Treatu of Waitangi, Tikanga and the Courts Flashcards
What is the Tikanga Normative Framework?
4 aspects of tikanga
1. Structural
- Whakapapa
- Whanaungatanga
2. Responsibility
- Mana
- Tapu
- Noa
3. Relational
- Kaitiakitanga
- Manaakitanga
4. Prescriptive
- Utu
- Ea
5. Procedural
- Kawa
- Behaviours/practices
Which case outlines the treaty principles?
NZMC v AG 1987
What is a case which discusses a positive treaty incorporation provision?
Ngāi Tai Ki Tāmiki Tribal Trust v Minister of Conservation
- S 4 Conservation Act
- “give effect”
What is a case which discusses a negative treaty incorporation provision?
NZMC v AG
- S 9 SOE Act
- Does not allow crown to act in an inconsistent manner
Which does Cook say about partnership?
Partnership means acting towards your treaty partner reasonably and with the upmost good faith.
The other treaty principles arise from this overarching principle
Which does Cook say about active protection?
- Active protection of maori lives/interest and for the use of their lands and water
- Not a passive duty
- Only applies to fullest extent practicable - it has limits
Which does Cook say about consultation?
- Scheptical principle
- Crown has duty to be informed and in some circumstances this will be consultation
- If a reasonable treaty partner would consult, they should consult
Which does Cook say about redress?
- If a principle is breached, a treaty partner should remedy this
- Does not have to be specific redress
What limits are on the principles of the treaty? (per Cooke P)
“The principles … do not authorise unreasonable restrictions on the right of a duly elected Government to follow its chosen policy”
How do law and the judicial branch of government contribute to protection of indigenous rights in New Zealand, a constitutional system that relies primarily on political protection of indigenous rights? Matthew Palmer CM49
- We are a political constitution because of parliamentary supremacy
- He is writing at a time where recognition of treaty rights is dependant on a statutory reference to this
- The courts have a role in giving effect to treaty principles and applying tikanga
- They can nowadays do this even when the act does not provide for it
In general, how will the court’s interpret treaty clauses?
“…the constitutional significance of the Treaty means that Treaty clauses will be generously construed. If Parliament intends to limit or remove the Treaty’s effect in or on an Act, this will need to be made quite clear.”
- Williams J, Trans-Tasman Resources v Taranaki-Whanganui Conservation Board (SC) CM39
What is tikanga?
Tikanga = the system for rightness and correctness and determining what is right/correct
- Sets a standard for which we should aim for
- Not a floor through which we should not go (reverse of pakeha law)
- Expects everyone to do their best
- It is a complete system of principles for “the right or correct way of doing things”
What does tikanga govern?
Everything, it has more than just a jural element. More than just a system of law, it involves everyday behaviour and interactions.
What is whakapapa?
Genealogical map that that connects all things.
- Usually genetics
What is whanaungatanga?
Activated connections, the “glue” that holds the system together.
- The activities that surround the whakapapa connections
- Gives rise to rights and obligations
- Can go beyond people who whakapapa māori
