Last week the Supreme Court delivered the second of its two-part judgement on the first Marine and Coastal Area Act case to progress its way through to our highest court.
In their initial judgement, which was released last December, instead of interpreting the law as parliament intended so only a minority of claims for the coast would succeed, the Supreme Court took an activist approach by declaring that “tikanga” or Māori custom should be at the heart of all coastal claim decision making. In doing so they have virtually guaranteed tribal control of New Zealand’s coastline.
The second ruling, which also favours Māori, opens up the country’s waterways for tribal claim. While the decision only affects the beds of navigable rivers that form part of the coastal marine area – namely whichever is the lesser of one kilometre upstream or five times the river’s width at the mouth – it would nevertheless give Māori sovereignty activists a big foot in the door.
And, as we’ve seen many times before, it would then only be a matter of time before the country’s entire water system will be under claim – especially as Ngāi Tahu and more than 70 other tribal groups are already progressing demands for freshwater through the courts.
The controversy over navigable riverbeds dates back to the 1903 Coal-Mines Amendment Act, which vested them in the Crown:
Save where the bed of a navigable river is or has been granted by the Crown, the bed of such river shall remain and shall be deemed to have always been vested in the Crown, and, without limiting in any way the rights of the Crown thereto, all minerals, including coal, within such bed shall be the absolute property of the Crown.
While the High Court accepted that Crown ownership had extinguished customary rights to riverbeds, the Court of Appeal argued the Marine and Coastal Area Act had resurrected those rights. The Attorney General disputed their reasoning: “At common law, customary interests, once extinguished, cannot be revived.” The Supreme Court maintained customary rights had never been extinguished at all.
What all this means is that unless the coalition reverses this Supreme Court ruling, the beds of navigable rivers, which are at the heart of New Zealand’s infrastructure network, will be opened up for tribal claims.
That would not only put at risk marine transportation, but our crucial power system as well through the network of hydro-electric power stations and water storage dams – along with a myriad of other structures and usages established along our rivers throughout our pioneering history.
Overturning the Supreme Court’s radical ruling must now be urgently factored into the coalition’s legislative response.
The timing of this latest judgement should leave the prime minister in no doubt at all that the activist judges in our top court are challenging the sovereignty of parliament. By erecting legal hurdles, they are attempting to prevent the coalition from fulfilling its election pledge to strengthen the Marine and Coastal Area Act and stop the tribal takeover of our coast.
While the average timeframe for the delivery of a Supreme Court judgment is around six months, in the Edwards Marine and Coastal Area Act case heard by the court last November, in spite of it challenging a Court of Appeal ruling and requiring a full clarification of the legal tests set out in the legislation – as well as resolving multiple disputes between claimants over customary rights awards – the most complex first decision in the staggered judgement was delivered just 17 days after the hearing, while the second was held over for eight months.
That first, rushed, decision, was issued just before the government’s Marine and Coastal Area (Customary Marine Title) Amendment Bill was due to be passed by parliament, successfully preventing the law change from going ahead. It resulted in an eight-month delay while the coalition considered their ‘options’.
Then, earlier this month, just days after Justice Minister Paul Goldsmith finally announced the coalition’s law change was back on track and would be passed by the end of October, the Supreme Court’s second bombshell judgement magically appeared. By upending the law relating to rivers they no doubt hope for another lengthy delay and the abandonment of the amendment bill altogether.
Supreme Court Justice Joe Williams – the former head of the Māori Land Court and Waitangi Tribunal, who was appointed by the Clark Labour government to the High Court in 2008, by the Ardern government to the Court of Appeal in 2018, and to the Supreme Court in 2019 – is one of the judges integrating tikanga into our law.
This objective was outlined by the Supreme Court in 2022:
The Court is unanimous that tikanga will continue to be recognised in the development of the common law of Aotearoa/New Zealand…
In spite of the fact that tikanga fundamentally undermines the Rule of Law, transforming it from a system delivering equal justice into one favouring Māori, there’s been no debate over whether New Zealanders approve of our top court radicalising our legal system in this way.
Emeritus Professor Peter Watts KC is so concerned about this that in “Ellis v R : A Revolution in Aotearoa New Zealand, Welcome or Not” – a groundbreaking article published in The New Zealand Law Review – he accuses the Supreme Court, legally speaking, of being “engaged in a revolution” by opening the door to the potential application of tikanga to any question of law.
Professor Watts explains that by overturning more than 160 years of jurisprudence, the introduction of Māori co-governance into the law is a constitutional change of such magnitude that it should only have been undertaken by parliament or through a public referendum process, not by the judiciary.
This week’s NZCPR Guest Commentator Roger Partridge, Chairman of the Initiative and the former head of Bell Gully, explains the profound implications of Professor Watts’ research:
In a compelling analysis Emeritus Professor Peter Watts KC exposes how the Supreme Court’s decision in Ellis v R (continuance) represents a revolutionary departure from New Zealand’s constitutional foundations. He exposes how, by declaring tikanga relevant to any issue of common law or statutory interpretation, the court has up-ended our legal system without a legitimate constitutional mandate…
Watts’s analysis provides compelling evidence that Ellis represents a revolutionary change to our legal system, implemented without a democratic mandate or clear framework. His careful exposition of the historical and constitutional context demonstrates why parliamentary intervention is essential to restore appropriate boundaries and legal certainty. The stability of our legal system and the rule of law itself demand no less.
With the Supreme Court’s radicalisation of New Zealand’s legal system now demanding the highest level of parliamentary response, the coalition nevertheless needs to deal swiftly with the case in hand – namely the court’s attempt to change the Marine and Coastal Area Act to favour claimants.
In doing so, they should remain mindful of the fact that the laws relating to New Zealand’s foreshore and seabed are not set in stone.
Throughout most of our history, the courts rejected tribal attempts to claim the coast – as the Chief Justice said in 1870:
I cannot contemplate without uneasiness the evil consequences which might ensue from judicially declaring that the soil of the foreshore of the Colony will be vested absolutely in the natives if they can prove certain acts of ownership.
The Ninety-Mile Beach Case, a landmark Court of Appeal ruling in 1963 reaffirming Crown ownership of the foreshore and seabed under common law, remained in place until activist judges in 2003 decided some “pockets” of “discrete” customary title might still exist:
It is generally accepted that few mainland pockets of customary land remain in New Zealand… In the past, claims to property in areas of foreshore and seabed seem to have identified relatively discrete areas comprising shellfish sandbanks, reefs, closely-held harbours or estuaries, and tidal areas or fishing holes where particular fish species were gathered.
Clearly, those judges did not contemplate customary title extending over the entire New Zealand coastline to the 12 nautical mile edge of the Territorial Sea.
Nor did National in 2011, when the Marine and Coastal Area Act was drafted. Their intention was to ensure only a minority of claims in remote areas of the coast succeeded.
The courts, however, as we now know only too well, had other plans.
In light of these events, it seems the coalition has two main choices.
The first is to treat the Supreme Court’s judgements in the same way as all other court judgements issued after the coalition announced their law change on 25 July 2024, and overturn it – then press ahead with their amendment bill in the hope that their new requirements to strengthen the law are sufficient to stave off any attempts by the courts to find ways to continue to deliver control of the coast to Māori.
The second is to use this opportunity to repeal a fundamentally flawed law that is now having a disastrous impact on New Zealand and restore the old law – the 2004 Foreshore and Seabed Act – while future options are considered.
The reality is that the Marine and Coastal Area Act is broken beyond repair. Even annulling the court decisions will not go far enough, because it is now very clear that the legislation is so defective that it will generate unworkable solutions and eye-watering legal costs for decades to come.
In fact, this act is destined to become one of the most foolish and costly pieces of legislation in our country’s history – even surpassing the Resource Management Act!
Introduced as part of a coalition deal, this a Māori Party law that aimed to transfer control of our coastline to Māori with no public mandate. National’s prime minister at the time, John Key, promised concerned New Zealanders, that “if there was not wide support then the current law could remain in place”. But in spite of 91 per cent of the public opposing the law change, it was rammed through anyway.
The claims process is self-serving and self-enriching. Instead of delivering justice, it’s delivering whatever Māori want. The adversarial process, which underpins High Court justice, cannot operate when there’s no opposition. And, with up to $458,000 in taxpayer funding offered to claimants but nothing for opponents, it’s not surprising the end result was almost 600 opportunistic claimants and virtually no opponents at all.
Furthermore, as judges have already pointed out, the dual pathway for lodging claims – the High Court with 202 applications and direct Crown engagement with 385 – is not only unworkable, but will create gross injustices and new grievances in the future.
With judges predicting court cases alone will not be finalised until 2046, the escalating costs of funding those claiming our coastline should be reason enough for the coalition to repeal a law that is now so compromised it is beyond fixing.
On top of that, there’s another more sinister concern. While the public have been assured that tribal control of the coast will not affect public access, once the claimants’ wāhi tapu designations are applied, such promises will become meaningless. With most applicants planning to exclude the public from most of their claimed areas, serious conflict lies ahead.
It is time for a reality check – time to stop the insanity.
In this current strategic environment of increasing geopolitical tension, allowing control of our country’s coastline and Territorial Sea to fall into private hands is madness. National security interests should demand that any measures that could undermine the sovereign control of our coast must be abandoned.
Putting the nation at risk to prop up a dangerous and highly destabilising law that was promoted by a party that is now openly advancing anarchy no longer makes sense.
The coalition should announce the Marine and Coastal Area Act will be repealed and replaced by the old law – the 2004 Foreshore and Seabed Act.
This article was originally published by the New Zealand Centre for Political Research.
