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Flavell on Lord Cooke of Thorndon's Death

Maori Party Expresses Sympathies at the Death of 'one of the foremost jurists of our time'; The Lord Cooke of Thorndon.

Te Ururoa Flavell, Member for Waiariki Thursday 31 August 2006

The Maori Party today shared in the tributes that are being paid to one of Aotearoa's most influential judges, The Right Honourable Sir Robin Brunskill Cooke, The Lord Cooke of Thorndon.

"We look upon Lord Cooke as one of the foremost jurists of our time" said Te Ururoa Flavell, Treaty of Waitangi spokesperson for the Maori Party.

"The sorrow of his passing reminds us of the significant statements he has left our nation, including that "the Treaty signified a partnership between races"; or that "the duty of the Crown is not merely passive but extends to active protection of Maori people in the use of their lands and waters to the fullest extent practicable".

"The complex cases he presided over, the fine judgements he has delivered, the skilful application of a brilliant mind, were qualities which were recognised internationally when Lord Cooke became a British law lord and sat on the Privy Council" said Mr Flavell.

"While we express our sincere sympathies to the family of Lord Cooke, we hope that they will find comfort in the knowledge that the momentous legacy he has left behind through his judgements will have an ongoing role in helping to shape the future direction of this land".

Background Statements

* In the case of the Court of Appeal in New Zealand Maori Council v Attorney-General, [1987] 1 NZLR 641; Lord Cooke described Te Tiriti o Waitangi as still a "valid compact" which imposes "fiduciary" duties of "mutual obligation" between the Crown and Maori tribes.

* Regarding the interpretation of Te Tiriti o Waitangi, his 1987 judgement said that the task of interpretation "should not be approached with the austerity of tabulated legalism" and that a "broad, unquibbling and practical interpretation" was necessary. [New Zealand Maori Council v Attorney-General]

* In the case, Te Runanga o te Ika Whenua Inc v Attorney General [1994] 2 NZLR 20, 24; Lord Cooke observed of the Crown's historical power to extinguish Maori customary title: "An extinguishment by less than fair conduct or on less than fair terms would be likely to be a breach of the fiduciary duty widely and increasingly recognised as falling on the colonising power".

* In the last case heard by Lord Cooke as a member of the Privy Council Judicial Committee, McGuire and Makea v Hastings District Council [2001] NZRMA 557, there were many significant statements for Maori land owners, including that the Maori values referred to in the Resource Management Act are "strong directions, to be borne in mind at every stage of the planning process".

Helen Leahy


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