The process is underway to hear the applications for the recognition of customary interests that have been registered in the High Court. The initial focus has been on applications where the Minister for Treaty of Waitangi Negotiations, on behalf of the Crown, has already decided to engage. They are listed on the Ministry of Justice website - to view please click HERE.
The first case management conferences were held earlier this year, during May and June. Transcripts of the conferences are available HERE.
One of the more contentious issues that arose during these conferences was that of the role and status of the Attorney-General in proceedings under the Act. This and other matters arising from these conferences prompted Justice Collins to call for the interested parties to make submissions on any concerns they had, by 30th August. Several of submissions and interlocutory applications received questioned the role of Attorney-General.
“The Attorney-General does not consider it is his role to oppose applications in the public interest, or that the public interest requires him to oppose applications”.
(Memorandum - Counsel for Attorney General, 11 September 2018).
Counsel for the Attorney-General responded to the submissions, issuing a Memorandum on 11th September, clarifying his status and role in the proceedings under the Act. The main points in the Memorandum are as follows:
- The Attorney-General is not a defendant to the applications.
- The Attorney-General understands his involvement in each application is that of interested party.
- As an interested party, his role is to represent the public interest and to support the purpose of the Act as set out in s 4 of the Act. This is to ensure the protection of the legitimate interests of all New Zealanders in the marine and coastal area of New Zealand, as well as providing for the exercise of customary interests and acknowledging the Treaty of Waitangi.
- The Attorney-General considers his role might include: assisting the Court with interpreting the Act, providing evidence and advising the Court of the progress of applications.
- The Attorney-General does not consider it is his role to necessarily oppose applications in the public interest, but he is not precluded from making submissions that might not support an application.
- It remains to be seen whether he will take an active role in each application. However, if he thinks criteria have not been met for the recognition orders he will make a submission.
- The Attorney-General filed a number of Notices of Appearances in Applications where he thought there were particular defects in the way the case was pleaded. Going forward, he will keep his position in relation to each application under review and the Notices of Appearances may not represent his final view.
- The Attorney-General hopes that there will be no need for a hearing regarding his role and status in the proceedings, however if there are any further concerns, counsel for the Attorney-General will be available to discuss these with counsel for the concerned parties.
Following this Memorandum, Justice Collins responded with two brief Minutes dated 17 September – the first regarding the role of the Attorney-General in the proceedings and the second regarding a Test Case Proposal. The main points are as follows:
- If there are any applicants that still want to challenge the status of the Attorney-General, they should file and serve any memoranda by 8 October 2018. They should also indicate whether they wish to pursue their applications by way of a hearing.
- The Seafood Industry Representatives had filed an interlocutory application with specific concerns about the Attorney-General’s role and how their interests would be best represented. They should also file any memoranda by 8 October 2018 stating whether they wish to pursue their application to hearing.
- On 24 July 2018, Ms Mason, senior counsel for five applicants – known as the “Ngapuhi Applicants” applied to have their application heard in two parts. It was proposed that the first part be used as a test case, so the Courts could determine the criteria required to prove customary marine title. The second part asked the court to state a case to the Maori Appellate Court. They have also been given a date of 8 October 2018 to file any submissions in response and Ms Mason has until 25 October 2018 to respond to those. A final decision regarding the Ngapuhi application will be in November.
Thank you to Katrina Jensen, manager of the Coastal Claims Project, for simplifying what is at times complicated material regarding this matter. If you would like register as a supporter of the Coastal Claims campaign, visit their website here: https://www.nzcpr.com/countering-coastal-claims-campaign/
The most recent Minutes/directions issued by Justice Collins are available on the High Court website, available by clicking HERE.
Dr Muriel Newman of NZCPR writes in a recent article that the Attorney General is under attack, with claimants trying to restrict his role to that of being an observer in the claims process rather than an advocate for the public interest. To read the full article ‘Warning Shots Over Foreshore and Seabed Claims’, please click HERE.
Claims to the foreshore and seabed to come under the wing of the Māori-Crown Relations agency.
The unit considering the Marine and Coastal Area Act claims is to come under the newly introduced agency – ‘Māori Crown Relations: Te Arawhiti’, the minster responsible being Kelvin Davis. The questions must now be asked “which minister will be responsible for dealing with the 385 Crown engagement applications, and will anyone in the government be looking out for the public interest?” We must hope it will not be Kelvin Davis, who represents the Maori electorate of Te Tai Tokerau, and has been reported as supporting the Waitangi Tribunal finding that Ngapuhi did not cede sovereignty when they signed the Treaty of Waitangi.