The High Court has recently completed a series of case management conferences throughout the country to hear from the 200 or so parties that have made claims to the High Court under the Marine and Coastal Area (Takutai Moana) Act 2011. Essentially the purpose of the hearings was to report progress to the High Court, or more specifically to Justice Churchman who has assumed responsibility for hearing the claims following the appointment of Justice Collins to the Court of Appeal.
The appointment of Justice Churchman was not without controversy. Following his disclosure of interest, in a Court Minute dated 11 April 2019, he advised:
“ By way of disclosure of potential conflict of interest, I advise that, when in practice as a barrister, and, prior to that, as a solicitor, I received instructions to act on behalf of, or provide advice to, a number of iwi. That advice and representation did not include any matters under the Act but spanned a number of issues including advice on Treaty of Waitangi claims, administrative law issues and employment related matters.
 The iwi involved were:
(a) Ngāti Toa Rangatira (principally in respect of the Northern South Island inquiry);
(b) Hokotehi Moriori Trust (Rekohu);
(c) Rangitane Ki Wairau;
(d) Ngai Tahu; and
(e) Ngāti Rangitihi.
 My daughter-in-law and mokopuna whakapapa to Ngāti Ruanui.”
He then added:
“ I do not believe that any of these matters raises a conflict of interest that would impact upon me managing these proceedings but if any party or lawyer has a different view, they should notify the Registry immediately.”
A number of parties to the appeals disagreed, and lodged notices for the Judge to recuse himself from hearing the cases. Justice Churchman considered those requests but remained of the view that there was no conflict of interest.
To a layman not expert in the nuances of High Court protocol, it seems bizarre that the person accused of bias should be the person who judges whether the concerns have substance. Logically, that should be someone who can take the role of “a fair-minded, fully informed observer” to assess whether there is “a reasonable apprehension that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The issue of bias is important for reasons that will become clear.
What is also becoming clear is how little headway has been made by the claimants progressing their claims in the High Court. Many have been granted a 12 month extension to prepare their case. The stated reasons for the delays should be of no surprise to those who have been following the process:
- Lack of resources (government funding not coming through quickly enough or the funding being insufficient);
- The availability of historians who are no doubt very busy working on these claims;
- Uncertainties regarding exactly what the two “all of Aotearoa” applications are claiming;
- Problems regarding the mapping of the areas being claimed; and most significantly
- Difficulties obtaining the agreement of competing tribal and hapu interests in overlapping claims.
How Maori resolve these competing claims will be significant to the outcome of the process. The question of ‘exclusivity’ is indeed critical. Some say that the mere fact that there are multiple claims demonstrates no one group has used an area exclusively. End of story. However, Justice Churchman appears to have a different view, raising the possibility that there may exist “joint-exclusive” use of an area.
It’s therefore quite conceivable that in following the Judge’s suggestion, claimants may present a united front at the hearings by claiming joint-exclusive use and argue over “divvying up the spoils” later.
The Judges’ apparent view that joint-exclusive use may be within the definition of exclusive may be a point of interest to those who had previously expressed concerns about bias.
A layman could quite rightly take the meaning of “exclusive” to be “one but not more than one”. Claimants however may take a different view by arguing that “tikanga” permits more than one tribe to use an area exclusively.
The difficulty is there is no agreement on the meaning of exclusive or tikanga (Maori customary values and practices). Some argue that tikanga is unique to a tribe, who have their own values and practices. It is therefore quite possible that the meaning of tikanga will vary depending on the case being argued.
Those engaged in the process therefore face the conundrum of arguing issues relating to exclusive use and tikanga without having a working definition and without being able to define its parameters. It will therefore be difficult to argue an area has not been used according to tikanga – when tikanga is whatever a claimant says it is.
It is these sorts of circuitous legal arguments about vague notions that will occupy the time of the troop of lawyers acting for Maori (and paid for via taxpayer funding).
It would seem logical to have the definition of key principles like “exclusive use” and “tikanga” determined as a point of law prior to the commencement of the High Court cases and if necessary tested through the appellate courts (Court of Appeal and Supreme Court).
Unfortunately, clarifying points of law does not appear to be the view of the High Court – instead they say principles will be determined on the facts of each case.
What is clear from the court pleadings to date is that the historic evidence presented by claimants will be largely “oral and traditional”. In other words, the reflections of elders based on memories that will be either real or imagined. This evidence is being prepared with the assistance of historians specialising in cultural history. It is highly likely that the Courts will consider these experts credible.
In the absence of any other evidence, it is likely that these memories and recollections will be accepted as fact when it is essentially hearsay evidence that cannot be verified and may well be contrived. In the end, the court will assess the weight of evidence on the balance of probabilities and it will be accepted as fact unless challenged by other parties to the claims.
Another matter of contention is the role of the Crown. One hopes that Crown Law on behalf of the Attorney General will represent the public interest. Maori groups however are arguing the Attorney General should not be a party to the proceedings. In other words, they want to muzzle the Crown from opposing their claims. This may have something to do with the fact that the Crown has to date taken the view that where customary title does exist it is for small and discrete areas. The claimants want much larger areas defined by region.
What is also becoming apparent from the process is the claimants appear to be in no hurry to have their day in Court. It’s not difficult to see why. Most claimants have taken a bet each way by taking both paths available to them.
The first is down the Crown engagement path where a claim is determined solely by the Minister of Treaty Negotiations without any rights of appeals and without any public engagement. The second is to make a claim for customary title via the High Court.
It’s not a case of one path or the other. It can be both, and that’s what claimants are opting to do, so as to leave open the possibility that if they are not satisfied with the outcome of one, they have recourse to the other path. It is quite clear that the claimants fancy their chances with the Crown more than with the High Court and they may be attempting to delay the High Court proceedings while the Crown engagement takes place.
From the process to date, I am of the view that the claims process is an opportunistic attempt by Maori interests to gain control of what was previously regarded as public space for the benefit of everyone. I have no doubt the end goal is to securing a perpetual income stream from the granting of use rights to third parties. Who can blame them for doing so – after all wouldn’t any commercial operator do the same if they were given the opportunity to do so? And as vile as it is, who can blame the process being exploited by well-paid lawyers: feeding from the public trough while arguing vague notions that are impossible to define. There is now a very well established sub-industry within the legal profession that is generating a significant revenue stream from the Maori rights industry. These are young, well educated individuals who are no doubt expecting a long and rewarding legal career ahead.
What is astounding is that the former Minister for Treaty Negotiations (and Attorney General) Chris Finlayson was able to convince his National party colleagues to pass the Marine and Coastal Area Act 2011 in its current form. They were foolish, naive, and spineless to allow it, and should hold their heads in shame for the mess they have created and the disservice to New Zealanders in general.
The process should be stopped immediately, and in particular the illogical dual pathway given to claimants. If there are two paths, then claimants should have to choose either crown engagement or the High Court – not both. In fact, the Crown engagement path should be abolished entirely because this is too important an issue to entrust in a politician with an inescapable political agenda.
Frank Newman is secretary of the Landowners Coalition, which is an interested party in the High Court claims made under the Marine and Coastal Area Act 2011.