Term
| Wii Parata v Bishop of Wellington |
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Definition
| Prendergast CJ - Treaty is a simple nullity |
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Term
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Definition
| The tribunal would have reard to the spirit in which the treaty was drafted. |
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Term
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Definition
| treaty cannot fetter parliaments legislative power. |
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Term
| Te Runagna o Wharekauri Rekohu Inc |
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Definition
| The treaty stands because a nation cannot be cut adrift from it's own treaty. |
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Term
| NZ Maori Council v Attorney-General |
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Definition
| Courts will be reluctant to assume that legislature legislated to frustrate the treaty. |
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Term
| Huakina Development trust |
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Definition
| Treaty is part of New Zealands social fabric (Cooke P) |
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Term
| Huakina development Trust |
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Definition
| Treaty has a status percievable at law, although not legally enforcable. |
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Term
| What do you need for a treaty os cession to be valid. |
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Definition
International Legal Personality
Intention to Act under International law
Agreement
Intention to Create legal relations (not merely moral) |
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Term
| What is the orthodox view of the treaty |
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Definition
| That it is a simple nullity and Maori didn't have international legal personality and thus couldn't enter a treaty. |
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Term
| What does McNair suggest about the treaty |
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Definition
| That Native Tribes/Chiefs are not states nor international organisations and therefore can't enter into a treaty. |
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Term
| What is the doctrine of inter temporal |
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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. |
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Term
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Definition
| Assume the existence of a tenure over land. |
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Term
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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. |
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Term
| Is it possible for the treaty to be a unilaterial declaration |
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Definition
| No, treaty negotiations involve two parties. Ex of unilat would be france and australia case. |
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Term
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Definition
| Treaty has a 'quasi-treaty' status at law. Starting to go against Prendergast's statement in Wii Parata. |
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Term
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Definition
| Even though far more signatories than tribes = no problem as long as main soveriegn chiefs signed. |
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Term
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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. |
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Term
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Definition
| PC judgement - treaty has force of law, but CoA was incorrect to call it a treaty of 'cession' |
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Term
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Definition
| Treaty is a living instrument changing to meet demands. |
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Term
| Can the treaty limit constitutional/legislative change |
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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. |
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Term
| Does the doctrine of aboriginal title provide relief |
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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). |
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