The Consequences of Judicial Activism

Two highly regarded New Zealanders who have made a significant contribution to public affairs in this country have recently passed away.

Hon George Gair, the former Cabinet Minister, North Shore Mayor, and high commissioner to London, who died last week aged 88, was a strong supporter of the NZCPR, providing an insightful Guest Commentary last year on the thorny issue of constitutional reform. Acknowledging his competence and good manners, Prime Minister John Key said, “George made a significant contribution to the National Party, to parliament and to the community”.

Sir Ronald Davison, New Zealand’s former Chief Justice and head of the Wine Box enquiry, died last month aged 94. In his tribute to Sir Ronald, this week’s NZCPR Guest Commentator, Judge Anthony Willy, acknowledges the high standards he set for himself, compared to those who indulge in the dangerous business of judicial activism:

“Sir Ronald Davison was appointed Chief Justice of New Zealand on the 3rd February 1978. It is in that office he made his greatest, but largely unsung public contribution. Unsung because he did not seek publicity or succumb to the temptation to set the world to rights which more and more seems to afflict appointments to the senior judiciary around the common law world.

“Sir Ronald understood that the role of the judge although important is a humble one to be performed in accordance with the oath taken on appointment which requires all judges to ‘do right by all manner of persons without fear or favour, affection or ill will.’ In a rule of law country such as we enjoy, ‘right’ means to apply the law. What it does not mean is to grant judges a licence to apply such vague notions of ‘justice’ which from time to time the judge may find attractive, or chiming with his or her social conscience. We call it judicial activism today and it is a blot on civil society around the common law world.

“Informed members of the public look askance at such decisions as the American Supreme Court in the recent case of Obergefel v Hodges which by a majority of 5 to 4 happily redefined the institution of marriage to apply to same sex couples not because the Constitution requires, or probably even allows it, but because it is a trendy and popular thing to do. Similarly with the High Court of Australia inventing constitutional rights for the Aboriginal peoples of Australia which are to be found nowhere in the Federal Constitution. Or closer to home judgments from our Supreme Court disregarding long established legal principles to fashion rights for Maori people to ownership of fresh water resources.”

Judicial activism is indeed a serious problem in New Zealand.

In 2003, the Chief Justice Dame Sian Elias caused a constitutional crisis by overturning the established common law principle of Crown ownership of the foreshore and seabed through a Supreme Court ruling in the Ngati Apa case that some customary title in the foreshore and seabed may still exist and that the Maori Land Court had the jurisdiction to determine such cases.

The finding resulted in a flood of claims for the coastline, some out to the 200-mile Exclusive Economic Zone limit, forcing the Labour government to legislate. Their passing of the 2004 Foreshore and Seabed Act led to a fracturing of Labour and the formation of the Maori Party. Under their influence, National repealed the new law, passing the controversial Marine and Coastal Area Act, which enables iwi big-business corporations to privatise the foreshore and seabed.

The most recent case of judicial activism by the Chief Justice is just as controversial, since it potentially involves the ownership of freshwater.

The case relates to a 2014 Supreme Court ruling in Paki v The Attorney-General, which questioned the long standing precedent of Crown ownership of navigable river beds, by inviting tribal interests to test in the Maori Land Court whether customary rights to waterways may still exist.

This ruling is having a profound impact. Anxious to avoid the constitutional crisis that followed the Supreme Court’s foreshore and seabed decision, the government is working with Iwi Leaders to facilitate tribal control of New Zealand’s freshwater management – without alarming the public.

Their strategy, which was revealed last month in an interview on TV3’s current affairs programme The Nation, is worth repeating in some detail.

Patrick Gower asked Ngai Tahu’s Mark Solomon, the co-chair of the Iwi Leaders’ Freshwater Group, about the state of negotiations over fresh water:

Solomon: We’re at the level of where we’re working with the government to set a framework of how the rights and interests of iwi can be settled around water.

Gower: The courts have agreed that iwi have rights and interests in water?

Solomon: Yes.

Gower: The Government agrees that iwi have rights and interests in water?

Solomon: Yes. Yes.

Gower: But we don’t know how those rights and interests are defined…

Solomon: No.

Gower: …so how do you define them?

Solomon: Well, first of all, I’d say what the rights and interests give us is a right to have an input into the governance, the management and the monitoring of the river systems of New Zealand. We want access to water for our maraes, we want access to water for our communities, and we want access to water in an equitable manner so that we can bring our lands into the economy of New Zealand.

Gower: But let’s look at allocation in general, because at the moment farmers can get a consent for water. Power companies can get a consent to use water. Water-bottling companies can get a consent to use water.

Solomon: Yes.

Gower: They all get it for free once they use that, but you want a system where water is allocated and, I guess, as part of that, iwi get a permanent allocation. Is that right?

Solomon: We’re saying that we want a right to access – equitable access – for water for our lands. Yes, we are.

Gower: Because there is a concern among Pakeha that this will all lead to a price being put on water, this will lead to Maori making money off water or farmers having to pay for water. Can you assuage those concerns?

Solomon: Yes, I can. Last year we did around 60 consultation hui across the country. One of the questions we put at each hui – is this an issue of money? Is this about cash payout? The answer from every hui, ‘Absolutely not. It’s got nothing to do with a cash payout on water.’

Gower: So how would your permanent input over rivers work? Would you sit alongside councils

Solomon: Yes, in a relationship with the council. I mean, if you look at water as an example, water comes under 13 different statutes and 20 different government agencies deal with it. Each one of them has a different reporting mechanism, a different way of dealing with things. Part of what we would like to see if the government rationalise all this into a single organisation and a single framework for water.

Gower: But will we have iwi or hapu on those— around individual rivers or individual catchments or individual lakes, sitting alongside regional council making decisions on how the water from that is used?

Solomon: Well, yes, it is, and part of what we’ve been saying to the Government, ‘Can you work with us?’ and the territorial authorities to put in place a process so that we are at the table, we are having an input into the management.

Gower: So how would that work? Would you sit with the council? Would you have powers?

Solomon: Yes.

Gower: You’d sit alongside councillors?

Solomon: In the decision-making bodies around water, yes.

Gower: But would we see that in other councils? Appointed iwi representatives sitting alongside elected councillors, making decisions on how a waterway is used? Because that’s what it’s sounding like here.

Solomon: It is. We want input into the governance, management of water. I’m unequivocal on that. How it happens and how quick it happens all depends on the different communities. As you know, we had movement in Te Arawa. But we had the exact opposite in New Plymouth.

Gower: Are you afraid, though, that that will happen again with this if you ask for representatives to go alongside council?

Solomon: I think that there is a changing attitude across the country that’s permeating through the nation at the moment. Not every area is like that, and some are quite adamant that they don’t want any input from Maori, but we’re not going away. We’re here. We’ll keep pushing the issue.

Gower: Permanent iwi representation alongside councils, making decisions about water, that will be controversial. Can you get this past a National government?

Solomon: Already in the legislation, there is clauses where councils have to work with iwi. It’s an evolving field.

Without any public consultation whatsoever, local authorities are now doing deals with iwi leaders. Just last month Local Government New Zealand signed a Memorandum of Understanding with the Iwi chairs forum to “support and encourage strong relationships and collaboration between councils and Iwi”.

The Gisborne District Council is taking a lead with a new agreement ready to be signed with Ngati Porou, giving the iwi control over the management of freshwater and Resource Management Act processes. Residents and ratepayers have not been consulted.

The government is also encouraging the use of Treaty settlements to introduce permanent iwi representation onto Regional Council committees which control freshwater rights and allocations.

Last week, the Hawke’s Bay Regional Planning Committee Bill was passed by Parliament, authorising a joint Resource Management Act committee comprising half councillors and half iwi – including 9 iwi representatives from the area.

According to the Hawke’s Bay Regional Council chairman, the committee “is our answer to the water boards of the Waikato. There are seven catchment areas in Hawke’s Bay and it seemed incredibly cumbersome to have a water board for each one, considering the number of people involved.”

A second Treaty bill, the Ngaruahine Claims Settlement Bill, which passed its first reading in Parliament last week, provides for 8 Taranaki iwi to appoint three iwi representatives with full voting rights to the Regional Council’s policy and planning committee and three to the regulatory committee.

This is in spite of the overwhelming opposition of the people of the Taranaki Region to separate Maori representation on local authorities.

The Bill is now open for submissions.

In response to these two bills, Maori Party co-leader Te Ururoa Flavell said “It’s heartening to see iwi take up the opportunity during their Treaty of Waitangi settlement negotiations to ensure they do have a greater say in local government. It’s critical that iwi and Maori have influence both in local and central government if we are going to continue to move forward as Treaty partners.”

These developments raise a number of fundamental issues. It is alarming that the government is sanctioning racial representation on local councils without reference to the local community, and in some cases knowing full well that a local community is strongly opposed. Does this mean that iwi demands are now more important than the rights of other New Zealanders? Do New Zealanders no longer have a say on Maori representation on local councils?

It is also alarming that the government appears to have conceded management rights of freshwater to iwi – again without being fully transparent to other New Zealanders. Do we not have a say on this matter?

THIS WEEK’S POLL ASKS:

Do agree with iwi representatives being appointed onto Regional Councils to manage and control freshwater?

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