This is an extract of our Aotahi How Has The Treaty Evolved In Contemporary Times? 3 May document, which we sell as part of our Legal Foundations (LAWS110) Notes collection written by the top tier of University Of Canterbury, Christchurch students.
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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
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.
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
Anchor points for Treaty jurisprudence
Key decisions- read up
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