Ellis and all that - Part I

On sour grapes, real dialogue, things and relationships

In recent years there has been - it seems - an increasing willingness to differ publicly with judges and judgments of New Zealand Courts. The wisdom of judges has long been fair game, which has deep cultural roots in changing attitudes about authority. But in New Zealand this specific willingness has had to do with a perception that some Court decisions reflect the leanings of “activist judges”.

Recent cases such as the Ellis case, Smith climate litigation, foreshore & seabed cases, criminal and environmental cases can spark this kind of public comment. And to be clear, the pattern at the moment is usually that judges are said to be too liberal or left-leaning.

The Spectator Australia, Gary Judd KC, The New Zealand Initiative (and Rodger Partridge on his own account), Peter Watts KC and Jack Hodder KC have commented. All are worth taking seriously, as too few seem to - arguably because some commentators have politicised it and not everyone share their politics. But this not about liking or disliking liberal outcomes, for me at least: the current pattern could easily be the other way around in other conditions, if for example our judges upheld a genuinely apartheid regime.

I’ve been wanting to cover this subject on Brenty’s Two Cents for a while now, but it has always seemed just a bit-too-desert-dry. A few KCs aside, who really cares? It’s also seemed unrelated to my theme of relationship with place. Imagine my excitement at having a pretext for finally coming around to it: a discussion at a friend’s recent birthday, over a couple of beers, with no other lawyers to be seen, and being told it was actually interesting.

Here I offer some thoughts on all this, for anyone interested.

Sour Grapes

Sometimes people lose contests. Sometimes they react with garden variety sour grapes. When we’re talking about losing a court case, sour grapes is often harmless or only lightly corrosive. It might be mildly amusing for a legal geek when it’s in the form of a hopelessly unworkable proposed Members’ Bills like this. The same thing might simultaneously triggering, eg for people committed to a related cause or just those who react to trolling.

Does it ever tip into harm? My intuition is that it can, and the Law Society and NZ Bar Association think so too.

One example that is obviously wrong is when Crown Ministers comment adversely on decisions without engaging with the reasoning, and instead because they very obviously don’t like a judgment, or what litigants are doing. In a recent example, Shane Jones publicly dissed High Court Judge Cheryl Gwyn as a “communist” in a meeting with Seafood representatives, citing a university club affiliation. She had decided against fishers in a case I helped build. One takes it “communist” was an insult. The Attorney-General responded mutedly in public, and “talked with” Jones, which seemed a bit light - perhaps raising short-run electoral considerations over longer-term ones - when compared what some of her predecessors have said in similar cases.

I normally refrain from guessing at motivations, but Jones’ case may reflect a couple of things. First, an animus within NZ First about litigation opponents - which could be only human given the significant and (of course) unsuccessful Serious Fraud Office interest in that party. I myself know the feeling, having had major civil proceedings go against people close to me. Sometimes, as say with the Sensible Sentencing Trust, a similar thing might happen in the criminal domain, borne of real pain and a sincere concern for victims. But being reasonably familiar with the context of Jones’ comment, I’d also be confident that Jones is just unhappy with ELI successfully retaining its perfect record of successful judicial review proceedings against fisheries decisions, then initiating proceedings with potential implications for the deepwater fishing industry. (Disc: these are all cases I’m proud to have been a big part of.)

Uncool though Jones’ kinds of comments so obviously are, they can have their amusing side. For example, Jones seems to have gone as alluding that these and other environmental are “attacks on Parliamentary sovereignty” - when of course judicial reviews are precisely about parties seeking to correct executive misuse or misunderstanding of Parliament’s laws - effectively to enhance Parliament’s mana! (With apologies I can’t find the link.) This is Mickey Mouse™ stuff to those who know much civics. But perhaps Jones got himself was looking for the last laugh, sparking a reaction out of those who would be trolled (he got it). For me, though, it’s just an ongoing shame that so many are too busy trying to buy butter that they don’t get around to learning these things.

This is not some stepping off point into a call for civics (on a tiny platform that will not matter one jot, no less). Nor is it to dunk on Jones individually: there have been plenty more examples - here’s another. It is just to return to the point that, given the reality of low levels of civic education, perhaps these kinds of comments might corrode confidence in the judiciary. They aren’t fair because they can’t reply, but equally such criticisms seem like straight-up dumb rugby “over the course of the season”, because in the end we need a judiciary we can trust. Risking undermining that trust is a high price to pay for sour grapes.

Dialogue

A “dialogue” between Parliament and Courts is part our set-up, our “constitutional arrangements” here in New Zealand. Often there is no controversy involved at all. For example, Parliament says something through a law. It means X at the time, very clearly. This X comes up in a dispute years later, but now X “isn’t a thing”. What does X mean in a law that is still on the books? It’s can’t really mean nothing: Parliament could have taken the law containing X off the books, or changed it, but it didn’t. In cases like these Courts may apply an “ambulatory” approach - a word I’ve always found confusing. It just means it might take the literal words from way back when, and make them meaningful for today. Think references to telex or fax machines etc. Piracy laws have undergone similar analysis, even though swashbuckling buccaneers have disappeared.

Sometimes the dialogue and response will be different, as with uncodified directors’ duties in the Companies Act 1955; much closer clarification in the 1993 Act; recent non-statutory changes in the form of the climate and now nature-related disclosures regimes, and even talk of a Parliamentary response to all this in recent weeks. (More, perhaps, on directors’ duties another time.)

For a final example, sometimes Parliament will say A, B, C in a law. A later Court considers A, B, and C in a dispute, and D comes up. The Court may have to fill a gap and address this. Parliament may or may not have other ideas.\

Sometimes that kind dialogue will engender disquiet in on or the other branch, usually much more obvious in Parliament.

Real Dialogue

This dialogue sometimes leads in productive directions. Sometimes things happen very fast, as with the out of Court settlement of the Lands case, of treaty principles fame, given in late June 1987. A key issue had been whether transferring Crown land to State-Owned Enterprises could prejudice foreseeable Treaty claims and settlements. The Court considered that the existing legislative protections were inadequate to give that protection, and gave related directions. Just a year on, in late June 1988, Parliament responded with changes to the State-Owned Enterprises Act, including new protections for land transferred to State enterprises. These required memorials on the title, with provision for return of such land to the Crown should the Waitangi Tribunal recommend it. This arrangement remains alive to this day, and its protections are obvious (see eg here), though to my knowledge never used. Perhaps the message that “flogging off foreseeable settlement land is unwise” became tacitly understood and agreed between Parlaiment and Courts through this episode.

More often, productive change is slow. One example was when the New Zealand Bill of Rights Act 1990, or NZBORA, affirmed various rights. This is our A, B, C. In time the various rights affirmed became woven through law-making processes: things like the Cabinet Manual required checks on them, and the Attorney-General had to table a report in Parliament if a Bill, a would-be law, would infringe them. At least 42 of these “section 7” reports are readily retrievable, but I understand there are about double that number. Sometimes the “A-G” will have to report unfavourably on their own government’s measures, as happened very recently, and sometimes modifications will result. In this way and in time the law has come to reflect the rights affirmed in NZBORA more meaningfully, if never perfectly.

But some aggrieved litigants suggested that if these rights A B C were truly meant, two more things should be possible:

1. Courts should be able to award monetary damages for breaches. This is our D number 1.

2. Courts should be able to declare actual Acts inconsistent with NZBORA. This is our D number 2.

Courts agreed about D1 in 1994’s Simpson v Attorney-General, known as “Baigent's case”. The Law Commission recommended no response, and Parliament made none. It took 4 years, but there seemed (and still seems) to be agreement on this point, even though D number 1 appears nowhere on the books. It took until 2018, and a case called Attorney General v Taylor, for the Courts to finally resolve that they agreed on D2. 28 years. But what exactly did Taylor mean for Parliament? It responded with an explicit D number 2: the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act 2022, which sets out a process for such cases.

Sour Grapes or Real Dialogue or a bit of both?

So much for trolling and productive dialogue. Sometimes slow-motion train-wrecks result instead. A good recent example is the ongoing saga of the law of the “foreshore and seabed”.

This saga starts with the basic principle that the common law, declared by judges, accreting over many actual cases, and bound by rules of binding precedent, exists. While understandings about the sources of law have moved around over the centuries, common law has been on the list for as long as matters. It is an unquestionable source of law.

Common law morphs when cases get to senior courts. It exists unless Parlaiment puts a law over the top of it: “extinguishes” it. In New Zealand law, Parliament has clarified, with increasing clarity from 1858, that the common law of New Zealand was the common law of England of 14 January 1840 “so far as applicable to the circumstances of the said Colony of New Zealand.” (A modern iteration lacks this qualification.) The Westminster Parliament had earlier given indications about the boundaries for judging applicability, for example as in section 71 (LXXI) of the Constitution Act of 1852.

“Circumstances” include facts. Part of the “circumstances” of New Zealand is the historical fact that a sophisticated Māori world was living here on 14 January 1840. The English law had doctrine dealing with these situations, known as native or aboriginal or later customary title or rights. A potential modification to the English common law, therefore, came from Māori who could establish various “customary rights”, including in the foreshore and seabed, and have them recognised in the Queen’s Courts. Various recognitions of this kind happened as a matter of fact, the prime example being 1847’s R v Symonds. The Kauwaeranga judgement of 1870, almost lost to the mists of time, was in this way similar. Even the Wi Parata case of 1877 (and of infamy in much contemporary Treaty law education) seems to say that Art 2 of the Treaty, which relates to these kinds of customary rights, accorded with ius gentium or international law. Any errors or inaccuracies there are my own.

History marched on: the facts changed. There were wars in the north, and straightforward reneging then petitions in the south, all resulting in land loss for Māori and solvency for successive governments. There were also efforts to redress these things: an 1891 inquiry into native lands, and a 1900 Act that made for significant devolution to Māori: it would have made the Māori Health Authority blush. Around 1963 one Waata Tepania wanted recognition of customary rights on the Far-North west coast - in the form of titles to the beach. This was probably against the grain of the cultural settlement then extant, at least as understood by a vast majority. In a case called In re the Ninety-Mile Beach, the Court of Appeal ruled that the parts of the common law which might have led to that outcome had been extinguished, due to the Māori cession of sovereignty via the Treaty, and the later enactment of various statutes.

The facts kept changing. In 1972 and academic called Ruth Ross gave a paper to a seminar at Victoria University. It was called Ti Triti o Waitangi: Texts and Translations and can be found in the New Zealand Journal of History. On some tellings, including that (liberal one?) in Michael Belgrave’s recent Becoming Aotearoa, this paper helped sparked views that we know well in academic and public discourse today - that the Treaty did not involve a cession of “sovereignty” and so on. About that time, people like Whina Cooper were leading land marches and making increasingly confident assertions of tino rangatiratanga, as mentioned in Art 2, “according” with international law and paralleling the domestic law of customary rights. This academic and cultural energy sparked a (though by no means the first) concerted, two-generations plus, national effort to reconcile with the past.

That effort has resulted in pardoning Māori combatants in the New Zealand Wars who had been convicted of crimes; founding the Waitangi Tribunal in 1975; getting it to look at contemporary Crown conduct; then from 1985 to look at the historical facts of wrongdoing to Māori. (Both examples showing the lie to the idea that retrospectivity - as say with recent Pay Equity changes - is invariably bad?) In response to the contemporary watchfulness, Parliament now regards itself as a matter of fact, as at least politically constrained in its contemporary action by the existence of these rights. For some examples, consider the way:

• Fisheries rights were sorted out opportunistically in 1992, with good success (and emergent problems only really kicking off now in the face of fisheries scarcity borne of long Crown mismanagement).

• That the Treaty Principles Bill simply couldn’t avoid something kind of sort of resembling Art 2 as a matter of political gravity.

• A very recent example here in re the review of Treaty clauses.

The cultural settlement had shifted since 1963: in some important sense the “facts” around any case have changed. And because law is always about applying law to facts, it was hardly surprising, then, that when a 2003 Court of Appeal revisited questions similar to those of In re the Ninety-Mile Beach, it moved back towards the 1870s judgments and said that Māori customary rights in the foreshore and seabed had not been extinguished. No such rights had actually been established, but they could be through processes in the Māori Land Court.

Those of about my age and older may recall that all hell then broke loose, albeit over a 20+ year timeframe. Here began our slow-motion train wreck.

We’ll return to this next time, in Part II.

Thanks as ever for your interest in Brenty’s Two Cents

AB - 4 August 2025