Post by Kiwi Frontline on Sept 10, 2023 11:53:46 GMT 12
A BROKEN COUNTRY – Dr Muriel Newman.
And if anyone needs a concrete example of how dangerous introducing ‘tikanga’ or Maori custom into the law really is, they need look no further than the debacle over the Marine and Coastal Area Act, where it has led the Courts to deliver the exact opposite of what Parliament intended.
This whole fiasco was triggered when activist Court of Appeal judges issued a ruling in 2003 that customary title might still exist in the foreshore and seabed – which was owned by the Crown under common law. The resulting flood of tribal claims for the coast, forced Helen Clark’s Labour Government to legislate in favour of Crown ownership. The 2004 Foreshore and Seabed Act allowed tribal claims for the coast, but as guardians, not owners.
In 2011, at the behest of their Maori Party coalition partner, National introduced the Marine and Coastal Area Act, to repeal Crown ownership and open up the foreshore and Territorial Sea for tribal claims. The new law specified two legal tests: claimed areas had to have been held not only according to ‘tikanga’, but also ‘exclusively’ and ‘continuously’ since 1840.
With ‘ownership’ of the coast the prize, almost 600 overlapping claims flooded in – 200 to the High Court and the balance for direct negotiation with the Crown.
In a landmark decision in the first High Court case, Judge Churchman ruled that holding a claimed area according to ‘tikanga’ was sufficient to justify awarding title to multiple claimants on a ‘shared’ basis.
The Court had elevated the importance of tikanga to the point where the property rights test of whether the claimed area was held exclusively and continuously since 1840, was not even considered.
Since that decision could set a precedent for tribal ownership of New Zealand’s entire coastline, the NZCPR raised the funds to have the case appealed to the Court of Appeal.....
www.nzcpr.com/a-broken-country/
And if anyone needs a concrete example of how dangerous introducing ‘tikanga’ or Maori custom into the law really is, they need look no further than the debacle over the Marine and Coastal Area Act, where it has led the Courts to deliver the exact opposite of what Parliament intended.
This whole fiasco was triggered when activist Court of Appeal judges issued a ruling in 2003 that customary title might still exist in the foreshore and seabed – which was owned by the Crown under common law. The resulting flood of tribal claims for the coast, forced Helen Clark’s Labour Government to legislate in favour of Crown ownership. The 2004 Foreshore and Seabed Act allowed tribal claims for the coast, but as guardians, not owners.
In 2011, at the behest of their Maori Party coalition partner, National introduced the Marine and Coastal Area Act, to repeal Crown ownership and open up the foreshore and Territorial Sea for tribal claims. The new law specified two legal tests: claimed areas had to have been held not only according to ‘tikanga’, but also ‘exclusively’ and ‘continuously’ since 1840.
With ‘ownership’ of the coast the prize, almost 600 overlapping claims flooded in – 200 to the High Court and the balance for direct negotiation with the Crown.
In a landmark decision in the first High Court case, Judge Churchman ruled that holding a claimed area according to ‘tikanga’ was sufficient to justify awarding title to multiple claimants on a ‘shared’ basis.
The Court had elevated the importance of tikanga to the point where the property rights test of whether the claimed area was held exclusively and continuously since 1840, was not even considered.
Since that decision could set a precedent for tribal ownership of New Zealand’s entire coastline, the NZCPR raised the funds to have the case appealed to the Court of Appeal.....
www.nzcpr.com/a-broken-country/