Crown Law warned of ‘significant legal risks’ from foreshore and seabed changes

Treaty Negotiations Minister Paul Goldsmith received legal advice that his preferred approach to rolling back Māori access to customary marine title would “trigger a strong response from the courts” and “raised significant wider strategic legal risks for the Crown”.
The comments were referred to in the Regulatory Impact Statement on the changes, paraphrasing legal advice from Crown Law. Newsroom was provided an unredacted copy of the impact statement for the repeal by the House Office, which revealed passages that were redacted from the online version of the document.
The document shows the Crown’s top lawyers warned of a range of legal risks arising from the changes to the Marine and Coastal Area Act, including the possibility the courts might push back through establishing affirmative duties to protect Māori culture via the Bill of Rights Act.
“There’s nothing in the advice that particularly surprises me,” University of Otago public law professor Andrew Geddis told Newsroom, after reviewing the advice.
“It’s warnings that have been made by a number of legal academics already and I think it reflects fairly orthodox understandings of how the courts have approached issues around the Marine and Coastal Area Act, tikanga and the law and the role of the Treaty in statutory interpretation, as well as other constitutional matters such as a hostility towards retrospective lawmaking.”
Officials from Te Arawhiti – the Office for Crown-Māori Relations repeatedly argued for the status quo rather than making any changes to the law, which replaced the controversial 2004 Foreshore and Seabed Act. If changes needed to be made, they said, they should be as narrow as possible and only apply from when the amendments passed into law.
Instead, Goldsmith pushed for a much more substantive rewrite of key provisions of the Marine and Coastal Area Act and said they would apply from the date of his July announcement on the pending changes.
“It’s basically saying that the test for whether or not an order [for customary marine title] should be given is to be based purely on whether or not some Māori group has had continual physical occupancy of the place. As opposed to whether or not through tikanga there’s been ongoing relationships or ongoing control over the area, even if there hasn’t been that physical occupancy,” Geddis said.
While the original act as passed in 2011 did put in place a continual occupancy test, it left courts as the decision-makers for individual claims. The recent Edwards case saw the Court of Appeal decide that, consistent with the purpose clause of the legislation to “provide for the exercise of customary interests in the common marine and coastal area”, Māori could claim occupancy through a continual relationship or mana whenua status over an area even if they were at some stage physically excluded (often by the Crown).
Goldsmith’s amendments, introduced to Parliament on Tuesday, make clear that the continual physical occupancy test is the only deciding factor for the courts.
Crown Law suggested this would rankle the courts, who have long asserted the ability to factor tikanga and the Treaty of Waitangi into their interpretation of laws.
“Crown Law considered that making additional amendments … might improve the efficacy of section 58 changes but were likely to ultimately be of limited effectiveness because they were likely to trigger a strong response from the courts. Crown Law advised the courts are likely to strain to read down a clause that attempted to exclude their consideration of the Treaty or tikanga,” one of the passages intended to be redacted from the impact statement read.
“Crown Law advised this approach raised significant wider strategic legal risks for the Crown.”
One was that a court might find Goldsmith’s amendments “constituted an unjustified interference with section 20 of the New Zealand Bill of Rights Act 1990 which protects the cultural rights of minorities”.
While there is little case law about s20 of the Bill of Rights Act currently, “this approach could result in the courts significantly developing that jurisprudence in ways that could impede government’s policy agenda and/or result in recognition of affirmative duties to protect Māori culture”.
Goldsmith and Prime Minister Christopher Luxon have both argued repeatedly that the changes will restore Parliament’s original intent when the law was passed in 2011. But Crown Law pushed back on that, saying, “while the High Court’s decisions prior to the Court of Appeal’s decision in Re Edwards focused less on the literal wording of section 58 (and more on section 58 in the context of the wider Takutai Moana Act) than the Crown might have expected, these interpretations and decisions were broadly consistent with the regime set out by Parliament”.
Crown Law also advised that the changes may not hold up in the long term.
“Crown Law considered removing any capacity for the courts to use tikanga and the Treaty to shape CMT assessments would be very difficult to achieve, both in terms of legislative drafting and in practice. In addition, the likely continued opposition to the proposals from applicant groups seeking to advance customary marine title may impact on the long-term durability of the proposed changes.”
Geddis told Newsroom the advice noted two constitutional concerns with the Government’s approach.
“The Government’s legislating here before the court process has been fully completed. It’s chosen to impose what it thinks the solution ought to be even as courts are continuing to consider and ultimately decide what the existing legislation means,” he said.
“It’s not quite so clear what the pressing issue is, why it’s considered so urgent to get legislation in place before the Supreme Court has a chance to finally decide this.”
The second issue is the retrospective application of the law.
“The effect of that is going to be to put a burden on a whole lot of Māori groups who’ve already spent a long time in court – some of them up to 15 weeks in court – litigating this stuff. As a result of the proposed retrospective changes, all of that’s going to get wiped out.”