New Zealand - Maori Sovereignty - General Info
Posted: Sun May 24, 2015 3:40 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tax-fraud case, where the defendants tried to argue that a native council (no such animal) had exonerated them and it superseded the authority of the District Courts.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-advo ... d=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.
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-advo ... d=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.