In a recent High Court decision (Ngāi Tūmapūhia-a-Rangi Hapū Incorporated, on behalf of Nga Uri O Ngāi Tūmapūhia ā Rangi Hapū and others v AG and others [2024] NZHC 309), Justice Cheryl Gwyn granted Māori customary rights (aka Customary Marine Titles or ‘CMTs’) for five areas along the Wairarapa coastline.
CMTs grant holders influence over certain activities within designated zones extending from high-water springs to the 12 nautical mile limit.
The case follows from a Court of Appeal ruling in 2023 where the dissenting judge in that case had expressed concerns that it would become easier for Māori to obtain CMTs.
The current case saw Māori groups agree on geographical divisions, facilitating the allocation of CMTs by Gwyn J.
Despite arguments from the seafood industry regarding historical fishing practices and access limitations, Justice Gwyn upheld the Māori claims, citing insufficient evidence of disruption or lack of access.
The hearing of the matter took place between September and November in 2023, involved a number of interested parties and Gwyn J’s decision covered total of 249 pages, some 818 paragraphs together with a number of appendices.
Gwyn J’s decision has been the subject of considerable discussion and comment.
It was delivered against a political background whereby the coalition government proposes to amend the Marine and Coastal Area (Takutai Moana) Act 2011, following a Court of Appeal decision which underpinned Gwyn J’s decision.
In addition, the judge herself has come in for some criticism.
Fisheries Minister Shane Jones called Gwyn J a “communist judge” during a meeting with the seafood industry over Māori rights.
Planned changes
An official file note obtained by the news media showed that Jones and Treaty Negotiations Minister Paul Goldsmith met with seafood industry representatives in May 2024 to discuss customary marine titles.
The meeting notes, taken by a government official, showed both ministers appearing sympathetic to concerns the industry held about the Marine and Coastal Area Act and talked about planned changes to make it harder for Māori to claim customary title to the foreshore and seabed.
The comment was made during that meeting.
Any such meeting had a potentially “public” element, given that the notes of the meeting could, among other things, be the subject of an Official Information Act request.
Subsequently Jones was interviewed by Stuff’s Tova O’Brien in episode 41 of her podcast.
The discussion surrounded the operation of customary marine title and concern from Jones that the beneficiaries of that title – hapu and iwi – may use what he described as totalitarian power to interfere with the rights of others to coastal and marine use.
During the discussion, he emphasised that Parliament was sovereign and although the courts could interpret the law, Parliament could change that interpretation.
In such a case, he said, Parliament must act.
O’Brien then referred him to the remark he had made about Gwyn J being a communist. Jones re-emphasised that he didn’t want totalitarian tendencies giving rights to hapu to interfere with legitimate rights of others by way of toll or tax.
As to the remark, he claimed he couldn’t remember the context and described it as “political rhetoric”.
O’Brien used the words of the Cabinet Manual, asking whether or not Jones’ words might “reflect the impartiality, personal views or ability of [the] judge”.
Jones’s response was that what he said was rhetoric.
But that was not an end to the matter. The Prime Minister later became involved.
Naïve and evasive
In answer to a question from Opposition leader Chris Hipkins, Christopher Luxon characterised the remark as “descriptive”. Mr Speaker interpreted that also as not being accusatory.
With respect, I believe both Luxon and Mr Speaker are being naïve and evasive.
The matter has been the subject of comment by the New Zealand Law Society and it seems likely that Jones and the Attorney-General may “have a discussion”.
Given that Jones has a track record in the use of hyperbole, mixed metaphors, obtuse and at time overly flowery use of language, occasional irrelevant references to literature (most recently to Shakespeare) and obscure cross-references, all coupled with a certain lofty arrogance in his approach, it is unlikely that a back-down will come any time soon.
Let us look at the circumstances surrounding and the context of the remark.
- The Court of Appeal delivered a decision that impacted upon the test for establishing customary marine title under the Marine and Coastal Area (Takutai Moana) Act 2011.
- Gwyn J in her decision in Ngāi Tūmapūhia-a-Rangi Hapū Incorporated, on behalf of Nga Uri O Ngāi Tūmapūhia ā Rangi Hapū and others v AG and others was bound by that decision and applied it.
- Neither decisions accords with the interpretation of the Marine and Coastal Area Act applied by members of the coalition government and there are moves afoot to amend the Act (and in particular s 56) so the test for establishing customary marine title is more stringent. That is the element of Parliamentary sovereignty referred to by Shane Jones.
Parliament’s ability to address issues surrounding the interpretation by the courts of both common law and statute law is not unusual and occurs frequently.
Much of the evolution of the statute law surrounding tax has developed as a result of the way the courts have interpreted the tax statutes.
This is the context of Jones’ remark that Gwyn J was a communist. There are a number of ways that this assertion may be interpreted.
- It could be treated as an assertion of fact
- It could be an inference arising from Gwyn J’s membership of a particular political organisation many years ago
- It could be treated as an explanation for why it was that Gwyn J came to the outcome that she did in Ngāi Tūmapūhia-a-Rangi Hapū Incorporated, on behalf of Nga Uri O Ngāi Tūmapūhia ā Rangi Hapū and others v AG and others
- It could be treated as a disparaging remark, suggesting that the judge reached her conclusion as a result of her political or other antecedents.
To dismiss the remark as “rhetoric” or “descriptive” or “not accusatory” is naïve in the circumstances.
Cabinet manual
Clearly the remark was made to diminish respect for the judge and, in addition, to diminish the respect that should be accorded to her decision.
It may have been better for Jones to consider the reasoning behind the outcome of the case but that may be something of a challenge given the length and complexity of the decision.
But to describe the judge as a communist in the context of the decision that she made, which obviously does not find favour with the coalition government, is clearly designed to reflect adversely on the impartiality, personal views or ability of any judge and is a clear breach of R. 4.13 of the Cabinet Manual.
It reflects upon the impartiality of the judge in that it suggests her political views, whatever they might be, influenced her decision and the outcome of the case.
It reflects upon the personal views of the judge, a matter associated with her impartiality, in that it suggests she was unable to separate her personal views from her ability to analyse and apply the law to the facts.
It reflects upon the ability of the judge in that it goes to the core of the judicial function. This requires judges to be impartial, knowledgeable and committed to applying the law fairly and consistently.
Judges are expected to be impartial and independent, free from influence by the government, political parties or other external forces.
This independence is essential for maintaining public confidence in the fairness and integrity of the legal system.
The suggestion that the judge might be a communist is an attack upon her judicial ability.
Totalitarian approach?
Lest it be suggested that I am overstating the case against Jones, it is necessary to reflect upon the context of the remarks that he made to O’Brien in her podcast.
On more than one occasion, Jones was concerned that a totalitarian approach may be taken by the beneficiaries of customary marine title.
This unilateral exercise of power was a matter of considerable concern to him and those who ruled in favour of customary marine title became complicit in this exercise of totalitarianism.
Totalitarian governments are known for their lack of tolerance for opposing views.
Impartiality – a core judicial function – is absent from judges in totalitarian regimes. Judges support the regime. The rule of law as we understand it is absent.
Examples of totalitarian regimes may be found in Mussolini’s Italy, Franco’s Spain, Hitler’s Germany and communist Russia. The implication is clear. By calling the judge a communist, Jones is suggesting that she supports the totalitarianism that he deplores.
This is more than descriptive. It is accusatory. It clearly reflects adversely on the impartiality, personal views or ability of the judge.
Public perception
The matter does not end there.
The reason why ministers must not make such comments is not only because judges cannot answer back.
Ministers of the Crown occupy a position of considerable power. When ministers speak, people listen.
When a minister attacks the impartiality, personal views or ability of a judge, that has an impact upon the public perception of that judge and on the public perception of one of the arms of government.
At a time when public confidence in institutions is somewhat febrile, it ill behoves a Minister of the Crown to erode public confidence in the institution of the courts and of an individual judge.
It ill behoves that minister to dismiss his remarks as “rhetoric”.
It ill behoves the Prime Minister to dismiss the remark as “descriptive”. It is far more than that and in my view is a clear breach of the Cabinet Manual.
It is to be hoped that the Attorney-General will take appropriate action.
David Harvey is a retired District Court judge and a member of Sangro Chambers
A longer version of this article, including references to the Cabinet Manual, to the detail of Tova O’Brien’s podcast with Shane Jones and a transcript of a Question Time exchange between Chris Hipkins and the Prime Minister may be found at “Mere Rhetoric, Descriptive or something else: Criticising the Judiciary” appearing on the author’s Substack “A Halfling’s View”. The above is an abridged version of that article.
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