The Treaty

Question 1

Applying the treaty to a question

Answer 1

1. is there a treaty empowering provision
2. how strongly is the provision worded
   - strong (Tamaki) positive obligation
   - weak (broadcasting) negative oblihation
3. what principles are engaged
4. how do the courts interpret and apply the relevant principles regarding their duty of care and does this allow for judicial review

Question 2

Step 1

Answer 2

Is there a treaty empowering provision

Question 3

Step 2

Answer 3

How strongly is the provision worded?

• strong provisions require stronger positive actions (Tamaki Trust)
• A ‘weak’ provision usually only imparts negative duties (i.e: an obligation to not do something - e.g: NZMC ‘lands case’)

Question 4

Step 3

Answer 4

What principles are engaged
reviews relating to TOW decisions concern illegality, particularly relevant considerations (e.g: NZMC ‘lands case’ - the crown did not take into account the principles of the treaty) and error of law (e.g: Tamaki Tribal Trust )

Question 5

Step 4:

Answer 5

How do the courts interpret and apply the relevant principles regarding their duty of care and does this allow for judicial review.

Question 6

Trans Tasman

Answer 6

courts will interpret legislation consistent with treaty principles unless explicitly excluded

“existing interests” and “other applicable law” means tikanga

Question 7

Tamaki Trust

Answer 7

Here, the minister had committed an error of law as she was under the impression that s 4 did not authorise her to decline applications. She applied the section wrong

Question 8

NZMC v Broadcasting case

Answer 8

would the transfer now or in the future impair to a material extent the Crown’s ability to take reasonable action which it has an obligation to undertake?

active protection is limited to what is reasonable in the circumstances

Question 9

NZMC v Lands case

Answer 9

If a statute applies the treaty, the principles must be applied, if not it is a failure to make a mandatory consideration. Obligation not to do something

Also outlines principles
- Partnership
- Active Protection of Maori interests
- Duty to remedy past breaches
- Consultation and informed decision making