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Mike's Minute: A massive court decision we must be aware of

Newstalk ZB,
Publish Date
Thu, 20 May 2021, 10:33am

Mike's Minute: A massive court decision we must be aware of

Newstalk ZB,
Publish Date
Thu, 20 May 2021, 10:33am

The most significant, and yet underreported, story of the past week is the court win by Whakatōhea in the Bay of Plenty.

It gives them customary title, and is the first such decision made under the law that replaced the Foreshore and Seabed Act.

What happens in law is decisions are made, potential appeals are launched, and you appeal for several reasons. One of which is to test the validity of the decision in the lower court. This decision was made in the High Court; if it goes untested you potentially have yourselves a fairly serious precedent.

Given it’s the first such decision, this alone, I would have thought, would lead to virtually an automatic appeal, but that is up to the government. The Minister, Andrew Little, has not commented yet, because he is still reading the judgement.

He was due on this show late last week, but got sick so didn’t finish reading, so is due here any day now.

There are a couple of things Little will be weighing up. The judge, for example, relied on locals with so-called expert knowledge to determine which hapu qualified for customary title, and he relied on the Canadian concept of shared exclusivity which allows more than one group access to the same area.

He also agreed with the concept that, although the land was confiscated many decades ago, the idea of customary rights and access never stopped, and that the hapu carried on anyway.

That's a lot of assumptions on the judge's part, and it's a lot of reliance on so-called experts. That is why Little's response is so critically important.

The precedent in the case is huge. If left unchallenged, you watch the stampede to the local court's door as customary title claims become the business du jour.

The Māori Party, not surprisingly, don’t want it appealed and you can see why.

I'm not saying there isn't a case, or this isn't a good case, or the judge hasn’t made a decision that may well stand up all the way to the end of the appeals process. But it's the first decision. And if the first decision isn't tested to its limit you will never know how sound it is.

If you never know that, the yardstick, or the benchmark, for cases going forward will not be given the scrutiny I think all of us would want them to be.

What is an expert? What are the criteria for an expert? What specifics of this case were unique as opposed to generalised? What if this was a flawed decision? What if it was a lucky win for Whakatōhea? What if the judge was an activist who wanted to get this specific ball rolling?

That’s why we have appeals. That’s why, really, Andrew Little has no choice but to get on the phone to the lawyers.

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