All eyes on Williams and Whakatohea

Chief Judge Joe Williams' decision to hear the claim incensed Prime Minister Helen Clark and her deputy Michael Cullen. Picture / Martin Sykes

Chief Maori Land Court Judge Joe Williams is a tough-minded but paradoxically mercurial man.

It is Williams who has thrown a spanner into the Government's carefully crafted legal compromise to stop Maori tribes from getting freehold title to parts of the foreshore and seabed.

Attorney-General Michael Cullen hit out at Williams this week after the judge approved the notification of an application by Eastern Bay of Plenty tribe Whakatohea on the issue.

Mai Chen, who practises public law, said Cullen's reaction to the preliminary skirmishing is understandable.

"He's trying to restrain people's fears about it ... it's the last thing he wants in an election year."

Cullen is correct when he emphasises that public ownership is guaranteed under the Foreshore and Seabed Act and public access cannot be barred. But the legislation is less than four months old and potential claimants and their lawyers will piggyback on Whakatohea's action, if it is successful.

Already there is scuttlebutt - fuelled by statements by some disgruntled tribal elders - that the initiator of the action may be "plaintiffs of convenience" trotted out to test whether there are chinks in the law which can be opened for more powerful Maori claimants to enter in the event of a win.

Lawyers such as Chen - who say they would simply adopt Whakatohea's pleadings for their own Maori clients - give credence to the theory.

Undoubtedly the Government was caught on the back foot by the tribe's action. Williams was quickly demonised in Parliament. Cullen has since withdrawn his accusations that the judge personally publicised the case. Cullen has clearly sprayed his patch and is unlikely to want to hype the matter further.

But from a Crown perspective it must now examine whether it would be more fruitful to start a legal war of attrition. Bury the claimant with procedural wrangling, interlocutory hearings, technical disputes - all the "brown cardigan" stuff - to ensure the bulk of the case does not get heard before the election.

Maoridom will be watching to see what the Maori Land Court will require from claimants to get an application for customary rights orders over the line.

In Whakatohea's case, its claim for kaitiakitanga - authority and guardianship - and rangatiratanga over 50km of coastline running east of Whakatane has a long way to go.

In his February minute, Williams noted that these activities, in his experience, generally applied to broad land and seascapes rather than particular spots and the application tended to reflect that.

"Of course, whether there is sufficient evidence to make out a claim to customary rights in the nature of rangatiratanga and kaitiakitanga over the stretch of coastline in question is another matter.

"But there is nothing in the legislation to prevent the approach adopted by the Whakatohea applicants. On the contrary, the legislation appears to contemplate just this approach."

What has really annoyed the Government was Williams' sweeping move to knock back the Crown's request for Whakatohea to fully particularise its application before the case could be notified.

"Once more general uses, practices or activities are identified in the application the utility of requiring highly particularised notifications is largely lost ... the application affects the area of public foreshore and seabed identified," said Williams.

The Foreshore and Seabed Act contains an extremely prescriptive schedule under which applicants have to specify the activities and usages which underpin their push for customary use orders. As the case proceeds the tribe will inevitably have to put more information on the table.

But there is little doubt that the Crown will challenge the tribe every step of the way if Williams ultimately makes a customary rights order.

"Frankly, if they can get away with a claim over rangatiratanga and kaitiakitanga over a stretch of coastline and it does the trick, we'll all ride on its coat-tails," said one Maori claimants lawyer.

Behind the scenes there are concerns that a push to axe the Maori Land Court, which emerged at the Government-funded hui taumata (economic development summit) this month, will become intertwined with the current case.

Labour list candidate Shane Jones had said the court was based on a concept of retaining Maori land ownership - which itself was a concept based on emotion - and not always on best commercial practice.

Despite the fact that the issue was featured in hui background papers, Williams was not on the conference speaking list.

He said: "I don't want to go to the press and engage in debate with anybody on the survival of the Maori Land Court."

Conservative politicians still poke borax at Williams for a statement he made last year that treaty settlements would have to be "five times" greater if they were to lift Maoridom out of poverty.

Williams made his comments during a debate on treaty issues at an International Bar Association in Auckland last October. They were clearly self-evident. But politicians took them as an indication of bias by Williams, who also chairs the Waitangi Tribunal.

At the same conference Williams said he was concerned about the estrangement of Maori from the justice system. He pointed to the looming demographic changes which will see perhaps one million people being Polynesians (most of them Maori) in this country over the next couple of decades.

"A big proportion - possibly one third of our population - will be people of colour. And the largest minority will be the indigenous people."

Williams' contention that the Polynesian community suffers from being more distant from the mainstream community means that in some rural areas and in South Auckland, a judge will in a day's work "see only people of colour appearing before them in criminal cases".

"You can't say that only Maori should be judged by Maori or Pakeha by Pakeha - I want to make that clear. Many Caucasian judges have a superb understanding of these communities and are often well loved.

"But it is more often the case that European judges are bused into these communities to deliver the justice system and then bused out again."