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Final

LAW 121G Study Guide - Final Guide: Constitution Act 1986, Outlandish, Resource Management Act 1991


Department
Law
Course Code
LAW 121G
Professor
Jane Kelsey
Study Guide
Final

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The Tribunal is charged with reporting on whether any future legislation would conflict with the principles of the
Treaty during the drafting process. It is worth noting that as the tribunal derives its existence from the Treaty of
Waitangi Act 1975, it exists only so long as the electorate and the politicians of the legislature see fit, and has only
jurisdiction the Parliament wishes to accord it. Furthermore, as the Tribunal cannot do anything more than make
recommendations (except in certain matters as declared by statute) the Treaty and its principles remain
unincorporated into the New Zealand legal framework except to the limited extent Parliament has chosen to do so.
The Office of Treaty Settlements
has endorsed the view that the Treaty is the founding document of New Zealand. the legislative provisions for its
akoledgeet ad the Cout’s pefeee fo osistet itepetatios ea that it etais a sigificance in
Ne Zealad’s legal faeok. A siila positio a e agued to eist i Cooke P’s eak that a atio aot e
cast adrift from its foundations. The moral obligation on the part of the Crown to resolve historical grievances in
accordance with the Treaty of Waitangi principles, identifies that there is a lingering obligation incumbent upon the
Crown, as acknowledged in legislation by the creation of the Tribunal and the subsequent extension of its
jurisdiction. Certainly, the policy of the National Government to redress all historical grievances by 2014
demonstrates a commitment to this process while also representing, to critics, a desire to terminate the negotiating
process as a politically contentious and expensive issue
In our Positivistic view of the law, morality and the will of the people have little impact on the legal status of the
Treaty. However, as the entrenchment of the electoral term means that the government is subject to democratic
review on a regular basis, the popular view of the Treaty, has a bearing on any future dialogue regarding the status
of the Treaty. Furthermore, this influences the ways in which the Crown will proceed in matters connected to Treaty.
The fact remains that certain elements of Tikanga are utterly irreconcilable with the extant constitutional
arrangement and system of law in New Zealand. An example of this is seen Foreshore and Seabed. Under Tikanga
Maori, the mana of an iwi is related to its exercising guardianship and tino rangatiratanga over the foreshore and
seabed, as their whakapapa tells them that these areas are of the people. Western law is based around an exclusive
and exploitative conception of land and property in general, whereas Tikanga holds for a collective and protective
belief in a living force imbued in the land which must be respected and protected.
Ngati Apa
The Crown had not explicitly extinguished customary title over the Foreshore and Seabed and so the Maori Land
Court therefore had jurisdiction to determine the status of such title at law.
The Court of Appeal over-turned Ninety Mile Beach and determined that the wording of the statute was too
ambiguous, granting the Maori Land Court jurisdiction. The iwi contesting the matter therefore had the right to go to
court to seek recognition of their existing customary rights. Reacting to public alarm at the spectre of Maori taking
control and denying public access, the government announced an intention to introduce legislation to prevent the
Maori Land Court case. Simultaneously, an urgent Waitangi Tribunal claim was made seeking an investigation of the
Co’s hadlig of the ae. The Tiual epoted that the Co’s atios ee a eah of the Teat of
Waitangi and were also an assault on the rule of law, as they denied Maori their right to contest their customary
rights before the courts. However, it was simply not on the political agenda to legislate to recognize tino
rangatiratanga over the foreshore and seabed.
Foreshore and Seabed Act 2004
Deostated that the Teat’s lakig legal foe eas that the goodill of the goeet is required for the
Treaty to have meaningful legal consequence at a practical level. Commercial Fisheries Deed of Settlement
Marine and Coastal Area Act 2011
Introduced in order to repeal the 2004 act. The fact that the act was introduced by the National government as a
consequence of their supply and confidence agreement with the Maori Party demonstrates that the Treaty and
Tikanga gais politial, ad thus legal, oseuee he the deoati poess akes it i the goeet’s
interest to do so. As Maori constitute a minority of the population, the MMP reform has thus worked in favour of
these issues being given recognition by the law. The act is detailed enough to act as a codification of customary
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