Tikanga Māori Flashcards
“Tikanga is ____ based - there was _____ system”
Community.
No formal court.
What is a normative system? Is Tikanga Maori a normative system?
Not just a set of rules, but a system developed on principles and values that form a system of logic used.
Yes, Tikanga Maori is a normative system.
Tikanga is underpinned by a set of principles which are not just about law but life in general. True or False?
True
What is Muru?
Redistribution of land, assets, etc to re-balance wrong-doings and therefore fulfil utu.
Family tree of Maori gods?
(Image Below)
What is “hau”?
When agreement is made, property becomes infused with the “hau” of that agreement.
What are the principles of Tikanaga? What do they translate to?
Whakapapa - Line of descent from gods to present time.
Mana - power, authority, prestige (born with mana, closer relation with gods = more mana at birth) actions also reflect your level of mana.
Tapu - sacred, something you cannot engage with. Placed on something with potential for harm.
Noa - canceling out Tapu, absence of Tapu.
Whanaungatanga - kinship, sense of family connection
Utu/Tauututu - Re-balance, reciprocation
Manaakitanga - to fill with mana, connection to not only people but the natural world around us thus obligation to fill those around us and the land around us with mana.
Kaitiakitanga - guardianship, stewardship, trusteeship, trustee ALSO trust.
What are the principles of Tikanaga? What do they translate to?
Whakapapa - Line of descent from gods to present time.
Mana - power, authority, prestige (born with mana, closer relation with gods = more mana at birth) actions also reflect your level of mana.
Tapu - sacred, something you cannot engage with. Placed on something with potential for harm.
Noa - canceling out Tapu, absence of Tapu.
Whanaungatanga - kinship, sense of family connection
Utu/Tauututu - Re-balance, reciprocation
Manaakitanga - to fill with mana, connection to not only people but the natural world around us thus obligation to fill those around us and the land around us with mana.
Kaitiakitanga - guardianship, stewardship, trusteeship, trustee ALSO trust.
First “second law” of Aotearoa?
Treaty of Waitangi
Did Tikanga Maori continue to be practiced post 1840?
Yes
Case of Tanistry (1608) Davies 28 in relation to indigenous laws?
Recognised custom of indigenous laws still in practice.
Ruled that custom must meet the following:
- Must be certain and reasonable.
- Must exist since time immemorial (1189AD).
- Must be tied to a location and have the force of law in that community.
Campbell v Hall (1774) 1 COWP 204 (KB) position of Ingenious law?
Custom remains in force until Crown introduces its own law.
Ruled:
- All inhabitants of newly acquired territory become subject to legislative government of Parliament.
- Inhabitants become British subjects.
- Laws of newly acquired territory remain in force until altered by the Crown.
Problems with Tikanga Maori in relation to the “Case of Tanistry (1608) Davis 28 (KB)?
- Don’t know if Tikanga has been in place since time immemorial.
- By who is the law considered certain and reasonable? English may not view as such.
R v Symonds (1847) in relation to land ownership. How did the British view differ from Maori view of land ownership?
Crown only recognised that occupied Maori land was only owned that is being used and occupied. If not used and occupied then Aboriginal title not recognised. This land considered ‘waste land’.
Differed from Maori view, where some land needs to be left unused to protect spiritual aspect of land and wildlife. In turn very different view over ownership over what the British would consider ‘waste land’.
Constitution Act 1852 in relation to Tikanga Maori?
Recognised that Maori still largely self-governing and therefore Tikanga should at the time be maintained as long as it was not considered “repugnant to the general principles of humanity”.
The Native Rights Act 1865 ss 3 and 4 in relation to Tikanga Maori? What did Act do as a whole?
Recognised holding of Maori land held under Maori custom and usages and therefore a continuance of Native Title.
As a whole, removed any that that all Maori were British subjects and therefore had the same rights as British citizens.
Wi Parata v Bishop of Wellington (1877) in relation to Tikanga Maori practice?
Deemed Treaty of Waitangi as nullity. Furthermore, consent of Natives ruled not needed for Crown to distinguish Native Title. States that statutory legalisation of Constitution Act 1852 and Indigenous Right Act 1865 in relation to Native Title is a nullity.
Did the New Zealand courts with Nireaha v Baker (1894) support or oppose the Wi Parata decision?
Supported decision
In large, did the Privy Council support the decision in Wi Parata?
No. Furthermore, stated that customary law has already been recognised in statute and therefore cannot be called “non-existent”. Moreover, they state that the Courts do have the jurisdiction to hear these cases.
Did the PC officially overturn the Wi Parata decision?
No, however did heavy criticise.
Differences in context between Privy and Colonial Courts?
Privy Council defended Native Title.
Privy Council Paternalistic in its approach.
Colonial Courts subject to different social and political environment in NZ.
Public Trustee v Loasby (1908) in relation to Tikanga.
Starts to recognise Tikanga as customary law in NZ Courts.
Where:
- Whether the custom existed as a matter of fact – eg, does it exist as a general custom known and accepted by those to whom it applies.
- That it must not be contrary to statute.
- And finally, that it was reasonable to apply, taking the entirety of the circumstances into consideration.
Two cases towards end of 1900s which recognise the Customary rights to Coal and Fisheries?
Te Runanga o Muriwhenua Inc v Attorney General [1990] 2 NZLR 641 (Fisheries)
Taunui Māori Trust Board v Attorney General [1989] (Coal)
What did Te Weehi v Regional Fisheries Officer (1986) 1 NZLR 682 rule?
Te Weehi found not guilty in violation of shellfish rights as he was given customary rights by Ngai Tahu and was collecting shellfish for a Tikanga purpose. In turn, recognised customary rights.
