Claims and Counter-Claims.

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.