Tikanga, Te Tiriti, Constitution Flashcards
How did Māori arrive in Aotearoa NZ?
They travelled here in Waka and the journey took around a month.
Who is Kupe?
Kupe found the land of Aotearoa, he had sailed off in his waka because he thought it was time to go. He knew there must be land out there because of the migrating Pīpīwharauroa and whales guided his way to Aotearoa. He brought his values with him to NZ that would become Tikanga.
What did the first person say when they saw these lands?
“He ao, he ao, he Aotearoa!”
(a cloud, a cloud, a long white cloud)
What does Tikanga Māori mean?
- Tika = to be correct, to do things in the right way
- Nga = pluralizes that
- The first law of New Zealand
- The Māori legal system
- Values, customs, practices that operate within te ao Maori
- Whanaungatanga - kinship.
What is said to be the defining principle of Tikanga Māori?
Whanaungatanga - Kinship, relationships, family and careful attention to relationships.
- “Kinship was the revolving door between the human, physical, and spiritual realms.”
- “whanaungatanga is the glue that held, and still holds, the system together”
Did the first law evaporate when the Europeans arrived?
No, because it still has a role in our legal system today.
- After 1840 Tikanga continued to regular the lives of Maori and the English and Maori legal system existed alongside each other
- Today, first law and second law exist alongside each other to form the New Zealand legal system.
- Contemporary efforts being made to recognise Tikanga and make our legal system Bicultural.
Documents supporting this are:
- Te Tiriti
- He Whakaputanga
- Matike Mai
What are some of the core values of Tikanga Māori?
- Whanaungatanga: relationship, kinship, sense of family
- Mana: authority, control, influence, prestige, power -> leadership
- Tapu: sacred, respect (opposite: noa)
- Utu: reciprocity, to repay, respond, answer, revenge
- Kaitiakitanga: stewardship, guardianship
How is Tikanga Māori similar and different from Western law?
- There is some overlap between Tikanga and Western concepts of law, but understandings hardly ever correspond.
- This is because western legal concepts place emphasis on exclusivity and the individual and Māori legal concepts place emphasis on sharing and relationships, so the discourse that dictates how law is seen to function is totally different.
- “There were thus two vastly different legal systems and a value judgment as to which was better was (and is) inappropriate when each was valid in its own terms” - Sir Eddie Durie
^ This is why the modern day incorporation of both is important.
How are decisions made in Māori society?
In two forums:
In Marae
- The open area in front of the wharenui
- Where discussion takes place, forum for whanau disputes within Iwi
By Runanga
- The tribal council consisting of Chiefs and Elders
How are conflicts resolved in accordance with Tikanga Māori?
Take - a claim or right to land
Determines which Whanau has valid claim to land
Can be established through many means with some claims being stronger
In order of strength:
Discovering the land, Inheriting the land, Being gifted the land and Conquest
Focus on the whanau who has the strongest relationship with the land - who has been maintaining their presence on the land, who has been ‘keeping the fire burning’
If the land is yours, this means you have a responsibility to the land.
Rahui - a prohibition
E.g, not allowing people on land to prevent Kauri dieback or on nature reservations
In modern day people recognise this Maori legal principle, the relationship to the land is valued through a consensus, Tikanga in action
What are the contemporary Māori legal institutions of authority and decision making?
Authority recognised by modern government through legislation.
Te Runanga o Ngai Tahu Act 1996
- Made it so that the Runanga (tribal council) of Ngai Tahu are legally considered a body corporate who can hold treaty settlement money for the Iwi.
Tuhoe Claims Settlement Act 2014
- Crown apologized to Tuhoe for historical wrongs in warfare, violence etc
- Acknowledges the mana of Tuhoe
- Recognises the legal personalities of some rivers and mountains in order to protect them, recognises they have importance and life force.
Who discovered Aotearoa NZ?
Māori discovered Aotearoa, then Able Tasman 1642, then Captain James Cook 1769.
- Māori: The first people in NZ had their own societal structure, their own rules, values, legal system, economy, international exchange with their iwi neighbours. This is often disregarded when talking about who ‘discovered’ NZ.
- Able Tasman: He does sight New Zealand and name it. The encounter was brief but was the first European sighting of New Zealand.
- James Cook: Does more than Able Tasman. He travels entire country and maps it. Soon after his being here more ships slowly started to arrive from his homeland.
What does De Vattel’s law of nations say about how one country can take over another country?
- A nation discovering land with no prior owner may acquire sovereignty and property… will be recognized by the law of nations so long as the nation takes actual possession. (Māori did this.)
Does it matter if the land is already inhabited? - Not if the other nations are ‘erratic’ with a ‘scanty population’ ‘incapable of occupying the whole’, ‘unsettled habitation’, ‘savages’ who made ‘no actual and constant use’ of the land.
- If the people there are ‘erratic’ and deemed to not be making proper use of the land then you can legally acquire their land.
What is He Whakaputanga o te Rangatiratanga o Nu Tirene Declaration of Independence of New Zealand?
- Independence of our country
- All sovereign power & territory resides entirely in the chiefs in their collective capacity
- No separate legislative authority or government permitted to exist
- Meet in Waitangi annually to frame laws for our common country
- Acknowledges the King and continue to be parent to infant state
It came around because of increasing French interest in NZ. Busby calls a meeting of Native chiefs to declare NZ and independent state under the United Tribes of NZ
Making French establishing independent Government in NZ illegal as māori are already here, in control and have a functioning society.
What does the text of Te Tiriti o Waitangi and the Treaty of Waitangi mean?
Te Tiriti states:
- Crown acquires kawanatanga (governance)
- Māori retain tino rangatiratanga (sovereignty) AND lands, homes and treasures (property)
The Treaty states:
- Crown acquires sovereignty (Māori cede sovereignty)
- Māori retain full and undisturbed possession of property including lands, estates, forests, fisheries, and other properties.
Article 2 of both the treaties stated that even if a country lost sovereignty to another, the original people of said country retain their property.
Why did the Māori leaders sign Te Tiriti o Waitangi?
For the same reasons that they signed the Declaration of Independence in 1835.
- A perceived good will between Maori and British
- For protection from outside powers
- Because in their translation Chiefs would each maintain rangatiratanga over their own territories
It should be noted that not all that signed the Declaration of Independence signed Te Tiriti.
- It is convenient for the British to see New Zealand as one country rather than a collection of distinct territories
- This is because they could take sovereignty over the entire North Island in one go without getting the signatures from every Chief whose mana was recognised in the Declaration of Independence
Did the Māori leaders intend to cede their sovereignty?
- NO, they thought that they kept their sovereignty (tino rangatiratanga).
- The concept of a sovereign power taking control of an entire country was not even recognised from a Maori worldview and they did not agree to this in their translation.
- Again, NZ was not seen as one territory by Maori, but many territories controlled by different sovereign powers.
- Agreed to share authority with the Crown’s governor, not to give it up.
What happened to the first laws (Tikanga Māori, Māori laws and philosophies) in 1840?
Maori systems of land ownership disregarded, Maori Land Court converted Maori land holdings to the English system.
- In the process made it easier for the English to confiscate Maori land
- Importance of land in Tikanga disregarded
Tikanga disregarded as a whole in favor of an English worldview and law after they sovereignty was taken.
How does Aotearoa NZ’s law today recognise Tikanga?
Some Examples:
Maori Land Court
- Maori Land Act 1993
- Preserves Maori land holdings and the generational importance of land to Maori
- Includes specific reference to Tikanga
Family Court
- Property (Relationships) Act 1976
- Provides rules that ensure that Taonga are not considered family chattels
What expectations does legislation put on Government and decision makers to comply with Te Tiriti and recognise Tikanga?
Some specialist courts like the Environment court means that Decision-Makers have to have some knowledge about Tikanga.
Ngai Tahu
Treaty Settlements to right ‘historical wrongs’ - dealing with breaches of the Treaty of Waitangi up to 1992.
- Includes apologies and financial compensation.
- Again, Ngai Tahu, recognising mana of Ngai Tahu’s mana over their land.
Tuhoe
Crown apologies to Tuhoe for wrongful killings and warfare.
Why is Tikanga relevant to the development of the common law?
Cases like Ellis v R Shows how Tikanga extends to all parts of our Legal System to all people, as Tikanga is part of the values of NZ society, so should be considered by the courts when developing the Common Law.
- Tikanga was the first law, it continues to regulate the lives of Māori, and ‘reflects values that are older than our nation’
- The core principles and values of tikanga are enduring and readily identifiable
- Tikanga has shaped the broader values of society and regulates non-māori lives at times too e.g. rāhui.
- The common law must serve all including Māori
- Tikanga has been applied by the courts as a source of enforceable rights for 150+ years.
Why is Tikanga relevant to the development of the common law?
Using this, explain Takamore V Clarke Supreme Court 2012
Issue: Who decides where a body is buried when the body is Maori?
Common Law: Wife would decide
Tikanga: Whanau would decide
It was decided that the Common Law should be favoured for this case, but the obiter from the Supreme Court stated;
- Tikanga is part of the values of NZ Common Law.
Why is Tikanga relevant to the development of the common law?
Using this, explain Ellis v R Supreme Court 2022
Issue: Should an appeal proceed if a person has passed away? Can a dead person appeal a conviction?
Common Law: Cases are closed after a person’s death and can’t be reopened.
Tikanga: Mana persists after death so the case should be reopened.
The Supreme Court decided that Tikanga should be considered in this case.
- So, the case was reopened (despite no-one in the case being Maori)
Is Tikanga a source of rights directly enforceable in the courts?
Yes, it can be relevant for counsel to include arguments based in Tikanga whether the client is Pakeha or Maori
