Tikiang Māori Updated

Question 1

What are the requirements for custom to be recognised in common law recognised in The Case of Tanistry (1608)?

Answer 1

• Custom has existed since time immemorial (1189 AD)
• Custom must be tied locally and have the force of law in that community
• Must be reasonable and certain.

Question 2

What principle did Campbell v Hall (1774) establish? What does this principle entail?

Answer 2

The doctrine of continuity

Laws of newly acquired territory remain in force until they are altered by the crown.

Question 3

What did R v Symonds confirm?

Answer 3

Native title (however only recognised Maori land that was “in use” according to the British)

Question 4

What two key points did the Constitution Act 1852 highlight in relation to Tikanga?

Answer 4

• Recognised customary law generally still applies to Maori.
• Essentially recognised Maori continue to govern themselves.

Question 5

What does S3 and S4 of the Native Rights Act 1865 outline in relation to the continued recognition of Native Title?

Answer 5

-Recognises the holding of Maori land under Maori customs and usages (in turn recognising the doctrine of native title).

Question 6

What two key impacts did Wi Parata v Bishop of Wellington (1877) ruling have on Tikanga initially?

Answer 6

• Treaty regarded as nullity.
• Stated that no Maori customary law or land ownership system existed that could be recognised under the doctrine of Native Title.

Question 7

How did the Nireaha v Baker (1901) appeal to the Privy Council change the legal standing of native title and customary law in application to Tikanga?

Answer 7

Criticised Wi Parata ruling.
Stated that in relation to Native Title and customary law:
- too late in the day to adopt such a view.
- customary law and native title recognised in statute.

Question 8

How did Wallis v Solicitor-General (1903) further criticised Wi Parata?

Answer 8

• Denied justification that Crown was using royal prerogative in Wi Parata and therefore was inside of courts jurisdiction to review the Crown’s actions.

Question 9

Te Weehi v Regional Fishers Officer (1986) affect on Tikanga’s legal standing?

Answer 9

• Recognised Maori customary fishing rights. (Tikanga connection in specific customary rights)
• Recognised customary rights aren’t always connected to land.

Another recognition of customary rights.

Question 10

What are the requirements under the legal test created in Public Trustee v Loasby (1908) for the application of customary law to common law?

Answer 10

• Whether custom existed as a matter of fact.
• Custom is not contrary to statute.
• The judge considers it reasonable to apply in the circumstances.

Question 11

Two cases recognising customary rights? State names and rights they recognised.

Answer 11

Te Runga o Muriuhenua Inc v Attorney-General (1990) - customary fisheries rights

Taunui Maori Trust Board v Attorney-General (1989) - customary coal rights

Question 12

What did the Fisheries Act 1983 state?

Answer 12

Nothing in this act shall affect any Maori fishing rights.

Question 13

Name of Foreshore and Seabed case?

Answer 13

Ngāti Apa v Attorney -General (2003) NZCA

Question 14

What did the Court of Appeal find in Ngāti Apa v Attorney-General?

Answer 14

• Legislation can erode Native title overtime.
• Even if Native Title is proved it can be extinguished by legislation.
• Acquisition of sovereignty does not impact the existence of customary title.
• Legislation cannot create or alter Tikanga Maori, but it can limit custom and extinguish its power.

Question 15

Which case recognised Tikanga as an important system of values that should be taken into account?

Answer 15

Takamore v Clarke (2012) NZSC 116

Question 16

Ngāti Whātua Orakei Trust v Attorney-General (2022) impact on Tikanga legal standing in common law?

Answer 16

• Stated Tikanga as a free-standing legal system. (Creates rights and obligations)
• Tikanga now a system of law = judges have declaratory jurisdiction to make formal declarations on rights, obligations and customs.

Question 17

Ellis v R (2019) NZSC 83 impact on Tikanga’s standing with common law?

Answer 17

• Case made clear that Tikanga can act as tools to guide judicial thinking.
• Case also shows Tikanga can apply to non-Māori parties as well.

Question 18

“Tikanga is ____ based - there was _____ system”

Answer 18

Community.

No formal court.

Question 19

What are the principles of Tikanaga? What do they translate to?

Answer 19

Whakapapa - Line of descent from gods to present time.

Mana - power, authority, prestige (born with mana, closer relation with gods = more mana at birth) actions also reflect your level of mana.

Tapu - sacred, something you cannot engage with. Placed on something with potential for harm.

Noa - canceling out Tapu, absence of Tapu.

Whanaungatanga - kinship, sense of family connection

Utu/Tauututu - Re-balance, reciprocation

Manaakitanga - to fill with mana, connection to not only people but the natural world around us thus obligation to fill those around us and the land around us with mana.

Kaitiakitanga - guardianship, stewardship, trusteeship, trustee ALSO trust.

Question 20

What is Muru?

Answer 20

Redistribution of land, assets, etc to re-balance wrong-doings and therefore fulfil utu.

Question 21

Tikanga is underpinned by a set of principles which are not just about law but life in general. True or False?

Answer 21

True

Question 22

What is “hau”?

Answer 22

When agreement is made, property becomes infused with the “hau” of that agreement.

Question 23

Problems with Tikanga Maori in relation to the “Case of Tanistry (1608) Davis 28 (KB)?

Answer 23

• Don’t know if Tikanga has been in place since time immemorial.
• By who is the law considered certain and reasonable? English may not view as such.

Question 24

R v Symonds (1847) in relation to land ownership. How did the British view differ from Maori view of land ownership?

Answer 24

Crown only recognised that occupied Maori land was only owned that is being used and occupied. If not used and occupied then Aboriginal title not recognised. This land considered ‘waste land’.

Differed from Maori view, where some land needs to be left unused to protect spiritual aspect of land and wildlife. In turn very different view over ownership over what the British would consider ‘waste land’.