Takutai Moana
Another week, another constitutional and legal outrage from the government. Not to mention another Treaty breach.
The latest this week was news from Treaty Negotiations Minister Paul Goldsmith that the government will proceed with its proposed amendment to the Marine and Coastal Area (Takutai Moana) Act 2011. The move has been widely condemned, including by one of the key architects behind the 2011 legislation, former Attorney-General and Treaty Negotiations Minister Chris Finlayson.
Rejecting Goldsmith’s argument that the government was merely restoring the original intent of Parliament, Finlayson declared in unequivocal terms that ‘These amendments do not restore the original intention of Parliament. They undermine them. Let there be no doubt about that at all.’ He went further, describing the move as ‘stupid and foolish’. In an interview with Morning Report, Finlayson said that he was ‘dumbfounded’ by the government’s decision to press ahead with the amendment.
Other senior government figures at the time of the 2011 legislation have also been highly critical of the move. Peter Dunne said a Supreme Court decision last year clarifying the test for customary marine title was definitive and he was at a loss as to why the government chose to reopen the matter. Tau Henare described the decision as ‘a play for the dumb red neck vote’.
It is important to remember the origins of the 2011 legislation. In 2003 the Court of Appeal said in Attorney-General v. Ngati Apa that Māori might have native title claims to the foreshore and seabed that could be tested in court. The government quickly announced that it would not allow such cases to proceed and the 2004 Foreshore and Seabed Act followed, along with a large hīkoi to Wellington, Tariana Turia leaving the Labour Party, the formation of the Māori Party, its 2008 confidence and supply agreement with the incoming National government and ultimately the Marine and Coastal Area (Takutai Moana) Act 2011.
It repealed and replaced the Foreshore and Seabed Act and was supposed to settle the matter once and for all. Now we have another National government coming back to undermine and frustrate the working of that legislation, despite Minister Goldsmith’s patently bogus and false claims to be simply restoring Parliament’s original intent.
When the government’s obnoxious amendment was tabled in Parliament last year, I made a written submission to the Justice Committee on it. I have reproduced that below.
I make this submission in respect of the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill.
This Bill is premised on the entirely false assertion that it merely seeks to restore Parliament’s ‘original intent’ at the time the Marine and Coastal Area (Takutai Moana) Act was passed into law in 2011.
Minister Goldsmith’s own officials from Te Arawhiti pointed out in a memorandum dated 27 May 2024 that the claim that he was merely restoring the ‘original intent’ of Parliament was not backed by evidence, advising the minister that:
We understand your view of Parliament’s intent is that the s 58 test was intended to set a very high threshold to the recognition of CMT, resulting in relatively few and small areas under CMT.
While internal political discussion may have suggested a very stringent test was intended, the body of evidence from the Parliamentary record, public statements from legislators at the time, and officials and Ministers’ statements to the Waitangi Tribunal during the recent Takutai Moana inquiry, indicate Parliament had a less restrictive intent.[1]
No less a legal authority than Sir Geoffrey Palmer concluded likewise, writing in Newsroom that:
a novel feature of the coalition agreement was “to Amend section 58 of the Marine and Coastal Area Act to make clear Parliament’s original intent, in light of the judgment of the Court of Appeal in Whakatohea Kotahitanga Waka (Edwards) & Ors v Te Kahui and Whakatohea Maori Trust Board & Ors [2023] NZCA 504.”
This is objectionable on many grounds but the most obvious is that the case had already been appealed to the Supreme Court, but has not yet been dealt with. Yet the government thought it was appropriate to act before it knew the true state of New Zealand law on the subject. Most egregious is that the policy says the Court of Appeal got the interpretation of s 58 wrong and it needs to be brought back to the original intention of Parliament. The Hansard record of the parliamentary debates does not bear that out. The amendments proposed go far beyond s 58.[2]
The Waitangi Tribunal concluded with respect to Minister Goldsmith’s claim to be restoring the ‘original intent’ of Parliament that:
In light of the complete lack of evidence supporting this key policy rationale, and the fact that the Minister’s position contradicts the body of evidence available on Parliament’s intent at the time, the only inference we can draw is that the Minister is relying on his own personal view, even though he was not involved in enacting the legislation. Based on the evidence we have about Parliament’s original intent we determine that the intent was for the test to indeed be thorough, but also to be interpreted by the judiciary.[3]
The Bill before Parliament accordingly is not one grounded in evidence. But it is also objectionable on multiple other grounds. The Law Society has expressed its opposition to the Bill, including:
intended changes affecting te Tiriti o Waitangi Treaty of Waitangi (Treaty) relationships, the rule of law, access to justice, and other constitutional issues including breaches of fundamental rights.[4]
Among many other objectionable aspects, retrospective law applied in the middle of proceedings currently before the courts that iwi and hapū have spent considerable time, effort and resources preparing for is not good law. As the Waitangi Tribunal has found, nor is it consistent with the Crown’s obligations to act in good faith towards Māori. It undermines the rule of law and fundamental human rights.
Moreover, the courts had not even made a final ruling on the section 58 test that Minister Goldsmith objects to, with the Supreme Court due to hear appeals on the issue later this year. As the Tribunal observes:
The Crown, having appealed the Court of Appeal’s decision, still has its opportunity to plead its case before the Supreme Court. However, the Crown has chosen an expedited push to amend the Act to overturn the High Court and Court of Appeal decisions, circumventing the process of final judicial interpretation of legislative intent. In doing so, the Minister is asserting his personal view of Parliament’s original intent, a view not supported by evidence or officials, before the matter can go to the Supreme Court.[5]
Since Parliament first met in Auckland in May 1854 countless measures have been passed that undermine or actively extinguish Māori rights and interests. At the same time, many parliamentarians, Māori and Pākehā, have spoken out against and condemned such measures, sometimes at considerable personal sacrifice and cost. Today, they can be seen as standing on the right side of history, while those MPs who support the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill will be remembered by future generations for all the wrong reasons. I would urge MPs to stand on the right side of history and reject this Bill.
[1] Waitangi Tribunal, Takutai Moana Act 2011 Urgent Inquiry Stage 1 Report (Pre-Publication Version), Wellington: Waitangi Tribunal, 2024, pp.35-36.
[2] Sir Geoffrey Palmer, ‘Lurching towards constitutional impropriety’, Newsroom, 23 August 2024, https://newsroom.co.nz/2024/08/23/geoffrey-palmer-lurching-towards-constitutional-impropriety/
[3] Waitangi Tribunal, Takutai Moana Act 2011 Urgent Inquiry Stage 1 Report (Pre-Publication Version), Wellington: Waitangi Tribunal, 2024, p.60.
[4] David Campbell, Vice-President, New Zealand Law Society Te Kāhui Ture o Aotearoa, to Te Arawhiti Office for Māori Crown Relations, 16 August 2024, https://www.lawsociety.org.nz/assets/Law-Reform-Submissions/Te-Arawhiti-Takutai-Moana-Act-FINAL.pdf
[5] Waitangi Tribunal, Takutai Moana Act 2011 Urgent Inquiry Stage 1 Report (Pre-Publication Version), Wellington: Waitangi Tribunal, 2024, pp.60-61.
Aku mihi
Vincent O’Malley