Justice Minister Paul Goldsmith has warned lawyers that “unique” court rulings recognising tikanga Māori could cost the country investment.
Speaking at an event hosted by the Law Association, Goldsmith said he worried that New Zealand was developing a “bespoke” legal system that incorporated concepts of tikanga Māori.
“A clear, internationally recognised legal system is very important and I’m worried about the extent to which we’re going down this bespoke New Zealand view of the world [with] concepts that are hard to replicate and understand,” Goldsmith said on Wednesday, as reported by Law | News.
He emphasised the government was “absolutely prepared” to legislate “over the top of judgments” it needed to, in order to provide more clarity. He mentioned the government’s work reviewing references to the Treaty of Waitangi in legislation – to make it more consistent or remove them entirely – as an example of tightening wording to make it clearer, reported Law | News.
National Māori Urban Authority chair Lady Tureiti Moxon said that was an overreach of government, who had the power to make laws, but for the courts to interpret.
RNZ approached the minister for comment and he responded saying the government had already demonstrated its willingness to overturn court decisions “if required”, citing the Marine and Coastal Area Act.
The Government is forging ahead with plans to change the law governing New Zealand’s foreshore and seabed, despite a Supreme Court ruling last year that appeared to undercut the rationale for the change.
Goldsmith told RNZ tikanga Māori was increasingly addressed in the courts and legislation, representing a “unique strand in New Zealand’s legal landscape, alongside countries we compare ourselves with internationally”.
He said having law that recognised “who we are as a nation” and reflecting “our unique circumstances” was a good thing, but the implications of that legal development should also be considered.
“A core foundation of our success as a nation is predictability in the law,” he said. “To be a successful modern economy, we need to attract investment to this country domestically and internationally.
“Such serious, long-term investment requires predictability and certainty in our institutions.”
Goldsmith said, if New Zealand’s legal system included more and more “unique features”, there was a risk it could “jeopardise predictability and deter investment”.
Law | News reported the Minister said clear, predictable rule of law was a fundamental of New Zealand society and helped make the country attractive to offshore investors.
“If they look at the law, and can’t be clear what it means or what the outcome will be… then it’s obvious what will happen,” he said. “They’ll take their money elsewhere and that’s a problem for New Zealand.”
He told the audience on Wednesday “there’ll be more in this space”, when discussing the issue of parliament addressing judgments that may require legislative action.
He told RNZ he wouldn’t comment on any specific case, but pointed out the government could clarify the original intent of legislation, if the courts “are interpreting it differently and setting precedents”.
Moxon said this government was creating laws to “suit itself”. She said the country was founded on Te Tiriti o Waitangi, and to say “we’ll take it or leave it” was disrespectful to the relationship between iwi and the crown.
“Just because they don’t like something or a decision that’s been made by the courts, they’re empowering themselves to be able to just change it at will.”
She said the government was essentially saying, “We’re in charge, so we can do what we want, when we want, how we want and don’t never mind anybody else for that matter”, and that wasn’t conducive to mutual respect.
“It’s a blatant disregard of tikanga and the place of tikanga in our country.”
Former Attorney-General Chris Finlayson told RNZ the minister wasn’t clarifying the MACA legislation.
“He’s introducing a new test and he’s changing the burden of proof,” Finlayson said. “Far from clarifying anything, he’s creating more uncertainty and interfering with what I think of the legitimate litigation rights of iwi.”
On the wider discussion of “unique” features in the legal system costing the country investment, Finlayson said Goldsmith was being “a bit melodramatic”.
“I should hardly think that some would-be investor in New Zealand is going to be put off investing because of some treaty clause in a piece of legislation.”
He agreed some vague references to treaty obligations existed in many laws and legislators should do some work to make sure the treaty principle is “accurately and succinctly identified” in a bill when it comes from parliament.
He emphasised courts hadn’t been “all that radical” on interpretation of what the relevant treaty principles were.
“Many of them simply amount to good faith and consulting iwi.
“The courts aren’t sort of wild-eyed, Castro-type revolutionaries. They’re trying to grapple with, sometimes, the very sloppy, handy work of parliament and make some sense of it.”
On the development of the legal system and the inclusion of tikanga, Finlayson said: “You can’t stop the tide coming in, you can’t stop things moving on – and we are.
“We have this unique arrangement – unique in the true sense of the word – in the treaty relationship that we have with tangata whenua and I think we’re doing pretty well, and but there will always be people who are negative and unpleasant, and don’t like the future and dream of a world that never was, and complain about any change.”
By Lillian Hanly for rnz.co.nz
