Privy Council strikes back!
May 4th, 2004 at 10:02 am by David FarrarBoth the NZ Herald and Stuff are reporting how the Government may be on the verge of losing its majority in Parliament on confidence and supply, and hence a possible early election.
If the Government does fall apart on this issue, it will really be because they abolished the right of appeal to the Privy Council.
You see the Government should have appealed the foreshore decision of the Court of Appeal to the Privy Council. Legislation should generally be a last, not a first step. It was incredibly stupid of them not to do so.
But they put politics over good government. Because they were in the middle of introducing legislation to abolish appeals to the Privy Council, they decided that politically it would look bad to appeal this decision. I am sure they are bitterly regretting that decision now.
There was a more than reasonable chance the Privy Council would have over-turned the Court of Appeal decision and that would have avoided the huis, the meetings, the protests, the campaigns etc etc. Incidentally the District Council is appealing the decision, but without the support of the Crown it is less likely to succeed.
No tag for this post.
May 4th, 2004 at 10:41 am
A very astute point DPF. Don’t they call this the law of unintended consequences, or perhaps, hanging themselves with their own rope?
Vote:May 4th, 2004 at 12:54 pm
It’s a good point, and would have been pretty risk free now that Lord Cooke has retired.
Vote:I agree that legislation should always be a last step (particularly expropriation) – why not let cases proceed in the Maori Land Court and determine whether there were any actual (as opposed to potential) rights to appropriate? It’s difficult to see how exclusive customary ownership could have been demonstrated in more than a handful of cases (please don’t ask for examples), if any. It would limit the fallout – whereas letting the new Supreme Court loose with a bunch woolly (and I mean Shrek-woolly) ideas like public domain (no longer a problem thanks to Winston) and “ancestral connection” could lead to anything under the chaos theory of New Zealand jurisprudence (“the principles of the Treaty” anyone?).
May 4th, 2004 at 1:20 pm
It’s a good point and was first advocated by ACT. I suppose DPF, now he’s freed from financial constraints, also has joined the club
)
Vote:May 4th, 2004 at 3:50 pm
It was a jurisdictional hearing for chris’sakes…..
Vote:The Labour party got their knickers in a twist over it and now it’s blown up in their face….
I’m with DPF… a simple appeal to the Privy Council, a bench of far less activist yet no less sympathetic to Maori judges, would have been the prudent course of action.
It’s no wonder the big law firms won’t take graduates from THAT law school…
May 4th, 2004 at 4:02 pm
Yes my personal view is essentially that of Ngai Tahu and the Business Roundtable (and ACT) which is appeal it all the way, then if unsucessful contest claims in court and finally if title is granted make a settlement or pass legislation with compensation.
The problem is Clark and Wilson did their infamous press conference where they said they would legislate for crown ownership, and National of course had to hold them to it, especially as by not appealing Labour has removed that as an option for other parties.
Vote:May 5th, 2004 at 10:07 pm
I suspect that the Privy Council would have ducked the issue as something peculiarly New Zealand and hence beyond their competence to consider.
Vote:May 5th, 2004 at 10:15 pm
It’s actually a wee bit of a myth that the Prive Council ducks Maori issues. AFAIK in only one case have they passed the buck a wee bit by referring parts of it back to the Court of Appeal. But this happens in non Maori cases also.
Vote:May 7th, 2004 at 11:01 pm
While I would have prefered the concept of due process be adhered to, I was delighted when Helen and Maggie panicked at the ruling (way before Orewa too – which says something) and ran into, rather than out of, the minefield (stupid is as stupid does). Why? I was hoping to hear the Maori Land Court ask the Appeals Court what part of the concept ‘LAND’ they didn’t understand.
Vote: