David Farrar: Parliament to overturn activist court

Paul Goldsmith announced:

The Government is proposing legislation to overturn a Court of Appeal decision and amend the Marine and Coastal Area Act in order to restore Parliament’s test for Customary Marine Title, Treaty Negotiations Minister Paul Goldsmith says.

“Section 58 required an applicant group to prove they have exclusively used and occupied an area from 1840 to the present day, without substantial interruption.

“However, last year the Court of Appeal in Re Edwards made a ruling which changed the nature of the test and materially reduced the threshold.

Basically the Court decided exclusive doesn’t mean exclusive, but means could be exclusive if they wanted it to be, plus other strange findings.

The effect would have been to massively expand eligible areas for CMT from discrete areas to most of the coastline.

The Government is:

• Inserting a declaratory statement that overturns the reasoning of the Court of Appeal and High Court in Re Edwards, and the reasoning of all High Court decisions since the High Court in Re Edwards, where they relate to the test for CMT.

• Adding text to section 58 to define and clarify the terms ‘exclusive use and occupation’ and ‘substantial interruption’.

• Amending the ‘burden of proof’ section of the Act (section 106) to clarify that applicant groups are required to prove exclusive use and occupation from 1840 to the present day.

• Making clearer the relationship between the framing sections of the Act (the preamble, purpose, and Treaty of Waitangi sections) and section 58 in a way that allows section 58 to operate more in line with its literal wording.

This is how it should be,. The Court has reached an interpretation that is not what Parliament intended, so Parliament amends the law to make it clearer.

David Farrar runs Curia Market Research, a specialist opinion polling and research agency, and the popular Kiwiblog where this article was sourced. He previously worked in the Parliament for eight years, serving two National Party Prime Ministers and three Opposition Leaders.