TOW and Tikanga Flashcards
Whakapapa
Genealogical map that connects all things.
Whanaungatanga
Maintaining and supporting relationship between individuals and individuals and individual and the environment. Its all about connection and if one connection is broken its all broken.
Utu
Response and reciprocity
Ea
State of resolution
Mana
Your ability to lead and responsibility to lead (doing what’s best for the community) - mana is flexible and can increase and decrease so responsibility to uphold your own mana.
Tapu
Inherent integrity/power to impose restrictions
Noa
State of safety/power to free something from restrictions
Kaitiakitanga
Responsibilities and obligations in our relationship with the natural world.
Manankitanga
Responsibilities and obligations in our relationships with others
What are the five steps of Whata’s method of engagement:
(1) What are the facts?
(2) What is the cause of the dispute (Take)?
(3) How are the structural norms impacted? Who is affected?
(4) What relational norms are engaged? How do they connect to the responsibility norms?
(5) What is the response (Utu)? What kawa might be relevant or useful? What does a resolution look like (Ea)?
New Zealand Māori Council v AG
1987, COA (NZ)
LANDS CASE
Lands case - transferred land assets to SOEs making them no longer recoverable for us in treaty settlements.
NZMC argue that the transfer is inconsistent with the principles of TOW (s9).
COA held that the principles of the treaty are:
Partnership
Active Protection of Maori interests
Redress
Consultation
Article 1 - Governments right to kāwanatanga
Held that the Crowns decision to transfer land without making sure it won’t breach principles of TOW (in particular duty to actively protect Maori interests) is a breach of section 9. Court instructed that Crown implement a system to ensure land transfers do not breach TOW principles = claw back regime was created.
New Zealand Māori Council v AG
1994, PC (NZ)
BROADCASTING ASSETS CASE
Transfer of broadcasting assets to SOE claimed to be inconsistent with article 2 of the TOW and thus breach of section 9 treaty section.
Court outlines the material impairment test: would the transfer now or in the future impair to material extent the Crowns ability to take reasonable action which it had an obligation to undertake? This requires comparing the position pre-transfer and post-transfer.
Transfer held not to be inconsistent because it will not impair the Crowns ability to actively protect Maori taonga (no difference due to change of owners) - held that active protection is limit by what is reasonable in the circumstances.
Crown assures that the Māori language will not be impaired by this change because they still ultimately retain control indirect over SOE , giving reference to its capacity and willingness to give redress and its ability to interfere with SOE decisions.
Tamaki Tribunal Tribal Trust v Minister of Conservation
2018, SC (NZ)
Trust seeks judicial review on the decision of DOC to grant concessions for guided walking tours on the motu (Rangitoto and Motutapu) as did not adequately apply section 4 (give effect to TOW principles).
Held that section 4 was not properly applied.
Section 4 is a powerful treaty clause and requires more than procedural steps.
Held that although decision to grant concession may be lawful, Ngai Tai Trust are entitled to have decision made after proper application of section 4 which did not occur in the decision under review because of two material errors of law made by decision maker.
The errors made were that certain groups cannot be give preference and that potential economic gain is not a relevant consideration. These were wrong because a group such as the trust who have greater interest in the land should be given priority because that is part of active protection of the land.
Held that phrasing in statutes may require a strong duty of care from the crown.
Treaty sections do not exist in a vacuum and must still be applied in a way that is consistent with other sections.
Trans Tasman Resources Ltd v Taranaki Whanganui Conservation Board
2021, SC (NZ)
TTR required marine consent for seabed mining. Section 12 of the EEZA (legal yardstick for granting consent) is an elaborated treaty provision.
Held that although section 12 is elaborated it is not exhaustive because the court will always give effect to the principle of legality when interpreting legislation which means unless there is a clear intention from Parliament to the contrary all legislation will be interpreted consistent to the principle of the TOW.
Therefore section 12 does not constrain the courts from interpreting the Act consistently with additional treaty principles not specified by Parliament.
The court agreed that tikanga as law must be taken into account as “other applicable law” consistent with Takemore v Clarke.
Ngati Waitua Orakei Trust Board v Attorney General
2018, SC (NZ)
Land has a lot of cross cutting claims over it. N were the first to reach settlement which included a ROFR over the land. Crown continued negotiating with other groups and promised the same land to other groups. N made claim over land and Crown responded with application to strike it out.
Held that N claim is justifiable because there are multiple claims and groups with interests in this land, rights are affected.
The Court recognizes mana whenua tikanga rights as legal rights and that affects to them have a legal effect that can trigger judicial review.
Recognised that tikanga differs across iwi/hapu and where this creates a conflict it is not up to the court to say whose tikanga applies, nor about who has greater mana whenua and aha ki over land.
