Supreme Court should 'stand up' on customary rights dispute - Parker

Labour MP David Parker has called on the Supreme Court to "stand up" on the issue of Māori customary rights to the foreshore and seabed as he slammed the coalition Government's planned legislative changes.

Parker, a former attorney-general and Cabinet minister, delivered a strong speech at Parliament during the first debate on changes to the Marine and Coastal Area Act (MACA).

"We've got a Government at the moment that's riding roughshod over normal processes."

In July, Treaty Negotiations Minister Paul Goldsmith announced he would propose a bill to overturn a Court of Appeal decision and amend the MACA law.

The planned change would restore what the Government believed was Parliament’s "test" and original intent for Customary Marine Titles. Many Māori have labelled it a "modern-day confiscation" while opposition parties have blasted the move by the coalition.

Goldsmith's bill has passed its first reading in Parliament and will now go to select committee for consultation. The minister expects the legislation will be passed before the end of 2024.

Parker, who is Labour's shadow attorney-general, said the courts needed to "stand up".

"In this sort of situation, it's time for the courts to stand up for the people of New Zealand who they represent," he said. "There is no more important case before the Supreme Court going to the future peace and happiness of New Zealand than this case."

The long-standing MP said he was one of the few representatives still in Parliament now, who had been around in 2004, when the then-Labour government introduced controversial foreshore and seabed legislation.

It was a move which led tens of thousands to march to Parliament in one of the largest protest actions seen in New Zealand history.

Parker said, at the time, a decision was reached by the Court of Appeal regarding tribe Ngāti Apa, of the Rangitikei District, and found there was an unexpired common law interest in the foreshore and seabed that had not been expunged.

"The Court of Appeal did not find how extensive they were, it didn't set out the legal test, but a political controversy furore arose around the country."

Parker recalled how there were "extreme" comments made on both sides of the debate.

"On the one side, we had members of the National Party, at least one of whom is still in this House, saying that access to the beaches would be prevented and that people wouldn't be able to go and fish. That was never true," he said.

"On the other hand, we had some people saying that the Ngāti Apa decision was effectively giving Māori freehold title, asserting that that's what they were going to get … that was wrong too."

Parker admitted the 2004 Labour government "made mistakes" by stepping in and introducing the controversial legislation.

"Perhaps the most significant mistake we made was we didn't let the issue play out before an appeal to the Privy Council … we intervened," he said.

Advocates now fear the current Government is making the same mistake.

It's believed the submission process is being truncated in order for the responsible select committee to report back by December.

Parker said: "In my opinion, this early report back date fails to learn the history in 2004 of the mistakes that were made then."

He said the date should be pushed back to June 2025 at the earliest.

"Any application by the House to bring that forward, really, is an example of fools rushing in, where angels fear to tread."

The Labour MP also called for an urgent hearing by the Supreme Court to consider the alternative views and arguments expressed in the current Court of Appeal judgement.

"Let them put a bit of light upon that issue before this Parliament decides whether it needs to react or not."

Parker added: "That is the role of the courts and I for one, I am calling upon the Supreme Court here to do its job."

"I hope that … the Supreme Court stands up and does its job. They have accepted an appeal. They should set it down for hearing in two weeks' time, and they should do their job in the Supreme Court to hear the live appeal."

Parker said the issue was complex and that more time would prove beneficial based on what he said was Labour's own experience, had it allowed the Privy Council to consider an appeal in 2004.

"People would have had more time to get their head around the fact that actually in the end, these foreshore and seabed disputes, they're not going to change the world," he said.

Under marine and coastal laws, Māori must prove they have exclusively used and occupied an area, from 1840 to the present day, without substantial interruption.

"All that the courts could do is find what already exists and let it continue," Parker said.

"They couldn't create a new right in the foreshore and seabed – they could only recognise rights that were only in existence."

He added: "In the end, no one would have got any more than they already had, which was an unextinguished common law right that went back to pre-1840."

Parker also criticised the cut-off date that was applied to lodging a claim under the original MACA law, being April 3, 2017.

"After 200 years of not having to do anything, all of a sudden Māori were given a deadline of 2017 that if they didn't file their claim, they could no longer file their claim."

Parker said that had contributed to a "rush" of claims being lodged which has now lead to a "backlog" in the courts.

"And now the Government complains that too much money has been spent on legal aid in respect of those claims," he said.

"Well the Government bought that upon society by putting a limitation period in."

When announcing the recent proposed amendments, Treaty Negotiations Minister Paul Goldsmith said the Court of Appeal judgment in Re Edwards "changed the nature of the test" and materially reduced the threshold set for claimants.

"The Government does not agree with this change, and wants to ensure the wider public has confidence these tests are interpreted and applied consistently."

Speaking in Parliament, he explained the position: "What we're simply doing is trying to restore the tests that were included in the legislation in 2011, which a Court of Appeal decision manifestly changed.

"That's what we're doing and it makes good sense."

Goldsmith added: "This bill is heading off to select committee, where everybody – iwi and all New Zealanders – will be able to have an opportunity to have their say on this legislation.

"We continue to have many meaningful discussions up and down the country around a range of Treaty issues – including MACA – and we listen very carefully on all those occasions."

The Treaty Negotiations Minister said Customary Marine Title provides for "valuable rights" including refusing resource consents for private assets like wharves, as well as aquaculture expansion.

"All New Zealanders have an interest in the coastal waters of our country, so Parliament deliberately set a high test in 2011 before Customary Marine Title could be granted."

Parker argued that the courts were better suited to determine the "test" for customary title, not Parliament.

"We didn't think that it was wise for a Parliament to take on its shoulders the codification of the statutory tests under the MACA legislation, because we could get it wrong."

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