New Zealand - Maori Sovereignty - General Info

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New Zealand - Maori Sovereignty - General Info

Postby Dai Kiwi » Sun May 24, 2015 4:40 am

Most of the people advancing the FMOTL arguments in NZ also tend to advance Maori Sovereignty arguments - that they specifically or Maori generally are not subject to NZ law. The websites and social media sites promoting these arguments also feature the usual high percentage of conspiracy, OPCA, and neo-hippy 'woo'.

These arguments have been dealt with so often by the Courts that there is almost a boilerplate rejection of those claims.

While there hasn’t been much noise in the press there has been a recent upsurge in criminal cases where those sorts of arguments are being made. The concepts seem to be getting some renewed popularity among remand prisoners. The defendants are usually self-representing, or ditching their legitimate lawyers for ‘native counsel’. These could at the most generous be described as ‘bush lawyers’, or less generously as self-deluded activist crackpots.

One example is this tax-fraud case, where the defendants tried to argue that a native council (no such animal) had exonerated them and it superseded the authority of the District Courts. On the second day of a jury trial most of the accused saw the light and decided to apply for legal aid.

http://www.nzherald.co.nz/northern-advocate/news/article.cfm?c_id=1503450&objectid=11409274

Anyway, in the interests of placing a nice handy resource on the web with links to relevant case law, here is what “Adams on Criminal Law” – a leading commentary on criminal law in NZ - has to say on the subject. Wherever possible I have found links to publicly accessible documents e.g. nzlii.org. A few of the judgments are behind paywalls such as Westlaw/ThomsonReuters, though I may have missed finding the accessible versions.

Adams on Criminal Law

CA5.07

Application of criminal legislation to Maori

The courts have in recent years heard arguments asserting that a separate Maori sovereignty or Maori legal system exists, under the Treaty of Waitangi, the Declaration of Independence 1835 or otherwise, and that the general courts therefore have no valid jurisdiction over Maori and/or that the Crimes Act or other penal legislation does not apply to Maori. For an account of pre-1840 Maori customary law relating to criminal offending see R v Mason [2012] NZHC 1361, [2012] 2 NZLR 695.

The jurisdictional arguments have been consistently rejected on the basis that Acts of Parliament, which create the criminal law and confer jurisdiction and powers on the courts, derive their authority from the exercise by Parliament of its legislative powers, as conferred by the Constitution Act 1852 (UK) and its successor, the Constitution Act 1986; see R v Clark CA348/97, 26 February 1998; R v Waetford CA406/99, 2 December 1999; R v Knowles CA146/98, 12 October 1998; R v Fuimaono CA159/96, 24 October 1996, Nga Uri O Te Ngahue v Wellington City Council CA407/03, 18 February 2004 and Phillips v R [2011] NZCA 225 at [10]. In Wallace v R [2011] NZSC 10, at [2], the Supreme Court, in denying leave to appeal, held that objections to the High Court’s jurisdiction over the appellant on Maori sovereignty grounds were “plainly unsound legally”.

Claims that criminal jurisdiction over Maori had been conferred on Maori institutions by the Declaration of Independence 1835, Te Ture Whenua Maori Act 1993/Maori Land Act 1993 or other statutes have also been consistently rejected, see R v Miru CA65/01, 26 July 2001; R v Toia [2007] NZCA 331; Phillips v R (above); Harris v R [2011] NZCA 86 at [4] and Morunga v Police HC Auckland CRI-2004-404-8, 16 March 2004). In Mason v R [2013] NZCA 310 the Court rejected a variant on these arguments, that the Crimes Act 1961 and its predecessors were not a code covering all prosecutions for criminal offending so that customary Maori practices survived and cases could be heard under them. The Court held, at [23]–[26] and [35], that the combination of ss 5 and 9 of the Crimes Act made it clear that the only operative criminal process was that established by statute.

The rejection of arguments based on Maori sovereignty has been so uniform and the basis for reliance on them so frequently rejected, that courts have begun to hold that costs orders can properly be made against appellants relying on them: Gregory v Police HC Auckland CRI-2006-404-29, 13 July 2006 and Gregory v Police HC Auckland CRI-2006-404-298, 23 November 2006.
Where a Maori defendant refuses to enter a plea to a charge on the basis the court has no jurisdiction over Maori, the court should enter a not guilty plea: Police v Habib HC Rotorua CRI-2006-463-84, 25 October 2006.

CA2.04.04

Different cultural conceptions of rights

Cases have arisen where a defendant of Maori or of other non-European cultural background has sought to raise a claim of right defence based on the traditional law or customs of his or her culture, see for example Walden v Hensler (1987) 75 ALR 173 (HCA); Police v Minhinnick MC Rotorua, 3 March 1978.

It will be rare that a claim of right will be successfully raised. First the belief must be as to a proprietary or possessory right. A more general belief that, for example, the law of theft does not apply to Maori (for whatever reason) will be insufficient, as this would arise from ignorance or mistake of law relating to the enactment against which the offence was allegedly committed. Secondly, it is highly likely that the defendant would also need to believe that the customary indigenous law from which the proprietary or possessory right arises is a law recognised by the general law in force in the jurisdiction, see Director of Public Prosecutions Reference (No 1 of 1999) (2000) 134 NTR 1; R v Billy (2004) 191 CCC (3d) 410 (BCSC) and R v Sauls (2004) 191 CCC (3d) 435 (BCSC).

If the defendant seeks to rely on a traditional custom to establish a possessory or proprietary right, the defendant will bear the onus of establishing the existence of the custom alleged: Knowles v Police (1998) 15 CRNZ 423 (HC), at 426; affirmed R v Knowles CA146/98, 12 October 1998.

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Re: New Zealand - Maori Sovereignty - General Info

Postby Hercule Parrot » Sun May 24, 2015 6:58 pm

Thanks - interesting to know
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Re: New Zealand - Maori Sovereignty - General Info

Postby Jeffrey » Sun May 24, 2015 7:02 pm

Good overview for reference purposes. Very useful, thanks.

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Re: New Zealand - Maori Sovereignty - General Info

Postby k1w1 » Wed Aug 19, 2015 1:18 am

Dai Kiwi wrote:Most of the people advancing the FMOTL arguments in NZ also tend to advance Maori Sovereignty arguments...

What I find a bit interesting is that this sort of thing doesn’t seem to occur in either Australia, Canada or the U.S. even though, as you say, it seems to be quite a feature of NZ FMOTL arguments.

It will be rare that a claim of right will be successfully raised. First the belief must be as to a proprietary or possessory right.

I thought I might just add a little something here about the definition of the claim of right in New Zealand.

Over the past twenty-odd years the definition of the NZ claim of right has been changed several times. It used to be that a person must believe their action was “justified”, then in the late ‘90s or early ’00s [?] -- to stop religious nuts etc. abusing it -- it was amended to say a person must believe their actions were lawful. Then, after it was used successfully in 2010 by three Ploughshare actvists in the Waihopai case, it was amended again by a knee-jerk parliament to say a person must believe they had a propriety or possessory right in the property.


And then here’s a recent story about a foolish woman, Charlotte Hareta Marsh, who "lost her home in a court-ordered sale after failing to pay rates since August 2006. She has refused to recognise the authority of Auckland Council and claims to have paid her rates instead to the "rightful land owner" - Arikinui o Tuhoe."
http://m.nzherald.co.nz/property/news/a ... d=11492634
We can call him piggy but not pisspot [we can poke at him but no throwing poo] and we can't compare piggy's ridiculous ideas to the equally ridiculous ideas of Christians, Wiccas, Hindoos, Satanists, Muslims, Voodooists etc.

Is that about right, Burnaby?

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Re: New Zealand - Maori Sovereignty - General Info

Postby Dai Kiwi » Fri Aug 21, 2015 10:14 am

k1w1 wrote:
Dai Kiwi wrote:Most of the people advancing the FMOTL arguments in NZ also tend to advance Maori Sovereignty arguments...

What I find a bit interesting is that this sort of thing doesn’t seem to occur in either Australia, Canada or the U.S. even though, as you say, it seems to be quite a feature of NZ FMOTL arguments.


Part of it is the evolution or mutating of the original sovereign citizen theories, which seem to come from an extreme libertarian view, to the freeman on the land, which outside the US seems to attract both libertarian (right) and anarchist (left) supporters. The native peoples arguments seem to pop up a little bit in Canada and Australia - Burnaby49 can probably talk about the Canadian perspective (hint) - but they are a minor part of it. I'd be interested in knowing if there are SovCit/FMOTL types in Hawai'i.

I think New Zealand is different for several reasons.

The first, most obvious one is that 15% of the population identify as Maori, plus some people identifying as other ethnicity with some Maori ancestry (e.g. Pacific Islander, (south-east) Asian). This is a much higher proportion than the US/Can/Aus native peoples' populations.

The idea that some tribes should be independent because they either did or did not take part in any, some, all, or none of the: United Tribes; Treaty of Waitangi; NZ Wars/Land Wars; post-wars land confiscations; dishonoured land sale conditions (e.g. no reservations)

Maori are disproportionally represented in the bottom of the socio-economic spectrum, including a very high percentage of the prison population.

A fairly socially-liberal history and population

A strong Maori rights movement over the past 40 years, with significant crossover with other social activism - women's rights, anti-nuclear, conservation, anti-globalism, 1%-ers, etc.

Add these to the general effects of the spread of information via the internet, and specifically recent social media, and you get what we have now.

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Re: New Zealand - Maori Sovereignty - General Info

Postby k1w1 » Fri Aug 21, 2015 10:18 pm

Thanks for that Dai Kiwi

I was thinking a bit more about this after I posted and wondered if Maori sovereignty movement is better compared with, say, the Quebec separatist movement rather than with that of the Canadian native peoples.

I say that because what happened to the Maori people with colonisation was a bit different to what the native Americans experienced. For a start, the Maori people are able to address the courts of the land in their own language in the same way a French Quebecan can but a native American cannot. Thus we get the wonderful spectacle of Tama Iti conducting his trial in the Maori language, speaking Maori to the court and the court having to respond to him in that language.

Another thing the Maori got that the native people of other places didn't achieve, as far as I'm aware, but which the people of French Quebec probably did, was the same rights and duties of citizenship as the people of England (Treaty of Waitangi, Article. 3. ..."imparts to them all the Rights and Privileges of British Subjects"). Unlike other native people (and let's face it, the Maori are as native or aboriginal to NZ as the English are) the Maori had their common law right to the possession of their lands recognised, which is what the Maori Land Court was set up to do in 1865 -- to issue deeds to their land so their rights in it could be recognised. This says nothing about the subsequent skulldugery around that court and Maori lands.

Anyway, just a thought I had... maybe vaguely interesting to other people.
We can call him piggy but not pisspot [we can poke at him but no throwing poo] and we can't compare piggy's ridiculous ideas to the equally ridiculous ideas of Christians, Wiccas, Hindoos, Satanists, Muslims, Voodooists etc.

Is that about right, Burnaby?

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Re: New Zealand - Maori Sovereignty - General Info

Postby Dai Kiwi » Sat Aug 22, 2015 3:34 pm

Quebec is an interesting case I didn't think about, though the few examples mentioned in the Canadian topic seem to follow the standard form. So do the Jersey and Man ones. Any Hawaiian variations would be interesting.

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Re: New Zealand - Maori Sovereignty - General Info

Postby Burnaby49 » Sat Aug 22, 2015 5:26 pm

Part of it is the evolution or mutating of the original sovereign citizen theories, which seem to come from an extreme libertarian view, to the freeman on the land, which outside the US seems to attract both libertarian (right) and anarchist (left) supporters. The native peoples arguments seem to pop up a little bit in Canada and Australia - Burnaby49 can probably talk about the Canadian perspective (hint) - but they are a minor part of it. I'd be interested in knowing if there are SovCit/FMOTL types in Hawai'i.


I can't say I've made any focused review of the topic, I'm more of a superficial "what's happening right now" kind of guy, scurrying after the current shiny object. However I have run across aboriginal arguments in the court hearings I've attended. The big one (because at least it was legitimately argued by a first-nations native) was Chief Rock's arguments in his contempt of court trial that he was exempt from Canada's laws by treaty. A total failure and he was convicted of contempt;

Trial Part 1
http://www.quatloos.com/Q-Forum/viewtopic.php?f=48&t=9377&start=460#p184664

Trial Part 2
http://www.quatloos.com/Q-Forum/viewtopic.php?f=48&t=9377&start=480#p184697

Chief's interpretation of his arguments
http://www.quatloos.com/Q-Forum/viewtopic.php?f=48&t=9377&start=460#p184659

Aboriginal rights are also invoked by non-aboriginal Freemen from time to time to try and get them off the hook in their own hearings. Master Gee tried to claim that Burnaby, British Columbia, as you can guess my home municipality, does not exist because it is unceded native land so it still belongs to the natives. He did this as part of his arguments regarding his attempts to avoid paying his annual municipal business license fees. If Burnaby didn't exist they couldn't impose fees on him. He of course lost;

http://www.quatloos.com/Q-Forum/viewtopic.php?f=48&t=10342#p180958

Another was Rory Hawes who, in a more ambitious attempt at evading criminal charges, said that all of the Province of British Columbia was unceded Salish land and therefore the province did not exist along with those inconvenient laws he'd been charged under or the courtroom he was standing in. When that failed he just decided not to show up and an arrest warrant has been issued;

http://www.quatloos.com/Q-Forum/viewtopic.php?f=48&t=10338
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Re: New Zealand - Maori Sovereignty - General Info

Postby grixit » Sat Aug 22, 2015 8:29 pm

Dai Kiwi wrote:Quebec is an interesting case I didn't think about, though the few examples mentioned in the Canadian topic seem to follow the standard form. So do the Jersey and Man ones. Any Hawaiian variations would be interesting.


One extreme case of aboriginal rights is in Africa.

Current thinking about human origins says that Sapiens developed in the interior, and eventually split in two as one group migrated to the eastern coast. The group that migrate later split again, with part migrating to what is now Arabia, later to split again to become the caucasians and orientals. Meanwhile the other part returned to the interior to become the negros. And the group that had stayed in the interior all along? They became the pygmies and hottentots.

There is already a small movement claiming that therefor, the hottentots and pygmies (and whoever else is in that group) are the only legitimate inhabitants of "Mother Africa" and that the negros are merely the first of a bunch of invaders who all
need to leave.

So far i have not heard of any fmotl types adopting that position, but at this point i wouldn't be surprised of they did.
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