The Supreme Court decision on the legal test for customary title, which was in favour of the Crown, demonstrates that the government’s planned law to override the legal rights of applicants and cut short the proper judicial process was contrary to basic rights of fairness and access to justice, says Te Rūnanga o Ngāi Tahu Kaiwhakahaere Justin Tipa.

Yesterday, the Supreme Court delivered its judgment on the interpretation of the legal test for recognising customary title to parts of the marine and coastal area (also called the foreshore and seabed) that whānau, hapū, and iwi groups have maintained a connection to since 1840.

The Supreme Court accepted the submissions of the Attorney-General and overturned the previous decision of the Court of Appeal. The effect of the Supreme Court’s decision will be to significantly raise the bar for proving customary title, compared to the Court of Appeal decision. The government is currently progressing legislation that would have overruled the Court of Appeal decision.

“This should serve as a reminder to the coalition government that cool heads and a respect for the rule of law are always in the best interests of New Zealand and New Zealanders,” says Justin Tipa.

“It was Helen Clark’s government, panicking over a court ruling and legislating away customary title in parts of the foreshore and seabed, that opened this divisive chapter in our history. This government panicking about a single ruling of the Court of Appeal, that was ultimately overturned yesterday, led them to run around like headless chickens, ready to discard basic principles like equal access to justice, procedural fairness, and the right to a day in court.

“The Court noted, crucially, that the rights of customary marine title holders and all New Zealanders can co-exist. This whole political debacle, dominated by extreme voices, has obscured the reality that the customary interests of iwi and hapū and every other New Zealander are not in conflict.

“It’s been a tough year, and Kiwis are looking forward to getting to the beach for some swimming, fishing, or sailing this summer,” Justin Tipa says. “That Kiwi summer doesn’t change whether there’s customary title in an area or not. The government’s ministers should take this time to get outdoors, clear their heads, and realise what’s really important to New Zealanders.”

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