Neil Sands
Parliament is locked in a “contest of wills” with the Supreme Court and must assert its sovereignty, setting boundaries to prevent judicial “adventurism” and clarify the hierarchy between the branches of government in a democracy, New Zealand First’s Shane Jones says.
Shane Jones
Jones also accused hapu of hijacking consultation processes for major infrastructure projects by demanding huge compensation payments, a practice he provocatively labelled “brown-mail”.
Jones applauded Justice Minister Paul Goldsmith’s recent announcement of legislation to override a Supreme Court decision allowing environmental activists to sue six large New Zealand businesses over greenhouse gas emissions. But he said NZ First wanted “more profound” action that addresses judicial activism at a constitutional level, not on a case-by-case basis, and will campaign on the issue at this year’s election.
“Our focus is on developing options to be included in our manifesto. MMP provides us with an opportunity to advance the cause of parliamentary sovereignty,” he told LawNews.
“Winston has reminded me that the contest of parliamentary sovereignty stretches back to Cromwell and through the Glorious Revolution. I’m sure there are a host of ministers keen to see a modern version of such clarity in our polity. A restatement of the hierarchy. Parliament is sovereign.”
In the meantime, Jones wants the government to consider another legislative fix, this time overriding the Supreme Court’s decision in Climate Clinic Aotearoa v Minister of Energy and Resources, which makes climate change a mandatory consideration when granting petroleum exploration permits under the Crown Minerals Act.
“This case is based around the tension of energy security and emissions limits. [It’s] a decision which is a further example of adventurism, which caught me by surprise,” he said. “It may require legislative remedy, but the pressure will remain between the judiciary and the legislative branch.
Jones said the court’s decision “makes it extraordinarily difficult to proceed with the allocation of fresh oil and gas permitting processes”.
Dorothy Jones, Shane Jones, Tony Herring, Clayton Kimpton
Supreme Court ‘mission creep’
Jones said the Supreme Courts could not be allowed to usurp the role of Parliament.
“It’s a genuine contest of wills. Do we want, as legislators, to stand up for the sovereignty of Parliament or have we reached a point where we’re going to tolerate this vague melding, the sort of weakening of the role of the legislature and the creep of the role of the Supreme Court,” he said.
“My political heritage is on the side of the sovereignty of Parliament… This notion that somehow democracy is unfit for modern purposes and has to be continually put through a cleansing device of the Supreme Court. I don’t think that should remain in an unchallenged.”
He said many colleagues in the parliamentary precinct shared his concerns. Most politicians would be reluctant to speak out on the issue for fear of breaching comity, but Jones has a record of making his views known on such issues, earning himself several rebukes from former Attorney-General Judith Collins KC in the process.
His latest remarks are likely to catch the eye of Collins’ successor as Attorney-General, Chris Bishop.
Jones said his interest in parliamentary sovereignty was not new, pointing out that his comments on the issue date back as far as a conference hosted by Auckland University in 1985.
“Asserting the sovereignty of Parliament is not a shallow burst of enthusiasm… I have a deep and reverential level of aroha for my country, and for [its constitutional] systems ….That’s why on a regular basis I’m willing to speak out about things that are meaningful to the party I belong to.”
Jones said the exact nature of the measures NZ First wanted to see to rein in the Supreme Court had not been finalised. The issue will be discussed by the party’s caucus before being included in its election manifesto.
‘Brown-mail’
Jones noted that Bishop expressed his views on the role of Parliament shortly after being appointed to his new role, when he stated: “I’ll have more to say on that soon.”
“Chris Bishop’s LawNews interview regarding supremacy of Parliament has been noted by our party. He knows our views,” Jones said.
“Obviously, NZ First in 2023 campaigned on reversing the Takutai Moana Court of Appeal decision that conflicted with Parliament’s intent.”
The Marine and Coastal Area (Takutai Moana) (MACA) Amendment Bill is another example of the government legislating to overrule the courts. It involved tightening the rules on Māori claims to customary rights over marine and coastal areas because the government believed a Supreme Court ruling on the issue did not go far enough.
“We’re not against doing that when we need to,” Goldsmith told LawNews last week, declining to say if moves to override any other court decisions were under active consideration.
Jones said politicians were sometimes to blame for courts overstepping on issues by drafting vague legislation that did not clearly set out Parliament’s intentions.
He said this type of imprecise direction from legislators could also allow interpretations which derailed public consultation provisions for major infrastructure projects.
Jones cited Port of Tauranga’s expansion plan, known as the Stella Passage Development, in which Ngāti Kuku hapū and Whareroa Marae trustees are opposing unless they receive compensation of up to $475 million.
“That’s just making a mockery out of a provision that was designed, in a respectful way, to enable local stakeholders to have a say as to what conditions might be relevant to the expansion of modern infrastructure associated with port,” he said.
“Now, how the hell have we got ourselves in a situation where that level of uncertainty can be introduced?”
Jones said such behaviour needed to be stopped and it was another campaign issue for New Zealand First.
“We have a level of confidence as to what are the proper ways for the systems to interact with each other and I think that any level of vagueness that encourages brown-mail, tolling or the extraction of economic rent is an indictment on us as a modern nation,” he said.
“It represents, in my view, too many opportunities for rent-seeking behaviour and I want to see an end to it, both as a leading Māori identity in New Zealand society and as a legislator. I’m going to campaign vigorously against it.”
First, as I observed in my article “Stentorian, with ‘a whiff of the pompous’: Assessing the NZBA’s retrospective legislation missive”, by reference to a US Supreme Court judgment, legislation that changes the law and uses as its vehicle reference to a statement of the law in a court judgment does not have to dictate the outcome of the case – it changes the law. The distinction is important. Secondly, history is important including recent history when it comes to giving content to the notion of parliamentary supremacy or sovereignty, which can serve as propaganda in a ‘battle of the wills’ if not thought about clearly. The Rump Parliament made up the law to enable regicide – independent judges whose rulings on the constitutional propriety of those laws and which were obeyed may have saved King Charles I from the scaffold and the executioner’s sharp axe (which awaited his prosecutors when the restoration occurred). Cromwell controlled the House of Commons, which was supreme by virtue of a bloody civil war, not a settled constitutional order and the rule of law. Let’s tread carefully and with a sense of where history suggests we could arrive as a destination in this debate.
I suggest a bill overturning the portions the of Supreme Court’s tikanga decision in Ellis v R [2022] NZSC 114 which purported to declare that tikanga is the “first law” of New Zealand with power to ‘shape the development’ of the common law.
The Ellis first law dictum is fixating a few people. While, in my opinion, it was ill-advised and unnecessary in a case that did not demand it to be invoked, we need not overturn it, as it is not the law. It is non-binding opinion.
To frame tikanga in terms of modern legal systems is of course incoherent, not even reaching the level of meaningful analogy. Tikanga as a system of laws, off the marae and outside of customary law, is largely incompatible with the essential components of modern democracies, and the rule of law (apologists would argue that these are ‘western paradigms’, worthy of overturning). The Supreme Court does not explore what they mean by this phrase in terms of a legal system, or how it would fit into a system of law based on, doctrinally speaking, a supreme parliament.
Even if you choose to label tikanga ‘first law’, so what? Does first in time mean we ought to embrace a tribal world governed by myths, rituals and superstition: the answer is obvious.
Which is not to say that Maoritanga does not offer deep insights into our society and the human condition in the modern world, which might say something about how we might better be governed; but policies based on such insights are more suited to exploration through democratic processes and civil society.