Treaty of Waitangi: Contemporary Relevance

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Treaty of Waitangi Contemporary Relevance?
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Referred to in Legislation

• Treaty rights never fully adopted in statute but
  many statutes refer to Treaty eg Treaty of
  Waitangi Act 1975
• regard to or account of the Treaty eg
  Environment Act 1986, Conservation Act 1987, RMA
  1991 SOE Act 1986, Maori Land Act 1993
• no incorporation of specific Treaty rights
• usually refer to principles of Treaty

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Legislation

• Maori dimension
• No reference to Treaty but may give effect to
  matters of culture tradition
• Eg Law Commission Act 1985, Maori Language Act
  1987
• References to Treaty in statutes likely to
  increasse

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Interpretative Aid

• Huakina Development Trust v WVA 1987 2 NZLR 188
• Water Soil Conservation Act 1967 no ref to
  Treaty
• But taken into account re water right grant to
  discharge farm effluent. Why?
• Treaty part of fabric of NZ society ? can be
  used as interp aid even if statute makes no ref
  to it
• Challenged Hoani Te Heuheu Tukino (see Cooke, P
  in NZMC)

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Ground for judicial review

• Ngai Tahu MTB v DG of Conservation 1995 3 NZLR
  553
• grounds for judicial review extended to include
  Treaty
• DGs grant of whale watching permit challenged ?
  Treaty was a relevant consideration in
  determining what was a reasonable course of
  action

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Constitutional Importance

• Courts recog Treaty within limits of its role,
  founding document of supreme constitutional
  import
• Could extend recog?
• Interp legis state action against Treaty
  principles?
• Requires departure from Te heuheu (but see
  Huakina whale watching cases)

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Constitutional Importance

• Only Parl has power to fully constitutionalise
  Treaty
• Some recog of founding status
• Legis
• Policy
• Cabinet Office Manual must take principles into
  account in policy devpt process
• Where possible, must consult with Maori
• Treaty/Maori rights limit exercise of Exec/Parl
  power
• Enshrine Treaty in a new constitution?

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Non-judicial areas

• All Govt Depts, Schools, Tertiary Instits have
• Treaty policy and/or
• Treaty unit
• Specific govt dept deals with Treaty settlements

• Trib to hear Treaty claims

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Non-judicial areas

• Univ has a Treaty policy
• committed to meaningful partnerships under the
  Treaty
• committed to kaupapa and tikanga Maori
• Law School
• Commitment to the development of a bicultural
  legal education

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