te tiriti o waitangi - dismiss me byeeeeeeeee!!!!!

Question 1

what was happening in the early 1800’s in nz

Answer 1

• increasing european settlers
• 1814 church missionary society send missionaries
• new zealand company established - forerunner of establishing a colony
• duke of wellington in 1829 said “we have enough colonies. we do not need any more colonies” but in 1839 Hobson received instructions to pursue signing of a treaty between Crown and Māori because Crown saw European settlers behaving badly and some Maori activities were considered savage and needed reform e.g. iwi and hapu battles over territory such as invasion of te waipounamu

Question 2

in what four ways did Maori view the ability to acquire land

Answer 2

take = claim/right

four ways:

take tupuna (ancestry)

take raupatu (conquest)

take tukua (gift)

take kite (discovery)

Question 3

what terms did maori use about land

Answer 3

rohe and takiwa as well as marker stones around the edges of their boundaries - system was not the same as British but Maori clearly had an understanding of rights in relation to land having developed extensive tikanga around their whenua

Question 4

how many maori and english were there in the 1930’s ish

Answer 4

125,000 maori and 2000 settlers

Question 5

what classes of maori were in nz in 1930

Answer 5

tutua - general

taurekareka - enslaved

tohunga - separate class with a spiritual role e.g. priest like

not a class but ahi ka people kept the home fires burning by remaining on the traditional land to maintain the whare, marae and sacred buildings and traditions

Question 6

what is te ao maori

Answer 6

maori law based on values and principles rather than rules. principles were passed through maori oral tradition providing explanations and reasons why certain things occurred. they taught principles and values that were the ideal to work towards, which became an important part of law, concepts, philosophies and ideals

Question 7

what ideas does tikanga maori include

Answer 7

mana - acquired at birth through ones ancestry or in life through ones achievements (e.g. displaying prowess). If they misuse their talents or values to complete something their mana can be reduced.

tapu - something sacred/forbidden - a corrective power. everything has a wairua/spirit and life force so something tapu is imbued with the mana of the mythological ancestors (Kawai Tipuna), which they respect and preserve. it is inherited through ancestors e.g. chiefs have the required mana and tapu to lead people. different iwi might not see things as tapu or feel they have to respect it because they don’t feel the need to respect the rangatiratanga of that iwi

utu - reciprocity obligation for action taken

muru - means of seeking and maintaining harmy - a process to achieve balance in Maori relationships and resolve disputes

Question 8

what are the 3 periods of nz law as stated by justice joe williams

Answer 8

1. first laws (Kupe’s law) pre 1840 - based on tikanga Maori and whanaungatanga (relationships) based - relationships and kinship central. Mana, tapu and utu are essential concepts as well as kaitiakitanga (guardianship, caring for one another) and manaakitanga (respect)
2. Cook’s law 1840-1985 - European centric. Characteristics include: central authority, individual dignity and autonomy of subjects, economic and social relationships governed by contract, property laws define relationships with environment - contract and property law central
3. Aotearoa’s laws from 1985 - defined by the work of the Waitangi Tribunal with treaty emphasis, recognition of aboriginal title, introduction of treaty principles into statute law e.g. RMA, reemphasis on considering whanaungatanga/relationships in family law

Question 9

what happened with the signing of the treaty of waitangi

Answer 9

on the 6th of february 1840 at Waitangi Governor Hobson, several english residents and approximately 45 Maori Rangatira signed. the maori text was then copied and sent around the country to obtain additional maori signatures. the english text was signed only at waikato heads and manukau by 39 rangatira. by december 1840, over 500 maori had signed (13 women)

Question 10

what were the textual differences in articles 1 and 2

Answer 10

article 1: sovereignty (English) vs government - kawanatanga (Maori)

article 2: possession vs protection of chiefs and sub-tribes exercise of tino rangatiratanga over lands/villages/taonga

Question 11

what are the treaty principles as from courts and tribunals

Answer 11

• partnership/duty to act reasonably and in good faith
• active protection by Crown of Maori interests
• informed decisions
• remedy past grievances
• crown has right to govern
• cession of sovereignty in exchange for protection of rangatiratanga
• partnership and exchange
• consultation
• development principle (Maori not limited to technologies that existed)
• needs of both maori and wider community must be met which will involve compromise

Question 12

what two decisions in the 19th century conflicted each other

Answer 12

R v Symonds affirmed obligations and rights of maori laid down in the treaty as being reflective of the common law - recognition of aboriginal title in nz.

Wi Parata v Bishop of Wellington - aboriginal title rights that had been recognised as existing in common law did not exist in NZ because “the maori tribes were incapable of performing the duties and therefore assuming the rights of a civilised community. The treaty must be regarded as a simple nullity. No body politic existed capable of making cession of sovereignty, nor could such a thing itself exist”

Question 13

what did the 1863 New Zealand Settlements Act do

Answer 13

3 step process for land confiscation owned or occupied by maori. it allowed the governor to declare any district as being in rebellion and take the land from that tribe. this was undefined so Crown likely seized land against the law and it was taken out of traditional ownership and put into a private British land system. there was an approach of taking entire districts rather than applying the intermediate steps of identifying eligible sites of settlement

Question 14

what happened in Hoani Te Heyhey Tukino v Aotea District Māori Land Board

Answer 14

any rights purporting to be conferred by a treaty of cession cannot be enforced in the courts, except in so far as they have been incorporated into the municipal law

Question 15

what happened in the Lands case

Answer 15

in 1986 the government was reorganising the public sector and creating SOE’s - a step towards privatisation and transfer of massive Crown assets, currently in public ownership, to these SOE’s under the SOE Act 1986.

Waitangi Tribunal had been considering claims by various North Island iwi that would be affected by the transfer of this 10 million hectares at the time. As a consequence, s 9 was added to the Act providing that nothing in the Act should permit the Crown to act in a manner that was inconsistent with the principles of the treaty of waitangi.

the transfer of land was challenged in court and they held s 9 was a firm declaration and overrides everything else in the act. it had extreme importance and it would be inconsistent with the principles of the treaty for the crown to implement a sweeping series of transfers without consideration being given to Maori claims and rights and without a reasonable opportunity for those claims to be investigated.

Question 16

what was the impact of the lands case

Answer 16

nothing much changed but a it signified a major change in judicial attitude.

• did not change the orthodox doctrine
• showed that where the treaty principles are incorporated, or where legislation has a Maori dimension, courts would be willing to give force to the treaty
• the language indicated the possibility of potential other causes of action e.g. a breach of fiduciary duty

Question 17

what happened in the whale watch case

Answer 17

S4 of the Conservation Act stated that the Act should be interpreted as to give effect to the principles of the Treaty of Waitangi.

Ngāi Tahu sought judicial review of the director general of conservations decision in granting a second permit to a competitor to engage in the whale watch business in Kaikoura, believing it was entitled to protection from competition for a period following its establishment.

The court held a decision authority had to have regard to s4 and that to restrict this to consultation would be hollow. Consideration requires active protection of Maori interests rather than just consultation. Therefore, Ngai Tahu were entitled to a period of developing their whale watch business without competition so that they could develop their business.

Question 18

what happened in the Coalcorp case

Answer 18

The Crown proposed to sell Coalcorp and Tainui people objected. The court held that the principles of the Treaty require partners to make a genuine effort to work out an agreement.

Question 19

what happened in the radio frequencies case

Answer 19

Maori argued a transfer of radio frequencies was inconsistent with the Treaty. The HC allowed an interim injunction until the Waitangi Tribunal gave a decision on broadcasting grievances and rights.

The tribunal provided that FM frequencies were a taonga. The Minister considered the report but decided to proceed with a tender for radio frequencies and sale anyways.

The Court held the Treaty was sufficiently complied with since the report had been looked at in good faith. The broadcasting assets were replaceable and Crown funds would be an acceptable substitute.

This case showed the Crown’s obligation under the Treaty was not absolute and had to be balanced with its wider responsibilities.

Question 20

what happened in the Hydro Dams case

Answer 20

it was decided that the Treaty did not guarantee the right to generate electricity through water power and there was no legal obligation to transfer dams to Maori

Question 21

what happened in the Ta’aroa case

Answer 21

special obligations to Maori did not warrant the Court imposing unreasonable burdens on the Crown

Question 22

what happened in the Te Runanga o Wharekauri Rekohu Incorporated case

Answer 22

the court stated that the present case takes its place in history. the lands case held unanimously by a court of 5 judges that the treaty created an enduring relationship of a fiduciary nature akin to a partnership, each party accepting a positive duty to act in good faith, reasonably and honourably towards the other.

Question 23

what happened in the Huakina case

Answer 23

the Court said the Treaty can be used as an interpretive aid even when there is no reference to it in the legislation, particularly where the legislation has some kind of Maori dimension to it.

Question 24

what happened in the Ngai Tai case

Answer 24

the Treaty is again incorporated into the Conservation Act and some relief in the commercial context is granted to Maori.

Question 25

what happened in the Taito v Waddell case in England

Answer 25

There was an allegation that the British Crown had an enforceable equitable duty towards Banaba Islanders. Mining had led to the virtual destruction of their island and the resettlement of their people in Fiji.

The Crown was under fiduciary duty towards indigenous Banaba Islanders or trust in a higher sense though not enforceable in law.

Though the latter type of obligation is not enforceable in the Courts, any other means were available to them to persuade the Crown to honour its obligations. Here the Crown were not in a fiduciary position that would be enforceable in the courts and there was only a moral obligation on them.

Question 26

what happened in Cherokee Nation v Georgia US decision

Answer 26

the CJ spoke of the native american tribe to US government relationship as resembling a relationship of ward to guardian

Question 27

what happened in the Land v Pueblo Santa Rosa US case

Answer 27

the secretary was stopped from disposing of tribal lands as public lands. This result was the opposite of Wi Parata - the executive government had their executive powers restricted

Question 28

what happened in the Seminole Nation landmark US case

Answer 28

the SC dealt with a failure to pay annuities to tribal members as promised in a Treaty. the SC upheld the tribes claim, saying there was a duty fiduciary in nature. The Court recognised the distinctive obligation of trust incumbent on the government in dealing with dependent people.

Question 29

what happened in the Guerin v R case in Canada

Answer 29

In the 1950’s, the Canadian federal government granted a lease to a golf club over lands belonging to Musquin native americans. They were consulted in general terms but the terms of the lease were very unfavourable to the tribe and the most unfavourable parts were not disclosed.

Dixon said there was a fiduciary duty on the Crown and if it breaches this it will be liable in the same way and extent as if such a trust were in effect because they had to deal with the land for the benefit of the Indians.

This case recognised the fact that there is a fiduciary duty owed by the Crown to indigenous people where there is an aboriginal title right in respect of the land. Customary rights give rise to a fiduciary duty for the Crown’s dealings with the indigenous peoples and that land.

The Court awarded $10M in damages

Question 30

what happened in the Te Runanga o Muriwhenua case

Answer 30

They said Guerin judgments do not turn on the constitutional differences between Canada and the NZ.

There was a clear statement by Cooke P which fore-sore that NZ would be likely to adopt the Guerin approach of a recognition of fiduciary duty to Maori similar to Guerin

Question 31

what are the 4 criteria which prove relevant to the development of the doctrine of fiduciary duty in NZ?

Answer 31

1. there must be a relationship of trust between the Crown and the Maori plaintiff
2. there must be a Maori legal interest over which the Crown has assumed control
3. the plaintiff must have an interest and be vulnerable
4. the Crown must’ve acted in breach of its fiduciary duty to the indigenous people e.g. a failure to share relevant information or traditional fiduciary rules

Question 32

what happened in the FOMA cases

Answer 32

the NZMA and FOMA (federation of Maori Authorities) claimed the Crown was in breach by entering into an agreement. They alleged it had breached its fiduciary duties to present and future claimants on forestry.

the HC dismissed saying they can’t impune on the future decisions of Parliament. They did say if the Crown were to take accumulated rental funds without Waitangi Tribunal consent they would be in breach of fiduciary duty.

The CA dismissed the appeal of alleged fiduciary duty. They relied on the decisions of Cooke P, particularly from the radio frequencies case, but disagreed with his interpretation in that case.

They said even if they accept the PC’s judgment as ratio, it was confined in its direct impact to judicial review cases.

Question 33

what happened in the proprietors of wakatū case

Answer 33

The purchase of land had been approved by the commisioner of land responsible for land purchases from Maori. He declare the purchase equitable to Maori so native title had been extinguished. The Commissioner required 15000 acres of land to be set aside as a reserve to Maori and the Crown failed to do this, only setting aside 5000. This was the primary driver for the breach of fiduciary duty claim.

The CA held it was possible for the crown to owe fiduciary duty to Maori. Before a duty could exist, there must be explicit or implied undertaking by the Crown to act with the upmost loyalty.

The CA dismissed fiduciary duty being owed in these particular circumstances.

Question 34

what happened in the Paki case

Answer 34

The legal presumption was that the owner of land boarded by a river also owns the riverbed to its midpoint. The Crown said it acquired the riverbed when it purchased the land and Paki claimed that it was not explained with the sale of land to the Crown that they would lose interest in the riverbed from the presumption of law.

The appellants were successful in showing that the Waikato riverbed was not navigable and therefore not vested in the Crown under the Coalmines amendment act.

In Paki no 2 the question was whether the presumption applied to the lands would depend on the custom of the particular iwi or hapu - it didn’t find it necessary to determine further facts of the case.

the SC made comments on fiduciary duty, clearly indicating the CJ was open to the fact that in equity a fiduciary duty may be found as being owed to indigenous people. This duty may rise in relation to Maori in NZ because of the obligations the Crown took on at the Treaty of Waitangi and the exchange of sovereignty for the protection of property.

The Court would have a full range of remedies available

Question 35

what happened in the Wakatu case

Answer 35

built on Paki and endorsed aboriginal title as the basis of the Crowns fiduciary duty obligations. Maori customary interests in land were inalienable except for lawful surrender to the Crown.

there was a relationship of dependence and obligation.

there is no general fiduciary duty at large - it must be specific to particular circumstances in the same way they would usually arise. it must be shown Maori had independent pre-existing property rights that could be surrendered only to the Crown

Question 36

what happened in the Mabo case

Answer 36

the HC found that Australian common law did not recognise interests possessed by indigenous people under traditional law and customs.

The Queensland parliament passed an Act stating rights of Torres Straight Islanders after the claim of sovereignty were to be extinguished without compensation.

In Mabo No 1 - the Act was found to be in conflict with the Commonwealth Racial Discrimination Act and was accordingly invalid.

In Mabo no 2 - 6 HC judges agreed that Torres Straight Islanders did have traditional ownership of their land. They held that British possession had not eliminated their title and they were entitled to possession, occupation, use and enjoyment of their land.

Question 37

in NZ, common law will recognise both of which types of title

Answer 37

territorial and non-territorial (e.g. collecting Paua fishing rights had not been expressly extinguished by statute)

Question 38

what happened in the Ngati Apa case

Answer 38

Ngati Apa was involved in an inquiry into the extent of the MLC;s jurisdiction under the MLA to determine the status of Foreshore and Seabed.

The MLC and MAC determined that the MLC had jurisdiction to hear the application but the Crown appealed. The HC held the MLC had no jurisdiction to hear the application since all such land was vested in the Crown either through common law or statutes like the RMA. Once dry land was purchased by the Crown, any customary interest in the foreshore infront was lost.

Maori appealed and the CA held that beneficial title indigenous people hold continues to exist until lawfully extinguished and these principles also apply to non-territorial rights such as water. The property interest of the Crown depends on pre-existing customary interests - the application of tikanga.

Held: customary rights continue until extinguished by a statute and Parliament’s intention must be crystal clear (tipping j)

Question 39

what happened in Takamore Trustees v Kapiti District Council

Answer 39

The HC held that evidence given by rangatira and kaumatua (those in the iwi) will establish the tikanga of that iwi and is good evidence of tikanga and historical iwi matters unless there is conflicting tikanga evidence

Question 40

what happened in Takamore v Clarke

Answer 40

James Takamore, who had lived in Christchurch for 20 years with his wife and kids, passed away and his partner was the personal representative under his will.

The Takamore family came down from the Bay of Plenty and pressed that his body should return with them to be buried at the family urupa.

The discussion was heated and distressing for Clarke and her son, so they were going to resume the following day but this didn’t happen because the Bay of Plenty family took the body and buried it.

Clarke sought orders authorising her to enter the urupa and remove him for disposal according to her wishes. The family asserted they were justified under tikanga.

The HC held Clarke successful due to the common law rule of her having the duty and right. The only qualification the SC made was that it didn’t recognise the role of personal representative in the same way and said disputes could only be resolved in the Court though still found in favour.

Question 41

what happened in Ngai Tai Ki Tamaki Tribal Trust v Minister of Conservation

Answer 41

Ngai Tai applied for judicial review in relation to commercial concessions granted to two operators. They argued the decision to grant concessions made by a senior official of the department of conservation had errors of law under s4 Conservation Act which requires it to be interpreted to give effect to Treaty principles.

Advice in internal DOC reports was that there was no basis for preferential entitlements to an iwi for concessions was in error.

Ngai Tai had mana whenua in relation to Rangitoto and Mototapu Islands and claimed they had the right to exercise manaakitanga and kaitiakitanga over its traditional rohe because the treaty principles meant it was not appropriate, by tikanga, for other groups to be providing commercial tours on the island.

The HC held the decision maker had made errors of law in reasoning, which was not overturned by the CA, and both courts denied granted relief because they found the error had not affected the outcome. The SC said relief should be granted

Question 42

what happened in Gregory v Thames Coromandel District Council

Answer 42

The Maori plaintiffs claimed to be the lawful proprietors of various parcels of land by tikanga and customary right. The court decided there were problems with pleadings and Fata J stated that claims under tikanga could not succeed because it only informed the common law

Question 43

what happened in R v Sacton & Anor

Answer 43

Following the Ngai Tahu settlement, pounamu ownership/interests of the Crown were vested in Ngai Tahu. The court here held the Crown had no interest to give - it had never acquired ownership so it didn’t actually give anything under the legislation. This was because Ngai Tahu had owned pounamu under its customary title prior to the legislation and continued to do so

Question 44

what happened in New Zealand Maori Council v Waikato River and Dams Claims Trust

Answer 44

The SC dismissed the appeal and held that a partial privatisation of Might River Power did not impair, to a material extent, the Crown’s ability to remedy the potential treaty breach in the Waikato River - they could do this through money

Question 45

what is currently happening in the Peter Ellis case in the SC

Answer 45

question whether an appeal could continue following Mr Ellis’ death. Under common law it could not, but if a persons mana was seen in continuing, as it does in tikanga, beyond death, the appeal is allowed to continue with reasons related to that yet to be given

Question 46

what is the whig theory of government by consent

Answer 46

no point limiting the powers of government because it is there by consent of those who it governs

Question 47

what is Dicey’s idea on whether sovereignty is divisible (able to be shared)

Answer 47

legal sovereignty is indivisible - the Crown shares it with no other person or body and it rests only with the Crown (today - Parliament) which has total power and is sovereign.

Question 48

did the Treaty cede sovereignty in a Dicey form?

Answer 48

if the Treaty is viewed as a treaty of cession, this itself is a recognition that the chiefs had sovereignty to be able to cede

Question 49

what are some things that Geoffrey Palmer said around the treaty

Answer 49

“The Treaty is half in and half out of the legal system despite it being simply the most important document in NZ’s history”

The “situation is untidy, uncertain and indeterminate”

“Consensus on the subject of the Treaty will be hard to achieve but it is likely to be the key that will unlock the prospect of progress in other areas”

Question 50

what did Geoffrey Palmer suggested in relation to recognising the Treaty

Answer 50

He suggested a written constitution with clauses like:
1. Rights of Maori people under the ToW are hereby recognised and affirmed

2. ToW shall be considered as always speaking and shall be applied to circumstances as they arise so effect may be given to its spirit and intent
3. ToW means the Treaty as set out in Maori and English in the schedule of this act

Question 51

How could Geoffrey Palmer’s model of a written constitution come under the scrutiny of litigation

Answer 51

• what does it mean for the Treaty to speak and be applied?
• spirit and intent?
• what is to be made of the differing versions?

Question 52

what is the most likely direction of the courts to find recognition of the Treaty in NZ in the future

Answer 52

The Treaty as a limitation on government power and the sovereignty of the Crown - provides for direct recognition of tino rangatiratanga and reflects the Treaty more as it allowed it to be balanced with the rights of the Crown

Question 53

what did Dame Sian Elias CJ say about the Treaty

Answer 53

to say the treaty had no effect in domestic law was “the attitude of an ostrich.” Said Hoani Te Heu Heu is “no longer credible”

Question 54

the legal system is developed upon the grund norm. what is ours and if the court were to recognise the Treaty as a limitation, what would this mean for the grund norm?

Answer 54

it is parliamentary sovereignty but to do this would be to recognise the treaty as the grund norm

Question 55

are courts likely to start striking down legislation as inconsistent with the treaty? what approaches might there be in the future?

Answer 55

no not likely. a more likely approach would be a redistribution of sovereignty - parliament does not have an unfettered sovereignty and parliament’s rights must be balanced against the tino rangatiratanga guaranteed to maori people in the treaty