Tikanga Flashcards
Tikanga is…
The first law of NZ
It is a set of values, customs, practices and laws that operate within Te Ao Maori/ the Maori Word.
What are the similarities of the NZ and English legal systems?
Same institutions
Same methods
Lawmaking by an elected legislature
Trial by jury
Precedent based decision making - rather than relied on code.
What are the differences of the NZ and English legal systems?
NZ has no seperate court of Equity
NZ has a unicameral legislature (1 chamber = House of Reps)
NZ has more flexibility through there being no distinction between Solicitor and Barrister
What is the basic explanation of English arriving in NZ (what happened)?
- English common law arrived with settlers and crown
- This contained a doctrine which recognises pre existing local customs and laws.
- This meant that Tikanga didn’t disappear and they lived alongside eachother peacefully
- The crown then took over all ownership and title of land by dominion.
- This left Maori with land and Tikanga attatched to it.
- But overtime, they used legislation to extinguish their land rights
- This left the crown with land and legal title, obtained through legislation.
What is Tikanga based on?
Values, instead of rules
The defining principle of the Tikanga legal system is
Whanaungatanga/ Kinship
Who was, from the Maori perspective, the first person to discover NZ?
And what did he say?
Kupe
“He ao he ao he Aotearoa”
Whanaungatanga =
Informs human relationships with physcial + spiritual world
‘Family’ is broad - inclusive of many things like kiwi, mountains, iwi etc.
Means extended family, relationships and responsibilities
–> Don’t own anything, instead have a relationship with it
Good quote: “Whanaungatanga is the …. that….”
Who says this?
“Whanaungatanga is the glue that holds the Maori world together” - Justice Joe Williams
What are 4 others values
- Mana = authority, control, influence, prestiege and power
- Tapu = sacred, respect, different roles
- Utu = reciprocity, trying to maintain a balance between good and bad
- Kaitiakitanga = stewardship and gaurdianship.
Abel Tasman did what?
Vs
James Cook did what?
Sights NZ and names it
Circumnavigates it and maps it
What is the easiest way to gain empire and domain of land?
When you are the first people on the land
What do you have to do to claim empire and domain of land when your the first people there?
Display a permanent residence through putting flag and burrying money etc
Can you still still take property and soverignty if you are not the first people on the land? How?
Yes, if the current occupier is erratic with a scanty population
Savages who make no actual constant use of land
Imperium =
Sovereignty
Who has control and power to make decisions
Dominion =
Property/ land rights
Who owns the land
Cession =
Giving up rights consensually
BASIC events of English collonisation to NZ (1-2 word answers)?
- 80 years of Maori and English living alongside
- British reconised soverignty
- French influence
- Independance of NZ
- Change in language towards Maori
- Letters Patent
- Britian issues instructions to aknowledge NZ as soverign
- Govenor Gipps Proclamations
- Treaty signing
- Hobsons Proclamations
- Ratification of Hobsons Proclamations
What was the key difference between The Treaty of Waitangi and Te Tiriti O Waitangi?
Te Tiriti O Waitangi:
No cession is ceeded by Maori, they retain imperium and dominion
The Treaty of Waitangi:
Cession is ceeded by Maori, but Maori retain property
What are the 3 ways to gain soverignty when the land is already inhabited?
- Cession = giving up rights formally (treaty etc)
- Discovery = first there, putting flag and money, doctrine of discovery (can take over land if people are not civilised enough)
- Conquest = force, winning a big war
How to aquire dominion on land already inhabited
Doctrine of Native Title
There can be a change in soverignty but the old owners would still remain the owners of land
BUT if the original owners are classified as uncivilised by the Europeans, then this international law held a loophole that enabled the taking of these people’s lands.
- According to de vattel: it would not matter if the land was already inhabited if the other nations were erratic, had a scanty population, were incapable or occupying the whole land, held unsettled habitation, and were savages who made no constant and actual use of land
What is important to consider with the Doctrine of Native title
Who is deciding that the current inhabitants are not civilised enough?
Why is Tikanga important in common law?
Continues to regulate lives as it is the first law and reflects values older than our nation
It embodies the cultural herritage and values of our country
Shaped broader values of soceity
The common law must serve all - including Maori
It has been applied by the courts as a source of enforcable rights for many years.
Why do we learn Tikanga/ the first law
Courts say it is relevant
- Ellis v R
Parliment says it is relevant
- Referenced in legislation
NZ law comission says its relevant
NZ law soceity says its relevant
- Dynamic, developing area of law, spoken in court, clients with tikanga isses
Clients want it (Maori and non-Maori) - helps lawyers to understand their clients customs and values
Ensures they are equipped to navigate cases where tikanga is a factor
Kupe’s perceived journey - why it is or is not true
Found the islands chasing a wheke (octopus) from Hawaiki
This might not necesserily be true BUT the point is that Maori learnt by injecting drama into the story so that they would not forget it.
What really happened with Kupe
Set off on a journey, taking 4 weeks in a waka
He had a scientific plan that got him to NZ - not going by chance but going on a mission.
His scientific plan:
- A certain bird always went south during september and october: he knew the bird must reach land as it did not have webbed feet - he knew there would be land
- Whales always headed south: would be thousands of whales and, because the calves could not stay under for long, it provided a lit up highway to the south
- Stars guided Kupe home
- Coulds sitting over islands visible from a long way: “he ao he ao he ao tea roa” - they knew the clouds where a sure sign of whenua (land).
Kupe’s science was focused on…
+ who they are therefor different to
The Envrionment
Different to Cook’s people because they abstracted themselves from the land and made a map as a guide of what they were seeing.
What set of laws and values did Kupe bring with him?
Whanaungatanga
Complementary of the universe
Prior to European arrival, Maori described themselves as a…
Series of tribal federated nations (at hapu level not iwi level)
NOT A RACE
What is the importance of storytelling
Maori convey their laws and histories through storytelling
- The drama in these stories (as designed) ensures that the knowledge is contained, recorded and passed down through generations
Tikanga =
Tikanga Maori =
= The obligation to do things the right way
= Maori legal system
The Maori world view is entirely shaped by…..whereas the English system is shaped by….
….Kinship, Collectivisim, and Connection with the envrionment
…Democracy
Quote for kinship/ whanaungatanga
“Kinship is the revolving door between the human, physical, and spiritual realms”
“It is the glue that holds the Maori world together” - Justice Jo Williams
What is an area of overlap in the Maori and western concepts of law + what the key point is
Both hold a notion regarding the process of gifting but they look different in practice
- In western: gift land and then have exclusive rights over it
- In Maori: gift land but not to exclude others.
Neither legal system is better or superior, they are just different
What is Whanaungatanga?
The defining principle of tikanga - the centre of the Maori legal system
It is the notion of Kinship - the principle which informs human relationships with the physical and spiritual world.
Other core principles around Whanaungatanag
Kaitikitanga - stewardship, gaurdianship: responsibility to envrionment
Mana - authority, control, leadership
Tapu - Scared, respect, different roles (social, political, wairua/ life force)
Noa - to be free from the extensions of tapu (opposite to Tapu which = a whole)
Manaakitanga
Utu - equalibrium, balance, reciprocity. The practice of Maori law
Rangatirotanga
What first happened in NZ
Maori were the first
And between 1769-1839, there were 80 years of the Europeans living in Aotearoa under the control of Maori law
In 1769 the Europeans made the decision t onot immediately aquire soverignty of NZ like they did in Australia etc.
In 1814 the Govenor of NSW said that not ship shall sail without permission of the chiefs to remove natives from NZ or land or stay in NZ
- Strong example of Maori soerignty being reconised
1817: UK statute explicitly stated that the Islands of NZ are not within his majesty’s dominions - clear recognition that Maori still had complete control over the land.
What was the influence of the french
1772: French ship arrives in Bay of Islands and violates tapu - Maori therefor kill 26 french in response and then the french retaliated by killing 250 Maori
1831: French ship returns and worries the Maori chiefs so they seek help from the British king
1832: Britan responds to plea for help by appointing Busby as a british resident to provide better protection for Maori
1834: French planned to establish an independent government in NZ but, in response, Busby calls a meeting of the native chiefs to declare NZ an independant stare under the united tribes of NZ
= The Declaration of Independence (1835)
Aknowledges that the king and brittian continues to be a parent state to NZ, but NZ was now an independent country and french were not allowed to do their thing.
When did the stance on Maori change?
1837
A different kind of language was being used to describe Maori
Key 6 events leading to the British aquisition of soverignty (after this language change)?
1839: Letters patent state that NSW can be enlarged to include NZ if the british aquire soverignty. Legally opened the possibility of NZ becoming part of the NSW colony
1839: British issued explicit instructions aknowledging NZ as soverign as far as possible
1840: Govenor Gipps proclamations - only land purchased from the british crown is to be reconised + the jurisdiction of NSW extends to NZ
1840: TOW starts to be signed
1840: Hobson proclaims full soverignty over all of NZ
- NOTE: Not all Maori had signed the treaty yet so the British claimed soverignty here througgh cession in relation to the north island and by discovery over the south island
1840: Ratification of Hobsons proclamations
Differences in article 1 vs 2 in maori vs english treaty
ARTICLE 1
Maori: transfer of governance
English: transfer of soverignty
ARTICLE 2
Maori: retain tino rangatirotanga over their lands, villages, properties and treasures
English: Maori granted exclusive and undisturbed possession over lands, estates, forests, fisheries and other properties.
Both: The crown has exclusive right of pre-emption & Maori have the Queen’s protection and all rights accorded to British subjects
The KEY DIFFERENCES in TOW
Under article 1, The English version says that Maori ceded soverignty to the them. BUT the Maori version says that they gave the british the right to be able to govern their own british people in NZ
Under article 2, the English version says that Maori were granted the exlusive and undisturbed possession of their lands, however the Maori version uses the phrase which more represents the idea of soverignty.
Te tiriti: no cession, Maori retain imperium and dominion
Treaty: cession ceeded, Maori retain property
Origins of parlimentary supremacy in england - timeline
Code of Hammurbi
Roman Law
Anglo Saxons + their witengamont
1066 - William the Conquerer
- Witengamont –> Curia Regis
1154 - Henry II, writt system and trial by jury
1215 - Magna Carta
1265 - De Montfort
1295 - Edward I Model Parliment
1340 - Edward III no taxes change without parliment consent
Power struggles
1688/89 - BORA
What is the earliest examples of written law
How did it appear
Purpose
The code of Hammurbi
Code came from God and was sent down to the King who created it through him
Engraved onto a stone pillar and put in place for everyone to see - so they could regulate their behaviour accordingly
Symbolised the kings role in maintaining justice and order
Religious kind of law
What is the information around Roman Law (how it came to be, what it was like)
Similarities and differences to the code
Eg; Corpus Juris Civilis
Rome conquered England and their law therefor operated within England for time. It was a written code but came from the people Then Rome eventually withdrew from England and it’s laws followed them through other European countries
Both Roman law and Code tried to regulate soceity and promote justice. Roman law was different in being more flexible and comprehensive as well being the ‘law of the people’ rather than religious law like the code.
Who came in to play after the Romans left england? + details
Roman leaving Britan left a power vaccum which the ANGLO SAXONS took.
Their laws were unwritten customs and traditions - focusing heavily on compensation and religion
Those determining the law did not see themselves as making law but rather receiving signs from God
Relied on alternative trial methods and local customs - eg; trial by fire or water.
What did William the Conquerer do?
Crowned as the king in 1066
Had full control over England land
Left the Anglo-Saxon law in place - did not bring Roman law over
Contributed highly to the development of common law - he directed the how the courts were to apply the law (he directed them to all apply the law in the same way and operate the same)
What did Henry II do?
Continued to keep William the Conquerer’s tradition of strong centralised rule and nationalisation of local customs - continued to keep his approach of consistency in the courts
He also helped to introduce various features we still see in legal systems today;
1. Introduced the writt system - previously you just had to hope the person you were taking to court would show up but the writt system brought the kings power with it.
Writ = how you get someone to court.
2. Introduced a system of trial by jury - systematised it. Reconised the law was of the people not of god
What was the problem with Henry II’s writ system?
It became too complex
If your issue did not fit into a pre-existing writ there was no remedy for it
Started to seem unfair as there were situations of an obvious wrong but no remedy
What was the solution for Henry II’s writ issue?
Equity and the Court of Chancery
Adressed the lack of flexibility - provided remedies in the interest of justice when someones problem did not fit into a writ and no remedy was given previosly
What did William III do? + what date
What did this do
Signed the Bill of Rights Act
1688
This marked the beggining of Parlimentary supremacy as the rights and power went to Parliment instead of the King
What is the key origin of Parliament
Anglo Saxon Witenagemont
Wise men (council of nobles and clergy) advising the king during the Anglo-Saxon era but the king still has the final say
What happened after the Anglo Saxon Witenagemont?
+ function
In 1066 the Witengemot became the Curia Regis = King’s council
Similar group of advisors as the Witengamont
Was an early advisory council that helped the king rule
What happened after the Curia Regis?
1215 Magna Carta
Introduced a new principle
Pivotal document that limited the power of the monarchy and established legal rights for the nobility.
Established that the king and his government are not above the law, they also have to abide by it.
King still had a lot of power but it was evidence of a shift.
What kick started Parliament emerging
1265 - De Montfort’s Parliment
Rather than establishing himself as king, he sought to elect a Parliment
Established Parliment with both nobles and commoners.
Although, he died with this idea as he lost the support of the nobles.
What happened after De Montforts Parliment
1295 - King Edward I decided to implement De Montfort’s ideas by creating the ‘Model Parliment’ (because Monfort died)
He implemented Montforts ideas and also added some reforms.
Elected commoners chosen by landowners to be in parliament and nobles.
Both the commoners and nobles were to debate and propose legislation seperately AND both have to agree for the legislation to pass
(monforts idea)
His reforms:
- Gave commders in parliment more power
- Gave parliment more power as a whole (eg; no taxes without parliment thing)
What is the Norman Conquest
The 1066 invasion and takeover of England by William the Conquerer
What were the legal systems prior to english collonisation
Tikanga was the primary legal system
Tikanga was a system of Maori customs and values that guided social conduct, dispute resolution, defining rights and obligations, relationships and resource use
Was oral - not written
Passed down through generations and deeply tied to spritual beliefs
What is radical title
The Crown holds ultimate ownership of land which is derrived from the principle of soverignty.
What would the changes be for NZ if we became a republic
The role of head of state would shift from the british monarch to a president
Might consider a more clearly codified constitutional framework
Judicial independence would be critical to ensure the courts operate a-politcally
More coltural recognition
