NZ Legal History
Terms in this set (60)
Tikanga Maori (Maori Custom Law)
- Obligation to do things the right way
- some degree of overlap with western concepts BUT understandings hardly ever correspond eg gifting.
Core Principles of Tikanga Maori (whanaungatanga)
- extended family, relationships responsibilities
Core Principles of Tikanga Maori (Whakapapa)
genealogy - glue holding world together
Core Principles of Tikanga Maori (Mana)
Authority, control, influence, prestige, power, leadership
Core Principles of Tikanga Maori (Tapu)
Core Principles of Tikanga Maori (Utu)
Tikanga Maori v English Law
"There were thus two vastly different legal systems and a value judgement as to which was better is inappropriate when each was valid in its own terms" - Sir Ed
Abel Tasman discovers NZ - First European but never lands
Captain James Cook visits NZ
1814 Orders made by governor of NSW (1)
No British Ship shall remove natives from NZ without permission of chiefs
1814 Orders made by governor of NSW (2)
No British Ship shall allow people from the ship to land in or stay in NZ without permission of the chiefs
1814 Orders made by governor of NSW (3)
Samuel Marsden permitted to lead a Christianity missionary effort in NZ
1814 Orders made by governor of NSW (4)
1815 Thomas Kendall (a missionary) appointed one of his majesties justices of the peace.
Thomas Kendall writes first book in Maori
effectual punishment of murders in places not within her majesties dominions
English jurisdiction over english citizens even though overseas.
Does not include Maori
first European resident of NZ
1835 Declaration of Independence
Independence of country
All sovereign power and territory resides with chiefs
No seperate government permitted
Meet in Waitangi annually to frame laws
Acknowledges king to continue to parent infant state
Sovereignty, Empire = first discover
How Did British acquire sovereignty of NZ?
1. June 1839 NSW enlarged to include NZ if acquire sovereignty
2. August 1839 Instructions - acknowledge NZ as sovereign as far as possible... dispersed petty tribes.
3. January 1840 governor Gipps issues proclamations
a) Jurisdiction of NSW extended to NZ
b) Only land purchased from British Crown be recognised
4. ToW signed 6 February 1840
5. 21 May 1840 Hobsons Proclamation of full British sovereignty over all of NZ.
6. 2 October 1840 ratification of Hobsons proclamation
Treaty 1840 (what was different)(problems)
Maori version different from english. Cannot be said to have agreed on same principles.
Not all the Maori chiefs agreed to the treaty or had opportunity to sign the treaty. Some also wanted to back out.
British didn't tell Maori the full story in regards to consequences of the treaty - such as the further immigration of thousands of British settlers.
Wi Parata v Bishop of Wellington (1)
Prendergast CJ held that sovereignty was acquired by British by virtue of discovery and occupation of terra nullius, not by the treaty
Wi Parata v Bishop of Wellington (2)
"so far indeed as purported to cede sovereignty... It must be regarded as a simple nullity. No body politic existed capable of making cession of sovereignty, nor could the thing itself exist"
Wi Parata v Bishop of Wellington (3)
The simple nullity approach was widely supported by politicians and the courts for nearly 100 years.
Hoani Te heuheu Tikino v Aotea District Maori land board privy council.
The Treaty of Waitangi must be incorporated into legislation for the courts to hear arguments based on the treaty.
Formal Recognition of the treaty - The Treaty of Waitangi Act 1975
Formal recognition of the treaty includes
The establishment of the Waitangi Tribunal which has exclusive authority to determine the meaning and effect of the two texts of the treaty
State Owned Enterprises Act 1986, section 9
"nothing in this Act shall permit the Crown to act in manner that is inconsistent with the principles of the Treaty of Waitangi"
NZ Maori Council v Attorney General 1987 (lands case)
"The Treaty can no longer be treated as a 'dead letter' and to do so would be unhappily and unacceptably reminiscent of an attitude now past".
Legal status of ToW
legally the constitution is noot supreme - parliament is.
the Treaty is not a statue of parliament
thus the treaty only has the legal force that parliament gives to it.
Ngai Tahu Claims settlement Act 1988
Crown acted unconsciously and repeatedly in breach of the Treaty.
Crown expresses its profound regret and apologises unreservedly to Ngai Tahu.
Ngai Tahu financial redress
purchase of pre crown assets
right of first refusal
Ngai Tahu Cultural redress
ownership and control
Tuhoe Deed of settlement
Signed June 2013
When British acquired sovereignty of NZ in 1840, did the crown?
Feudalism after the Norman conquest in 1066 the King became the owner of all land. Therefore Crown owns all land in NZ as well.
In Maori version of the treaty did Crown acquire title to land in NZ ?
No because Maori retain sovereignty over treasures. But crown has thr right of pre-emption.
In English version of the treaty did Crown acquire title to land in NZ ?
No because Maori retain full and undisturbed possession of property.
But crown has right of pre-emption.
R v Symonds 1847
relating to Crown acquiring title of the land in NZ.
"only a radical title. This radical title is subject to Maori customary ownership because Maori property is protected by the Common Law Doctrine of Native Title, it must be respected, cannot be extinguished at least in times of peace."
1860s Native lands legislation
crowns right of pre-emption waived
native land court established to transfer Maori customary land into Maori freehold land.
1877 Wi Parata v Bishop of Wellington (title to land)
Yes Crown did acquire title to the land.
Radical title is not subject to common law doctrine of native title because Maori had no recognisable property system.
1901 Nircatia Tamaki v Baker
"rather late in the day" for Wi Parata to establish "no customary law of Maoris which the courts of Law can take cognizance"
Hoani Te Heuheu Privy Council 1941
Incorporates the Treaty of Waitangi into New Zealand statutes
2003 Attorney General v Ngati Apa - Court of Appeal
The crowns radical title is subject to maori customary ownership because maori property is protected by common law. Sovereignty and property and distinct. Parliamentary supreme.
Summary of whether crown have title to land in NZ
1840 ToW - No
1847 R v Symonds - No, only a radical title subject to native title.
1860's - Native land legislation - No, maori customary land can convert to maori freehold land.
1877 Wi Parata v Bishop of Wellington - Yes
1901 Ngai Apa - No, radical title subject to maori customary ownership because maori title is protected by common Law.
Foreshore and Seabed
Hapu sought to establish marine farms. Malbourgh District Council refused. Maori Land Court said yes. Maori appellant court said take to high court. high court said the MLC does not have jurisdiction to give this order because of Ninety mile beach case. Court of Appeal say yes MLC does have jurisdiction, overruled the 2001 high court decision, ninety mile beach case and Wi Parata. Aligned with R v Symonds.
Court of appeal on foreshore and seabed case.
Maori property rights over parts of the foreshore and seabed may still exist.
If Maori can prove continued use of such land since 1840 they may be granted title to such land.
Foreshore and Seabed Act 2004
established crown ownership of foreshore and seabed
guaranteed public access to areas for recreation
MLC and HC jurisdictions confirmed
protected potential maori rights of use.
Marine and coastal area Act 2011
repeals the foreshore and seabed Act 2004
created ' common marine and coastal areas'.
foreshore and seabed is owned by no one - not even the crown
possibility for recognising maori customary interests 'customary marine title'.
What was the process (legal) for NZ to becoming a colony of Britain?
1817 - British law applies go British subjects
1833 - busby appointed British resident
1835 - declaration of independence
1839 - enlargement of NSW if Britain acquires sovereignty of NZ
1839 - Hobsons appointment of lieutenant governor ratified
1839 - acknowledge NZ as sovereign as far as possible
1840 - jurisdiction of NSW extended to NZ
1840 - ToW signed
1840 - Hobsons proclamation full British sovereignty over all NZ
1840 - Ratification of Hobsons proclamations.
North Island 'old name'
South Island 'old name'
Hobson proclaims British sovereignty over North Island by?
Transfer of Sovereignty in ToW.
Hobson proclaims British sovereignty over South Island by?
1848 - 1852 experiment with two provinces (NZ Constitution Act 1852) (UK)
Established new boundries for the colony
Expanded to include Chatham Islands
Establishes a bicameral (two houses) general assembly modelled on UK parliament
house of representitives (elected lower levels)
legislative council (appointed upper house)
English Laws Act 1858 (NZ)
formally adopts English law into NZ