Law 121G

Law and Society

Stream 3

Part A
Government

Lecture 2
Parliamentary Supremacy and the
Relationship between Common Law
and Statute

Structure
Common law and statutes
Differences
Relationship between common law
and statutes
Historical background

Common law
Inheritance from mother Britain
Develops incrementally through
application of principles to new fact
situations by judges
Judge-made law
Doctrine of precedent
Embodies certain values (e.g. respect
for individual dignity and individual
possession of property)

Statutes
Also referred to as acts or sometimes
legislation
Law made by Parliament
Parliament consists of House of
Representatives plus Governor General
Broad range of areas
Imperial statutes
Types of statutes

Some differences
Common law is backward-looking;
statutes are prospective.
Different form
Judges must have dispute before
them; Parliament has greater
freedom

Relationship
Where there is direct conflict:
statutes prevail over common law
Parliament is supreme:
Parliament can pass statutes that
override the common law;
Judges must accept Parliaments
statutes as valid;
Parliament has ultimate authority to
determine what the law is.

Historical Background
The Glorious Revolution 1688
Bill of Rights of 1688 establishes
Parliamentary sovereignty
Development of Parliament and
limitations on Crowns power
Relationship between common law and
statute

Lecture 3
Annexation of Aotearoa/NZ

Structure
Timeline / key dates
So what really happened?

Timeline
Formal legal steps

Letters patent (15/6/1839)

Receiving of English law in NZ (14/1/1840)
Signing of Treaty of Waitangi (6/2/1840)
Hobsons proclamations (21/5/1840)
North island by cession
South island by discovery

Notification of proclamations (2/10/1840)

What really happened

So far, discussing legal events. What
happened on the ground?
James Belich gives some background
to annexation of NZ:
Commerce, Christianity and colonisation
Process over period of decades
Nominal sovereignty isnt actual control

Belichs three scales

Three different strands to consider when we
want to figure out what happened
Intervention scale
Power exerted to obtain empire

Ostensible authority scale

Nominal or imagined situation (refer above)

Actual control scale

Success of intervention and substance of
authority

What factors influenced annexation?

3Cs:
Commerce
Christianity
Colonisation

Not just pushes from Britain to acquire

new colony; also pulls from interests in
NZ and NSW
Anglo/French rivalry & myth of empire

The three Cs
Christians: missionaries
Missionaries in New Zealand
Parent organisations in England

Colonists (organised immigration)

Wakefield, NZ Company

Commerce and capitalists

Merchants in NZ and NSW
Merchants in London

Other factors
Anglo French rivalry
Myth of empire
If we really are in that situation that we
must do something it is only another
proof of the fatal necessity by which a
nation that once begins to colonize is
led step by step over the whole globe

Lecture 4
The Declaration of Independence &
the Treaty of Waitangi/Te Tiriti o
Waitangi

Structure
Legal agreements: ascertaining
meaning
Background
Declaration of independence 1835
Treaty of Waitangi/Te Tiriti o Waitangi
Debates about the treaty (at the
time)
Where to now?

Background
Maori text of Declaration and Treaty
written in Missionary Maori
wh was not used in written Maori until
1845, so wenua = whenua

Why did missionaries have such a big

role?

Declaration of Independence
Note the political terminology
independence and independent state
= rangatiratanga and w[h]enua
rangatira
sovereign power and authority =
kingitanga and mana
function of government (How to
minister affairs, who sets the law) =
kawanatanga

Treaty/Tiriti
See text and basic guide
Main dispute is over A1
and A2:
Article 1: absolute
sovereignty
versus kawanatanga
Article 2: exclusive
undisturbed
possession versus
tino rangatiratanga

Debates over the Treaty/Tiriti

Debates included oral undertakings
by Crown representatives.
Included fourth article to respect
Maori custom/law.
What debates illustrated about Maori
understanding of what was going on.
What the British thought was going
on

So where to now?
Both sides locked into own cultural
worldviews; at cross purposes
Later lectures: what is the legal
status of the Treaty of Waitangi?

Lecture 5
Parliament and the Enactment of Law

Structure
The Constitution Act
The different branches of
government
The Separation of Powers
The legislative process

The Constitution Act

Sets out some basic institutions of
NZ legal system
Removes residual power of English
Parliament to legislate for NZ
The impetus for the Act

Branches of government

Different parts have different roles

Sovereign/Governor General
Executive
Legislature (Parliament)
Judiciary (Courts)

Separation of Powers
Begins with 1688 Glorious Revolution
Basic idea: concentration of power in
single institution is dangerous
An ideal, associated with
Montesquieu and Locke
NZ: not complete separation of
powers
Compare other systems, e.g. US

Legislative Process
Refer diagram (p 68)
Where do ideas for new law come from?
Government of the day
Coalition agreements
Other government MPs
Committees
Other relevant governmental bodies
(government departments; Law
Commission; Royal Commissions
Individuals

Pre-introduction
Development of policy
Consultation
Vetting for compliance with Bill of Rights
(1990)
Get on legislative programme (decided by
Cabinet Legislation Committee)
Drafting: usually Parliament Counsel
Office
Checking: Legislation Advisory Committee
Decision whether to introduce bill

Introduction and beyond

Rules governing procedure of
Parliament = Standing Orders
Well established procedures

First reading
Select committee
Second reading
Committee of whole house
Third reading
Vote
Assent

Lecture 6
Courts and Juries

Structure
Courts

What are they?

What do they do?
Court structure
The concept of jurisdiction
Characteristics of court process

Juries
Historical development
Juries today

Courts
What is a court?
An institution
A physical entity

Some history

What do courts do?

Resolve disputes
Interpret and
apply the law
(statutes)
Clarify and
develop law
(common law)

Court structure
See diagram ( p 58)
Court structure is hierarchical.
Allows parties to appeal
Division of workload and specialisation
Doctrine of precedent

The concept of jurisdiction

The power or ability to hear a certain
case
May also refer to geographical
limitations
Types of jurisdiction
Original versus appellate jurisdiction
Civil versus criminal jurisdiction

Characteristics of court
process
Adversarial process- adversarial protest
Open Justice- crucial, transparent (we
want to see that justice is being done,
people can watch)
Access to justice- fundamental principle,
equal human rights, regardless of financial
situation (lawyers cost), a massive barrier
to judicial system, but it is guaranteed

The Jury
Historical development
Predecessors of the jury
Compurgation/wager of law Trial by ordeal
Trial by battle
Jury trial
Arose out of administrative procedures
Jurors used to provide information out of
own knowledge

Juries today
Trigger of jury trial: any criminal
offence punishable by more than 3
months imprisonment
Rare in civil jurisdiction
Procedures for jury selection regulated
by statute
What are the pros and
cons of juries? Should we keep them?

Lecture 7
The executive versus the courts:
Fitzgerald v Muldoon

Structure
Introduction
Fitzgerald v Muldoon

Origins of litigation
The bill of rights
Remedy
aftermath

Introduction
Judiciary versus executive

Judicial activism
Parliamentary sovereignty
Foreshore and seabed
Ahmed Zaoui

Fitzgerald v Muldoon
The origins of the case

New Zealand superannuation Act 1974

Muldoons actions
The issue
The litigation and the plaintiff
Importance of procedural decision of Beattie J

The Bill of Rights 1688

S 1:
Dispensing power - That the
pretended power of suspending laws
or the execution of laws by regall
authority without consent of
parlyament is illegall.

Implications
Remedy
Pragmatism - why? You need to follow legal process
(const. and Bill of Rights that restrict power)

Aftermath:
Lessons about the separation of powers, and the rule of
law. appreciate the court went to great lengths in the
sense that the executive cannot act against parliament
Should the executive have the power to suspend law?
Richard Nixon: Well, when the President does it, that
means that it is not illegal.

Lecture 8
Public Interest and Private Bodies:
Finnigan v New Zealand Rugby
Football Union

Structure

Background and history

Litigation round 1
Litigation round 2
Postscript
Relevance today?

Background
Social climate of the day
The importance of rugby
The problem of apartheid
The Tour of 1981

Litigation - Round 1
The plaintiffs
The two grounds claimed by plaintiffs
Against the objects [of the NZRFU]
Wrong body

The standing issue

Judicial activism?

Litigation - round 2
Plaintiffs substantive claim
The interim injunction

Tactical games?
Prima facie case
Are damages an adequate remedy?
Balance of convenience

Postscript
What happens to the tour?
Significance of case?

Lecture 9
The impact of colonial law on Maori

Structure

Background: NZ wars
New Zealand Settlements Act 1863
Parihaka and Te Whiti
The legislative response
West Coast Settlement (Nth Island) Act
1880
West Coast Peace Preservation Act 1882

Concluding thoughts

Background
Assertion of British control
New Zealand Wars
Fought between Maori and British
between 1845 and 1872
Maori eventually defeated
The Costs of defeat

Land confiscation
Confiscation not main means of
obtaining land
But definitely historical grievance
Confiscation occurred through the
law: NZ Settlements Act 1863
What does the Act do?
What is needed to trigger the Act?

Parihaka and Te Whiti

Town in central Taranaki
At the time, home of Chief Te Whiti,
who resisted Taranaki settlers
How did he do this?
What happened?
What did Parliament do?

The legislative response

Maori Prisoners Trials Act 1879
Confiscated Lands and Maori
Prisoners Trials Act 1879
Maori Prisoners Act 1880
Maori Prisoners Detention Act 1880

West Coast Settlement (North Island)

Act 1880

Look at text of this Act in the

materials:
What does this Act do?
To what area does it apply?
Does any person really mean any
person?

West Coast Peace Preservation Act

1882

Sacking of Parihaka
What to do with Te Whiti (& Tohu)?
Pass a new law
Who did it apply to?
What could be done to them?
What else did the law do?

Concluding thoughts
So, this period saw the enactment of
draconian laws.
Is this an overstatement?

What does this tell us about law?

Lecture 10
The Treaty/Tiriti in the Courts (1840stoday )

Structure
The early cases (pre 1975)
Two major positions in early cases
The cases
Summary/what do these cases illustrate
about law?

The recent cases (post 1980s)

Why did change occur?
Assessment: how much really changed?

Two positions
Crown as the source of all property
rights
Maori reliant on good grace of crown
Maori had no law of their own

Crown title subject to pre-existing

rights of native people until
extinguished by law
Aboriginal title or native title

R v Symonds (1847)
A contrived, test case
Affirms Crowns exclusive right to
purchase land from Maori
Articulates doctrine of aboriginal title
Treaty of Waitangi declaratory of
aboriginal title

Wi Parata v Bishop of
Wellington (1877)
Facts
Court unwilling to question Crown grant
Prendergast CJ on Treaty of Waitangi:
Maori tribes lacked capacity to enter into
treaty: the Maori tribes were incapable of
performing the duties and therefore assuming
the rights of a civilised community
Treaty of Waitangi: so far indeed as that
instrument purported to cede the sovereignty
it must be regarded as a simple nullity

Legacy and impact

Findings in favour of crown right to
control all titles to land included in
statutes
Rejection of treaty of Waitangi as a
treaty of cession persisted into 20C:
In re the ninety mile beach (1963)

Te Heuheu Tukino (1941)

Facts
Privy Council regarding Treaty of
Waitangi:
Rights conferred under such a treaty of
cession cannot be enforced in court
unless incorporated
Must be able to point to statutory
recognition of Treaty

Summary
So, three ways of dealing with the Treaty
up to 1975:
its a simple nullity: Wi Parata
its not incorporated: Te Heuheu Tukino
its merely declaratory of aboriginal
title: R v Symonds
Do the various cases fit together?

Post 1980: background

Social change
Greater recognition of Treaty in other areas
Literature on complicity of courts in
violations
Work of certain lawyers and academics

Maori challenges to legitimacy of NZ state

Change of government

Law a little slower to change

NZ Maori Council v AG
The Principles of the Treaty of Waitangi
Aka the SOE Lands case
S 9 State Owned Enterprises Act 1986
included reference to principles of the
Treaty of Waitangi
Government privatisation: transfer of assets
In this case 10M hectares of land
Potential claims through Waitangi tribunal
Not enough protection for claims: breach?

The principles
Partnership: duty to act in good faith
towards each other and to be reasonable
Crown must actively protect Maori
interests
Includes making informed decision and
consulting maori
Provide process to remedy past breaches

Maori: recognise the queen; reasonable

cooperation

Assessments
Kelsey: genuine victory
CA interpreted principles as giving
greater safeguards for Maori
Judicialisation of treaty
Concentration on principles to
exclusion of texts
How much really changed?
Did the legal status of the treaty
change?

Lecture 11
Parliament and the Treaty of
Waitangi: Te Runanga o Wharekauri
Rekohu v AG

Structure
Basis of Maori claim to fisheries
Background: fisheries legislation and
the QMS
The litigation
Differing views about the merits of
the Sealords Deal
Issues resolved by the courts
Upshot

Basis of Maori claims to

fisheries
Maori cosmology & tikanga: Tangaroa, god of
the sea, is one of the original ancestors
Maori text of Tiriti o Waitangi
English text of Treaty
Colonial law, aboriginal title: prior Maori rights
to fisheries continue until extinguished by
statute
Colonial law on Treaties: Maori rights are only
enforceable if recognised in domestic law
Legislation, s88(2) Fisheries Act: nothing in
this Act shall affect any Maori fishing rights

Background
Depletion of fish stocks: the tragedy
of the commons
Introduction of QMS (Quota
Management System) in 1986
QMS was meant to:
Prevent over-fishing
Improve efficiency of industry

Timeline
1986: QMS
1989: Earlier litigation; Maori Fisheries Act 1989
1992: Waitangi Tribunal issues Ngai Tahu
Fisheries Report
1992: Sealords deal
9/1992: Deed of settlement
10/1992: court challenge: Te Runanga o Wharekauri
Rekohu v Attorney General
11/1992: WT issues report on Fisheries Settlement
12/1992: Treaty of Waitangi (Fisheries Settlement) Act
1992

Sealords deal (in deed of settlement)

Joint venture to buy half share of Sealords
(which held 26% of quota); result = 23% (10%
+ 13%)
20% of quotas for new species went to maori
Crown to pay 150m$ to develop fisheries
Maori Fisheries Commission to be reconstituted.
Provision for non-commercial/traditional fishing

Differing perspectives on
merits
Contradicted original grounds for challenge
to QMS and required Maori to accept quota.
Commercial quota would not get back
fishing rights.
Government appoints members of MFC and
ToWFC
Negotiators did not represent all Maori
Consultation was not meaningful
Waitangi tribunal criticisms
CF: Court of Appeals more optimistic view

Te Runanga o Wharekauri Rekohu v

Just who
was bound by the deed of
Attorney
General

settlement?

Maori negotiators view

Government view
In the end, issue not important - why?

Why was the court challenge

unsuccessful?

Upshot
Parliament is supreme in making law: it
may deny future litigants the right to go to
court concerning Maori commercial
fisheries issues.
Courts will not interfere in parliamentary
proceedings.
Courts never decided what Maori fishing
rights actually existed prior to QMS, and
now never will (see esp. s 9)
What is the constitutional status of the
Treaty of Waitangi?