Term
Wii Parata v Bishop of Wellington |
|
Definition
Prendergast CJ - Treaty is a simple nullity |
|
|
Term
|
Definition
The tribunal would have reard to the spirit in which the treaty was drafted. |
|
|
Term
|
Definition
treaty cannot fetter parliaments legislative power. |
|
|
Term
Te Runagna o Wharekauri Rekohu Inc |
|
Definition
The treaty stands because a nation cannot be cut adrift from it's own treaty. |
|
|
Term
NZ Maori Council v Attorney-General |
|
Definition
Courts will be reluctant to assume that legislature legislated to frustrate the treaty. |
|
|
Term
Huakina Development trust |
|
Definition
Treaty is part of New Zealands social fabric (Cooke P) |
|
|
Term
Huakina development Trust |
|
Definition
Treaty has a status percievable at law, although not legally enforcable. |
|
|
Term
What do you need for a treaty os cession to be valid. |
|
Definition
International Legal Personality Intention to Act under International law Agreement Intention to Create legal relations (not merely moral) |
|
|
Term
What is the orthodox view of the treaty |
|
Definition
That it is a simple nullity and Maori didn't have international legal personality and thus couldn't enter a treaty. |
|
|
Term
What does McNair suggest about the treaty |
|
Definition
That Native Tribes/Chiefs are not states nor international organisations and therefore can't enter into a treaty. |
|
|
Term
What is the doctrine of inter temporal |
|
Definition
It means all international law is considered in it's own time field. You cannot apply new rules of Int Law to old treaties. |
|
|
Term
|
Definition
Assume the existence of a tenure over land. |
|
|
Term
|
Definition
Aboriginal treaties are seen to be sui generis in nature. They are neither created by international law, nor terminated with them. As such capacity should be analysed through historical evidence. |
|
|
Term
Is it possible for the treaty to be a unilaterial declaration |
|
Definition
No, treaty negotiations involve two parties. Ex of unilat would be france and australia case. |
|
|
Term
|
Definition
Treaty has a 'quasi-treaty' status at law. Starting to go against Prendergast's statement in Wii Parata. |
|
|
Term
|
Definition
Even though far more signatories than tribes = no problem as long as main soveriegn chiefs signed. |
|
|
Term
|
Definition
contractual nexus creates the treaty. However, soverignty is an act of state, and states cannot enter into contracts with private people/subjects of that state. |
|
|
Term
|
Definition
PC judgement - treaty has force of law, but CoA was incorrect to call it a treaty of 'cession' |
|
|
Term
|
Definition
Treaty is a living instrument changing to meet demands. |
|
|
Term
Can the treaty limit constitutional/legislative change |
|
Definition
Yes, policy to make sure all new laws get the tick. However, if trhey don't it's okay because it's only policy. |
|
|
Term
Does the doctrine of aboriginal title provide relief |
|
Definition
The doctrine only provides relief if the land was sold to someone other than the crown (the only people who can extinguish this title). |
|
|