Post by Kiwi Frontline on Feb 18, 2020 12:14:57 GMT 12
JUDICIAL ACTIVISM
So here we are, almost 20 years later, facing multiple tribal claims for the country’s entire coastline.
Last year the Attorney-General reviewed each of the 200 High Court applications for the coast and came to an initial view that the existence of overlapping claims meant that applicants could not meet the ‘exclusive use and occupation’ test in the law: “To the extent that there is any overlap with any other application, the Attorney-General says such overlap is inconsistent with the applicants’ claims to exclusive use and occupation of the application area without substantial interruption since 1840.”
As a result the Attorney-General came under attack from claimants attempting to restrict his role to that of an observer in the claims process rather than representing the public interest.
This challenge to the role of Attorney-General became a matter for a pre-trial hearing late last year. Fortunately a member of the public, worried about the consequences for the entire claims process if the Attorney-General was sidelined, mounted a defence – in the public interest.
The QC engaged to defend the Attorney-General’s role was the former Attorney-General Chris Finlayson, who had represented the public interest in 2016 in the only coastal claim to have been determined by the High Court.
Chris Finlayson explained to the Court that it was Parliament’s intention for the Attorney-General to stand up for the public interest the High Court process – as noted by Judge Churchman:
“Mr Finlayson referred to the adversarial structure of proceedings in the New Zealand Court system and submitted that, for a proper hearing to occur, cases generally needed to be opposed. He noted that, in relation to many applications under the Act, there may be no individual person or entity for whom the interests at stake from success of a particular application would amount to enough to justify the costs of formal intervention, particularly where interested parties, who are not applicants, do not have the benefit of funding from the Crown. He suggested that this was an example of where the Attorney-General could and should fullfil this role by considering every application and, where necessary, challenging evidence and offering a contradictory argument where one would not otherwise be offered to the Court.”
The Judge found against the claimants, with no restrictions imposed on the Attorney-General.
Later this year, the first of the claims are scheduled to be heard in the High Court. In August it is the Edwards claim for a stretch of Bay of Plenty coastline south of Opotiki and out to the edge of the Territorial Sea. And in November it is the Clarkson claim in the Southern Hawkes Bay for the coast from Whangaehu to Cape Turnagain.
In light of the fact that it became evident early in the claims process that with many taxpayer-funded lawyers arguing in favour of awarding control of the coastline to tribal claimants, and few – if any – voices opposed, the Landowners Coalition registered as an Interested Party in the claims to help oppose them in the public interest. The Coalition is now working with the law firm of former MP Stephen Franks. They intend hiring a QC to challenge these first two claims on the basis that the judicial determination of the meaning of “exclusive use and occupation” decided in these claims will likely have a precedent effect on all others.
They will maintain that “exclusive” means what it says, and does not mean “shared” use and occupation, which is what the overlapping claimants will argue – especially in the first Edwards case, where there are more than 20 overlapping claims.
If you would like to support the Landowners Coalition to help ensure the public’s voice in the High Court claims process is as strong as possible, please click here > www.nzcpr.com/wp-content/uploads/2020/02/NZCPR-Coastal-Campaign-Fundraiser.pdf
The Landowners Coalition is also working with locals in the claimed areas who understand only too clearly the opportunistic nature of the claims that have been lodged.
If you or anyone you know has information that would help refute the claims in the Edwards or Clarkson cases that the applicants have used and occupied the claimed areas “exclusively and continuously since 1840”, then please contact us on claims@nzcpr.com .........
Read Dr Muriel Newman’s latest NZCPR newsletter here > www.nzcpr.com/judicial-activism-2/#more-31378
So here we are, almost 20 years later, facing multiple tribal claims for the country’s entire coastline.
Last year the Attorney-General reviewed each of the 200 High Court applications for the coast and came to an initial view that the existence of overlapping claims meant that applicants could not meet the ‘exclusive use and occupation’ test in the law: “To the extent that there is any overlap with any other application, the Attorney-General says such overlap is inconsistent with the applicants’ claims to exclusive use and occupation of the application area without substantial interruption since 1840.”
As a result the Attorney-General came under attack from claimants attempting to restrict his role to that of an observer in the claims process rather than representing the public interest.
This challenge to the role of Attorney-General became a matter for a pre-trial hearing late last year. Fortunately a member of the public, worried about the consequences for the entire claims process if the Attorney-General was sidelined, mounted a defence – in the public interest.
The QC engaged to defend the Attorney-General’s role was the former Attorney-General Chris Finlayson, who had represented the public interest in 2016 in the only coastal claim to have been determined by the High Court.
Chris Finlayson explained to the Court that it was Parliament’s intention for the Attorney-General to stand up for the public interest the High Court process – as noted by Judge Churchman:
“Mr Finlayson referred to the adversarial structure of proceedings in the New Zealand Court system and submitted that, for a proper hearing to occur, cases generally needed to be opposed. He noted that, in relation to many applications under the Act, there may be no individual person or entity for whom the interests at stake from success of a particular application would amount to enough to justify the costs of formal intervention, particularly where interested parties, who are not applicants, do not have the benefit of funding from the Crown. He suggested that this was an example of where the Attorney-General could and should fullfil this role by considering every application and, where necessary, challenging evidence and offering a contradictory argument where one would not otherwise be offered to the Court.”
The Judge found against the claimants, with no restrictions imposed on the Attorney-General.
Later this year, the first of the claims are scheduled to be heard in the High Court. In August it is the Edwards claim for a stretch of Bay of Plenty coastline south of Opotiki and out to the edge of the Territorial Sea. And in November it is the Clarkson claim in the Southern Hawkes Bay for the coast from Whangaehu to Cape Turnagain.
In light of the fact that it became evident early in the claims process that with many taxpayer-funded lawyers arguing in favour of awarding control of the coastline to tribal claimants, and few – if any – voices opposed, the Landowners Coalition registered as an Interested Party in the claims to help oppose them in the public interest. The Coalition is now working with the law firm of former MP Stephen Franks. They intend hiring a QC to challenge these first two claims on the basis that the judicial determination of the meaning of “exclusive use and occupation” decided in these claims will likely have a precedent effect on all others.
They will maintain that “exclusive” means what it says, and does not mean “shared” use and occupation, which is what the overlapping claimants will argue – especially in the first Edwards case, where there are more than 20 overlapping claims.
If you would like to support the Landowners Coalition to help ensure the public’s voice in the High Court claims process is as strong as possible, please click here > www.nzcpr.com/wp-content/uploads/2020/02/NZCPR-Coastal-Campaign-Fundraiser.pdf
The Landowners Coalition is also working with locals in the claimed areas who understand only too clearly the opportunistic nature of the claims that have been lodged.
If you or anyone you know has information that would help refute the claims in the Edwards or Clarkson cases that the applicants have used and occupied the claimed areas “exclusively and continuously since 1840”, then please contact us on claims@nzcpr.com .........
Read Dr Muriel Newman’s latest NZCPR newsletter here > www.nzcpr.com/judicial-activism-2/#more-31378