Last week I started a discussion on dissing judges, on the dialogue between Parlament and Courts in New Zealand, and recounted a very potted history on some of that. I went there because to my utter surprise, some friends had seemed to find it interesting.
Updates
Last week I made some comments about why Shane Jones might have dissed a High Court judge. I said it was probably sour grapes at that judge handing Fisheries New Zealand yet another High Court loss in cases brought by ELI, all of which have been successful. Apparently, he is now planning to bar judicial reviews of fisheries decisions, which would tend to support my view. But I have not had the chance to look into properly, so watch this space.
My friends who took an interest in issues of the dialogue between Courts and Parliament will almost certainly draw the line somewhere well short of a discussion on the goods and bads of barring judicial review, which is usually achieved through “privative clauses” in legislation. This area can also bring Courts and Parliament into conflict. For those readers who are interested in all this, all five of you, you may wish to go back and think about another device used by the current government and having privative effect. This was used in the Fast Track and to my knowledge is novel. This was to put essentially administrative procedures behind the wall of “drafting legislation”. I discussed it here. Environmental issues and physical projects aside, innovating such a pernicious device may be a long-run legacy of the Fast Track. It seems sure to put the Courts and Parliament in conflict one day. Please get in touch if you have interesting conversation fodder on this.
Back to Ngati Apa
Back to last week’s story, where we left off in 2003-2004. This was just after the Court of Appeal had ruled in the Ngati Apa case, much in the way it had in the 1870s, that Māori could establish customary rights in the foreshore and seabed - not that any actually had.
My view was that a slow-motion train-wreck then began. By this I don’t mean good things haven’t happened since 2003, just that in the foreshore and seabed situation, for most good things still seem some way away, or achieved with massive effort.
Parlaiment’s response to Ngati Apa, through then-Prime Minister Rt Hon Helen Clark’s government, was the Foreshore and Seabed Act 2004. That Act unambiguously extinguished foreshore and seabed claims and vested those areasin the Crown. A Labour MP and Minister, Tariana Turia, resigned from the Labour Party and formed The Maori Party, now Te Pati Māori. She crossed the floor of Parliament to vote against that measure. There was a hikoi on Parliament, and Clark came out with a line calling the leaders “haters and wreckers”. Not to be bested, a dead a buried Don Brash-led National Party gave a speech at the Orewa Rotary Club where he contrasted “iwi” and “kiwi”. Billboards followed, a National came close to winning back the Treasury Benches at the 2005 election. This was the origins of today’s Hobson’s Pledge.
These were serious political consequences for a 150 year old dialogue, but more serious ones still came after the 2008 election, when a John Key-led National joined with the Maori Party. That government did three consequential things in relation to our dialogue:
It defined two types of Māori interests coastal areas, and established its own process for recognising them: the Marine and Coastal Areas (Takutai Moana) Act 2011, or MACA. MACA also said “no one owned” these areas by default.
It gave a statement in support of the UN Declaration on the Rights of Indigenous People or “UNDRIP” in 2010, reversing a Clark-era position. This is said to have opened the way to 2016’s He Whakaaro Here Whakaumu Mo Aotearoa and 2019’s He Puapua, the documents immediately behind “co-governance” debate that dogged the Ardern Ministry - though as we have seen is in some ways “Back to the Future”.
It privatised 49% of some State-Owned energy assets, including Mighty River Power, (necessarily?) rebranded as Mercury since 2016, which owns large dams on the Waikato River. It also muddied the waters with freshwater reforms from 2011 which did not squarely address any questions of Māori rights and interests.
Sharp readers will notice we have not mentioned the Key government’s effort with Treaty settlements, led by the Hon Chris Finlayson KC (retold in his recent He Kupu Taurangi for those interested). These efforts were a genuine service to the modern historical reckoning now into its third generation, and did much for straight issues about “land”. They also recognised some tikanga in the form of legal personhood for the Whanganui River and Te Urewera. But they had comparatively little effect on the more generalised “customary rights” issue discussed here, which tended to do with “property” that the common law didn’t so cleanly recognise - foreshore, seabed, freshwater, etc.
After Ngati Apa
Coming back to the dialogue on the Key government’s actions, then, more recently:
The MACA processes have come to a hopefully satisfactory end for much of Ngati Porou, with the recognition of various rights through the Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019. To my knowledge access to the coast up there is still - as locals might say - “all good”. But for others the process is beginning to spiral out of control. There is an ongoing glacial progress taking in hundreds of overlapping claims (interesting maps here). Several claimants have given up on the main MACA process, via Courts, and are negotiating directly with the Crown. For those still sticking with it, a series of decisions has culminated in late 2024 in the Supreme Court decision in Edwards v Attorney-General. The Edwards cases interpreted the test for establishing the some of the rights in a particular way - a way that emphasised tikanga Māori. Some felt this would be “too easy”, and easier than what Key et al meant by enacting MACA in 2011. Parliament is looking like responding by changing those requirements - inserting legislated definitions where previously tikanga had been ruled to serve. In the past week the government has announced this, Finlayson called the changes foolish and "extremely harmful"; and Peter Dunne called them not “correct” or “justifiable.” The dialogue about the extent to which the tikanga of the Coast does and should remain “applicable to the circumstances” of New Zealand’s coast, then, is ongoing. Given the situation in Ngati Porou country, could the Parliamentary response to Edwards be sour grapes?
Or was this response “politically necessity”? Coming on to “UNDRIP” issues, the co-governance debate, both in substance and in the way developments happened, undoubtedly contributed to the scale of the Ardern government’s electoral defeat in 2023. It seems neither major party has figured out how to participate productively in this dialogue.
Turning to the ongoing implications of the 2010s-era partial-privatisations, issues of Māori rights and interests in freshwater and geothermal resources - in principle not unlike foreshore and seabed issues - have been the subject of extensive Waitangi Tribunal work. Other resources too. For freshwater, there are also ongoing High Court proceedings (as extensively reported by David Williams). Without an elegant solution, freshwater and geothermal issues in particular seem likely to make foreshore and seabed issues look like a picnic.
Most of this would have happened one way or another, with or without 2003’s Ngati Apa. In that sense describing it as causing a “slow motion train wreck” isn’t quite right. But readers will catch my drift. Here is a long running and real dialogue about the place of Māori customary law within various parts of New Zealand law, and that dialogue being dealt with very poorly.
The post-Ngati Apa dialogue has collided with the historical facts of a modern country doing its thing, which includes wrestling with its past and talking about its future. At times that real dialogue has become mixed with comment from people on all sides of the discussion - some serious analysis linked at the start of my last post, but also people who don’t like what they see now, or who don’t like that they can’t change the past. Mixed with sour grapes?
In my view part of the problem may be that common theme here on Brenty’s Two Cents, wanting a level certainty and fixity that can’t be had. These questions may never be settled as our cultural sands shift.
Ellis
Enter the Supreme Court’s decision in Ellis v R (continuance), which raised the place of tikanga in the law. Ellis concerned the reputation of a dead man, who common law would hitherto have recognised as having none.
To date, we’ve been talking about “customary law”, which has to do with ideas about “property”. I’ll be honest and say I have no idea whether it is legally the same thing as “tikanga”, or a subset of tikanga, which can be to do with a much wider set of ideas, or something else altogether. I’m sure there is some top work out there on this question, and perhaps the Law Commission’s extensive He Poutama, a work on the place of tikanga in New Zealand law, is one place to start. Supreme Court Judge Joe Williams’ Lex Aotearoa is another.
But you have to stop somewhere, and I do here because the shape of the discussion - about the place of tikanga in the law - is very similar to the customary rights discussion. Just as we had the 1852 and 1858 Acts and their successors kicking things off with an open-textured direction about the place for local cicrumstances, with tikanga we might point at the Judicial Oath to uphold both laws “and usages” of New Zealand. To uphold our… tikanga?
The tests for establishing “customs” as laws, too, have predictably developed over time. Here we can think of cases like 1908’s Public Trustee v Loasby and 2012’s Takamore v Clarke. I myself once had the privilege and burden of assisting in a matter about dealing well with urupa and recall it being very challenging.
Of course cases about how to recognise a custom are a kind of procedural custom, or tikanga. And you do need a way to know what is and isn’t part of the law. The (serious) criticisms levelled at the circumstances of, and reasoning in, Ellis are about these kinds of “recognition” issues. They deserve to be taken seriously.
Brenty’s Two Cents
No Hot Take, Sorry.
Those looking for a “take” on Ellis will be disappointed. Obviously some very eminent judges thought it a reasonable decision, and some very eminent lawyers think otherwise. These two pieces have been about dialogue, and not Ellis anyway.
We can argue until the cows come home about how Ellis ought to have been decided, or what the appropriate tests for “recognition” ought to be. My only contribution are to suggest that anyone who says the place of a Māori custom cannot evolve within New Zealand law cannot be taken seriously. If that is what our learned commentators are doing, and I am not sure it is, it is sour grapes.
Ellis and Dialogue
Framed in terms of the “dialogues” we’ve been discussing, it seems obvious to me that many possible Parliamentary responses to Ellis, for example fixing the way tikanga are recognised in law, will consign the country to yet another slow-motion train wreck, MACA-style. Better to leave it alone.
Ellis and Home
Many of the subjects of dialogue I’ve discussed have been about the coexistence of non-Māori and Māori threads in the law. Dialogue on directors’ duties seldom gets to these kinds of levels, which are too important to be left lawyers alone.
So finally to the connection with place. Whatever we call them, these islands are home for all of us here. For many of us they’re the only pieces of dirt to which we’ve ever unconditionally belonged. You might not like how others would arrange their affairs, left to their own devices, but it’s better to focus on what is shared than what divides - even if real things do.
The wriggle room in the statutory riders of 1852, 1858 and 1957 are still with us today, and cannot be done away with. Customs like tikanga, or others from sources like customary international law, will have their claims on modifying the New Zealand law, including the interpretation of Acts or of common law. So too will facts - maybe we’ll drift away from the Cook Islands, eventually limiting the spatial scope of the law of these islands. Its not possible to define any of this away. So it’s great to have Supreme Court Judge Joe Williams’ Lex Aotearoa, the Law Commission’s He Poutama, and many who celebrate tikanga’s place in New Zealand our law. It’s also great to have Hodder, Judd, Partridge, and Watts pointing out issues with that. For all these fine people have to say, no one position can ever be decisive. Those authors misjudge if they think their position ought to be. The magic is in the ongoing conversation. And in conversation, of course, we’re free to discern, and ignore, the sour-grapists.
Ellis, Home, Certainty in the Law, Things and Relationships
To those who want more than procedural rigour in recognising the place of tikanga, or even the place of Courts to judge environmental issues, I agree that definitions have their utility. We need a measure of certainty. In the law this measure can be central to the rule of law. But as I’ve also said before, giving something a certain shape allows for much utility. This comes through the ability to manipulate (in its non-pejorative usage). And of course a relationship with home can’t be defined, nor the relationships among a nation’s peoples. Even if they could be, relationships of manipulation don’t tend to go well.
Parliamentary sovereignty is not under attack by current New Zealand Court decisions or litigants. Constitution evolution is happening, as it always has. Not revolution. We can’t have only certainty. We can’t have only open slather. It’s great to have reminders of all this, and people to remind us to take care. They’re motivated by the taonga that we share - our relationships with this place and one another.
One fact that won’t change is that we’re all here, together. If we can’t or won’t learn to respect one another’s tikanga, and find the best in it, we’re done. Some things are better left about there.
A B - 11 August 2025