NZCPR Newsletter: A Question of Sovereignty

Who’s running our country?

It seems like a simple enough question.

In New Zealand, our Parliament is sovereign. With National, ACT, and New Zealand First commanding a majority of votes in the House, the elected Coalition holds the reins.

But is it that straightforward?

In a representative democracy like ours, three pillars share the work of governing: the Legislature, the Executive, and the Judiciary.

The Legislature - our elected House of Representatives, acting through Parliament - is responsible for law-making.

The Executive, made up of the Prime Minister’s Cabinet and government ministries, designs the legislation, puts it into action, and manages day-to-day affairs.

And the Judiciary, which operates independently, interprets and applies the law according to the intention of Parliament when it was passed.

In reality, the law-making process can be fraught. Not only is it complex, but unintended consequences often do not emerge until long after legislation is enacted.

When problems do appear, if they are serious enough, it is the responsibility of Parliament to correct the law, so it delivers what was originally intended - or if circumstances have changed, repeal the law altogether.

A current example of a fundamentally flawed law that is unworkable is the Marine and Coastal Area Act. Fourteen years after being introduced by National to satisfy the election promise of their Maori Party coalition partner, this law that replaced Crown ownership of the foreshore and seabed with a regime that opened up the coast to tribal claims, has turned into a disaster that now threatens national security.

At the time, the public, who were overwhelmingly opposed to the law change, were assured by then Attorney-General Chris Finlayson, that no more than 10 percent of New Zealand’s 20,000 km coastline would end up controlled by Maori.

He argued the test for a Customary Marine Title was so stringent that only a minority of claimants would succeed.

The first requirement was that applicants must have held their claimed area in accordance with Maori custom or “tikanga”.

A Regulatory Impact Statement issued by the Ministry of Justice at the time, explained that while tikanga was to be applied to the first limb of the test, it was specifically ruled out of the second limb on the basis it would create too much “uncertainty”.

The second limb of the test was instead based on common law: claimants had to have “exclusively used and occupied the area without substantial interruption from 1840 to the present day.”

Under a common law interpretation, “exclusively used” meant claimed areas could not be shared by others - ruling out overlapping claims. And “occupied without substantial interruption” ruled out raupatu applicants whose coastal land had been confiscated for historical insurrection, along with those whose land had been willingly sold.

This reasoning led to reassurances: there was nothing to fear from the repeal of Crown ownership of our foreshore and seabed since successful claims would be limited to a small number in remote areas.

However, the Maori Party, which was fully involved in the law-making process, had other ideas. In a “Keeping our promise” pamphlet, they informed supporters that the tests for customary title had been designed to work in their favour:

“Tests incorporate tikanga, allowing for variations among iwi, transfers of rights between hapu, and for tikanga to evolve. Tests do NOT require claimants to hold adjoining land (so raupatu iwi can claim customary title). Allowing others to fish, and overlapping rights of neighbouring hapu, do not disqualify claims (manaakitanga is part of tikanga)…”

In other words, the Maori Party had made sure that applicants with alienated land that had either been confiscated or sold would not be disqualified, and, as long as “tikanga” - which includes ‘manaakitanga’ or ‘sharing’ - was included in the test, nor would a multitude of overlapping claims.

And that’s how it played out in Court: All of the Courts - the High Court, the Court of Appeal and the Supreme Court - have interpreted the law exactly as the Maori Party claimed, with tikanga taking precedence over the common law requirements in the test.

If only a handful of claims had been lodged, it probably wouldn’t matter much. But word had gone out and on the eve of the seven-year deadline for lodging claims, upwards of 600 applications flooded in, covering the entire New Zealand coastline many times over.

The implications of the Marine and Coastal Area Act for our country are alarming. As the first cases coming before the Courts were found - almost without exception - in favour of claimants, it became glaringly obvious that the “no more than 10 percent” guarantee was fiction, and Maori tribal groups were on the cusp of securing strategic control of our entire coastline and Territorial Sea.

In other words, New Zealanders had been duped.

In response, the new Government promised to “put it right” by introducing an amendment to the Act that strengthened the tests to ensure they delivered what Parliament intended - namely a minority of successful claims in remote coastal areas.

In addition, all judgments on claims that had been through the Courts but were not finalised when the law change was announced in June last year were to be annulled, with the cases re-heard under the amended law.

The only exception was a handful of cases that had been appealed to the Supreme Court, which were scheduled to be heard last November, with a judgment not expected until well into 2025.

However, two weeks after that November hearing – and just days before the Coalition’s Amendment Bill was expected to be passed into law - the Supreme Court rushed out a partial judgment that aimed to stop the law change going ahead by essentially declaring that tikanga must be the over-riding consideration in claims for the coast.

In other words, since the activist judges of the Supreme Court didn’t support Parliament’s intention to restrict the number of successful applications, they changed the law to ensure most claimants will succeed.

In response to the judgement, the Coalition put their Amendment Bill on hold pending advice from Crown Law. Now, six months later, there’s been nothing but silence.

So, in answer to our question of who runs the country, it appears it is not our elected Government, but the unelected and unaccountable judges of our highest Court.

Whether Parliament has in fact forfeited sovereignty to the Supreme Court – remains to be seen.

But the defiant manner in which the judiciary is circumventing the intentions of Parliament should leave the Coalition in no doubt whatsoever, that no matter what changes they make to the Marine and Coastal Area Act, activist judges will still find a way to deliver the coast to Maori.

In such a hostile environment there is no other option than to deal with this law in a similar way to the disastrous Resource Management Act reforms. Since Labour’s attempt to update and improve the RMA was widely regarded as being far worse than the original legislation, it has been repealed and the original law re-instated to provide certainly, while an alternative is developed.

With the Marine and Coastal Area Act clearly beyond legislative repair, it should also now be repealed and the original 2004 Foreshore and Seabed Act reinstated to provide certainty while future options are considered.

And with the Courts once again starting to award Customary Title to claimants, this matter is now urgent.

This week’s NZCPR Guest Commentary features extracts from research undertaken in 2010 by Treaty expert and then Canterbury University Law Lecturer David Round, who warned about the dangerous consequences of the Maori Party’s proposed law changes in the Marine and Coastal Area Act:

“This new law will be the most indescribable gift to Maori of an enormous part of the remaining public property and public wealth of this country. It will deprive the rest of us of any possibility of enjoying the immense economic opportunities which the foreshore and seabed affords and which, heaven knows, we so desperately need…

“Over an enormous part of the coastline of our wonderful country, perhaps all of it, the way will be laid open for Maori ownership rights - they will have immense influence on any proposal for anything. Undersea cables, marine farms, tidal power, airspace, all sorts of minerals…

“Customary owners will have a veto on all Resource Management Act proposals for or near their coastline. Boat ramps, whitebait stands, jetties, anything…

“The foreshore and seabed deal, if properly handled, will guarantee tribal elites a long-term future clipping the ticket on everything that goes on, and will keep them in the luxury to which they are rapidly becoming accustomed.”

David’s warning is as relevant today as it was back then. It’s why Maori radicals are so viciously asserting what they say are their rights. The foreshore and seabed represents an indescribable win - if they control it, they will be well on their way to realising their He Puapua ambition of tribal rule by 2040.

These days, the Maori Party, which orchestrated the law change, has dropped its benign façade. MP Takuta Ferris revealed their true colours in a recent Parliamentary debate, when he stated: “It's our country. You're in a Maori country.”

Imagine how it will play out if claimant groups that are also openly hostile to the Crown and the public good are given control of New Zealand’s coastline. Such an outcome would create a profound national security risk.

The point is that New Zealand is no longer the “benign strategic environment” described by former Prime Minister Helen Clark. Today’s geopolitical climate is undeniably hostile - through both internal and external threats.

Only weeks ago, the Chinese People’s Liberation Army dispatched three warships armed with ballistic missiles with a 1,000 km range into our region to undertake live fire exercises within 300 km of the Tasmanian coast.

Authorities only became aware of what was happening when a Virgin Australia commercial airline pilot with a flight path over the area, intercepted an emergency call from a warship warning him to immediately divert. Altogether 49 commercial aircraft with flight paths over the area were forced to change course.

The Chinese not only failed to notify our government of their deployment of warships to patrol our region and conduct live-fire drills, but they also deliberately excluded us from their negotiations with a New Zealand Realm Nation - despite our constitutional responsibility for the foreign affairs and security of the Cook Islands.

The Chinese are hungry for rare earths and other strategic seabed minerals. Should title to our foreshore and seabed pass to iwi, how long will it be before the Chinese are raping our coast under long-term mining arrangements providing a perpetual royalty income stream to the tribal elite?

In this strategic environment of increasing geopolitical tensions, it is no longer safe to allow control of our country's coastline and Territorial Sea to fall into tribal hands. National security concerns demand that any move that could undermine sovereign control of our coast should be abandoned.

As a nation we simply cannot afford to put New Zealanders at risk by compromising defence operations, nor limiting the government's ability to adequately respond to national security concerns.

Indeed, it is ridiculous that anyone or any group should have rights akin to ownership over the nation’s foreshore and seabed. It should be “owned” by the Crown on behalf of all New Zealanders - as it was for most of our history. To give it away to a group of rent-seekers acting in their own self-interest is not only grossly stupid it is bordering on treasonous.

Since one Parliament cannot bind another, the Coalition needs to realise it no longer has to prop up a dangerous and highly destabilising law that was promoted by a Party that is now openly advancing anarchy.

The fatally flawed Marine and Coastal Area Act should be repealed and the 2004 Foreshore and Seabed Act restored to provide certainty, security and to protect the public good.

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THIS WEEK’S POLL ASKS:

*Is it in the national interest for the Coalition to carry on trying to reform the unworkable Marine and Coastal Area Act, or should they now repeal it and restore the Foreshore and Seabed Act?

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.