LAW Notes - EXAM PDF

Preview

Summary

Lecture 3Terminology – Kāwanatanga – governanceMana Motuhake – autonomy and control Rangatira – chief, leader Rangatiratanga – political – sovereignty, chieftainship, leadership Raupatu – conquest, confiscation Tino rangatiratanga – the exercise of paramount and spiritually sanctioned authority, it ...

Description

Lecture 3 Terminology –

Tikanga Maori First law of Aotearoa

State law versus Tikanga Maori

Maori Prior to arrival Pakeha View of Maori Law

Tikanga Maori – key principles

Significance of Tikanga Maori – Challenges the assumption of state law being

Kāwanatanga – governance Mana Motuhake – autonomy and control Rangatira – chief, leader Rangatiratanga – political – sovereignty, chieftainship, leadership Raupatu – conquest, confiscation Tino rangatiratanga – the exercise of paramount and spiritually sanctioned authority, it includes aspects of the English notions of ownership, status, influence, dignity, respect and sovereignty Hapū – tribe or sub-tribe, pregnant Maori law - legal tradition applied throughout NZ prior to European settlement - dealt with the ways individuals and groups interacted - System of values, principles and practices developed by Maori to govern relationships between individuals and between hapu and iwi tribal groups -  provides rules for interaction with the natural environment and resolving disputes State Law Written down

Tikanga Maori Passed down orally (oral tradition and community practice Not centralized – communities Throughout all communities Principle’s system

One main body – Parliament Centralized and institutionalized Rule’s system NZ occupied by Maori tribes - community roles, leadership roles - authority/input rested in community however chiefs/Rangatira, elders make ultimate decision - View of settlers arriving in NZ in the 19th century was that Maori had no system of law. - 1907 the Tohunga suppression act was passed criminalising the practices of tohunga, people with special expertise or spiritual knowledge. This is an example of the New Zealand Government actively suppressing tikanga Maori - It was argued that suppression of tikanga was necessary to speed Maori integration into the dominant European culture Tikanga'' is derived from the word "tika". - Tika' may mean what is right, correct, proper Five foundational Values – 1. Whanaungatanga - Relations between people and environment 2. Manaakitanga - Concept of caring, nurturing relationships 3. Mana - Inherit in people to maintain and respect, people are born with it, also increase or reduced by actions and way you act, the importance of spiritually sanctioned authority and the limits on Maori leadership.” 4. Tapu - Sacredness/in certain times somethings are set aside for specific purposes 5. Utu - Creating balance, relationships, resources, the principle of balance and reciprocity.” Whakapapa - genology - connect to ancestors Physical and spiritual world As a whole, these values reflect the importance of recognizing and reinforcing the interconnectedness of all living things and maintaining balance within communities. - still practiced within Maori Communities Far from acknowledging tikanga as the first law of Aotearoa, the Crown proceeded upon the racist assumption that Maori had no 'real' law before the British arrived here to provide it. - state law historically and currently struggles to come to grips with Tikanga Maori

the only legal order/system in Aotearoa

-

Parliament makes references to it, to treaty of Waitangi incorporated in legislation used to determine judgements

In order for tikanga Maori to be accepted - reconsider what law is, not only one legal system in NZ

Lecture 4 Terminology –

He Whakaputanga o Niu Tireni

Sovereignty – supremacy, power, authority, independence, self-rule He Whakaputanga o Niu Tireni - Declaration of Independence Te Tiriti o Waitangi - Treaty of Waitangi -

He Whakaputanga o Niu Tireni – significance

declaration of independence signed by 52 Rangitara (chiefs) on 28th October 1835 Agreed to meet in congress annually at Waitangi to pass laws Missionaries were responsible for translation Williams and Busby assisted with the declaration  was an affirmation of Maoris rangatiratanga (total and political legal authority) and their independence  They further declared that kingitanga and mana (translated as all sovereign power and authority) resided in them collectively.  not permit any other legislative authority to exist apart from themselves Foundation for Te Tiriti o Waitangi (less than 7 months, Busby convened a gathering at Waitangi to discuss Maori-Crown Relationship

Te Tiriti o Waitangi Treaty of Waitangi Signing of Te Tiriti o Waitangi

Crowns view on Tikanga Maori

Te Tiriti o Waitangi versus the Treaty of Waitangi

-

Written in Maori - Signed by most Maori Written in English, signed by most British officials (significant part of forming the constitutional framework of Aotearoa)

William Hobson (British officer, first Governor of New Zealand), arrived from England with instructions to secure sovereignty over such parts of NZ. Over half the Rangatira who signed the declaration signed the treaty  Maori were confident to have expected that they were reserving to themselves their independence (rangatiratanga) and that they were delegating to the Crown the function of government (kawanatanga). Kawanatanga and rangatiratanga – were key to Maori understanding the treaty “The chiefs are likely to have understood the second clause of the Treaty as a confirmation of their own sovereign rights in return for a limited concession of power in kawanatanga . . . . The Treaty of Waitangi they signed confirmed their own sovereignty while ceding the right to establish a governor in New Zealand to the Crown.” As Governor Browne wrote in a letter addressed to Maori in 1858: 'Before, this land was occupied by evil, darkness and wrongdoing; there were no upholders of good, no preventers of evil.' Chief Justice dismissed the words of the Native Rights Act 186 The judge's response 'as if some such body of customary law did in reality exist. But a phrase in a statute cannot call what is non-existent into being ... no such body of law existed  observed by the law commission - the chief justice thus advanced the circular proposition that Maori custom does not exist because it is not recognised by statute whilst any statutory recognition can be disregarded because Maori custom does not exist.' Treaty of Waitangi Tiriti o Waitangi Preamble: Due to increasing numbers Preamble: International agreement, of English colonists, necessary that message of peace the Crown obtain sovereignty with the consent of MIori Article 1: Queen to take control of her Article 1: Transfer of sovereignty to

subjects in NZ – kIwanatanga the Queen of England Tiriti o Waitangi (Maori Treaty of Waitangi (English translation) uarantee of rights in ecotranslation) Article 1: The Chiefs of the d the right of preautArticle 1: The chiefs cede to Her Confederation and the Chiefs all also atirMajesty the Queen of England the Queen to buy MIori [who] have not entered that absolutely and without reservation all lan Confederation give absolutely to the the rights and powers of Sovereignty on" is a term that Queen of England for ever the which the said Confederation or Article 2 of the official Individual Chiefs respectively government7 all of their land xt of the Treatyof _exercise or possess, or may be nd refers to supposed to exercise or possess over arrangement in which their respective Territories as the sole sovereigns thereof nted to the Queen the

ights of purchasing any aori owners wished to

Article 2: The Queen of England Article 2: Her Majesty the Queen of arranges and agrees to the Chiefs to England confirms and guarantees to the sub tribes to people all of New the Chiefs and Tribes of New Zealand ranand to the respective families and rant of protection and 9 Zealand the unqualified exercise of tis itish citizens individuals thereof the full exclusive their chieftainship over their lands Two distinct documents and undisturbed possession of their over their villages and over their - bilateral in nature Lands and Estates Forests Fisheries treasures. But also the Chiefs will and other properties which they may give to the Queen the sale and collectively or individually possess so purchase of those parts land is willing [to sell] the person owning the long as it is their wish and desire to retain the same in their possession. land for the amount of the price but the Chiefs yield to Her Majesty agreed between them the purchaser the exclusive right of Pre-emption appointed by the Queen as an agent over such lands as the proprietors purchase for her thereof may be disposed to alienate at such prices as may be agreed upon between the respective Proprietors and persons appointed by Her Majesty. Article 3: For arrangement therefore Article 3: In consideration thereof the this for the agreement concerning the Queen of England extends to the Government of the Queen will be Natives of New Zealand Her royal protected by the Queen of England protection and imparts to them all the people ordinary all of New the Rights and Privileges of British Subjects. Zealand [who] will give them the 12 rights and duties all in equal measure [that apply] under her constitution to the people of England

Key differences between Te Tiriti o

Kawanatanga is not the same as ceding sovereignty - Could have used mana - instead of kawanatanga - Minimized this idea of transfer of authority Kawantanga and rangatiratanga did not spell out the implications of British annexation

Waitangi and the Treaty of Waitangi

Didn’t explain full extent of British arriving and assuming political authority Te tiriti speaks to sharing power, the treaty is about a transfer of power, - not about transfer of power -

Lecture 5 Terminology –

Colonial Law -

Signing of treaty – relationship between Maori and Pakeha

“the retention of Tino rangatiratanga by Maori set in place for all time, or until Maori agreed to withdraw it, a collective will that is sourced within hapu and iwi and voiced by chosen Rangatira, and which continues to exist over the territories and peoples of NZ.

Significant drivers How did colonial - unruly pakeha/organizing immigration Government assert Export that labour, Human capital to NZ, by improving immigrants’ sovereignty? lives, strengthening imperial power -

Drivers and pressure points of British involvement Industrial Revolution had led Britain to overproduce both labour and capital. Profits were declining, and disorder, arising from poverty and unemployment, was increasing. The solution was to export lab�ur and capital to new colonies, Capital and wealth/shore up falling profits Trade was important to support, wanted to create capital and generate wealth, British being involved in NZ, was established for their own monetary endeavors

-

Civilizing mission/white man’s burden Conversion to Christianity was regarded as a co-requisite to colonisation, for the missionaries, the challenge was to stamp out any trace of Maori belief systems and to replace them with their own. Over time, Maori were persuaded to take up the new religion

-

Legal basis for colonial government assuming sovereignty

Reluctance Crown was reluctant to be involved, saw that sovereignty was going well They needed a greater push, (e.g., French was interested) unorganized immigrants that doing bad things to Maori “Needed to save” the indigenous people, thus the British empire had to step in 1839 - series of documents British agreed to extending Jurisdiction 1840 - sign’s proclamation - affirming appointment of Hobson And title of land, had to go through the crown (sovereignty is asserted??) 1840 - Hobson arrives – issues new proclamation - Signing and drafting of treaty occurs Hobsons proclaims sovereignty

Treaty of cession (claim North Island for the British) Doctrine of discovery (claims sovereignty by discovering of South Island) Very odd law that European power had to power claim to land if no Christian people were living there (even if indigenous people were living there) (Legal doctrine and views understand at the time and sovereignty is asserted? 1. Authority 2. Intervention 3. Control  

Nominal Sovereignty Authority

Informal but substantial influence Informal empire (missionaries etc.).

Intervention

Military and financial (1960's) Overtime the British provided military and financial resources to those in NZ - 1 and 2 combined supported by a declining Maori population - 1840's - we start to see tension in relationship between Maori and pakeha  Conflict arising  Military presence (Period of accommodation, second part of intervention took 2 decades to achieve Actual control 6 decades to reach the point where British colonists where in control  Suppression of passive resistant and wars  Pockets where Maori communities were ruling themselves  Passive resistance Instruments of law providing legitimacy of assumed sovereignty Applying rules as they created them to legitimize what they will do Prioritizing English law, crowns point of view, started to think less of tikanga Maori

Control

Legitimacy of assumed sovereignty

 

 Hard to pinpoint when sovereignty was transferred, and which laws were at play If NZ wasn’t annexed by British in a legal way, then what is the foundation the stat can now claim legitimacy?

Lecture 6 Terminology –

legislature – parliament the executive - government/cabinet judiciary – the courts

Constitution -

The New Zealand state is constrained by the rule of law A constitution sets out how power is exercised in a country/state Constitutions can take different forms - unwritten, lots of detail, values, basic framework etc. they vary but generally they are set out as … - What the major branches of government are - what powers each branch has - the limitations of the government’s powers

-

the basic rights for citizens of a state

Constitution of New Zealand -

Lack of constitution, state legal system, reflects English system - don’t actually have one written document - we have a raft of documents - British law - NZ legislation - He Whakaputanga O Niu Tireni, Te Tiriti O Waitangi and Treaty of Waitangi - Conventions - Cabinet Manuel - international law - royal prerogrative (Important documents) Magna carter and bill of rights - Absolute monarchy

Branches of the government -

Legislature – Governor General (GG) and house of representatives - they create law via a legal process Executive – Governor General, Prime minister, Executive council, government departments, cabinet, public service, local bodies, state-owned enterprises, public organizations and statutory bodies - implement the law via legal processes and policy Judiciary – Judges - interpret and apply the law via a formal process

Responsibilities of each branch of government

What is parliamentary sovereignty?

Parliament is the supreme body of law, Parliament is the supreme law-making body, parliament can pass any law, there is no higher law  Legislation is the highest form of law No other person or body can invalidate or set aside law enacted by parliament

Executive -

Executive (the government) Executive carries out the functions not performed by either the legislature or judiciary.  Administrative branch Responsible for the formation of policy that initiates legislation Maintains and executes the law by administration of public services and law enforcement  it also promotes social and economic welfare and is responsible for international relations

The New Zealand Executive comprises a number of offices and members: Governor-General - is the sovereign’s representative in New Zealand - appointed for 5 years, by sovereign on recommendation of NZ government - assents to bills, open/dissolves parliament - governed by constitutional conventions Prime Minister - is the leading political representative of New Zealand Cabinet - is an informal, deliberative body created by convention - formulates government policy and the legislative programme - comprises ministers of the Crown who are government MPs appointed by the Governor-General (on the recommendation of the Prime Minister). is chaired by the Prime Minister Executive Council - is a formal constitutional organ comprised of all ministers, with the Governor-General presiding includes the Prime Minister, who is sworn in as a member by the Governor-General provides a means of formal communication between the government and the Governor-General Government departments

Legislature

Public service - includes the armed forces, the police, civil defence and government departments Local bodies - are elected local councils responsible for local government The legislature (parliament)  it is the supreme law making body  responsible for making law in accordance with the formal procedures The doctrine of parliamentary supremacy  prescribes that parliament has absolute and unqualified powers to make laws Entails that the laws made by parliament cannot be declared invalid by any other government institution. That is parliament has unlimited law making powers and its enactments are the highest source of law in New Zealand  The procedures adopted in the New Zealand House of Representatives are based on the Westminster system. (The Westminster system is a form of government that evolved in Britain from medieval times) NZ parliament is able to delegate its law making powers to other bodies, which has resulted in a large body of law known as delegated or subordinate legislation  developed out of necessity  parliament has neither time nor expertise to deal with regulatory detail required delegated power is usually exercised by parts of the executive who are able to promote regulations and other delegated legislation as long as this legislation is within the parameters of the power delegated by a parent statute Parliament also serves other public purposes, the public through members of parliament (MP’s) may petition the house of representatives to take some action on matters of public importance.

-

Parliament is composed of the House of Representatives, and the Sovereign in

-

-

-

-

Judiciary

Doctrine of separation of powers -

right of New Zealand (represented by the Governor-General). 120 Members of Parliament are elected to the House of Representatives under the MMP representation system Governor-General is the Sovereign's representative in New Zealand assents to Bills, opens/dissolves Parliament House of Representatives (the House) is a representative body comprising all Members of Parliament conducts debates as part of the legislative process in accordance with established procedure has power to question government policies and actions

-

Speaker controls proceedings in the House in accordance with Standing Orders is elected by the House of Representatives

-

Officers of Parliament are independent Officers appointed and supervised by Parliament; for example, the Parliamentary Commissioner for the Environment

-

Others include the governing party or parties (in coalition), the opposition and parliamentary committees (which are made up of MPs)

Judiciary – - independent body responsible for interpreting and applying parliments law and creating and interpreting its own case law - In accordance with the doctrine of parliamentary supremacy, its law making function is subordinate to that of parliament  but still plays important constitutional role particularly in the protection of individual rights In New Zealand, the judiciary comprises a hierarchy of Courts: - Supreme Court. - Court of Appeal - High Court, - the District Courts, - Within the hierarchy there are specialist Courts, such as the Youth Court, Family...