The Act allows iwi to apply for a customary title by showing they had exclusive use and occupation of an area since 1840, without substantial interruption. But last year’s decision changed the threshold saying Māori didn’t have to show substantial interruption to succeed under the Act.
The proposed changes will restore the law’s original intention and be introduced to Parliament next month, following a three-week public consultation period. Critics fear the proposed changes will make it harder for Māori to gain customary titles over marine areas.
Ngāti Whātua, which lodged the proceedings, has two MACA cases before the courts - it’s awaiting a decision on one, while the other is yet to be heard. The government has said if the bill passes it will apply to decisions that are yet to be released and those that are waiting to be heard.
Ten days ago, Ngāti Whātua sought a High Court hearing for an urgent declaration to extend the public consultation period until September and asked the court to “supervise” the consultation process. Their lawyer Mai Chen argued the three-week public consultation period wasn’t long enough to consult with its members or engage in the process adequately.
She said when Goldsmith wrote to the iwi in July seeking their views on how two specific aspects of the Act should be amended, he needed to follow through that process by giving adequate notice, information, and time while also keeping an open mind.
His failure to do so, she said, denied her client’s right to natural justice.
In his decision, Justice Boldt declined the iwi’s request for a declaration and said the court had no role in supervising the drafting of legislation.
He went on to say the iwi was wrong to say the minister was under any obligation to consult before introducing the legislation. And while he acknowledged the three-week timeframe was tight, “it is better than nothing”.
He also found Chen’s argument that the minister must keep an open mind was “especially inept in the legislative process”.
“Ministers are political actors. They may be persuaded, by official advice or evidence before a select committee, that a Bill should be changed, but the suggestion the Court can insist Minister’s retain an open mind about legislation is, to put it mildly, unrealistic,” the decision said.
Justice Boldt also said he was unclear what the point of any declaration would be, given that Chen acknowledged at the hearing that any declaration would be non-binding and non-enforceable, but urged the court to make one anyway.
Geoffrey Melvin, for the Attorney General, said the court should be mindful of any declaration it made, warning of the potential consequences of doing so including being seen to interfere in the parliamentary process.
Justice Boldt pointed out that even if he made a non-binding and non-enforceable declaration - which he described as a “suggestion” - that was still beyond the court’s role, “especially in the context of forthcoming legislation which is likely to be immensely controversial”.
He also referred to the Cabinet Manual which noted that when drafting legislation, it was desirable to engage with Māori, the public and relevant stakeholder groups. The manual also said consultation was particularly important when the proposed legislation may affect the relationship between the Crown and Māori.
“The Minister is entitled to consult as much, or as little, as he wishes. Criticism of the scope and length of the consultation the Minister has offered may come as part of the political and Parliamentary process, but it is not a matter for the Court.
“In the end, Parliament will decide whether any legislation the Minister introduces becomes law, and if so in what form. Parliament, not the Minister, is the body whose decision would affect Ngāti Whātua’s rights”, the decision said.
Catherine Hutton is an Open Justice reporter, based in Wellington. She has worked as a journalist for 20 years, including at the Waikato Times and RNZ. Most recently she was working as a media advisor at the Ministry of Justice.
