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Photo: Te Korimako o Taranaki
The law relating to how customary marine title is granted in New Zealand will soon change, as the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill passed its third and final reading in Parliament this week.
The Bill fulfils a specific coalition agreement between National and New Zealand First and, according to minister in charge Paul Goldsmith, aims to restore the original intent of the 2011 legislation.
Under New Zealand’s constitutional framework, Parliament (the legislature) makes laws; courts (the Judiciary) interpret them; and ministers (the Executive) enforce them. By convention, Parliament respects judicial interpretations. However, from time to time, a court ruling will jar with what lawmakers actually intended, or what politicians might wish to be the case.
Because Parliament is supreme, lawmakers have the authority to amend legislation if they disagree with how courts have interpreted it, which is what happened with the Takutai Moana Bill.
“The government’s view is that the courts have interpreted the requirements for the test for customary marine title in a way that has materially reduced their intended effect, to the point where it was necessary to take action to ensure the Act operates as originally intended,” National’s Paul Goldsmith told the House during the third reading on Tuesday.
“Last year’s Supreme Court judgement in Re Edwards confirmed that the earlier judgements, particularly in the Court of Appeal, did not apply the test in line with Parliament’s intent.”
The bill will override judicial decisions made after 25 July last year, which is when the government announced its intention to introduce the Bill. Such retrospective measures are rare, and Ministers typically justify to the House why they view them as necessary. In this case Paul Goldsmith, as the minister in charge of the bill argued.
“Retrospective provisions in legislation are reserved for exceptional circumstances and these are exceptional. The current approach to the test by the courts is damaging to the takutai moana process as a whole. If the bill has prospective effect only, it would be unfair to those applicants who, by way of scheduling, would be subject to a stricter restored test, while others retain awards under what Parliament regards as an incorrect interpretation of the legislation.”
Earlier this month, the House sat down with Professor Geoff McClay, Dean of Law at Victoria University. He noted that while retrospective provisions can be constitutionally valid, they raise significant constitutional questions.
“What do you do with cases that are …already filed? One of the conventions we’ve tended to have in New Zealand is that if you’ve already filed your case, it should be determined under the old law, so you don’t have the rules of the game changed on you as you go forward. And the foreshore and seabed legislation (Takutai Moana) sort of alters those understandings a little bit. That could be a concern.
“Then you get another part of the New Zealand Constitution,” said McClay, “which is in this Māori-Crown relationship space; where many people would say that actually there’s a broader constitutional significance to this legislation. There’s a broader constitutional significance to the court decisions as a result of that, and a result of the relationship between Crown and Māori, and that Parliament should be very reluctant to intervene, changing the particular tests. And there’s been quite a lot of public controversy over that.”
Some of the public controversy referenced by McClay was voiced in the House by Labour MP Ginny Andersen. Throughout the bill’s journey through Parliament, Labour has rejected Goldsmith’s framing of the bill as merely restoring the original legislative intent.
“This bill is not, as the Government insists, a tidy clarification of an old law,” Andersen told the House on Tuesday evening. “It is an incredibly blunt instrument that tears at the very foundation of justice, up-ends our court processes, and undermines a hard-fought relationship between te iwi Māori and the Crown. We are told that it will restore Parliament’s original intention, but in truth, it rewrites that intention, it narrows it, and it applies new rules retrospectively, overturning the work of the courts and reopening wounds.”
All three government parties voted in favour, giving the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill a majority.
The bill now proceeds to the Royal Assent stage, (usually the following week) after which it will become law.
To listen to the audio version of this story, click the link near the top of the page.
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