Stephen Franks: Only one way to douse flames of foreshore row

Last month four sober men, led by a charming woman, spilled petrol all over the treaty industry. Chief Justice Sian Elias and four other judges of the Court of Appeal said four generations of New Zealanders were wrong to believe that lack of status, wealth or even race should never drive a New Zealander from a beach.

Instead we should accept that Maori might own beaches and seabed, including Queen's Chain areas. Exclusive privileges, and perhaps ownership, will depend on what the Maori Land Court decides.

What did the judges think they were doing? Is this a conventional decision, a declaration of law the judges had to make, that just seems radical because the particular question had not been asked before? Or is this a radical change in our law?

The Prime Minister didn't wait to find out. She grabbed her fire hose.

First she sprayed flat denials and promises to legislate the decision away. Then her Maori MPs reminded her that hosing wouldn't work on a petrol fire. So she's searching for something that will work.

She can't let the treaty go up in flames, not with a caucus addicted to that drug of race politics and separatism obtainable only from treaty canteens.

It's tough. Her Cabinet has a dedicated arsonist in Tariana Turia. She believes in purification by fire. Others refuse to believe in the risk of explosion. Treaty-addicted Labour MPs, brown and white, are groping for matches, despite a ban on the naked flames of public dissent. Meanwhile, opinion polls on the treaty industry urge "let it burn".

And the question remains: how could customary interests in the seabed and foreshore revive after a century of parliamentary and official disbelief?

Did the judges think this was a routine refuelling of the treaty industry, and just spill petrol without realising? Or do they think judges are anointed precisely so they can change laws that Parliament won't change?

The judges' reasoning is conventional. They trawled history for evidence, and recent scholarship for arguments. They concluded, perhaps correctly, that customary rights should not have been extinguished. The legal method was orthodox but it ended in just one startling departure from normality.

They reasoned from what they felt the law ought to be, rather than what it has been declared to be. This was a court bent on changing the law, not just applying it.

Having decided that customary rights ought not to have been treated as extinct, they looked at what had happened. For nearly 100 years, from the time of Sir John Salmond, our pre-eminent lawyer, our law has treated customary title as having been superseded by Crown ownership.

But statutes have not said explicitly that customary property was cancelled. They just assumed it. The five judges now say that Parliament would need crystal clear words to cancel customary property, and that existing statutes do not have them.

They faced the awkwardness of a 1963 decision of their own court, which clearly treated the relevant customary property as having been extinct since English law came to New Zealand in 1840. No problem - just decide the earlier judges were wrong. After 40 years of authority, the Ninety Mile Beach judgments are no longer good law to be followed.

That snookered Parliament, at least for this round. Statutes which assumed there was no customary property, but fell short of explicitly cancelling it, were drafted and passed by Parliament while the Ninety Mile Beach case was good law.

A traditional appeal court can decide it was wrong in an earlier case. But reversal is rare and controversial. Reversal throws confusion into everything done while the reversed case was good law. The court cannot know what relationships it is unpicking, or screwing up, what enterprises have been started in reliance on certainty in the rules, what disputes have been settled.

Some great judges have felt that only Parliament should change longstanding rules of the common law. This case shows why. It shows why the courts should prize certainty above other values.

But this was also a court doing precisely what Labour Minister Margaret Wilson wants from our highest court - developing an indigenous law as she calls it, laying down principles that Parliament would never pass.

These five judges were taking an early stroll in the new Supreme Court robes promised, but not yet given, the role of bringing tikanga Maori into the heart of the law. Exactly this kind of decision is intended by Ms Wilson's Supreme Court Bill.

But that bill has not yet passed. If it does, Ms Wilson gets to appoint more judges who will display their superior consciences by reversing outdated decisions. Once indulged, moralising is a tempting pastime. It is much more lofty than the ordinary grind of keeping the law predictable.

Moralising is even more tempting when it is fashionable. Wearable fashion knows it is frivolous, but intellectual fashionistas are not so humble. The treaty has been high fashion for two decades.

Even if they didn't want to, our judges have been forced to follow that fashion. More than 90 acts now refer not to the sound old treaty but to its mythical principles. That way, treaty-riding politicians can talk bare platitudes, and force the judges to invent the detail.

Sincere treaty consultants and lawyers have managed to invent faith to go with their doctrine. They believe it is good for us unbelievers. It is also the most profitable doctrine some will ever stumble across.

They took at face value Labour's assertions that Maori have special rights which the rest of us can't share, assertions which logically culminated in this foreshore decision. Unhappily for Helen Clark they will not now move on just because they have become politically inconvenient.

If she genuinely doesn't like what the court has said, she will have to say in legislation exactly what race privileges come from those special rights. The courts don't yet have her luxury of saying one thing to Maori behind closed doors and another to Pakeha in the open.

* Stephen Franks is the Act Party's spokesman on justice.