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31 Cards in this Set
- Front
- Back
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Wi Parata (1877)
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The judge claimed that the Treaty of Waitangi is a ‘simple nullity’ and cannot be a treaty of cession as Maori were not civilized enough to cede sovereignty.
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Te Heu Heu Tukino (1941)
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Privy council said that the Treaty was a treaty of cession, however, this meant it was part of international law and therefore cannot be enforced unless it was incorporated into domestic law.
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Ninety Mile Beach case 1963
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Ownership of foreshore and seabed is of the crown due to English common law.
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Haddon v Auckland Regional Council (1994)
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• Pakiri beach sand was planned to be moved to mission bay and kohimarama beaches
• Action was brought under the RMA by kaitiaki of Pakiri beach area. • Kaitiaki was acknowledged, but it was decided that the sand extraction was justifiable. • The court found it harder to give weight to spiritual values than economic relationships |
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Bleakley v ERMA (2001)
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• There was an application by AgResearch under the Hazardous Substances and New Organisms Act 1996 to field-test a new GMO.
• ERMA gave a majority decision approving the tests • Ngati Wairere appealed to the High Court • However, the court struggled to give weight to spiritual beliefs in the absence of empirical evidence. |
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Waitangi Tribunal on Maori Water rights and asset sales
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• Came to the conclusion that water was a taonga under the treaty, and that tino tanga over taonga was more than ownership, however it is closest to meaning ownership. Therefore the treaty did guarantee water rights under the treaty.
• A case was brought forward trying to stop asset sales under s9 of the SOE act (principles of the treaty of Waitangi), however, the supreme court said no, regress can still be provided even if asset sales go ahead. |
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SOE lands case (NZ Maori council v Attorney General)
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• Section 9 of the SOE act: nothing shall permit the crown, which allows the crown to act in a way, which is inconsistent with the TOW.
• NZMC said that transfer of the assets would breach this. • Court prevented the crown from acting straight away until there were safeguards for Maori. • Section 9 prevailed over everything else in the act. |
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AC v Ngati Apa (2003)
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• Looking into whether MLC had jurisdiction to hear the case of whether the Marlborough foreshore and seabed was Maori customary land.
• The court of appeal said that 90-mile beach was wrong. Maori rights are there unless they are expressly extinguished. Crowns sovereignty =/= ownership. • Came to the decision that neither common law nor legislation prohibited Maori claiming this. • They decided that MLC has jurisdiction to hear Māori claims as to possible customary rights in foreshore and seabed. Aftermath: It was portrayed as Maori claiming and the privatizing the coastline in the Media. • Government panicked and issued a statement saying that they would pass legislation based on access, and protection of the foreshore |
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Resource Management Act 1991.
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S 6 Matters of national importance
• In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance: (e) The relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga: S 7 Other matters • In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall have particular regard to— o (a)kaitiakitanga: |
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Treaty of Waitangi Act (1975)
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An Act to provide for the observance, and confirmation, of the principles of the Treaty of Waitangi by establishing a Tribunal to make recommendations on claims relating to the practical application of the Treaty and to determine whether certain matters are inconsistent with the principles of the Treaty
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Foreshore and Seabed Act 2004
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Full legal ownership was vested in the crown
Maori were recognized as having limited constitutional rights but no ownership. All other private property rights were preserved. No compensation was given |
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The Marine and Coastal Area (Takutai Moana) Act 2011
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This act repeals and replaces the foreshore and seabed act.
No one is said to own the common marine and coastal area Protects public access Restores Maori access to court If Maori can meet certain tests they can get customary marine title, a new property title, which explicitly excludes some property rights. |
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Ruka v Department of Social Welfare (DSW).
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• Ruka was living with a man, who was physically violent toward her, and they weren’t married. She was claiming a single parent benefit. The courts decision of whether she was claiming this benefit illegally came down to whether they were living in the nature of marriage or not? And whether the fact that he was violent and abusive affected that.
• The court decided that it wasn’t in the nature of marriage, however it was three for this decision and two against. Two of the three ruling that it wasn’t in the nature of marriage said this was due to him not financially compensating. |
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Criminal Justice System
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This involves the institution, agencies, and processes that deal with crime.
However, in each of the stages of prosecution, discretion is used. Whether the police prosecute/ which crime is charged/ Judge’s discretion. |
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Cultural Defence: An affirmative defence based on cultural background. It is used as a mitigating factor in plea-bargaining and sentencing.
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• People v Chen (1988, NY): Bashed cheating wife’s head in. His traditional Chinese values regarding adultery and manhood came into play during his trial. He was found not guilty of murder but guilty of 2nd manslaughter.
• People v Moua (1985, Cali): Kidnapped and raped a girl. His Laos tribe practiced marriage by capture ritual. Used this defence to argue mistake of fact, he thought her saying no was part of the customs of the ritual where women would resist to prove their chastity. He was given the lesser charge of false imprisonment. |
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Crimes Act 1961
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Still have criminal law for property, and the vast majority of NZ offenses are property related, e.g. theft.
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Dole Bludgers & Tax Evaders
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1. The tax system declared that it was illegal to pay your income into a trust, and claim a low income for tax benefits. The government gave an amnesty to those that came forward, saying that the IRD would only look at the last 2 years rather than 4.
2. Dole Bludgers: The government made it an offense to know about your partner committing benefit fraud. |
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Three Strikes Legislation
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Due to Penal Populism: popular for the public to want harsher punishments.
MMP Politics: National in order to gain a majority had to form a coalition party with ACT who were intent on pushing their three strikes legislation. |
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R v Hamed (NZSC, 2011)
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• The courts found that the video surveillance of the ‘Urewera 17’ was obtained unlawfully and breached s21 NZBORA.
• After this decision, parliament passed the Video Camera Surveillance (Temporary Measures) Act, which overrode the supreme courts decision, saying that covert video surveillance is lawful. |
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TPPA (Trans-pacific partnership agreement negotiations)
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Issues: - Undermines state sovereignty.
-Fails to provide sufficient protection for indigenous knowledge |
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HIV/ AIDS
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Life saving knowledge was found by large UK and US pharmaceutical companies, and these drugs were patented. Countries that had signed the TRIPS agreement had to protect the intellectual property rights of these companies, meaning that they had a monopoly even in third world countries. South Africa passed a law allowing the import and production of generics.
39 Major pharmaceutical companies pushed the US to sue SA for failing to protect their intellectual property rights. It was seen to be pursuit of profit over life, so they withdrew and negotiated pricing levels for third world countries. |
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Bolivia Water Privatization.
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One of the UN millennium development goals was Water as a human right.
However, in Cochabamba the water supply to the houses was contracted to a foreign owned company, as required by the World Bank. This created private property rights in water, and Bechtel was given a 40-year monopoly on the water. They did not supply to the outskirts and increased the costs of water supply connections. Riots lead to the Bolivian government cancelling the contract. Bechtel brought international arbitration proceedings against Bolivia on the basis of investment treaties. They settled the case for $1 and dropped it due to international pressure. |
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International Human Rights Instruments
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• Universal Declaration of Human Rights.
• International Covenant on Civil and Political Rights (ICCAR) • International Covenant on Economic, Social & Cultural Rights. • Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) • There is tension between feminist groups pushing universal rights of women and cultural relativist approaches. The feminist groups are condemning cultural treatment of women, and are trying to use IHR as a tool to force cultural change. |
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CEDAW (Convention on the elimination of all forms of Discrimination against women.) Article 5.
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CEDAW Article 5: States Parties shall take all appropriate measures:
• To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women; Crimes Act 1961 s204A: Subject to subsection (3), every one is liable to imprisonment for a term not exceeding 7 years who performs, or causes to be performed, on any other person, any act involving female genital mutilation. |
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“Persons Case” Edwards v AG Canada (1930)
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• Supreme court of Canada held that women weren’t legal personalities until 1928.
• The Privy Council overruled this and Women are now legal persons. |
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The Mayor, Alderman and Burgesses of the Borough of Bradford v Pickles (1885 UK)
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• Pickles cut off the water supply to Bradford reservoir, which was a spring on his land, and offered to sell it.
• The House of Lords vindicated Pickle’s rights to do so as a private property owner, even if done with malicious intent. |
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England: Wolfenden report on homosexual offenses and prostitution (1957)
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• Concluded that homosexual actions should be decriminalized
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Bowers v Hardwick (1986) & Lawrence v Texas (2003)
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• The former, said there is no right to homosexual conduct in the constitution
• The latter had a different outcome, said that the constitution protected sexual privacy. |
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Police v Minhinnick (1978 NZ)
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• Said his culture compelled him to steal a medal from a museum (Maori land wars.)
• Charged with theft, came to a question of whether he had claim of right or he did so dishonestly. • He thought he was doing the right thing and was found not-guilty • The judge accepted culture in the defence; because of his cultural background he was found less culpable. |
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Korematsu v US
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• Korematsu didn’t report to the Japanese camp and was arrested and convicted for not reporting.
• In the 80’s these convictions were challenged, and as a result of the crown giving false evidence the charges were overturned in 83. |
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Lesa v Ag
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• Interpretation of citizen acts, privy council said that all Samoans that were born whilst Samoa was under NZ’s rule were NZ citizens
• Parliament passed Citizenship (western Samoa) 1982 Act, which overruled this decision. |
