Frank Newman: It's a Win! Of Sorts...

There is no doubt the announcement by Minister Paul Goldsmith that the Marine and Coastal Area Act is to be amended to reaffirm Parliament’s intentions when it passed the Act in 2011, is good news worthy of applause.

The Minister says the changes include:

• 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.

Most importantly and quite dramatically, it removes the precedent effect of the appalling decisions in the “Edwards” case in the High Court and the subsequent appeal in the Court of Appeal.

I am a member of the Landowners Coalition Inc which is a party to the Edwards case and has registered an interest in all 202 cases before the High Court.

Landowners is acting on behalf of the public interest and is the only private party doing so in the Edwards case. Unlike the Applicants (iwi and hapu), no government funding assistance is available to those challenging the Applicants but we were able to take part due to the generosity of thousands of individuals and the efforts of the NZCPR.

Unfortunately, the concerns the NZCPR and others raised in 2010 and 2011 about the Marine and Coastal Area Act were ignored by Minister Chris Finlayson and the Key government.  

Time has shown those  concerns were fully justified, but the process has cost a lot of money and the irreversible granting of customary title for areas that have already been decided in the High Court by Justice Churchman, or by others using his judgment as a precedent.

It was at the first case management conference held in Whangarei some years ago that the Orwellian notion of “shared exclusivity” was raised.  It was not raised by an Applicant group as one might expect, but by Justice Churchman! The reaction of those present was memorable – it was as if the air had been sucked out of the room while everyone took breath to comprehend his words.

I considered the concept of “shared exclusivity” to be absurd and remain of the view that the Judge over-stepped his role by suggesting Applicants consider a legal argument that undermined a critical hurdle prescribed in the law. It was then that I formed the view that we were unlikely to win any argument seeking to limit the rights of claimants with Justice Churchman presiding.

Equally as concerning was the decision of the Court of Appeal. The problem was expressed well in a commentary by Graham Adams:

“How the Court of Appeal arrived at its expansive ruling on MACA seems to be a result of the legislation being poorly drafted and activist judges interpreting the law to accord with their views of the Treaty’s role and the importance of tikanga (Māori customs and practices).

The court’s treatment of Section 58 of MACA is proving particularly contentious… The majority judges decided that a literal reading of the second leg of the test…would be too onerous because it would mean virtually no claims could succeed. That outcome, it declared, would be ‘inconsistent with the Treaty/te Tiriti’.

The mere fact that Parliament is now inserting a declaratory statement into the amending legislation to overturn the reasoning of the Court of Appeal and High Court is remarkable in itself.  That Parliament should see the need to override the judgments of senior members of the judiciary in such a confronting manner is extraordinary.

In my view, this chastisement is of a scale that warrants the presiding justices to be removed from any future cases involving the Marine and Coastal Area Act. They should be given a red card. In the judicial system we need judges to be judges, not judges who are advocates.

While we should welcome the coalition government putting things right (and in this regard the initiative of NZ First to include it in their coalition agreement with National should be acknowledged) the proposed amendments still fall short of what should happen to the law.

It is still highly likely that customary title will be granted in certain cases. How much of the coast will fall into customary title will be up to the courts to determine, based on the new guidelines.

The question is should judges be trusted with such an important issue?

In my view, there is too much activism at all levels within the legal fraternity to allow discretion.

The right thing to do would be to shut the door on customary title. The entire marine and coastal area should be returned to Crown ownership and managed for the benefit of all New Zealanders.  That is the simple and correct solution. Unfortunately, the coalition government, and National in particular, appears to lack the testicular fortitude to do that.

They instead are returning to their 2011 position of appeasement, and pretending the law as passed then is fit for purpose. It’s not. National, (and presumably its coalition partners), are obviously happy to go along with Chris Finlayson’s 2011 prediction that as much as 10% of the coast could be affected.

Is the public prepared to accept 10% of the coast and seabed out 12 nautical miles falling into the hands of iwi and hapu where they will have ownership rights, including veto rights over licences and resource consents? 

In practical terms, we are now back at square one. In addition to the appeal of the Edwards case to the Supreme Court to be heard in November, we must start afresh on another case to establish a precedent.

We will again need to engage legal counsel to argue how high the bar to customary title should be. Previously we had to argue what we believed was Parliament’s intention at the time they passed the legislation. Now we will have Parliament’s reaffirmation to support our argument and clarity on the meaning of terms that most sensible people would see as obvious – words like exclusive and substantial.

But we will also have to counter the arguments presented by a tribe of taxpayer-funded lawyers, and there’s every possibility we will again face judges intent on bending over backward to assist Applicants – perhaps even Justice Churchman again!

And it remains to be seen what standards of evidence will be applied when Applicants provide “proof” that they have used an area “exclusively” without substantial interruption and continuously since 1840. The simple fact is there is very little proof, but an abundance of stories and tales handed down through the generations and presented as gospel by so-called experts who lack the qualifications and independence one normally associates with expert evidence. 

It would be a mistake to think the “clarification” amendment to the Marine and Coastal Area Act is the end of the matter. It’s not.

We have a job to do all over again.

Frank Newman is an investment analyst, accountant, political commentator, convenor of the Landowners Coalition and a former local body councillor.