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LAWS110 > Treaty Of Waitangi Module 3 > Flashcards

Treaty Of Waitangi Module 3 Flashcards

1
Q

5 Core principles of treaty of Waitangi today?

A
  1. Partnership.
  2. Active protection.
  3. Right of Redress.
  4. Right of Crown to govern.
  5. Māori rangatiratanga over lands, resources, and toanga.
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2
Q

Which version of Treaty is accepted today as offical Treaty document?

A

Maori version - Te Tiriti

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3
Q

Is Te Tiriti o Waitangi regarded as a founding document of government in today’s time?

A

Yes

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4
Q

What is constitutional law?

A

Framework of rules and principles that govern New Zealand.

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5
Q

Where are the “rules and principles” discussed in constitutional law found?

A

Formal legal documents, court decisions, court conventions

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6
Q

Is Te Tiriti a part of the rules and principles of New Zealand’s constitutional law?

A

Yes.

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7
Q

Crown motivations for signing Treaty?

A

Stoping French influence
Financial trading motives
1835 declaration of independence
Humanitarian concerns

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8
Q

Maori motivations for signing Treaty?

A

Financial trading motives - guaranteed trade with Britain.
Protection from rip off land purchases and unruly settlers.

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9
Q

Where do Treaty translations differ in article one?

A

English version - complete sovereignty
Maori version - Complete government

English expected complete transfer of sovereignty. Maori understood more as governance over British subjects but subject to authority of Maori chiefs concerning Maori.

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10
Q

Where do translations of Treaty differ in article two?

A

English - Exclusive and undisturbed possession of their properties.

Maori - Unqualified exercise of chieftainship

Maori translation denotes absolute sovereignty over their own lands, essentially Maori have complete chieftainship over their own lands. English version views not chieftainship over own lands but rather complete ownership and possession.

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11
Q

What did both translations essentially state in article 3?

A

Full rights and duties of citizenship to Maori.

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12
Q

What were the three main controversies and confusion around the Treaty, it’s fulfilment and translation?

A

Was full sovereignty ceded by Maori to the crown? - No

Is Taonga broader than lands, estates, forests, fisheries? - Yes

Which version of the Treaty should prevail? - The Maori version

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13
Q

What is the Act that created the Treaty of Waitangi Tribunal and the 5 principles of the Treaty?

A

Treaty of Waitangi Act 1975

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14
Q

What were 5 breaches of the Treaty?

A
  • Unequal land sales and land disputes
  • New Zealand land wars (1860) and land confiscations
  • Land loss: Native Land Courts, public works taking
  • Impact on taonga, loss of language
  • Lack of equality
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15
Q

When was Treaty signed?

A

6th February 1840

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16
Q

What was English main goal in signing Treaty?

A

Transferring sovereignty from Maori to Crown.

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17
Q

What was main Maori goal of singing Treaty?

A

Retrain a degree of chieftain authority and confirm Maori possession of land and taonga

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18
Q

The English version article two states “full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties”

This translates into “taonga” in the Maori version.

What does “taonga” mean and how does this create an issue in translation?

A

Taonga - all treasured things

Includes intangible things such as Maori language, differs from British translation just about land.

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19
Q

What was the first major historical case concerning the Treaty?

A

R v Symonds (1847)

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20
Q

Name the four historical cases for the Treaty?

A

R v Symonds (1847)
Wi Parada v Bishop of Wellington (1877)
Nireaha Tamaki v Baker (1901)
Wallis v Solicitor-General (1903)

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21
Q

Facts of R v Symonds?

A

Maori land owner sold to Mr McIntosh (private land owner) who had certificate of the waiver for Crown’s right to preemption.

Mr Symonds = crown offical who bought same land through crown grant.

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22
Q

Decision of R v Symonds? What does this confirm about the Treaty?

A

Decided in favour of Symonds. Found Fitzroy’s waiver of preemption was unlawful under article two. Confirmed the right of preemption in Treaty and in turn confirmed the Native Title and the Treaty as a legal document.

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23
Q

Facts of Wi Parada v Bishop of Wellington?

A

Ngāti Toa gifted land to Anglican Bishop of Wellington to build a school for their people.

School was not built.

Crown grant was issued to Bishop without Ngāti Toa’s consent.

Wi Parada in turn wanted land returned

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24
Q

Decision of Wi Parada v Bishop of Wellington (1877)? What impact did it have on the Treaty’s standing?

A

Supreme Court had no power to inquire into matter of whether Native Title was extinguished. Also article two of Treaty was deemed not legally binding on the crown.

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25
Q

What is Native Title otherwise known as Maori Land Title?

A

Parcel of land.

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26
Q

Another name for Maori Land Court?

A

Native Land Court

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27
Q

Facts of Nireaha Tamaki Baker (1901)?

A

Crown acquired land for railway and subdivided block through NLC.
Error in surveying land, 2000 acres not processed in NLC.
Tamaki claimed that the 2000 acres belonged to Maori.

28
Q

CA and consequent appeal to PC decisions?

A

CA = Maori too primintive to possess any customary law recognised by the court.

PC appeal = reversed CA decision as “too late in the day to adopt such a view + exisiting statutes referring to Maori Customs.

29
Q

Nireaha Tamaki v Baker (1901) impact on Treaty’s legal standing?

A

Criticised Wi Parata decision and confirmed Maori custom in law (recognised Native land until it was extinguished).

30
Q

Wi Parata v Bishop of Wellington (1877) impact on Treaty’s legal standing?

A

Enforced that article two not legally or morally binding. Essentially nullified Treaty as a legal document and implied that Maori had no legal right to claim Native Title.

31
Q

R v Symonds (1847) impact on Treaty’s legal standing?

A

Confirmed Treaty as a valid legal document.

32
Q

Wallis v Solicitor-General (1903) impact on Treaty’s legal standing?

A

Criticised Wi Parata decision and referred to Treaty having force in law.

33
Q

Facts of Wallis v Solicitor-General (1903)?

A

Maori gifted land to Bishop Selwyen to build college.
Land surveyed and placed under charitable trust with Maori who gifted land as Trustees.
Lieutenant-Governor accepted gift and sanctioned land via Crown Grant without telling Maori.
College never built.

34
Q

Lower Court, CA and PC decisions on Wallis v Solicitor-General (1903)

A

Lower Court = rules in favour of Trustees.

CA = stated no jurisdiction to address issue of re cession, allowed appeal in favour of Crown.

PC = Solicitor-General could not validate that land was Crown property. Ruled in favour of Trustees.

35
Q

Facts of Hoani Te Heuheu Tukino v Aotea District Maori Land Board (1941)

A

Statutory charge against land Maori pay to Board.

Board paid this amount to Egmont Co Ltd to process and manufacture boxes.
Board also entered agreement with Timber Co in hopes of building a railway.

Board financed the two contracted companies with the statutory charge.

Appealed to remove the charge.

36
Q

CA and PC decisions on Hoani Te Heuheu v Aotea District Maori Land Board (1941)?

A

CA = Deemed not in jurisdiction of Court of Appeal to challenge the power of the legislature.

PC = Confirmed CA decision and held that enactment was beyond the competency of the Legislature. Incorporation of the Treaty was suggested.

37
Q

Hoani Te Heuheu Tukino v Aotea District Maori Land Board (1941) impact on Treaty’s legal standing?

A

Government legislation trumped Treaty of Waitangi.
Courts suggested to incorporate Treaty into a statute rather than just a legal document.

38
Q

Three main things Treaty of Waitangi Act 1975 implemented?

A
  • Recognised Treaty in New Zealand law as a primary source of legislation.
  • Established Waitangi Tribunal to investigate possible breaches of Treaty by NZ government.
  • s8 of act = examine any proposed legislation/bill/regulation and report on whether they follow the principles of the treaty.
39
Q

What was the main effect of te Treaty of Waitangi Act 1975?

A

Codified Treaty into a statutory document.

40
Q

What is the “Landmark decision” case? What does this mean by “Landmark”?

A

New Zealand Maori Council v Attorney-General

Firmly becomes a part of the constitution governing Aotearoa.

41
Q

Background facts of New Zealand Maori Council v Attorney-General?

A
  • Regarding large portion of Crown land yet to go through Waitangi Tribunal.
  • Government wanting to transfer significant quantities of Crown land to semi-commercial state-owned enterprises.
  • Maori feared that transferring these assets land would cease to be Crown owned and sold to overseas investors.
  • If transfer occurred Maori would not have chance to go through WT and remedy past breaches.
42
Q

Two sections introduced in bill on recommendation of Waitangi Tribunal (landmark case). Which one was omitted in the passing of the bill and what action resulted as a consequence?

A

s9 = nothing in the act shall promit the Crown to act in a manner inconsistent with the Treaty principles
s27 = Treaty of Waitangi Tribunal proceedings must take place first.

S27 omitted. Resulted in New Zealand Maori Council taking matter to court for judicial review in the form of the “landmark” case.

43
Q

HC and CA decisions on New Zealand Maori Council v Attorney-General?

A

HC = issued interim orders (referred to) Court of Appeal.

CA = Treaty gave rise to a partnership. Crown failed to take steps to establish a system to consider each asset passing to SOE. Because s27 not passed, Crown breached the principles of Treaty of Waitangi.

44
Q

New Zealand Maori Council v Attorney-General impact on Treaty’s legal standing?

A

Produced the Treaty principles held today.

45
Q

Waitangi Tribunals main function?

A

Inquire into claims and make recommendation to the Crown.

46
Q

How many people required on panel to carry out an inquiry for Waitangi Tribunal?

A

3-7

47
Q

Governing legislations of Waitangi Tribunal?

A

Treaty of Waitangi Act 1975
Commissions of Inquiry Act 1908
Treaty of Waitangi (State Enterprises) Act 1988
(Some other statutes)

48
Q

Can the Waitangi Tribunal recommend the return of ownership of private owned land to Maori ownership?

A

No, only Crown owned land.

49
Q

Waitangi Tribunals functions?

A
  • Inquire into any claims.
  • Recommend to Govt how claim should be settled.
50
Q

Are all of the Waitangi Tribunal’s claims binding?

A

No - only some.

51
Q

How are claims usually settled via the Waitangi Tribunal?

A

Mediation

52
Q

What are the types of Waitangi Tribunal inquires?

A
  • District
  • Kaupapa
  • Urgent
  • Remedies
  • Historical claims
  • Contemporary claims
53
Q

What are district inquiries?

A

Area based claims, 37 in total.

54
Q

What are kaupapa inquiries?

A

Deal with nationally significant issues affecting Maori as a whole.

55
Q

What are urgent inquiries?

A

Inquiries that concern urgent importance.

56
Q

What are remedies inquiries?

A

Occur when Waitangi Tribunals has already found a claim to be well-founded.

57
Q

What are historical claims?

A

Inquiries concerning matters occurring before 21st September 1992.

58
Q

What are contemporary claims?

A

Inquiries concerning matters occurring on or after the 21st September 1992.

59
Q

Who can make a claim in the Waitangi Tribunal?

A

Any Maori.

60
Q

Where are claims for the Waitangi Tribunal submitted?

A

Submitted through the Registrar.

61
Q

Iwi?

A

Maori tribe - region

62
Q

Hapū?

A

Sub-tribe - districts

63
Q

Maori members?

A

People belonging to the land, iwi and hapū.

64
Q

What two criteria must be fulfilled before Waitangi Tribunal hearing can start?

A
  • All issues have been identified.
  • Sufficient and adequate research relative to the issues is completed.
65
Q

The Waitangi Tribunal does not provide a platform for reconciliation via settlement after breaches of the Treaty between the Crown and Māori. True or False?

A

False, the Waitangi Tribunal does provide a platform for reconciliation between the Crown and Maori via settlement of Treaty breaches.

LAWS110 (2 decks)

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