I still wonder whether lawyers would dare criticise the judges in this small country for fear of antagonising them and prejudicing the judges against themselves and future clients. Or are legal eagles and judges super human?

Not super human, but you can see why I like to stay anonymous.  I could not say some of the things that I do say here on KB without it.

Kea,

Not race, but previous possession.  The commonality of the ethnicity of those owners is merely a coincidence of history as far as the law is concerned.  As I noted, exclusivity of waterways is not unknown to the Common Law.  

Charlie Brown,

How on earth has Elias CJ anything to do with the claim being made, or an appeal of the High Court decision being lodged with the Supreme Court?

As a layman I find it confusing to see how this tradition and system meshes with the “rights” we have inherited, through the treaty, of a stone age society without a written language, without a sense of nation or state, and without any formal legal code.

As a layman I am also a little sceptical because of the large revenue the treaty settlement business generates for lawyers. The claimants assure us that the settlement business (and hence legal process) will never end.

The settlements now exceed more than $1 billion in current dollars, and probably also in “1994 dollars” the date of the settlement.

The NZ Herald described the two tribes achieved this by tough negotiating. In Ngai Tahu’s case, that would have been by Finlayson.

Now Finlayson’s presiding over the whole settlement process. Presumably, this means he gets to stamp top-ups he negotiated.

Still, few will care. Just as few give a stuff that Ngai Tahu’s growing businesses apparently operate tax free under the tribe’s group registration as a charity.

As always, I find F.E. Smith’s posts well informed, interesting, and useful for a layman.. I’m sure his integrity matches his knowledge, but I still wonder whether lawyers would dare criticise the judges in this small country for fear of antagonising them and prejudicing the judges against themselves and future clients. Or are legal eagles and judges super human?

Comments from our legal brethren.

so you consider giving once racial group exclusive rights to the nations water “Justice”

Actually, I have little issue with it so long as there is a well reasoned opinion that is justified by the law as it is.  That means that there can be such things as private waterways, depending on how much of the Common Law you think was imported into NZ at the time of the signing of the Treaty.

Moreover, I am very much of the opinion that it is wrong to consider the issue as one of race. The issue is one of ownership, not race.  The law is, and should be, blind to the issue of race.  The case could, hypothetically, just as much have been brought by the descendants of the first European settlers in a region, arguing that they purchased the water rights from the local Iwi, thus giving them exclusive rights over both Maori and non-Maori alike.

a view to treating all people equally. I thought that was how the law was supposed to work anyway

Not at the expense of property rights, it isn’t.  I don’t have equal access to your home, and nor does anyone else. Same principle applies.  Different jursdictions have slightly different views on this, compare the UK position on mineral rights (they belong to the Crown) and the US (you own everything below the surface of your property).

Of course, it may just be that I have more regard to individual and property rights than your more socialist position!

Why do you think the legal system would need to be perverted ? I think the Government should legislate the outcome, with a view to treating all people equally. I thought that was how the law was supposed to work anyway, so it is hardly a perversion.

Because they are so parlous in what they represent that they will probably need the support of the racist party to have any hope of remaining in power after the next election.

They could change that by actually making a stand, and articulating a coherent position, but apparently its more important to dance and sing with imbeciles in order to remain popular with a sector of the populace who doesn’t even vote.

(The “right thing” being a decision that does not divide our country.)

and Justice be damned!!! 

Rather than perverting the legal system, why doesn’t the Government just legislate a favourable outcome?

I think we can take as granted that should the decision go against the Maori Council then the Maori protest industry will take to the streets. They’ve hardly had a setback since Eva Rickard’s started the ball rolling so a defeat now would leave them gutted.

Regrettably, we have gone so far down the appeasement track that IMHO they have little to fear.

You could look at it the other way as well: Assuming that the Supreme Court rules for the Crown, then any complaint that the judges simply didn’t understand the Maori Council argument wouldn’t hold water.

Very good point.

Maybe she should hear the case and we can just hope she does the right thing. (The “right thing” being a decision that does not divide our country.)

Maybe so, but many of the public know this whole damn scenario is not that complicated, and they view it just as a politicised racist junket and a rort at the expense of taxpayers and all it needs is one political party with enough guts to pull the plug on it and it would all be gone tomorrow.

Quite.

The screams of bias would be shrill and unending.

But even more hypocritical, they would probably be coming from those “open and fair minded” people who are presently supporting the judges appointment.

Cheers, Chris W.

public perception of Elias CJ may differ.

That is a fair point, although I think that perception is unfair to Elias CJ.  But most of the public gets their information from media reporting of judicial decisions, and most journalists are clueless when it comes to anything legal.

Maanu Paul’s son is a District Court Judge and one daughter is a lawyer. No suggestion of anything other than its a very samll legal world in new Zealand