Post by Kiwi Frontline on Oct 18, 2018 7:00:20 GMT 12
THE DANGERS OF JUDICIAL ACTIVISM
Ill-advised comments by senior judges can have a profound and long-lasting impact. We saw this in the 1987 Lands Case between the New Zealand Maori Council – represented by Sian Elias – and the Attorney-General over section 9 of the State Owned Enterprises Act, when the President of the Court of Appeal, Sir Robin Cooke, used the word ‘partnership’, saying the Treaty signified a partnership between races.
Since it is constitutionally impossible for the sovereign Crown to enter into a partnership with any of its subjects, the Judge’s use of the word clearly meant the Crown and Maori owed each other duties akin to those of partners in any commercial transaction. Nevertheless treaty activists seized on the Judge’s words to claim that since the Court had ruled that Maori were partners with the Crown, they were entitled to all manner of race-based privileges and co-governance rights at central and local government level.
While the Chief Justice does not believe the ‘partnership’ concept has any legal status, she considers the Treaty is ‘constitutional’ saying, “Constitutional documents are always indeterminate; they have to leave room for societies to grow. They’re all made with aspirations of their day, and they have to expand to fit the different society that evolves…”
But expanding legal interpretations at the discretion of a judge is a radical shift that gives activist judges an opportunity to make rulings based on personal opinion, rather than existing law.
The Chief Justice appears to have frequently ventured into the realm of opinion rather than law.
In the early years of Helen Clark’s Labour Government, she claimed the Prime Minister lacked “understanding about judicial independence”. In response the PM said judges should “stick to the bench” and not get involved in politics. The Deputy PM Michael Cullen called the Chief Justice a “judicial activist”.
And indeed, that’s what her 2003 Court of Appeal decision in favour of Maori rights to the foreshore and seabed exemplified, since it overturned settled law and an earlier Court of Appeal ruling that had affirmed Crown ownership under common law.
In essence, Sian Elias’s judicial activism created a constitutional crisis. By declaring that customary title might still exist in the foreshore and seabed, and that claims should be determined by the Maori Land Court – which had the jurisdiction to privatise customary title – she set the scene for the wholesale privatisation of New Zealand’s coastline.
At the time there were suspicions that the Chief Justice, had ‘swung’ the other four more ‘orthodox’ Court of Appeal Judges to ensure a unanimous judgment.
There was also a view that Sian Elias should have recused herself from the case, given that in the 1980s she had argued in the Waitangi Tribunal for tribal control of the Manukau Harbour and seabed, and was clearly biased in favour of Maori rights to the coastal marine area.
The Court of Appeal’s finding, which triggered such a flood of claims for the whole coastline, that the Government felt forced to legislate, resulted in the passage of the 2004 Foreshore and Seabed Act. This led to the fracturing of the Labour Party and the formation of the Maori Party. It was their influence, that caused National to repeal the 2004 law and replace it with the disastrous Marine and Coastal Area Act, to enable tribal groups to gain ownership and control of the rich natural resources of the coast......
Read Dr Muriel Newman’s full NZCPR newsletter > www.nzcpr.com/the-dangers-of-judicial-activism/#more-27646
Ill-advised comments by senior judges can have a profound and long-lasting impact. We saw this in the 1987 Lands Case between the New Zealand Maori Council – represented by Sian Elias – and the Attorney-General over section 9 of the State Owned Enterprises Act, when the President of the Court of Appeal, Sir Robin Cooke, used the word ‘partnership’, saying the Treaty signified a partnership between races.
Since it is constitutionally impossible for the sovereign Crown to enter into a partnership with any of its subjects, the Judge’s use of the word clearly meant the Crown and Maori owed each other duties akin to those of partners in any commercial transaction. Nevertheless treaty activists seized on the Judge’s words to claim that since the Court had ruled that Maori were partners with the Crown, they were entitled to all manner of race-based privileges and co-governance rights at central and local government level.
While the Chief Justice does not believe the ‘partnership’ concept has any legal status, she considers the Treaty is ‘constitutional’ saying, “Constitutional documents are always indeterminate; they have to leave room for societies to grow. They’re all made with aspirations of their day, and they have to expand to fit the different society that evolves…”
But expanding legal interpretations at the discretion of a judge is a radical shift that gives activist judges an opportunity to make rulings based on personal opinion, rather than existing law.
The Chief Justice appears to have frequently ventured into the realm of opinion rather than law.
In the early years of Helen Clark’s Labour Government, she claimed the Prime Minister lacked “understanding about judicial independence”. In response the PM said judges should “stick to the bench” and not get involved in politics. The Deputy PM Michael Cullen called the Chief Justice a “judicial activist”.
And indeed, that’s what her 2003 Court of Appeal decision in favour of Maori rights to the foreshore and seabed exemplified, since it overturned settled law and an earlier Court of Appeal ruling that had affirmed Crown ownership under common law.
In essence, Sian Elias’s judicial activism created a constitutional crisis. By declaring that customary title might still exist in the foreshore and seabed, and that claims should be determined by the Maori Land Court – which had the jurisdiction to privatise customary title – she set the scene for the wholesale privatisation of New Zealand’s coastline.
At the time there were suspicions that the Chief Justice, had ‘swung’ the other four more ‘orthodox’ Court of Appeal Judges to ensure a unanimous judgment.
There was also a view that Sian Elias should have recused herself from the case, given that in the 1980s she had argued in the Waitangi Tribunal for tribal control of the Manukau Harbour and seabed, and was clearly biased in favour of Maori rights to the coastal marine area.
The Court of Appeal’s finding, which triggered such a flood of claims for the whole coastline, that the Government felt forced to legislate, resulted in the passage of the 2004 Foreshore and Seabed Act. This led to the fracturing of the Labour Party and the formation of the Maori Party. It was their influence, that caused National to repeal the 2004 law and replace it with the disastrous Marine and Coastal Area Act, to enable tribal groups to gain ownership and control of the rich natural resources of the coast......
Read Dr Muriel Newman’s full NZCPR newsletter > www.nzcpr.com/the-dangers-of-judicial-activism/#more-27646