Max Harris: Thorndon Chambers Barrister on the Supreme Court ruling on customary marine titles

There’s a chance for the Government to reset, with a successful appeal from the Attorney-General offering more clarity on Māori customary rights to the foreshore and seabed.

The Supreme Court's rejected a Court of Appeal judgment as a narrow interpretation of criteria.

It's unanimously ruled applicants must use and occupy an area, and maintain this use without substantial interruption.

Thorndon Chambers barrister Max Harris told Mike Hosking the Supreme Court's cleared up a lot of the details.

He says the Government probably needs to go back to the drawing board on its legislation now that the position's changed.

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Episode Transcript

Speaker 1 (00:00):
The big twist in the twenty year legal saga. This

(00:01):
is over the Maori customary rights to the foreshore and seabed.
Supreme Courts weighed in. They ruled the majority of the
Court of Appeal erred in their decision. Max Harris as
a barrister at Thornton Chambers and is with us, very
good morning. Is this tricky if I'm the ultimate court
of the land, given being the government, do I need
to appeal anything? Given I can do what I want?

Speaker 2 (00:22):
So this is the final top court making this decision,
so that the government can't appeal this decision and the
government has one here and then a unanimous decision at
the Supreme Court where the Supreme Court's found that the
Court Appeal got it slightly wrong, right.

Speaker 1 (00:37):
But having said that, what does it tell us about
what the appeal got what the Appeal court got wrong?

Speaker 2 (00:44):
Yes, So what all this is about is customary marine title,
basically customary rights for Maori. And basically what the Supreme
Court said is two things are important control and continuity.
So the group trying to get these customer rights needs
to have controlled the area and there also needs to

(01:04):
have been continuous use of the area and the Spring
Court basically said, when you're looking at continuous use and control,
they're going to allow a wider range of interruptions. So
they've said things like a permanent port infrastructure, for example,
might be seen as interrupting that continuity over time. I

(01:25):
know that sounds a bit legalistic, but basically it means
that it's slightly harder for Mary to get a customer
member entirely after.

Speaker 1 (01:35):
Was it overt overreach from the Appeal Court in the
first place?

Speaker 2 (01:41):
Not in my view, Mike. They were trying to make
sense of quite a complicated law. So what the courts
try to do is try to understand the intention of
Parliament and not just across one law, but across the
whole law. And so I think they did have quite
a difficult task. But I think the Supreme Court has
quite a considered judgment here. It's unanimous, so it's written

(02:04):
by all of the judges, which is quite unusual. I mean,
they've also said some some other interesting things about how
the law should apply.

Speaker 1 (02:10):
In what the government of trying to do. Now take
it back to twenty eleven. Does that clear it up
as well as provide the intent the current government.

Speaker 2 (02:18):
Wants or not Yeah, in maview this does clear up
quite a lot of things. The Court has also clarified
what that control requirement means, and they've clarified the kind
of the what the lawyers call the burden of proof.
So I do think government really needs to go back
to the drawing food a little bit. They had the
solution prepared responding to the Court of Appeal judgment. Now

(02:41):
the position's changed, so I think we've got a bit
of a reset and I think the Prime Minister did
say yesterday he was getting careful advice and I think
that's probably the right option.

Speaker 1 (02:51):
Max. Appreciate your time very much, barrister at Thorndon Chambers.

Speaker 2 (02:54):
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