against children
- Case brought to SC but Ellis died
Issue:
- Can the appeal continue?
Held:
- Ellis’ case could continue after death despite the common law principles
- Mana of a person continues after death
- Tikanga has been and will continue to be recognised in the development of the common law
Sweeney v Prison Manager, Spring Hill Corrections Facility [2021] NZHC
“Where material to a case, the Courts can, and may have an obligation to, recognise and uphold the values of tikanga Māori in applying the law of judicial review and granting remedies.”
