The Treaty

1
The Treaty the Courts, the Contemporary
Context
2
Judicial examples
Hoani Te Heuheu Tukino
Wi Parata
NZMC (SOE case)
Status of Treaty?
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Wi Parata v Bishop of Wellington

• Facts
• _____ ___ owned land at __________
• 1848 agmt with Bishop to build ______
• 1850 a _____ _____ given to Bishop
• What did Parata want/do?

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Wi Parata Status of Treaty?

• Rule so far as it the Treaty purported to
  cede sovereignty it must be regarded as a
  simple nullity. Why?
• Maoriincapable of performingand assuming the
  rights of a civilised communityno body politic
  existed capable of making a cession of
  sovereignty

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Wi Parata Status of Treaty?

• Ct concluded
• NZ uninhabited territory
• Acquired by discovery occupation
• Status - Treaty is a nullity
• Not a Treaty of cession
• Maori lacked treaty-making capacity (ie lacked
  sovereign status)
• Which Treaty text is referred to?
• Which Article is referred to?

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Hoani Te Heuheu Tukino v Aotea District Maori
Land Board

• Rule any rights purporting to be conferred
  bya Treaty of cession cannot be enforced in the
  courts, exceptif incorporated in the municipal
  law
• Status Treaty not a direct source of Maori
  legal rights unless incorporated into statute (in
  this case the statute had been repealed)

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NZMC v AG Background - 2 Parallel sets of events
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NZMC v AG Background

• NZ boom period 1940s-70s
• Key actor - Muldoon
• Think Big
• Subsidise exporters
• Overseas borrowing
• Oil shocks car-less days
• loss of UK markets econ downturn
• Result massive overseas debt

9
Maori cultural political renaissance

• Militant Nga Tamatoa
• Hikoi Maori land march
• Bastion Point
• Raglan Golf Course
• He Taua incident
• Waitangi - Honour the Treaty

10
1984 Labour Government
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Response to econ problems

• Structural adjustment eg Privatisation
  Corporatisation
• SOEs estab (SOE Act 1986)
• Crown assets transferred to SOEs
• SOEs sold to private interests eg Telecom

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its not privatisation...its efficiency

• 11 billion worth of assets sold eg NZ Steel,
  Petrocorp, Postbank, Air NZ, Landcorp, Govt
  Printing Office, Nat Film Unit, Maui Gas,
  Synfuel, Telecom
• Impact on the nation?

13
Response to Maori Problem

• Treaty of Waitangi Act 1975
• Estab Waitangi Tribunal (WTrib)
• Claims Maori are prejudicially affected by
  legislation, policies or acts or omissions of the
  Crown inconsistent with the principles of the
  Treaty of Waitangi
• 2 texts (Schedules)

• WTrib exclusive authority to determine meaning
  of differences between the two texts
• WTrib recommend compensation
• Could recommend return of Crown land
• Treaty of Waitangi Amendment Act 1985
• Extended jurisdiction of Waitangi Tribunal ? 1840

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Facts of the case

• SOE Bill
• WTrib Muriwhenua Claim (Sian Elias)
• WTrib recom Crown not transfer assets until Claim
  resolved. Why?
• Parl response ss9 27

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Sections 9 and 27

• S9 - Nothing in the Act shall permit the Crown to
  act in a manner inconsistent with the principles
  of the Treaty
• S27 SOE assets could not be sold to private
  interests if subject to claim lodged prior to 18
  Dec 1986 (assent date)
• S27(2) If WTrib makes recom Crown accepts, GG
  has discretion to order transfer of land back to
  Crown

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BUT!!!

• S27 did not protect assets of Claims lodged after
  18 Dec 1986
• NZMC applied for judicial review
• Stop transfer of assets to SOEs
• Sought clarification of Crown obligs re s9
• HC interim declaration case moved to CA

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Matter of Statutory Interpretation

• Which provision was paramount?
• NZMC argued s9 (offered protection re any
  transfer of Crown assets)
• Crown argued s27 (a code which overrides s9,
  Crown entitled to transfer assets)

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Treaty Spirit Principles

• Both texts appear
• Adopts liberal/purposive interp (see Cooke, P)
• Treaty living instrument, what matters is
  the spirit
• Why this approach?
• Oral character of Maori
• Could not have foreseen sophisticated society
  of today, treaty is embryo

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Principles

• Partnership (Brit sov in exchange for protection
  of rangatiratanga over resources citizenship
  rights)
• Analogous to fiduciary relationship
• Mutual duties of utmost good faith,
  reasonableness, cooperation
• Duty of Crown
• Actively protect Maori interests
• Provide redress for valid claims

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Principles

• Duty of Maori
• Loyalty to Queen
• Full acceptance of her government
• Reasonable cooperation

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Decision

• Upheld NZMCs claim. Why?
• Not Parls intention that s27 be used as a code
  to defeat s9
• Wording of s9 did not exclude land
• Failure of Crown to set up monitoring system re
  transfer of assets w/out regard to principles was
  a breach of s9

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Decision

• BUT parties ordered to negotiate system of
  safeguards to ensure Crown assets still subject
  to Maori claims
• Procedure enacted in Treaty of Waitangi (State
  Enterprises) Act 1988
• Means Crown assets can be transferred to SOEs
  subj to condition that it can be resumed by Crown
  in event of WTrib recomm

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Status of Treaty

• Te Heuheu affirmed but see Cooke, P (p667, L 50
  p668, L 8)
• Parl sovereignty intact
• Principles may be applied if legislation refers
  to them or if legislation has a Maori dimension