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| Whose Foreshore? Whose Seabed? When the Marine and Coastal Area Act was originally passed back in 2011, fears about the coastline becoming off-limits to Pakeha were routinely allayed by National Party politicians pointing out that the tests imposed were so stringent that only a modest percentage of claims (the then treaty negotiations minister, Chris Finlayson, predicted 10 percent) would end up being granted. |
A PRIVATE MEETING involving two Cabinet Ministers, sundry departmental officials and representatives of the seafood industry has achieved headline status. According to the 1News Māori Affairs Correspondent, Te Aniwa Hurihanganui, evidence exists of Minister for Treaty Settlements, Paul Goldsmith, and the Minister for Oceans & Fisheries, Shane Jones, offering industry representatives reassurance that proposed Government changes to the Marine & Coastal Areas Act would likely see the percentage of New Zealand’s coastline subject to customary marine title claims plummet from 100 to just 5 percent.
The 1News report has the ministers’ meeting occurring on 21 May 2024 – two months before the July announcement of the Coalition Government’s proposals regarding the Act. The inference being that favoured elements within the New Zealand fishing industry have been promised ongoing access to marine resources at the expense of mana whenua.
But is this inference justified? Is this really a case of “crony capitalism”, or, even worse, “racist crony capitalism”? The answer, thankfully, is: “No.”
For a start, the meeting between Goldsmith, Jones and seafood industry representatives took place in the context of a Coalition Agreement undertaking to roll back the highly controversial 2023 Court of Appeal decision which upheld customary ownership claims from Māori iwi and hapu, claims now affecting, collectively, 100 percent of the New Zealand coast.
The Court of Appeal’s judgement construed the Marine & Coastal Area Act in such a way that it effectively negated the onerous proofs of customary title demanded by Parliament. The justices argued that in an Act which also entrenched the undertakings of the Treaty of Waitangi, such proofs of ownership could not be taken literally.
The surge of claims to customary marine title which followed the passage of the 2011 Act was driven by the requirement that no further claims would be considered after 2017. The Court of Appeal’s 2023 decision greatly enhanced these pending claims’ chances of success. This, in turn, generated sufficient political pushback to secure the NZ First Party’s support for legislative rectification. Parliament would nullify the Court of Appeal’s interpretation of the Marine & Coastal Areas Act and secure the restoration of the status quo ante. In the post-election negotiations between National and NZ First, this rectification was agreed and included in the two parties’ Coalition Agreement.
It is not, therefore, a case of the seafood industry prevailing upon the Coalition Government to grant it special favours at the expense of Māori, but of the two government ministers most closely involved in the issue seeking industry input regarding the most likely consequences of the Coalition Government’s pledge to roll-back the Court of Appeal’s decision.
Consultations of this nature are not uncommon when a government is contemplating legislative measures likely to affect a major industry. In this respect, the meeting between Goldsmith, Jones, relevant officials and industry leaders is hardly newsworthy.
More interesting, from a journalistic perspective, is how the notes of a private ministerial meeting, held under the auspices of Te Arawhiti – The Office for Crown-Māori Relations – ended up in the hands of 1News’s Māori Affairs correspondent. Was it simply part of a “catch” netted by 1News’ own OIA “fishing expeditions”? Or, were these notes passed on to Hurihanganui as part of a concerted effort to embarrass the Government and impede its fulfilment of the Coalition Agreement pledge?
Certainly, some of the ministerial comments minuted during the meeting were highly embarrassing – most notably the comment relating to the percentage of the coastline likely to be affected by customary marine titles once the Coalition’s restorative legislation is passed. That said, the minister’s comment is only embarrassing because the public’s political memory is so short.
When the Marine and Coastal Area Act was originally passed back in 2011, fears about the coastline becoming off-limits to Pakeha were routinely allayed by National Party politicians pointing out that the tests imposed were so stringent – the coastal area under claim had to have been exclusively used by the claimants since 1840 without “substantial interruption” – that only a modest percentage of claims (the then treaty negotiations minister, Chris Finlayson, predicted 10 percent) would end up being granted.
The shock-value of Hurihanganui’s story lies in the misapprehension that established claims to customary marine title are to be pared back from 100 percent to just 5 percent of the coastal area, which, if true, would be a very grave injustice indeed. The reality is somewhat different.
The Court of Appeal’s 2023 decision to effectively reverse the legislative intent of Parliament made it much more likely that the plethora of claims lodged between 2011 and 2017 would be upheld in the High Court. The triggering figure of 100 percent thus refers only to the extent of the coastline currently affected by pending claims – not to the percentage actually awarded customary marine title by the High Court. Goldsmith’s figure of 5 percent represents his best guess at the coastal area likely to be impacted when the original tests have been reconfirmed and the undecided claims nullified. Proving exclusive use, without substantial interruption, for 184 years, is a daunting challenge for any New Zealander!
A journalist with a slightly broader brief than Ms Hurihanganui’s might have been moved to enquire as to why the Court of Appeal thought it appropriate to reverse the clear intent of New Zealand’s democratically-elected legislature. The constitutional convention of “comity” enjoins each of the three branches of government, the executive, the legislature and the judiciary, from encroaching upon the powers of the others. Why, then, did the judiciary (in the form of the Court of Appeal) whose role it is to interpret and apply the law, not re-write it, presume to correct the nation’s legislators in relation to the Marine & Coastal Areas Act?
It stretches credulity to suppose that the Court could have been entirely unaware of the impact its controversial decision would have upon the outcome of claims as yet unresolved by the High Court. Nor is it credible to suggest that the Court of Appeal is entirely innocent of courting precisely the political backlash that led to representatives of the seafood industry meeting with Ministers Goldsmith and Jones in May of 2024.
The responsibility for making the laws of New Zealand lies with the men and women elected to the House of Representatives, not with the men and women appointed to the Court of Appeal. The latter’s dramatic negation of the legislature’s intentions vis-à-vis the Marine & Coastal Areas Act 2011 left the Coalition Government with no honourable option but to reassert in the plainest language the original evidential requirements needing to be fulfilled before customary marine title can be granted.
To suggest otherwise is to posit a revolutionary constitutional revision which places unelected judges at the summit of the state. Judges with the power to not only interpret and apply the laws, but to re/write them. And if that is what lies at the heart of this controversy, then it is passing strange that such a naked bid for unaccountable power has yet to headline the 1News bulletins at Six O’clock.
This essay was originally posted on The Democracy Project substack page on Wednesday, 28 August 2024.
23 comments:
Everyone's an activist in NZ nowadays. The middle class and upper middle classes have found their reason for being. No matter how absurd. But what if no one follows the rules and we all get activist? And we sabotage our country just once too often?
The Supreme Court have almost become an in unelected political party. Seems the disease has spread to our judges at other levels. In fact the whole court system routinely fails to read the room. Dealers in kilo's of meth, now getting Home D. Rape defendants in the Youth Court getting off without a so much as a conviction!
The Supreme Court and more often now the Court of Appeal think they are parliament. They, unelected, write the rules we must live by. For starters, the indulgence that is the Supreme Court should be legislated out of business. The rest of the judiciary should be reviewable annually based on their decision making record. To bring it back into some sort of accountability.
An activist judiciary, above the law, is the last thing we need!
"The responsibility for making the laws of New Zealand lies with the men and women elected to the House of Representatives, not with the men and women appointed to the Court of Appeal."
True, but neither should it be in the purview of big business and lobbyists.
" two government ministers most closely involved in the issue seeking industry input regarding the most likely consequences of the Coalition Government’s pledge to roll-back the Court of Appeal’s decision."
If that's all it was, why weren't Maori invited? They would be affected by the consequences just as much as the seafood industry.
What twaddle.
As you have full awareness of Chris, the matter is still in the Court system and can be appealed up to the NZ Supreme Court. You are also well aware that one of the aspects that the Judiciary will give weighting to is the intention of the legislators. Legislation has the Minister that initiates it, those in the Ministry (or Crown law) that write the legislation, the select committee which considers it, then the Parliament which votes on it. All of this will be put before the Court.
Chris states - ' ...and secure the restoration of the status quo ante', and is more than aware that this is a conclusion bereft of a process. He goes on - 'The responsibility for making the laws of New Zealand lies with the men and women elected to the House of Representatives, not with the men and women appointed to the Court of Appeal.' This is taken to account by the Courts, and should be presented to the Supreme by the Crown. If the Crown cannot prove this then it fails.
To have previous Ministers instead saying they do not trust the Courts to conclude the intention of Parliament sets an extreme example of undermining of the Courts. This goes with Luxon's abrogation of the Ministerial Rule Book and Shane Jones' attack on the judiciary.
It would seem that NZ First and Chris as an apologist wish the disruption of our democracy and civil society by setting Parliament against the judiciary. Such Putinesque undermining of the trust in institutions shows how out traditional values can be manipulated for short term political attention.
As for the rest o the piece. First thing the coalition did was to open the doors and remove all restrictions to the lobbyists, many of which represented campaign donors. They poured through the corridors of power as is they owned them handed out prepared legislation to ill prepared Ministers like a lolly scramble at a kids party.
I know where I see the disempowerment of the democratic system.
If I am understanding this the courts, who likely favour the previous government, have ignored the intent of this government regarding customary fishing rights and treaty claims, and used dubious reasoning involving their interpretation of the Treaty to do it. As you say Chris it makes the court of appeal and their interpretation of the Treaty paramount. Te Aniwa Hurihanganui’s coverage seems to show bias in her presentation of the facts and TV1 has chosen not to scrutinise her work.
Not being a super sleuth who would delve into the mechanics of this, I had no Idea but can see the implications. The media and the courts, not agreeing with the governments intentions, have screwed the scrum and the result is a public perception that this government is again walking all over Maori rights. where does that leave our democracy. What is the point of having an elected government if our unelected courts and media are going to undermine it. I believe this government has been careful not to influence the media and are getting no thanks for it. There is no respect for the television media in this country and they are broke. It’s common knowledge their sympathy is for the last government and their support for Maori and Treaty issues, so by undermining this government at every opportunity is this part of a desperate fight to get a Labour coalition back in power and by doing so ensuring, among other things, the television media’s continuing existence. Thanks for bringing this to our attention.
Why weren't Maori invited? Don't you know? because people of Maori descent are citizens like any other - NOT a political entity.
Twaddle is yours Barron.
Garbage. The moment unelected people in places of high trust think they know better than voters, we are in big trouble. The Supreme Court especially had been well outside it's remit for far too long. Otherwise, what's the point of governments? Or voting?
"First thing the coalition did was to open the doors and remove all restrictions to the lobbyists, many of which represented campaign donors. They poured through the corridors of power as is they owned them handed out prepared legislation to ill prepared Ministers like a lolly scramble at a kids party". Where exactly did that imaginary story come from? And how does that explain our activist judges? Are they this imaginary white knights riding on their white horses, saving us ordinary folks from your evil lobbyists?
Judges must work within the law, strangely enough, not put their preferred laws into place, which is what has been happening.
They should never ever assume the elected legislators place or they are so far out of their lanes, they are actually acting unlawfully, intentionally.
Judicial activism has about as much legitimacy as police officers deciding which laws they will apply to themselves, and which they'll ignore.
If it reaches that point, we may as well embrace the law of the jungle!
The broader implications of the usurpation of parliamentary authority (and, by extension, the sovereignty of the people) is the neutering of the government's capacity to fulfill it's obligation to govern. We see it, for example, with the US and UK borders and the waves of fake refugees (and even outright criminals and terrorists) unable to be effectively contained.
No wonder there is frustration and unrest; elections solve nothing when the country's being run by the unelected. It's not democracy.
To: Kevin.
I had to delete your comment because Google Blogger does not permit moderator editing, and I didn't think you'd want your telephone number and address going out to all-and-sundry.
Please re-submit - minus the address tag.
Anyone want to buy a bridge? There is one in Balclutha I can sell as a bargain.
I struggle to comprehend the level of political naivety that people are happy to express. The current foreshore legislation was passed by the Parliament, it is a body of 131 legislators from differing pollical views and homes. The government that put the legislation forward included the Maori Party in coalition. The Court of Appeal looked at the legislation on appeal and agreed that it has been read as too restrictive to give credence to the applicants. So much so, the legislation has been inoperative for claimants.
The Court of Appeal to cognancy of the intention of Parliament, the situation in which the legislation had evolved and the arching concept of customary rights under common law. The conclusion was that it had been read as more restrictive than it was meant by the Parliament, and has been unworkable for claimants.
We then have several members of the current Parliament saying the Court of Appeal has misinterpreted and is not honouring the intention of the Parliament. We must understand, these are not in any way able to speak for the intention of those voting in the Parliament, only their opinion. Worse still, this has come form the NZ First membership and spokespeople, none of which were Members of Parliament when writing the policy.
So, Peters and Goldsmith tell everyone what the intention of Parliament was and that the Court of Appeal is not in line with it. If they are confident in that assertion, the matter is still before the courts and is being appealed. Instead, they take the policy of a newly elected party, put it in a coalition agreement, and take it away from the interpreters of the law.
And all you suckers bleat that you know the intention of Parliament because Peters and Goldsmith say so, and applaud the undermining of the Courts which may or may not agree. Further, this is put forward as some type of constitutional impasse because the Court has done its job, and the court system is still to conclude.
I know when civil society and the rule of law is undermined, it is when the government does not respect the role and function.
They would have been there; Maori interests are a big part (over a third including small operators) of the fishing industry. The local iwi empowered to prevent access (legally or through threats and extortion) would impact them in the same way as other operators.
The Maori Fisheries Act (1989) set up the Maori Fisheries Commission to administrator Maori fishing rights, which evolved into the Treaty of Waitangi Fisheries Commission. This in turn was to change under the Maori Fisheries Settlement (1992) and Te Ohu Kaimoana and a 50% holding in Sealords Group Ltd, Maori with 20% of commercial fishing quota, appointment of Maori on statutory fishing bodies, and a guarantee of self-management for communal and customary purposes.
GS is right, consultation with representative Maori should have been prioritized.
Ellen, you could try basic research before polemics.
42, Chris raised lobbyists in his posting. I have dealt with the judiciary elsewhere.
I note your starting point is a conclusion as to judicial activism. That is a spurious claim by the government. The decision of the Court of Appeal has not been shown to be unsound. That could be tested by the Supreme Court, but the view of a few NZ First party hacks is to be legislated over the top of the justice system.
There will be attacks on judges family members next if we continue on this right wing Trumpian path.
You seem absolutely confused as to which Parliament the intention of is need to be considered. It is the Parliament that voted in 2011 on the Marine and Coastal Area (Takutai Moana) Act (2011).
It would be legaaly and constitutionally wrong for the Court to take the intention of the current government or Parliament into account when considering the 2011 legislation
As for your view as to the Court "favour" of the previous government, these type of statements are without any basis. It is this type of sewing disconcern and mistrust in the pillars and institutions of the State that the opportunist disruptors have manipulated you towards.
The agenda?
Barron: "What Twaddle"
"Intellectual humility is not fashionable. Nor is the passionate pursuit of truth. We live in a schizophrenic age. On the one hand, this is the Age of I, an age of solipsism, of narcissism; we are so ensorcelled by the idea that the self is primary and inviolable that we have collapsed into nihilism. On the other hand, this is the Age of Ideology, a time when a regnant and totalizing system of thought, grounded in the fundamental error that all human relations are exclusively relations of power, is ascendant; we find ourselves stranded in a stark landscape, where the bellum omnium contra omnes, the war of all against all, rages, only to be mitigated, we are told, by the imposition of a technocratic, censorious, and absolute Leviathan. Our institutions, including our institutions of higher learning, have been overwhelmed by both the relativism of the Age of I and the absolutism of the Age of Ideology. They are shaken, unsteady, adrift."
From the speech by Bari Weis on the opening of the new University of Austin. It's very good.
https://www.thefp.com/p/a-revolution-begins-in-austin-texas
https://www.thefp.com/p/a-revolution-begins-in-austin-texas
I will make one point that seems over the head of many contributors. When we talk of the 'intention of Parliament' we are talking about what was discussed within the Parliamentary presentation and debate. If the then government measures it's speech to appease their support party the Maori Party, and make public statements that the Marine and Coastal Area (Takutai Moana) Act 2011 will be fair and reasonable for Iwi that seek to qualify - that is what the courts take into account as the intention.
For a later government to complain that the courts are robbing it of its predecessor's secret agenda to have legislation that is unworkable for Maori, then have a clatter of supporter sounding like toy monkeys with cymbals suggesting this is a constitutional issue, is ridiculous.
Ah, Bari Weis – the woman who got herself fired from the newspaper because she was in conservative terms – a snowflake. The woman who now lives on the wingnut welfare circuit. With a fake university of all things. If she said it was raining I'd open a window and check. Today is no more an age of ideology than the 20th century, and for that matter long before that. The divine right of kings was an ideology – still seems extant amongst American conservatives.😇
It could easily be argued that all human relationships are relations of power. There are obviously other factors involved, but I can't think of one relationship where power isn't important. If only in the sense that it is shared equally perhaps.
If people are shaken unsteady and adrift, it's probably because the far right is telling certain majority groups in society that they are being persecuted , and that their government is no longer trustworthy. Weis would certainly be one of these, as is Donald Trump and his minions. If people are shaken, unsteady and adrift, it's probably partly because of all the misinformation put about by people like you David.
Funny, when it comes to "activist judges" the US Supreme Court is right up at the top. And yet I don't hear conservatives complaining about that. I also don't hear you all complaining about unelected Treasury officials making decisions that bring about recessions that put ordinary people out of work. That usually categorised as "necessary".
The University of Austin is a right wing think tank in pretense of tertiary education. You can get a post-graduate masters in twaddle.
Anybody who believes Judicial appointments are non political is naive imo. Judicial appointees are made by the Governor General on the recommendation of the Attorney General. Judith Collins has already made such recommendations to Cindy Kiro and David Parker made such recommendations to her on behalf of the last Government. It is inconceivable that a governments Attorney General would recommend Judges unsympathetic towards its policies. This elected government is still being served by judges appointed in reality by the previous government along with their sympathies. It’s easy to see the lines of intentions being blurred.
Supreme Court appointments must be based on merit and seniority. Senior Justices on the Court of Appeal are appointed to the Supreme Court. Current appointments were made 3019, 2012, 2016, 2019, 2022 and 2023. All judges must be non political.
Previous concerns regarding judge appointments at the lower level are that they over represent former Crown Prosecutors, and have not represented the gender and ethnic make up of NZ. These issues have been taken into account for judicial recommendations.
I really get sick of these conspiracy speculations. If you have examples of judges showing political bias in decisions, put it forward. Show your evidence. Demonstrate why no blind Justice can reach the legal position. If you think either party has a corruption relationship with a member of the judiciary name the parties. If there is quid quo pro, identity it.
Somehow I think there will be no response when forced into the real world.
Can someone remind me why we thought it was a good idea to cut ties with the Privy Council, and the protections it gave?
Our government and judiciary are drawn from a very small pool, a long way from the rest of the world, and isolated communities are subject to group think where: "there is no alternative" - a chilling prospect.
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