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Oog Sem 2 Notes 1 Notes

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New Zealand Origins of Government
☆​ ​What is law?
☆​ ​What does it mean to describe Aotearoa NZ as a common law jurisdiction?
☆​ ​How has our inherited common law been adapted for Aotearoa NZ's circumstances?
☆​1840​☆​: Treaty of Waitangi
● Using this to explain the context of
Government in NZ
○ Goes all the way back to the
Norman Conquest - we inherited a system of
Government that has its own complex history
● Made up of:
○ Legislature
○ Executive: Cabinet
○ Judiciary

How has our inherited common law been adapted for Aotearoa NZ's circumstances?
What are the key features of the Māori legal system?
How is it similar/different to the English legal system?
How does the Māori legal system operate in our contemporary NZ legal system?

In part because NZ already had a functioning system of government when it was colonised
Legal history of NZ started in AD 800 when the first peoples settled on these shores
NZ was first discovered by Māori, they made it their home before anyone else
○ Historically contentious, still ongoing
Māori had geographic boundaries of jurisdiction
"Māori means a person of the Māori race of NZ and descendants" - section 3(1) Electoral Act 1993
Māori population about 15% of NZ's population
From an indigenous world view, the land is alive i.e. the resources that are highly contested for
The law is within the land, and passed on by stories/song/weaving/performance etc.
European world view literally the opposite to Māori
Aoraki story told in schedule 80 Ngai Tahu Claims Settlement Act 1998 ○

To Ngai Tahu, Aoraki represents the most sacred of ancestors, from whom Ngai Tahu descended and who provides the iwi with its sense of communal identity, solidarity and purpose.
○ Gives Māori context as the top of Aoraki is the head of the ancestor of
Ngai Tahu, so inappropriate to climb to the top of the mountain
Whanganui river recognised as an ancestor with its own legal rights; Mt
Taranaki also became its own legal entity end of last year
○ Bridge between common law and Māori
Statutory acknowledgement for Te Tai

Arai Te Uru (Otago Coastal Marine
○ "The naming of various features along the coastline reflect the succession of explorers and iwi (tribes) who travelled around the coastline at different times. The first of these was Maui, who fished up the North Island, and is said to have circumnavigated Te Wai
○ "The mauri of the coastal area represents the essence that binds the physical and spiritual elements of all things together, generating and upholding all life. All elements of the natural environment possess a life force, and all forms of life are related. Mauri is a critical element of the spiritual relationship of Ngai Tahu with the coastal area"
Resource Management Act 1991 s 6(e) states "the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahi, tapu,
and other taonga" as a matter of national importance
Section 2(c)(iv) of the Property (Relationships) Act 1976 does not include taonga under "family chattels"

What are the key features of the Māori legal system?
Law is a mechanism for social control that has similar values between various legal system (e.g. murder and rape etc. are abhorrent wherever you go) but they are dealt with differently (different sanctions)
Tikanga Māori/Māori Custom Law
● Māori Custom law is…"the values, standards, principles or norms to which the
Māori community generally subscribed for the determination of appropriate conduct" - Justice Durie
● The obligation to do things the "right way"
● Legislative definition: "Tikanga Māori means Māori customary values and practices"
● Some overlap with Western concepts of law BUT understandings hardly ever correspond:
○ e.g. gifting - From the English perspective, gifting means a transfer of ownership; but to give something in Māori means to take part in/sharing etc., would at best have a whanau right to use and access the land
○ This is a problem with Māori land rights when they gifted land to
Pakeha in the 1850s ●

Includes measures to deal firmly with actions causing a serious disequilibrium within the community → a spectrum with values at one end and rules at another
Core principles of Tikanga Māori
● Tikanga tangata: Social organisation, Rank and mana
● Tikanga rangatira: Leadership
● Tikanga whenua: Connections to land
● Whanaungatanga: Extended family, relationships, responsibilities;
Whakapapa (genealogy), the glue holding Māori world together; Political power, which is both ascribed through whakapapa and acquired through personal accomplishment; Not only people but your mountain, river etc.
● Mana: Authority, control, influence, prestige, power → leadership
● Tapu: Sacred, respect (opposite: noa); Different roles e.g. ​social (​keeping safe), ​political​ (leadership, ceremony) and ​spiritual​ (wairua/life force)
● Utu: Reciprocity/balance
● Kaitiakitanga: Stewardship, guardianship ( s 7 RMA)
How is it similar/different to the English legal system?
"There were thus two vastly different legal systems and a value judgment as to which was better was inappropriate when each was valid in its own terms" - Sir Eddie Durie,
CM p162
Common law
Takamore v Clarke ​Supreme Court NZ 2012 (CM 127-168)
● Issue: Who decides where a Māori body is buried?
○ Common law: the formal personal representatives (executors and administrators)
○ Tikanga Māori: the whanau and hapū
● Answer: common law trumps - the wife wins
● BUT note discussion: "Māori custom according to tikanga is therefore part of the values of the NZ common law" [94]
● Important because 1: the Supreme Court settles the position in NZ about how decisions are made in regards to body disposal 2: of the way the Supreme Court treated tikanga Māori - in this case, tuhoe burial customs. The majority judgment of Tipping, McGrath and Blanchard JJ
places primacy on the rights held by the personal representative. Māori burial customs were seen as being a relevant consideration to be weighed among others in considering how to exercise those rights → however, sidestepped,
without explanation, addressing when and how tikanga has the status of law as part of the common law
How does the Māori legal system operate in our contemporary NZ legal system?
Key ideas: 1. Whakapapa is the backbone of all Māori relationships between each other and to the land. Whakapapa gives everyone not only a personal identity but one as part of a wider group.

2. Whanaungatanga: the interconnectedness of people, the physical world and the atua (spiritual entities)
Mana: authority, control, influence, prestige and power, on one hand, and psychic force on the other.
Tapu: the sacredness of an object or space the requires deference or respect through a code of social conduct
Utu: the return of whatever is received: the return of "good gifts" (taonga and services) for good gifts, and the return of "bad" gifts (insults, injuries, wrongs)
for bad gifts
Kaitiakitanga: an obligation of stewardship and protection along with the conduct required to ensure this
Rahui: an object or sign indicating that a resource has been made tapu
Whanau: extended family/"to give birth"
hapū: larger village community/"to be pregnant"
Iwi: wider district or regionally based kin group
Kainga: a sense of community and the importance of rules that did not necessarily require blood ties
Rangatira: lead and represent hapū, the most significant leaders in community affairs
Kaumata: leadership role characterised by social seniority, life experience and wisdom
Ariki: the most senior ranking blood representatives of a collection of hapū,
and iwi or even a collection of iwi
Tohunga/pukenga: specialists in a range of crafts and fields of knowledge from carving, weaving, tattooing to the spiritual, mystical and healing arts.

3. The features of the Māori legal system are customary laws that give an obligation to do things "the right way". This comes from the social orders set out from the above concepts and also includes measure to deal with actions that put social harmony out of equilibrium.

4. Land is central to tikanga Māori because instead of having ownership over the land, there is the belief that people are owned by the land, and wouldn't be here without it. Land is connected to whanaungatanga, mana, tapu, utu and kaitiakitanga. ]

5. Tikanga Māori can be viewed as law in that there are a set of societal controls with consequences for acting contrary to the values set out within Māori culture. There is a hierarchy within the communities for dealing with different aspects of society, and both Māori and English law courts have a love for law,
precedent and forebears - the lessons from the past are incorporated into ideas about what the future should be.

6. Some examples of Māori law being incorporated into legislation are the Ngai
Tahu Claims Settlement Act 1998, the Resource Management Act 1991 and the Property (Relationships) Act 1976. EUROPEAN ARRIVAL
☆​ ​Who discovered NZ?
☆​ ​Why is this significant in law?

Who discovered NZ?

Māori discovered NZ
○ Anthropologists agree the Māori occupied the whole of Aotearoa at least 1,000 years before contact with Europeans, and that they exercised a complete regimen of rights over the land, which varied considerably between tribal districts.
○ Best estimate using science is between 1230-1280 AD
○ Came from Polynesia due to volcanic eruptions
○ Chatham Islands settled in about 1500
○ Has created a lot of issues for not only NZ's legal systems but also other countries with indigenous peoples already established before
European settlement
○ A lot of "legal fictions" to deal with this
Then Abel Tasman, 13th December 1642
○ Interest in the South Pacific to see if there was a route to Chile to prey on Spanish ships and exploit resources
○ "A large land uplifted high"
○ Sailed around Farewell Spit
○ 4 members killed at "Murderers Bay"
○ Miscommunication: Māori may have believed the white people were ghosts coming to take away the women and children, blew shell trumpets to scare ghosts away, frightened when Tasman's ship fired a canon
Then Captain James Cook, 6th October 1769 (next year 250 year anniversary)
○ Landed at Poverty Bay on the 8th
○ Drew detailed and accurate maps of the country
○ Wrote about Māori
○ Some Māori killed, but then had friendly contact

Why is this significant in law?
☆​ What were the legal consequences of Tasman and Cook's encounters with NZ?
The law of Nations/English common law - an old way to refer to international law
(from Spain & England etc.)
● ☆​Imperium​: Sovereignty, empire
○ A nation discovering land with no prior owner may acquire sovereignty and property...will be recognised by the law of nations so long as the nation takes actual possession - de Vattel (1758) (CM 171)
● ☆​Dominium​: Domain, property, ownership
○ But have to respect the property law of the land (dominium)
● 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. "These nations cannot exclusively appropriate themselves more land than they have occasion for, or more than they are able to settle and cultivate" (CM
→ in this case, can take imperium and dominium
What happens in NZ?

Colony of New South Wales (1787) (CM173)
● Captain James Cook also "discovered" Australia on this same expedition
● "Our Territory called New South Wales… includ[es] all the Islands adjacent in the Pacific Ocean within the Latitudes of aforesaid of 10 degrees 37' South and 43 degrees 39' South"
○ Accidentally (?) included NZ in these coordinates
○ There was a westward boundary but no eastward boundary, and "all the Islands adjacent in the Pacific-Ocean" were included 1814 orders by the Governor of New South Wales
● No British ship shall, without permission of the chiefs: remove natives from NZ
or land in or stay in NZ
○ These orders are given "to protect the natives of NZ… in all their just rights and privileges as ​those of every dependence of the territory of
New South Wales​"
● Samuel Marsden permitted to lead a Christian missionary effort in NZ
● Thomas Kendall (a missionary) appointed one of His Majesty's Justices of the
Peace in NZ. Had to get permission from him to remove or carry therefrom any natives with the permission of the Chief, or to land or discharge sailors.
● Māori were very entrepreneurial with trade and trade routes, Thomas Kendall took 2 Māori chiefs, Waikato and Hongi Hika, to London in 1820; by this time
Māori had a written language and were literate
An Act for the more effectual Punishment of Murders and Manslaughter committed in
Paces not within His Majesty's Dominions (1817, UK)
● First Statute to reach NZ

1. The "Islands of NZ" are "not within his Majesty's Dominions"

2. Murders of manslaughter committed in NZ by the master or crew of any
British vessel shall be prosecuted in the same manner as if the offence was committed on the high seas
● Later, NSW Act 18823 (UK) gave power to the Supreme Court of
NSW to prosecute ​any​ offence committed in NZ by the British travellers
● Legal issue​: If the UK does not claim sovereignty over the islands of
NZ, what is the source of the British authority to prosecute offences that are committed in NZ? ○

Answer​: Nationality jurisdiction ​e.g. if we kill someone overseas, we can be tried back in NZ
Only applies to British citizens in NZ

New South Wales Act 1823 (UK)
● After establishing the Supreme Court of New South Wales and the Supreme
Court of Van Diemen's Land, the Act grants these Courts some authority over the islands of New Zealand
The influence of the French
● 1772​: Marc-Joseph Marion du Fresne's ship arrives in the Bay of Islands
○ French crew violate tapu, Māori kill 26 of them
○ French retaliate: kill 250 Māori → significant event in NZ history
● 1831​: a French warship returns to the Bay of Islands
○ 13 Māori chiefs dictate a petition to British King William IV:
■ "We pray thee to become our friend and the guardian of these islands… lest strangers should come and take away our land"
■ Sir Richard Bourke wrote in a letter to James Busby that this
"sufficiently shows the favourable point of view in which the power and justice of Great Britain are regarded by them"
○ This dictates what happens later…

SOVEREIGNTY (​Imperium​)
☆​ ​How does one country become another country?
Letter from Lord Goderich to Chiefs (1832)
● James Busby appointed British Resident to provide better protection to
Māori, especially from other international entities (1833-1840) ​esp.
French but also Americans
● 1833 instructions from Sir Bourke to James Busby
○ Goals/Purposes
■ Rescue the natives from the evils that European contact has exposed them to;
■ Promote and protect British commercial interests in NZ;
■ (possibly) mediate between rival native chiefs and help establish some form of unified native government &
jurisprudence to provide a more efficient way of dealing with complaints against people of all States
● There are hundreds of iwi + hapū governing boundaries etc.
○ Methods:
■ "Conciliate the good-will of the native chiefs"
■ No legal power to govern, arrest, punish, or compel is given (although can force information to be given by a
Britain who has wronged a Māori)
E.g. if someone needs to be arrested for trial in NSW,

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