Most important cases relating to the treaty: (New Zealand Maori Council v…
Most important cases relating to the treaty:
R v Symonds 1847:
Set up by the Crown to test pre-emption clause. McIntosh brought land from Maori, Symonds brought the same land from Crown, issuing a Crown Grant.
Affirms the legality of the treaty, sees it as a valid international document. Winner: Symonds, confirming the right of pre-emption and supporting the Treaty.
Reinforced pre-emption, as a part of the common law, and reaffirmed the concept of Native title = when the Crown becomes sovereign of a country, the land of the native occupants remains theirs (until such time as they wish to sell it.)
Affirmed native title in NZ. Native Title can be a burden on government title and could impeach a government grant if the native title had not been poperly extinguished.
Te Heuheu Tukino 1941: Hoani Te Heuheu Tukino v Aotea District Maori Land Board
Diminished the legacy in Wi Parata saying the treaty is one of cession, not a simple nullity. BUT supported Prendergast in saying the treaty would have no legal effect unless incorporated into legislation.
Disagreed with Wi Parata on point of Treaty validity, but says the Treaty has to be incorporated into domestic law because it is an international treaty.
Wi Parata 1877:
Court did not give land back on the basis that the court cannot overturn a Crown grant.
Continue to describe the Treaty as a "Simple nullity" and said Maori were barbarians and had nobody politics, weren't capable of ceding sovereignty, nobody of customary law, no right to native title.
Diminishes native title, saying the treaty has no legal authority as Maori do not have the capacity to enter into a contract. Now viewed as a colonial racist perspective.
60's-70's: Maori protested Treaty breaches, leading to historical and legal change.
Maori Affairs Amendment Act 1967
Land March 1975
Bastion Point 1977, Raglan 1978 protests
The Treaty of Waiting Act 1975/ Amendment Act 1985.
Maori efforts to get the treaty recognised:
Several appeals made directly to England.
Growing Maori resentment and frustration.
ToW A A = breakthrough.
The Lands Case!!
Waitangi Tribunal and Settlement process.
New Zealand Maori Council v Attorney-General 1987:
Discussion over state-owned enterprises Act: Proposed to corporate/privatise many state operations.
ISSUE: Once land passed out of Crown ownership, it would be difficult to have it returned to Maori if they claim to it.
BUT...: S27 states that if the claim under section 6 of the ToW Act 1975 does not prevent the transfer of that land or of any interest in that land - a) by the Crown to a state enterprise; or b) by a state enterprise to any person."
HOWEVER...: It didn't protect the position for the lies that hadn't been lodged before the Act was passed, meaning any land before then was out of reach.
ALSO, Act contained s9: "nothing in this Act shall permit the Crown to act in a manner which is inconsistent with the principles of the ToW.
OUTCOME: NZMC won this case, lead to an amendment in S27B saying that all land is protected.
IMPORTANCE: Arguments had to be made that established that by transferring the land, the Crown was in breach of the principles of the treaty = Lead to the interpretation of what those principles were.
Interpretation of the treaty:
"What matters is the spirit of the treaty." "The treaty has to be seen as an embryo". Found that there is no single version of the treaty, it must be a combination of both to establish the treaty principles. What matters is the spirit of the Treaty, "Broad, unquibling practical" interpretation. A living document continues to grow and develop.
Principles of the ToW:
Partnership: good faith and partnership.
This was not saying that there is equal power between M and Crown, but acknowledging that the Crown holds more power, giving them the responsibility to look after Maori's best interests, (fiduciary respnsibility)
Crown has the right to govern.
Rangatiratanga: Recognition of Maori rights.
Active Protection: must not act regarding their own interests, but of Maori also, Maori interests must not be ignored.
Redress: if there is a breach there is a right for redress of that, shown in the Waitangi Tribunal and the settlement process.
OUTCOME: S27B provided protection mechanism = land could be returned to Maori if breach was proven.
and native title and chart how judicial opinion has changed over time