The Minister of Justice has taken a swipe at the courts over what he terms "unique" rulings.
This is in relation to what he, and the coalition government of which Paul Goldsmith is a part, see as a potential harm to the country’s standing in the eyes of large multinational corporations that otherwise may be persuaded to invest here.
Mr Goldsmith bases his claim on the premise that serious long-term investments require predictability and certainty in our institutions. The minister points out that his government is not beyond legislating "over the top" of court decisions with which it is not happy.
A case in point are the changes in progress to the Marine and Coastal Act (MACA), which a former attorney-general of a National-led government said, in his view, created more uncertainty and interfered with legitimate rights of iwi.
This situation has arisen out of a decision of our Court of Appeal that upheld rights of iwi under MACA, and was later overturned by the Supreme Court.
It seems that the minister’s concern is that the Supreme Court did not go far enough in its rationale for overturning the Court of Appeal, hence his determination to sideline tikanga from its role in legislation.
Tikanga, as explained at waateanews.com, is "far more than just tradition, it is a living expression of Māori values, law and world views".
This, then, is what the present government has in its sights: removal of any reference to tikanga in legislation, as its presence in such legislation in some way improves predictability in the law, which in turn will deter domestic and/or international investment.
Canada, Australia and South Africa all include aspects of indigenous people in their legal systems. Canada incorporates First Nation rights in its constitution; Australia recognises Aboriginal customary law in land contexts; and South Africa protects customary law in its constitution.
The question must be asked as to what evidence the minister may have as to negative impacts on investment in any of these countries as a result, or for that matter of the application of tikanga stifling investment in Aotearoa New Zealand.
The Māori Law Society, a branch of the New Zealand Law Society, has expressed strong disagreement with Minister Goldsmith’s comments, pointing out that tikanga Māori has been recognised for generations in statute, court decisions and Treaty jurisprudence, and that all legal systems are shaped by their own histories and values as is common law, a pillar of our legal system.
This means for Aotearoa New Zealand a legal system grounded in both tikanga and common law tradition. The point is made that recognition of tikanga does not weaken legal rigour but strengthens it, as seen in recent decisions.
The minister’s comments are seen in the context as potentially eroding public confidence in the courts, amounting to a veiled threat to judicial independence.
This is yet another situation where the delicate balance of our constitutional structure is threatened by the exercise of Parliament’s absolute authority to legislate, unbridled by either a written constitution or an upper house.
Our constitutional framework relies heavily on an independent judiciary. Threats by the Minister of Justice to legislate to overturn judicial decisions that do not find favour with the government of the day undermines confidence in that crucial aspect.
This government has made it clear from the outset that it intends to reverse the trend seen in Aotearoa New Zealand from the mid 1970s, of a growing recognition of a place for iwi in both our institutions and decision-making spaces.
This was spearheaded by the Treaty of Waitangi Bill, which was "kicked for touch" once the resounding opposition to it was recognised.
Nevertheless, much has been done to date to reverse the advances of the past 50 years in both recognising the damages wrought on iwi by colonisation, to say nothing of the egregious breaches of Treaty obligations which started from day one and unfortunately continue to this day, as can be seen from the matter under discussion.
— Noel O'Malley is a past president of the Otago District Law Society and a doctoral student at Centre for Peace and Conflict Studies, University of Otago.
