Part A & E Flashcards
Wi Parata 1877
- Regarded the Treaty as a “simple nullity”, as at the time of signing, Maori were incapable of undertaking such an agreement.
R v Symonds
- Exemplified a “favourable view” of the Treaty, despite Wi Parata case later on not following doctrine of precedent.
Lands Case (SOE)
- S9 stated “Crown cannot act in a matter inconsistent with principles of the Treaty”.
- Courts noted that greater safeguards on Maori interests were needed in law before land transfer could complete.
- Showcased changing attitudes towards Treaty.
Sealord Case
- Many iwi opposed, became the Fisheries Claims Settlement Act 1992.
- Deprived Maori of many laws and ToW.
- Courts did not think there was a case here. Parliamentary proceedings and matters of legislation were only for Parliament.
NZ Settlements Act 1863
- Crown could confiscate any Maori land at the slightest hint of resistance.
- Te Whiti and Tohu were passively resisted the taking of land at Parihaka.
- Parliament made law allowing them to arrest Te Whiti and Tohu. Led to West Coast Preservation Act 1882. Bypassed Rule of Law.
English v Maori?
There may have been a difference in intention in the Maori and English versions of the Treaty.
- English version handed over Maori rights to Crown, allowing for Crown to govern as sole power in Aotearoa.
- Maori version granted Crown sovereignty over NZ, but rights and ownership of property still belonged over Maori.
Is ToW binding?
Not part of NZ statute. Cannot be considered in international law.
Principles of the ToW
1) Maori and British act in good faith towards one another.
2) Active protection of Maori by Crown.
3) Right of Crown to govern.
4) Maori rangatiratanga over land and culture.
5) Right of redress in event of breach.
Foreshore and Seabeds Bill
- Example of PS prevailing.
- Principles included access to public domain, right of Crown to regulate this.
- Said to breach ToW principles, taking away ownership rights by Waitangi Tribunal.
- Still influenced, as created the Marine and Coastal Area (Takutai Moana) Act 2011.
When was Waitangi Tribunal Established + Role of WT?
- 1975 as part of the Treaty of Waitangi Act.
- Could consider claims arising after 1975, later on could consider before.
- Can only advise Executive branch. still vulnerable to PS.
Role of the Judiciary regarding current constitutional arrangements?
- Courts cannot rule statutes as “unconstitutional”.
- Can only choose to interpret statutes in a way that favours their intentions.
NZ’s current constitutional status?
- Parliament is supreme.
- Unwritten constitution, NZ has a series of statutes, court rulings and conventions as constitutional canon e.g. Electoral Act 1993, NZBORA 1990, ToW, NZ Constitution Act 1986.
- One of around 3 countries like this, the others being Britain and Israel.
Arguments for written constitution?
- Better protection of human rights (NZBORA) and ToW, as currently PS can override through statute. Gives courts greater ability.
- Less power to legislature, more evenly balances out power (can use Canterbury Recover Recovery Act for this). Currently minority of govt has a large amount of power of NZ law.
- Clears confusion regarding supreme NZ law.
- Separates Crown from NZ and establishes independence of NZ.
- Other governments already do this to great success.
Arguments against written constitution?
- Government can change + their values and laws they pass can better affirm New Zealand contemporary values. Idea of flexibility.
- Can respond to emergencies quicker. Giving Government power is fine if we trust them not to abuse. Respond to disasters, but can also use case with Te Whiti and Tohu to show Crown cannot always be trusted.
Define the Rule of Law
- All people are subject to and equal before the law.
- Due process: Fair treatment before the legal system. Right to a fair trail, reasonable notice of court hearing, etc.
