NZCPR Newsletter: The Judiciary on Trial

The Marine and Coastal Area (Customary Marine Title) Amendment Bill has now had its first reading in Parliament and has been sent to the Justice Select Committee for deliberation. 

With almost 600 claims on hold while the law is changed – some 200 in front of the High Court with the balance lodged with the Crown for Direct Negotiation – the timeframe for dealing with the Bill is tight. The closing date for submissions is 15 October, and the Bill is expected to be passed by Christmas.

In his first reading speech, Justice Minister Paul Goldsmith, reminded Parliament that the original aim of the Marine and Coastal Area Act was to establish a durable regime that balanced the recognition of Maori customary rights in the foreshore and seabed, with the legitimate interests of all New Zealanders in the coast.

He outlined how the law recognised customary interests through the award of a Customary Marine Title with valuable rights including “the ownership of non-Crown minerals, involvement in planning, the ability to permit or decline resource consent applications, the right to be engaged when new significant infrastructure is proposed…”

He explained those rights had been included in the 2011 legislation on the basis that the test was “exacting”: claimants had to not only have held their specified area according to ‘tikanga’ or Maori custom, but they also had to prove they had exclusively used and occupied it continuously from 1840 to the present day without substantial interruption.

The Minister then outlined how the Courts had been incorrectly interpreting the law: “In making decisions on applications over the last five years, the courts have interpreted the test for customary marine title in ways that have diluted some of these strong requirements. The Court of Appeal most recently has interpreted the test in a way that effectively did away with the exclusivity requirement and the need for continuity, and significantly reduced to the scope of what can constitute a substantial interruption.”

By ignoring the exacting tests specified by Parliament, the Courts were, in effect, facilitating tribal control of most of the coastline.

The Minister explained that’s why a law change was needed: “The purpose of these amendments is to restore the exacting nature of the test for customary marine title and to set aside the Court of Appeal and earlier High Court interpretations of the test that strayed from the meaning Parliament intended.”

In order to ensure the Courts interpret the Marine and Coastal Area Act as Parliament intended, the Bill provides guidance to Judges on how they should implement the tests set down in the law.

It specifies the key test of “exclusive use and occupation” not only requires claimants to prove they have had an intention to control their area to the exclusion of others, but that they also had and still have the ability to do so. The meaning of “without substantial interruption” has also been tightened.

The Coalition believes that by reinforcing all aspects of the tests specified in the original law and cancelling all of the erroneous judgements made by the Courts, they have provided sound guidance to Judges hearing Marine and Coastal Area Act claims to deliver the outcomes that Parliament originally intended.

However, in spite of the Coalition’s best efforts to fix the law, National’s 2011 Marine and Coastal Area Act risks becoming an absolute travesty of justice for our country. It stands as one of the worst political decisions ever made by a New Zealand Government. 

To put this into context, the question New Zealanders should be asking is how on earth have we gone from a position where the land below the high-water mark to the edge of the Territorial Sea, that was owned by the Crown in the public interest for over 160 years, is on the cusp of being transferred to private tribal groups. 

The reality is that Maori demands for the foreshore and seabed have been on-going. The Courts have dealt with the matter many times before. Until recently, however, they have taken the view that the area must be retained in public ownership for the benefit of all New Zealanders – as indicated by the declaration of the Chief Justice in 1870: “I cannot contemplate without uneasiness the evil consequences which might ensue from judicially declaring that the soil of the foreshore of the Colony will be vested absolutely in the natives if they can prove certain acts of ownership.”

Yet here we are today, facing the prospect that Maori will end up controlling the coast.

The intermediate step, of course, was the Court of Appeal ruling in 2003, which overturned Crown ownership of the coast. In her judgement, the Chief Justice suggested that some “pockets” of “discrete” customary title might still exist: “It is generally accepted that few mainland pockets of customary land remain in New Zealand… Whether or not the appellants will succeed in establishing any customary property in the foreshore and seabed lands claimed and the extent of any interest remains conjectural. In the past, claims to property in areas of foreshore and seabed seem to have identified relatively discrete areas comprising shellfish sandbanks, reefs, closely-held harbours or estuaries, and tidal areas or fishing holes where particular fish species were gathered.” 

The Court clearly did not contemplate customary title extending over the entire coastline out to the 12 nautical mile edge of the Territorial Sea.          

However, as a result of National’s repeal of Crown ownership in 2011, that’s precisely the situation we could face.

What this indicates, of course, is that the criteria for determining customary title, set out in the original law is far too discretionary – not only the tests, but the Court process itself. 

In earlier times, when Courts dealt with claims for customary rights to the foreshore and seabed, not only claimants gave evidence to Judges, but opponents as well.

This meant when applicant groups told the Courts they’d had exclusive use of a coastal area and had driven ‘strangers’ away, the community was able to refute their evidence by explaining the coast had been used as a public road for transportation and stock movement, that picnics and races along the beach were regularly held, that locals engaged in widespread fishing and shellfish gathering, that sand was mined and boats loaded and unloaded – all without requiring consent and without access being challenged.

The Judges making their decisions in those days had the full picture.

This is where the Marine and Coastal Area Act falls down badly. While it uses an adversarial court system to make determinations – instead of an inquisitorial process – there is no adversary. This means that at the most fundamental level, justice cannot be done.

Part of the reason for the problem is the design of the Act itself. By offering tribal groups up to $458,000 in taxpayer funding to prepare their cases but providing no assistance to those wanting to oppose the claims, the law not only encouraged hundreds of opportunistic applicants to file claims, but it precluded almost all opposition. This is in spite of local communities being outraged by the knowledge that underserving claimants may gain control of areas where they have exhibited virtually none of the actions required by law to prove ownership.

Going forward, this situation must be corrected if the Coalition’s law change is to have any hope of delivering justice for all New Zealanders.

Until now, the Marine and Coastal Area Act has been so badly manipulated by Judges, that their interrogation of history has been cursory.

Judges in both the High Court and the Court of Appeal rejected any need to assess what they described as “western property concepts” to instead focus almost entirely on the “tikanga” test. This meant that if the so-called ‘tikanga experts’ – appointed by the Courts with the agreement of applicants – declared claimants had held their specified area according to custom since 1840, Judges accepted folklore dressed up as evidence and found in their favour.

That meant the second limb of the test set out in the law, that required proof of those so-called “western property concepts” – namely that applicants had held their claimed area exclusively and continuously since 1840 without substantial interruption – was almost completely ignored.

What’s even worse is that since almost all claims lodged were overlapping, instead of ruling them all out for not meeting the exclusivity test, Judges invented a new law – “shared exclusivity” – to enable all claimants to share the benefits.

Fortunately, through their law change, the Coalition has put an end to this legal nonsense. Whether their amendments will deliver the results intended will depend on whether the Judges follow the new requirements set out in the law.

The amended law will be applied to all claims not yet decided. Those that have been decided and are subject to appeal, will be determined by a case before the Supreme Court. Led by the Attorney General and supported by the Landowners Coalition, we are hoping to convince the Justices that the law has been misinterpreted by the High Court and the Court of Appeal and that all cases should be returned to the High Court to be re-considered under the clarified law.  

This case will be an important test for the independence of the Supreme Court. Those concerned about judicial activism will be watching the outcome with interest.

This week’s NZCPR Guest Commentator Frank Newman, convenor of the Landowners Coalition and a former local body councillor, remains worried that the amendments in the Bill still leave too much discretion to activist judges:

“There is growing concern about political activism in the legal fraternity, including within the judiciary.  The passing of the Bill will be an important test for the judiciary. How they respond will be watched intensely – the High Court in particular.

“The Supreme Court appeal of the Edwards case will also be carefully scrutinised. A number of high-profile commentators with legal experience have expressed their concerns about the rise of judicial activism and the use of tikanga. If the bench snubs the will of Parliament, then it would add fuel to the calls for ‘corrective’ action by the Government.”

With regards to the Bill in front of Parliament, our submission to the Select Committee, will focus on ensuring the test for exclusive use and occupation is robust, that “wahi tapu” rights to exclude the public – which are too open to manipulation – are removed, and that the need to involve all applicants in resource consent decisions about their claimed area is abandoned as unworkable.

Furthermore, just as the Crown’s Direct Negotiation process includes public submissions to ensure the Minister hears from both claimants and community opponents to inform good decision-making, we will recommend a public submission process be introduced into the High Court to overcome the current debilitating lack of opposition to the claims.

Since it is the role of the Attorney General to represent the public interest in the Court, that Office should be tasked with orchestrating public submissions to ensure Judges are better informed when making their determinations.

There are many other problems with the Marine and Coastal Area Act, including complaints by Judges that the dual approach for dealing with claims – through the High Court and Crown negotiation – is unworkable.

But ultimately, as a result of the law changes, the judiciary is now on trial. Should they continue to prioritise tikanga, then the Marine and Coastal Area Act must be scrapped, and Crown ownership restored under the 2004 Foreshore and Seabed Act.

New Zealand simply cannot afford to have activist judges effectively privatise our entire coastline to tribal interests to exploit for their own benefit.

In the meantime, we would urge everyone concerned about the future of our coastline to send in a submission before the 15 October deadline – full details can be found HERE.

The NZCPR intends supporting the Bill with suggestions for how it can be improved. You are more than welcome to adapt our recommendations for your own submission – our draft submission can be viewed HERE.

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THIS WEEK’S POLL ASKS:

*Do you believe the judiciary can be trusted to act impartially when assessing tribal claims for the coast?

Dr Muriel Newman established the New Zealand Centre for Political Research as a public policy think tank in 2005 after nine years as a Member of Parliament. The NZCPR website is HERE. We also run this Breaking Views Blog and our NZCPR Facebook Group HERE.