2009 N.Z. L. Rev. 549 (2009)
Treaty of Waiting and Maori Custom Law, The; Johnston, Kerensa

handle is hein.journals/newzlndlr2009 and id is 569 raw text is: The Treaty of Waitangi and
Maori Custom Law
KERENSA JOHNSTON*
Introduction
This review examines two cases that illustrate the continuing problems
that the courts encounter when asked to resolve tensions between common
law rights and Maori custom law, or when Maori seek external remedies
from the courts to address potential breaches of rights and natural justice in
cases involving intra-iwi disputes. Both cases illustrate the need for iwi to
develop robust internal dispute resolution processes that can be used before
disagreements and uncertainties escalate to such an extent that legal action
is the only viable option. When those internal resolution processes do break
down, however, there needs to be some way of addressing the breakdown
effectively, so that relationships between iwi members and others can be
rebuilt, rather than destroyed. The courts and the Waitangi Tribunal can
assist in this process by considering how the best principles of the common
law - fairness, equality, and process - can be applied compatibly with
custom so that a proper review takes place in a way that allows the issues
being contested to be considered fully. In some cases, mediation will help
to achieve this outcome and in others, court orders or Waitangi Tribunal
recommendations can help to direct iwi members towards a sustainable
resolution.
Treaty Settlement Processes
The Treaty settlement process and, in particular, the negotiations that take
place between the Crown and Maori to achieve the settlement of Treaty
claims is described by the courts as a political process, requiring political
judgements by the decision-makers about whom to negotiate with, when, and
how; see Potaka-Dewes vAttorney General [2009] NZAR 248, para 41. This
position makes it difficult for Maori to challenge successfully the settlement

*Faculty of Law, The University of Auckland.

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