Essay
The Relevance of the Common Law to the New Zealand Legal System
The legal system of New Zealand comprises legal principles obtained from the English 'common law', legislation or precedent which comes from the amassed and compiled court decisions or resolutions. Constitutional guidelines which are embedded in the common law involve specific civil rights, like the right to freedom of expression, including the Governor-General's specific powers and the majority rule in the parliament system (Gearey, Morrison, & Jago, 2013). Similar to England, the rule of parliamentary sovereignty is firmly institutionalized and Parliament in consequence has the authority to overrule or veto, or more generally amend, certain common law rulings established by the courts. In effect, just like in almost all common law legal systems, there is a fairly definite distinction between the lawmaking tasks and actions of the Parliament and of the courts (Miller, 2014). Parliament generally abstains from getting involved in the customary common law domains of equity, tort, contract and others apart from when amendment of the law is thought to be needed.
The focus of the Parliament is generally placed on those facets of the law that are of customary political, economic, or social value. The courts should apparently exercise, interpret, and represent the law ratified by Parliament. And, as regards conflict between the two branches of government it is most probable to happen if the courts are believed to have represented the law in contrast to the objectives of the Parliament, or in effect the purposes of the government (Gearey et al., 2013). Nevertheless, the New Zealand legal system has began to create and establish its own case law and precept which, even though the same as the English law, deviates in several major regards. The evolution of New Zealand case law has been greatly shaped by resolutions from higher courts in Canada, Australia, England, and other common law countries (Rudman, 2013; Gearey et al., 2013).
One example of a common law applied in New Zealand is the contract law. Contracts assign property rights, rewards, and responsibilities among those involved in the contract. Only a handful of major aspects can be expected in a contract paper, and contract disputes usually take place over reversed situations, as well in instances of intentional infringement (Rudman, 2013). Disputes are resolved in different ways, such as through court hearing, arbitration, and negotiation. During a settlement proceeding the courts read and analyze the contracts, and could insert terminologies into the contract so as to scale down inconclusiveness (Todd, Burrows, & Finn, 2011). According to Todd and colleagues (2011), the courts in New Zealand extensively exercise the common law model of contract disputes, yet numerous decisions of the Parliament had reduced the power of the common law.
For specific economic areas, like labor or employment, the law is particularly customary. Any person involved in an employment contract could submit a request to the Employment Relations Authority for a disagreement over certain issues in the contract to be tried. The Authority deals with both grievances and disputes similarly (Rudman, 2013). Another option for a party or an individual who wants to file a dispute is to apply for arbitration support from the Ministry of Business, Innovation and Employment (Rudman, 2013). This could be a logical action, because the Authority is needed to guide or help the parties apply for arbitration support.
Differences between the English and Maori Versions of the Treaty of Waitangi
The Treaty of Waitangi, which is the fundamental manuscript of contemporary New Zealand, is the manuscript through which the British Crown acquired supremacy over the nation, turning New Zealand into one of the English colonies. The treaty was approved by the Maori chiefs in the mid-19th century (Brownlie, 2016). The treaty had to be transcribed into the Maori native tongue because the Maori people had a low level of proficiency in English. The translation in the Maori language has several major differences from the English version. Although the same, the two versions are somewhat dissimilar in meaning. One of the issues is that certain terminologies in the English translation, like 'government', do not have counterparts in the Maori language, hence those who translated the treaty had to create new terms to embody these meanings. The term 'kawanatanga'-- meaning 'governorship'-- was used to imply 'government'. The Maori people were not familiar with the idea of a governor, or its responsibility or purpose. They were only familiar with chieftainship, which is 'rangatiratanga' in Maori (Calman, 2011). The Maori translation of the treaty stated that Maori would allow the British crown to assume the position of 'governorship' provided that the Maori are allowed to preserve their chieftainship position.
Undoubtedly there is an underlying issue of cultural difference at this point. The customary Maori belief about land was that it should not in any way be separated from its original inhabitants; hence enduring or perpetual ownership or control by another group of people was never possible: “A tribe had authority over a given area, but the land belonged to the past, present, and future generations. It was not an alienable commodity. People were part of the land; they could not own it” (Tymoczko & Gentzler, 2002, 35). The interpretation of the treaty by the Maori people would have been influenced by such an idea. The English version of the treaty makes use of British wordings and notions, such as land ownership and sovereignty, which in the Maori translation are replaced by quite dissimilar Maori wordings, such as those aforementioned. Thus it is logical to assume that a cultural-based translation that intends to provide an explanation of the European wordings to the Maori people has definitely not been carried out (Brownlie, 2016) in the document.
In case of two diverging, conflicting versions with the same legal power of the same treaty, it is quite fascinating to explore the response of the Waitangi Tribunal. It is essential to bear in mind that in law it is unacceptable or forbidden that a legal document should be assigned with dissimilar meanings, hence the Treaty of Waitangi is an extremely difficult case to resolve because of conflicting translations (Tymoczko & Gentler, 2002); Brownlie, 2016). One of the major cases filed to the Tribunal exploited the dissimilarities in the Maori and English translations of the treaty. The Maori translation mentions the word 'taonga', which implies vast riches or everything that is valuable to Maori, such as their native tongue, and which had been clearly omitted in the English translation (Brownlie, 2016). These differences in the two versions of the treaty make it even more controversial.
References
Brownlie, S. (2016). Mapping memory in translation. New York: Springer.
Calman, R. (2011). Treaty of Waitangi. New Zealand: Oratia Media Ltd.
Gearey, A., Morrison, W., & Jago, R. (2013). The politics of the common law: perspectives, rights, processes, institutions. UK: Routledge.
Miller, L. (2014). Understanding commercial law (8th ed.). Wellington: LexisNexis.
Rudman, R. (2013). New Zealand employment law guide. New Zealand: CCH New Zealand Limited.
Todd, S., Burrows, J., & Finn, J. (2011). Contract law in New Zealand. UK: Kluwer Law International.
Tymoczko, M. & Gentzler, E. (2002). Translation and power. Boston: University of Massachusetts Press.
