Maori Harness Power of Courts
New Zealand Herald, 31 March 2005

Back in the mid-90s when the Waitangi Fisheries Commission decided to bankroll the foreshore and seabed case, the man later to become its chairman, Shane Jones, dismissively dubbed it "the lost-in-space project".

It's not information he volunteers but, when asked, he concedes ownership of
the phrase, a deliberate corruption of the commission's "coastal space project". The project was a multi-pronged offensive designed to gain greater recognition and understanding of Maori economic development rights in the coastal marine area. It was underpinned by the legal case - it was this Jones opposed - exploring the nature and extent of customary rights, which resulted in the Court of Appeal 's Ngati Apa finding.

Released in May 2003, it is the decision which is widely perceived to have ignited unprecedented tension between the judiciary and the Executive. In a speech celebrating Parliament's 150th anniversary a year later, Deputy Prime Minister Michael Cullen fuelled the perception by referring to judicial activism and suggesting the judiciary was intent on challenging the sovereignty of Parliament to make laws.
Referring to comments made by Chief Justice Dame Sian Elias, he said: "There is an increasing tendency to challenge this sovereignty, not just from some radical Maori, but from within the heart of the judiciary." Cullen later said he was referring to a speech delivered in Australia by the Chief Justice, but few commentators were convinced the foreshore had not provoked the criticism and other similar ones.

It had too many echoes of the grumpy, if not sometimes bewildered, foreshore-related mutterings of various Government MPs around Parliament. Contesting the Northland seat for Labour this election and having just been anointed as an upcoming Cabinet minister by his high placing on the party's list, Jones might be charged with politically convenient revisionism when his wariness about the commission's decision to fund the $2 million project becomes apparent.

But it is former commission chief executive Robin Hapi who discloses his "lost-in-space" nomenclature. And there is a downside - it reveals the then junior commissioner's forecasts weren't entirely accurate. Despite strong legal advice that the case would identify Maori modern-day rights to the coastal space, Jones was sceptical about its chances of success. In the unlikely event of a win, he feared the route was circuitous and might invoke a public backlash impeding the commission's primary goal - the acquisition of aquaculture space.

Not that he or any of the commissioners anticipated the furore Ngati Apa was
to unfurl when it came hurtling back out of the ether. "In the mid-90s, it's honest to say none of us had any idea those forays into the Maori Land Court would end in such spectacular fashion." But Jones was outnumbered on the commission, then chaired by experienced litigator Sir Tipene O'Regan, on which John Mitchell then also sat. Mitchell's Ngati Tama iwi was one of the top of the South Island tribes gathering evidence to show they were being sidelined by local authorities in the emergent bidding war for aquaculture space in the Marlborough Sounds.

Jones: "The commissioners could see aquaculture and coastal space was going to become more and more valuable and that it was finite. The decision was made to fund the actions to see whether there was any life and vitality left in Maori customary rights which could provide a platform to shoehorn Maori into the business of aquaculture." Aquaculture had been left out of the 1992 Maori fisheries settlement with then Maori Affairs and Fisheries Minister Doug Kidd - who was worried about
further complicating already complex negotiations - forbidding Treasury officials, whom he thought wanted it introduced to the new quota management system, from raising the matter.

While the foreshore case began wending its way through the courts, iwi - as envisaged by the project's architects - continued to explore other avenues to press for aquaculture rights through the late 90s. They were wary of putting their eggs in one basket and aware that aquaculture reforms under Government consideration might be enacted before the case was resolved.

Applications to the Waitangi Tribunal culminated in its 2002 Ahu Moana report, which found Maori had an interest in marine farming and that proposed reforms breached the treaty. At the time the Court of Appeal released the Ngati Apa decision, the commission was involved in intense negotiations with a reluctant Government over aquaculture rights, but it was far from certain iwi would acquire the 20 per
cent slice of marine farming space, which would be finally announced a year later.

The iwi marine farming win got just a couple of days of headlines, but had become so divorced from the still yet to be finally resolved foreshore debate it was barely factored in. But Hapi, now head of Aotearoa Fisheries, believes the Ngati Apa decision clinched the aquaculture deal and can be chalked up as a foreshore-related
success. "Without the whole seabed and foreshore process, all the precedents that were established and all the legal advice, we wouldn't have come anywhere near a
deal. We would have just been a noise in the background."

Some Maori will argue the legislative response saw invaluable rights lost, but before Ngati Apa there was no opportunity for iwi and hapu to gain economic returns from those entitlements, Hapi says. The aquaculture deal has secured multimillion-dollar benefits - they've been estimated to be worth $50 million, but Hapi says there are still too many imponderables to give a useful figure - "so there's been considerable movement". Movement the Government did not want to be forced into by the judiciary. Its displeasure was made clear.

Yet among the legal fraternity it appears to have been fairly widely accepted that the 1963 Ninety Mile Beach decision, which essentially found the vast bulk of the foreshore and seabed was owned by the Crown, was bad law. "Everybody thought the Ninety Mile decision was wrongly decided for decades," says former Attorney-General and Treaty Negotiations Minister Doug Graham. Despite the Government's apparent surprise, he says Crown Law "probably did" advise it its chances in the Appeal Court weren't good. Just because a court makes a finding a Government finds unpalatable doesn'tmean it is activist, he adds. "A court has to decide issues brought before it, it doesn't generate them. I don't think they [the Appeal Court judges] are activists. The perception is there, but it's erroneous."

Jones agrees. "Having had a look at the personalities on the Court of Appeal I don't think you could call them radical. Sian [Elias] has had some involvement with the big treaty claims, but she didn't arrive at that decision by herself. It was a decision of administrative law."

O'Regan says the Government's response should be seen in a wider context. "There's naturally in New Zealand's constitutional arrangement a tensioned relationship between the Executive and the judiciary. It's inherent and it's based on the separation of powers."

Parliamentarians particularly hate the development of rarely explored common law jurisprudence, even though it is the foundation of citizens' rights, because it threatens their authority which, through the lack of a constitution, is generally fairly unlimited, he says. "And they will generally act negatively on the rights of a minority group and particularly an indigenous minority group because there's a whole lot of baggage to draw on politically." Talk of activism following the foreshore decision was no more than political spin, he believes.

Political attacks on the judiciary have always been cyclical, typically starting with references to "unelected politicians" and usually evolving into pointed questions - barely disguised threats - about their pay, he says. Historically, says Victoria University senior law lecturer Catherine Iorns, the New Zealand judiciary had a bad reputation for its handling of common law cases, with a number of rulings on cases taken by Maori at the beginning of the 20th century overruled by the Privy Council.
It was of the view that unlike other colonial jurisdictions, the New Zealand courts were deliberately ignoring indigenous right, establishing precedents out of self-interest, she says.

Since that period and until Ngati Apa, hardly any common law cases were taken, with Maori using the courts to identify rights by seeking definitions of treaty clauses in legislation. This wasn't possible until the historic 1987 "lands" case when the treaty clause in the 1986 State-Owned Enterprise Act was taken to the Appeal Court for definition. It was one of the first treaty clauses in legislation.

Once they began to be inserted Maori had a vehicle with which to bring the treaty into the judicial arena. Then Appeal Court president Sir Robin Cooke's findings on the treaty partnership and the obligations each partner had to the other changed the political landscape, she says.

Graham says this was the "high point of intellectual activism" in the New Zealand courts, although it was not inconsistent with exploratory decisions on indigenous rights being made in overseas jurisdictions. An inevitable flurry of cases, unleashing years of pent-up frustration, followed, unsurprisingly, he says. "Maori were denied access to the courts on treaty rights for 140 years. If courts could have ruled on treaty issues in the 60s, 70s and [most of the] 80s, we mightn't have had all the problems we have today, but treaty issues weren't really justiciable until the late 1980s."

Iorns and Jones believe that concentration of cases helped to fuel the mainstream backlash to Ngati Apa and a political one to its authors, together with the fact that because it involved "the beach" it was seen as an almost iconoclastic attack.

While Graham laments the criticism lobbed at the judiciary, he believes Deputy Prime Michael Cullen's foreshore solution, once the Government got to grips with what it was dealing with, was about as good as could have been expected - better than hapu spending the next 50 years in the courts - and dropped him a line telling him so. Iorns believes the outcome short-changed Maori, although concedes that
because there have been so few significant common law cases involving non-Maori rights, it is hard to state categorically that the Government's decision to interrupt due process and legislate was in itself discriminatory.

While a now relatively sanguine Hapi points to the aquaculture wins, O'Regan is less enthusiastic, saying the extreme reaction of the Government created a deliberately irreconcilable polemic, aimed at preventing the future input of the judiciary whose less politically tainted analysis was required further as a platform from which to begin proper negotiations.

The recent report of the United Nations Committee on the Elimination of Racial Discrimination (CERD) essentially raised similar concerns when it expressed worry over the impact of the political atmosphere on the legislation and the failure of the consultation process to narrow differences. The powerful committee was dismissed as a fringe arm of the UN, the somewhat ironic implication being it was, like the Appeal Court, activist. CERD, Cullen suggested, failed to understand the complexities.

The committee's promise to revisit the issue should give the East Coast tribes still negotiating with the Government further leverage and it is not until the details of those deals are unveiled that the real nature of the elusive redress - aside from the aquaculture win - on offer will become clear.

Of interest will be whether that happens before or after the election. Jones, who notes the commission was sidelined early on during the foreshore debate by suspicious iwi despite its funding contribution - and who must in hindsight be relieved to have escaped the limelight given his new political trajectory - is sticking to the Pandora's Box theory.
That is, although the commission won the Appeal Court case, "the legal action morphed into something else and at the end turned into an unsolicited emotional referendum on Maori rights and the role of the judiciary in resolving Maori grievances".

In the end, the issue became so big and hard to manage, there was a lost-in-space element to the furore."The issue became so politically complicated there was no sense of coherence around it."