The Government’s plans for a speedy bill upset the Supreme Court.
The Supreme Court’s speedy judgment upset the Government’s plans for bill.
The court judgment sets out the extremes on both sides and lands in the middle.
The Supreme Court’s lightning-fast judgment this month on how the foreshore and seabed law should be interpreted has had the intended effect but it may be only short-term.
In ruling that the Court of Appeal got it wrong and allowing the Attorney-General’s appeal, it hasstopped Parliament from rapidly progressing amendments to the law that would have toughened the test for recognition of customary title.
Parliament is due to rise on Wednesday and the bill to amend the Marine and Coastal Area (Takutai Moana) Act 2011 (Maca) was to have been passed under urgency by then.
Relations between the courts and Government ebbs and flows but it is undoubtedly at one of its lowest points at present, not least because of the strains arising from this case.
The case centres around the requirement for whānau, hapū and iwi seeking customary marine title (CMT) to show not only that they hold an area in accordance with tikanga but that they “exclusively used and occupied it from 1840 to the present day without substantial interruption”, as the statute states.
Crown Law will not be looking at just the Supreme Court decision on the Edwards case and which parts of the Court of Appeal it overturns, it will be looking at whether the Supreme Court decision is compatible with the amendment bill in the name of Justice Minister Paul Goldsmith.
The Court of Appeal majority, taking a literal interpretation, thought the test would lead to very few recognition orders and effectively revised the test to require applicants to have held the area at 1840 rather than from 1840 to the present.
The Supreme Court said that was too narrow an interpretation. It says “exclusive use and occupation” and “without substantial interruption” were valid criteria although the terms could not have been meant literally by Parliament.
Because the law said that public access, navigation, and fishing did not necessarily prevent customary marine title, they could hardly be regarded as disqualifying factors in deciding whether an applicant met the test.
An act of ‘reconcilation’
The court said that along a spectrum of “continuity”, if it was suggested that any non-trivial interruption would rule out recognition of a title, that would effectively mean only areas untouched by colonisation would qualify.
“There are no such places in Aotearoa.”
At the other end of the spectrum, reading a continuity requirement out of the test altogether [as the Court of Appeal did] would assume that colonisation had not happened at all.
“This is just as unrealistic.”
It said such extremes could not be found in the Maca act or its purpose, which was “to reconcile prior Treaty-guaranteed rights with long-held rights and expectations of other New Zealanders”, the Supreme Court said.
One of the most salient features of the Supreme Court decision was its emphasis on the deeply political nature of the Maca law developed over many years and its means of reconciliation “premised on the idea that rights and interests should be allowed to co-exist as far as possible”.
Some have dismissed the Supreme Court’s essay style as a “pronouncement” rather than a judgment but nonetheless, it is a valuable essay – almost certainly written by Justice Joe Williams – and could assist the extremes on both sides of the argument to get a better grip of reality.
The case was heard by Justice Joe Williams, left, Dame Susan Glazebrook, second left, Dame Ellen France, right, Sir Stephen Kos, second from right, and Christine French, President of the Court of Appeal. Chief Justice Dame Helen Winkelmann, centre, and former judge Sir Mark O'Regan, did not sit on the case.
The Supreme Court sets out a non-exhaustive list of criteria against which a court should assess on a case-by-case basis whether the application before it meets the test for customary title, including three factors already in the act and several more provided by Crown Law.
They include such factors as whether the applicant owns the land adjoining the marine area, whether they have marae nearby, exercise non-commercial fishing there, impose rāhui, and are involved in resource management.
Using its first decision, the Supreme Court will decide specifically on the facts of the Edwards case in a separate judgment next year.
On the face of it, the Crown has won in the Supreme Court’s pragmatic approach. But if the effect of the win is no change in a fact-specific inquiry, is it a win?
The difficulty for Crown Law is that Goldsmith’s bill sits more towards the end of the spectrum that the Supreme Court discussed rather than occupying a middle ground.
The bill sets out a definition of exclusive use and occupation and says it means if the group or its members had both the intention and the ability to control the area to the exclusion of others from the start to the end of the applicable period without substantial interruption.
Issues to be revisited
And in setting out a definition of “substantial interruption” it can include interruption of exclusivity and which can include fishing activity and navigation. If the law is seen as too loose, the amendment bill provides a straitjacket and the Supreme Court lands somewhere in the middle.
Among the issues Crown Law will have to revisit as it advises Goldsmith is:
Whether tikanga should be considered as part of the definition of “exclusive use and occupation” as Crown Law advised the court it should be or whether it is only a common law test;
Whether the concept of “shared exclusivity” in which more than one iwi can hold customary title is recognised – it was accepted by the Supreme Court as more the rule than the exception in New Zealand;
Whether the exercise of fishing should impact customary marine title out to 12 nautical miles;
The burden of proof – whether all aspects rest entirely with the applicant group or whether to follow the Supreme Court’s ruling that an applicant need show only proof of exclusive use and occupation and that any evidence of substantial interruption be left to a contradictor (such as the Crown, local government or another iwi).
Customary marine title is a special status of the common marine and coastal area awarded to iwi, hapū or whānau groupings. The area falls between the wet part of the beach and the 12-nautical-mile limit.
It cannot be sold. Public access is guaranteed, as are fishing rights and navigation rights.
Justice Minister Paul Goldsmith will have some big decisions to make next year. Photo / Mark Mitchell
The Government continues to own nationalised resources, oil and gas, gold, silver and uranium.
But the holders of CMT own any non-nationalised resources and have a veto right on any future consents required for new activities, developments, or expansions of existing activities in their CMT area, including marine reserves and, mining of iron sands and aquaculture ventures within the 12-nautical-mile limit.
The holder of CMT does not have the right to restrict access to the area unless parts of the area are subject to a wāhi tapu order, which needs to be approved by a court.
Direct negotiations
Under the Maca act, customary marine title can be claimed either through the courts or through direct negotiation with the Government.
A deadline for applications by whānau, hapū and iwi was set by the Government for April 2017. In total, 580 applications were received: 30 expressed a preference for the High Court only, 206 a preference for ministerial decision only, 172 elected for either – and presumably the rest expressed no preference.
So far, there are 20 customary marine titles registered with Te Arawhiti. It has been an extremely slow process for iwi and extremely expensive for the taxpayer. About 10 cases currently before the courts will be affected by any amendment to the act.
The two pathways, courts or negotiated, need to be aligned, however. And if the Crown wants greater control over the process, it may need to encourage more iwi to negotiate directly with it, as it did with Treaty of Waitangi settlements.
The Edwards case centres on the Eastern Bay of Plenty and is the first big case under the Maca law. The Supreme Court’s interpretation of the law prevails as precedent unless it is changed by Parliament.
The Supreme Court heard the appeals relating to Edwards in the first two weeks of November 2024, just a year after the Court of Appeal judgment lowered the test for customary title.
It delivered its 89-page judgment on December 2, a little over two weeks later in what must be a record - and undoubtedly a politically motivated one.
Swift judgment
It was a direct response to the move by the Government to introduce amendments to the foreshore and seabed law despite appeals having been lodged and heard in the Supreme Court.
There was outrage that the changes were proposed with virtually no consultation with Māori, and further outrage, mainly among lawyers and academics, that the rush showed disrespect to the courts.
While overturning the Court of Appeal decision was agreed in Coalition talks between National and NZ First, the orthodox approach would have been to wait until the case had been exhausted in the courts.
The fast turnaround by the Supreme Court was its way of challenging that disrespect, by getting in first, and forcing a rethink by the politicians.
Despite the objections over process, the Government progressed the legislation before the Supreme Court had dealt with it for three likely reasons.
Firstly, it felt disrespected after the statutory test passed by Parliament was changed so substantially by the courts.
Secondly, it had no expectation that the Supreme Court would actually overturn the Court of Appeal.
And thirdly, it did not want more claims to customary title to be decided using what it saw as the flawed Court of Appeal 2023 test during the usually long time it takes waiting for a court decision. (The Supreme Court aims to have 80% of its judgments delivered within six months but at last count, managed that in only 53% of cases).
In a perfect and principled world, the Government would have waited; in the real world, that could have complicated things even more.
The Supreme Court judgment calls for a rethink. Goldsmith has some big decisions to make in the New Year.
