Judge's ruling defies Government on foreshore

By RUTH BERRY, political reporter

A judge has cleared the way for a big Maori coastal claim to go ahead despite Government plans to stop courts granting title to the foreshore and seabed.

The Government is refusing to comment on the issue until it gets written confirmation from the court.

In an oral judgment delivered in the Maori Land Court in Gisborne on Tuesday, Judge Caren Wickliffe indicated that she wanted the court to proceed with a hearing.

A well-placed Government source suggested yesterday that the court's decision to begin the hearing process could be interpreted as defiance.

But Te Runanga o Ngati Porou claimant lawyer Matanuku Mahuika and several other treaty lawyers yesterday said the court was simply doing its job.

Judge Wickliffe called the 11 applicant groups who lodged claims in the Tairawhiti region together for the judicial conference.

She rejected Crown Law submissions that a hearing should be stayed because the Port of Marlborough had lodged an application to appeal against the Court of Appeal foreshore ruling.

That decision raised the prospect of the land court issuing private foreshore and seabed title - which prompted Government moves to prevent coastal privatisation.

In her judgment, Judge Wickliffe also rejected the Crown's argument that a stay was justified because of the Government's plans to draw up legislation preventing the land court issuing a freehold title.

Claimant lawyers yesterday said the Government last year threatened to fast-track its legislation if the land court heard cases in the interim.

The threat was not re-issued in Gisborne, and the Government's next step - assuming Judge Wickliffe's written decision follows her oral one - is likely to be an appeal.

The land court has also set down two further applications for hearing foreshore claims, next month in Hawera and Wanganui.


Mr Mahuika said Judge Wickliffe's memorandum of direction was about a month away.

It was not impossible that a decision could be issued before the Government passed its legislation, he said, but the chances were "pretty slim".


East Coast iwi have some of the strongest foreshore and seabed claims. The largest, lodged by the runanga, asserts ownership of up to 90 per cent of land next to the foreshore from Gisborne to Cape Runaway.

The region's low population means there has been little competition for use of the space being claimed.

The Government has conceded that but for its intervention, a number of these claims would have resulted in freehold title being awarded.

Judge Wickliffe is of Ngati Porou descent and, as a consequence, this week disqualified herself from hearing a substantive case.

The Crown may use this to argue in any appeal that she should not have made preliminary decisions.

Mr Mahuika said most of the claims, including the runanga's, had been lodged after August last year, and Judge Wickliffe had made the decision to proceed.

The runanga remained in direct negotiation with the Government, and still hoped for an agreement.

But because of the "national political landscape" it had nothing to lose by going to the court.

Iwi would still go to the court for declarations of their customary rights once the law was changed, so the evidence presented would not be wasted, he said.

Maori Law Review editor and lawyer Tom Bennion said case law was mixed on whether a Privy Council appeal should prevent a court hearing a case in the interim.

Another claimant lawyer, Tim Castle, said a Government move to block the Gisborne cases being heard would deepen concern about its unwillingness to grant iwi due process before the courts.