#16968 - Aotahi How Has The Treaty Evolved In Contemporary Times? 3 May - Legal Foundations (LAWS110)

Aotahi

Laws 110

3 May 2019

EEEKKK Sorry for messy notes Cameron!!

How has the Treaty evolved in contemporary times?

Tino Rangatiratanga- authority and autonomy

Everyone has different interpretation of what it means

• In essay you discuss the literal interpretation and explain the different views of how it has been described and defined

• Commentary from cases and Waitangi tribunal

• Courts and tribunals have said different things

• Explain different views of what it means

• Form your own view on what you think Tino rangatiratanga is

And

• Then 2 contemporary challenges

What are the things that make the full expression of authority and autonomy difficult?

You could say iwi Maori exercising full degree of authority over their own affairs is difficult because of…

• One centralized parliamentary structure

• How to deal with authority and autonomy with the different demographics, Maori live everywhere, not like the state’s reservations. The institutional set up. Think about the practical challenges of expressing authority and autonomy.

• How broadly- high Maori incarceration (prison) rate- expression of tino rangatiratanga- how does it impact on the expression of authority.

• Practicality and people’s views about it, can go into different debates- different political positions on the legitimacy and status of tino rangatiratanga- political side of the challenges.

Overview

• The legal position

• Colonial period- scope of Treaty of Waitangi read down… right of entitlement. Read down- make it smaller. Colonial jurisdiction narrows the legal power and effect of treaty of Waitangi

• Contemporary- read up- make it more powerful in a legal sense.

Key decisions- read down

• Wi Parata v Bishop of Wellington- legal nullity

• Still law in NZ… Wi Parata remains relevant in contemporary jurisdiction. Justice Prendergast- treaty not legally enforceable- can’t take it into courts if legal decision not legally binding

• Could not make treaty legal- Maori not state so not legally binding

• Interrelated- judges are influenced by the idea of the day- relationship between judiciary and parliament – not full free independence

• Judge looked at it to see if it is something to be binding in international law, is it binding in New Zealand

• View- indigenous people less civilized. Influenced how Prendergast viewed this, whether under international law that Maori had met requirements of IL to enter into treaty, recognized of having sovereignty, capability to enter into international agreements. Thus, he found the Treaty of Waitangi to not be legally sound. Arguments

• Declaration of Independence- set up authority. The British Crown in facilitating it recognized Maori sovereignty, a pre-existing sovereignty. There are points that you can argue on bare legal facts. There are legal facts that argue against Prendergast

• Today- governs the perception of Treaty of Waitangi

• Prendergast “Unenforceable and merely a manner of honour”- took away from the Treaty something that had legal effect rather it had a moral code. Brits not bound to it.

• Has consequences on its jurisprudence.

• The means to challenge this was stopped, could not take it into court… Wi Parata decision stopped this.

• Hoani Te Heuheu Tukino v Aotea District Maori Land Board 1941- requires ‘statutory hook’

• 70 years after

• Significant gap

• Referred to as Te Heuheu case

• Said Wi Parata remains the law. Treaty is not legally enforceable. Made statutory reference to the Treaty of Waitangi, exception of Wi Parata decision

• Because it was made by Parliament

• Parliament under Parata is not legally obligated to Treaty of Waitangi wanted to acknowledge it

• Decides to put something in statute… rightfully the law… the anchor point

• Treaty of Waitangi is not legally enforceable… can turn up to court though if a statute mentions the Treaty of Waitangi, Parliaments own statutory reference to case

• 1980s- statutory reference. No blanket statutory reference to the Treaty of Waitangi

Anchor points for Treaty jurisprudence

Key decisions- read up

• New Zealand Maori Council v Attorney General [1987] 1 NZLR 641

• Designed in 1980s

• Owned by government telecommunication companies, state owned assets, went into the details of the operation of state-owned assets

• SOE Act- nothing could be inconsistent with Treaty of W

• First clause of its type that had gone into legislation

• Things higher up in statute apply to the whole statute, section 9 applied to all of the SOE Act… it applied to everything to do with state owned enterprises

• SOE’s- regard how to ensure that the interpretation wasn’t inconsistent with principles of Treaty of Waitangi

• Experiment. Sir Jefferey Palmer- it didn’t take too long to get tested.

• Mid 1980s- tried to sell our SOE- state owned enterprise

• Maori took case to court, sale of SOE… inconsistent with the Treaty of Waitangi

• It was about the potential for SOE to be used in future Treaty settlement processes

• 1980s- NZ political climate change- 1970 big Maori protest- “Not one Acre more” international movements which had things to do with civil and political rights

• NZ thinking about how we dealt with Race Relations

• 1980- Springbok Tour- protesting and debating global race nations that made us look at our own race relations… protest on both sides Maori and non-Maori shoulder to shoulder- created understandings

• Middle class protest- make real change

• Middle class- majority- once the majority has decided politicians tend to follow- they want to get voted

• Political climate by the time case came to court- trying to decide what to do about NZ race relations

• Come to terms with colonial history being unfair, respond to make form of recompense… at time there had been no treaty settlements… recompense historical taking of Maori land

• Sharing ownership rights and SOE- apart of treaty settlement? - Court case: recompense for historical taking of land, don’t sell SOE… known as the Lands case

• Court of Appeal- long commentary on what the Treaty meant to NZ, language came from the lands case, Treaty of W is NZs founding constitutional document.

• S9: “inconsistent with the principles of the Treaty” = statutory hook

• ‘Treaty Partnership’ emerged- consultation, good faith

• Fabric of New Zealand. like marriage

• Emphasised Significant

• Did not challenge Wi Parata – look at Te Heuheu case- look at legal effect with statutory effect

• Land case judges being judicial activists- as far as they could to read up treaty of Waitangi- try and read up legal and political significance, while sticking to legal law- only applies with statutory reference

• Ultimate decision: government should not sell SOEs

• Statutory division- talks about principles of Treaty. Before lands case people had no idea. Judges made up the principles of Treaty of Waitangi- law- had to look at the principles- challenges trying to reconcile two different versions of Treaty- tried to act as a bridge. Short version of what they said the principles meant- crown do something that might impact principles- need process of consultation. If it has impact- talk to Maori.

• Judicial decision- principles that the Treaty of Waitangi is a good and practical thing

• Statement that government should act in good faith

More asset cases

• Tainui Maori Trust Board v Attorney General [1989] (Coalcorp Case)

• NZ Maori Council v Attorney General [1989] (the Crown Forest assets case)

• NZ Maori Council v Attorney General [1995] (Broadcasting)

• Government owned forestry

• Selling off broadcasting rights

• Dealt with processes of consultation

• How much notice?

• Most of cases worked through what the meaning of consultation was, given effect to Treaty of Waitangi in good faith

• Exploration of what Maori have rights and interests in under treaty of w

• Government- spectrum- carrying of TV signals- 1840 no one had any idea of spectrum

• Big debate- right to develop- as they were at 1840- does everyone have a right to develop and evolve

• Broad recognition- right to develop

• Practical decision- customary...