She signed off on the official Te Arawhiti record of the meeting for which a colleague had taken notes. The notes were part of the Crown’s bundle of documents.
She agreed the meeting had been set up to discuss concerns by the seafood industry representatives (SIR) about being left out of the direct engagement the Crown was having with some applicants for customary marine title compared with applications heard in the High Court.
But most of the meeting was not about that, she said.
The notes show ministers discussing with the industry what, between them, they considered to be problems in the Marine and Coastal (Takutai Moana) Act 2011, including:
- Jones not realising customary marine title gives holders a veto over resource consents and saying Goldsmith would have to change that;
- Jones saying the law regarding wahi tapu, the one reason for which title holders are entitled to exclude public access, and title holders being able to create marine reserves had to change;
- Goldsmith being concerned titles can stretch out to the 12-nautical mile limit;
- Goldsmith expressing the view that the amount of coastline being held in customary title should be closer to 5% than 100%;
- The industry being concerned applications for customary title were being made hapū by hapū.
It is the same meeting at which Jones controversially referred to High Court Judge Cheryl Gwynn as a “communist judge” – a reference to her former activist days as a member of the Socialist Action League.
Prime Minister Christopher Luxon has been forced to defend Jones and Goldsmith for their comments at the meeting.
Marsh resisted repeated attempts to get her to criticise the ministers for their comments and attempts to get her to justify what essentially are political decisions to toughen the threshold for recognition of customary title.
The Waitangi Tribunal is undertaking an urgent hearing into the proposed changes to the existing Maca law which sets out criteria for recognition of customary title while guaranteeing public access, fishing and navigation rights, and prohibiting any sale of such title.
At the time the 2011 law was passed, Attorney-General Christopher Finlayson guessed it might affect 10% of the New Zealand coast.
But the Court of Appeal, in a decision last November, significantly changed the criteria set out in section 58.
The court has effectively replaced the test of having had exclusive use and occupation of the area “since 1840 without substantial interruption” with needing to show it had exclusive use and occupation “at 1840”.
The court said section 58 could not be reconciled with the stated purpose of the bill to promote the exercise of customary interests.
“Far from recognising and promoting customary interests, Maca would in many cases extinguish those interests,” the court said.
The amendment bill to nullify the court’s decision is still being drafted but Goldsmith indicated when he announced decisions in principle that five applicants whose cases have been heard but not yet determined will have to be reheard.
Cases not yet determined from the date of the announcement, July 25, would need to be judged again on the yet-to-be passed law.
That is to prevent judges from rushing through judgments using the Court of Appeal’s more liberal interpretation of criteria before the law is expected to be passed.
Marsh gave evidence that Te Arawhiti had advised against retrospective elements. It had also advised the minister throughout the process on the potential damaging risks to the Crown relationship with Māori, and to breaches of the Treaty of Waitangi over inadequate consultation with Māori – two weeks – on a law affecting Māori.
“We made it clear this was an extremely important matter to Māori,” she said.
“He received advice, considered advice and made his decision.”
One lawyer, Bryce Lyall, took Marsh through some of the Crown documents including an email from a Te Arawhiti official in Goldsmith’s office about wanting to get more information on the High Court decision in the Edwards case (the feature of the Court of Appeal case).
The email to a colleague in Te Arawhiti said the minister wanted a clearer understanding of how the High Court had arrived at granting customary title and advice on overturning that court.
The email had continued: “He noted that there were high stakes, and we need to take the time necessary to ensure it is robust and defensible (not a rush job that falls over).”
Lyall said while claimants were appearing in court and preparing claims this year, time was being taken to set up a new regime “in a way that won’t be able to be unpicked to the detriment of claimants who then have very little time to respond to it”.
Marsh said any consideration of overturning the High Court decision required careful consideration.
Lyall: “Do you see the flip side there that there is an injustice in also not allowing applicants to have that same period for consideration?”
Marsh: “I can see how you could read that.”
The original time plan was to see the bill introduced by the end of the year but that changed to being passed by the end of the year.
Under questioning from lawyer Jacki Cole, Marsh could not say why the process had been sped up.
“The minister is of a mind to do things at pace.”
Cole was critical of Te Arawhiti for not having drawn wider attention to its response to a Hobson’s Pledge advertisement on the front page of the New Zealand Herald on August 7 about the foreshore and seabed legislation.
