SUPREME COURT INTO THE POLITICAL ARENA AGAIN

This time with MACA

This morning the Law Association’s LawNews published my criticisms of the Supreme Court’s purported judgment in the Edwards case under the title The Edwards judgment: a nullity designed to pre-empt Parliament? I explain that what the Court called a judgment is not a judgment at all, but a pronouncement the Court had no jurisdiction to make. I conclude by asking What should the government do? I suggest the government response should include an amendment to the MACA amending Bill currently before the House declaring the Supreme Court’s judgment [2024] NZSC 164 a nullity. My reason for suggesting Parliament should speak is lack of certainty about whether a purported decision made without jurisdiction is automatically void or whether it stands until declared to be so. When the purported decision is of the highest court, only the highest court itself or Parliament may make that declaration.

I also suggest that the amendment should require the require the Supreme Court to decide the appeals in accordance with the law stated in what will be the Amendment Act. That should be unnecessary because the law as enacted in 2011 is perfectly clear but the Court of Appeal, like the High Court before it, was disinclined to allow s 58 to have its clear and obvious meaning. That’s why the amending Bill is necessary. The Supreme Court’s purported judgment shows it, like the courts below, will not decide according to the law as stated in s 58. Probably the Bill as reported back from the select committee is adequate to constrain the Supreme Court, but judicial intransigence suggests the amending legislation should make it explicit.

This is the article, as published by LawNews.

When I was a very young lawyer, there was a judge of the Supreme Court (as the High Court was then known) who would not read newspapers.

His fealty to the law and to his privileged role as a judge, who had taken an oath to serve the Queen according to law, and to do right to all manner of people after the laws and usages of New Zealand, without fear or favour, affection or ill will, led him to the view that he should not risk being influenced even unconsciously by the goings-on of the world outside the law.

Even back then, those of us who knew he held that attitude thought it to be exaggerated eccentricity, more than a little ‘over the top.’ Yet, although an extreme example, it nevertheless epitomised a respect for the law and judicial office which was then taken for granted.

Alas, not so today!

On 2 December 2024, the Supreme Court issued “Judgment of the Court” ([2024] NZSC 164) in the Edwards case. The judgment was issued on an appeal from the Court of Appeal decision ([2023] NZCA 504, [2023] 3 NZLR 252).

The Court of Appeal had decided that applications for customary marine title (CMT) recognition orders over certain areas should be reheard in the High Court in light of the approach set out in the judgment. The Court of Appeal made seven orders plus an order that costs lie where they fall.

The “Judgment of the Court” was a discussion about the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA), specifically s 58. In that discussion, the Supreme Court disagreed in some respects with the Court of Appeal’s reasons for the latter’s decision. We are not told when the Supreme Court’s actual judgment will be delivered.

The Supreme Court said, “[227] The appeal by the Attorney-General in relation to s 58 of MACA is allowed.” That is not a judgment, decree, order, direction or determination which could be sealed.

As I shall show, it was beyond doubt a pronouncement the Supreme Court had no jurisdiction to make. It has brought New Zealand one step closer to the constitutional crisis Roger Partridge described as “looming” in Who makes the law? Reining in the Supreme Court.

Two judgments

The hearing in the Supreme Court concluded on 15 November and the “Judgment” was delivered just 17 days later. The reader is told it is the first of two judgments.

In paragraph [5], the court said that the judgment addressed the meaning of MACA’s s 58. That meaning, the court stated, “was the key area of contention between the parties to these appeals.” It added, “Our focus here will be on the issues of general import regarding CMTs, and whether the majority decision of the Court of Appeal was correct in its analysis and interpretation of s 58.”

More discrete or fact-specific issues arising under s 58, such as the disputed status in tikanga of specific applicant groups or marine areas, would be dealt with in a second judgment, as would issues relating to protected customary rights, the application of s 58 to navigable rivers, the mandate of applicant groups, procedural questions and the application of MACA to the present case.

The Supreme Court gave no reasons for this two-judgments approach.

In most appeals, indeed most cases, there will be key areas of contention between the parties. That this was so in the Edwards appeal is not a reason for adopting a course the Supreme Court had no jurisdiction to adopt. There can never be a legitimate reason for exceeding or abusing jurisdiction. The absence of even an attempt to explain is indicative of an abandonment of the court’s function as a court of law.

The Court of Appeal’s “analysis and interpretation of s 58,” referred to in paragraph [5], was in the reasons the Court of Appeal gave for the decisions it made.

An appeal cannot be brought against reasons for a judgment, only against the judgment. Although I shall refine this statement and set out in some detail why it is so, the principle is clear and well known to any lawyer who has practised in the superior courts.

Why then did the Supreme Court so readily disregard it in this case and purport to determine that “the appeal by the Attorney-General in relation to s 58 of MACA is allowed,” when the Attorney-General could not possibly have lodged a valid appeal “in relation to s 58 of MACA”? A valid appeal could be against only the Court of Appeal’s actual determinations.

Currently before the House of Representatives is the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill.

Having been before the Justice Select Committee whose report is dated 3 December, it is now due to have its second reading, consideration by the Committee of the Whole House and third reading. The purpose of this bill is recorded in its preamble

In 2023, in Whakatōhea Kotahitanga Waka (Edwards) v Te Kāhui and Whakatōhea Māori Trust Board [2023] NZCA 504, [2023] 3 NZLR 252, the Court of Appeal interpreted provisions of the Marine and Coastal Area (Takutai Moana) Act 2011 about the requirements for recognition of customary marine title. The Court’s interpretation of those provisions changed the effect that Parliament intends them to have, and materially reduced those requirements (for example, that an applicant group must prove exclusive use and occupation of a specified area from the start to the end of the applicable period without substantial interruption). Amendments to those provisions are needed to ensure that they have the effect that Parliament intends. The enactment of this legislation makes those amendments….

A consequence of the Supreme Court’s “judgment” is the claim now made by some that the Amendment Bill is no longer necessary, because the Supreme Court has reversed the Court of Appeal’s interpretation of the provisions referred to in the preamble.

“Looming crisis

Can there be any doubt that the Supreme Court’s unusually speedy delivery of this “judgment” had any purpose other than as an attempt to pre-empt Parliament’s further consideration and enactment of the Amendment Bill?

Once again, the Supreme Court has exposed itself as politically active. In doing so, the Supreme Court is responsible for undermining its own credibility by failing to maintain its proper position within the constitutional order. Doing so has created the looming constitutional crisis.

The Supreme Court’s position within New Zealand’s system of government prohibits it from engaging in such activities, not expressly because that is unnecessary but because its constitutional role and function is limited and does not include engagement in political activity.

The Court is a creature of statute. It was created by the Supreme Court Act 2003. The 2003 Act was repealed by the Senior Courts Act 2016 (SCA), s 66(1) of which declares that there continues to be a Supreme Court of New Zealand for the hearing of appeals in New Zealand on important legal matters, including matters relating to the Treaty of Waitangi, which would formerly have been determined by the Judicial Committee of the Privy Council.

The Supreme Court has the jurisdiction conferred upon it by the SCA. (The jurisdiction of its judges in their capacity as High Court judges is different and irrelevant.) As germane to the present issue, the Supreme Court “may hear and determine an appeal by a party to a civil proceeding in the Court of Appeal against a decision made in the proceeding” (s 68). Note, “a decision made in the proceeding”.

Decision is defined in rule 3 of the Supreme Court Rules 2004 as meaning “a judgment, decree, order, direction or determination”.

The Supreme Court’s powers are specified by SCA, ss 79 and 80. It is entitled to make any order or grant any relief that could have been made or granted by the Court of Appeal, and it has the powers the Court of Appeal would have if hearing the appeal.

It may make any ancillary order and any order or decision on an interlocutory application, and any order as to costs. It may remit a proceeding to a court that has jurisdiction to deal with it. It also has certain implied powers to enable it to function as a court of law.

But it can never act outside or beyond its statute-conferred jurisdiction.

Appeals may be heard only with the court’s leave: s 73. In this case, leave to appeal was granted on 17 April 2024 ([2024] NZSC 33) in the following terms:

The applications for leave to appeal are granted (Whakatōhea Kotahitanga Waka (Edwards) v Te Kāhui and Whakatōhea Māori Trust Board [2023] NZCA 504) on the question of the correctness of the judgment of the Court of Appeal.

This was the judgment of the Court of Appeal ([2023] NZCA 504):

[446] The approach to s 58 outlined above leads us to the same result as that set out in the judgment of Miller J. As already mentioned, we agree with the orders he proposes.

[447] The applications for CMT recognition orders over the area covered by Orders 1 and 3 in the High Court should be reheard in the High Court in light of the approach set out above.

Orders

• (A)The Edwards appeal is dismissed, as are those of Kutarere Marae and Ngāti Muriwai. For reasons given at [281], this does not preclude Ngāti Muriwai from participating in any recognition order for customary marine title (CMT) granted, following rehearing, to the Whakatōhea applicant groups.

  • (B)The appeals of Te Ūpokorehe, Ngāti Awa and the Landowners Coalition Inc are allowed in part. CMT Orders 1 and 3 are set aside. LCI’s appeal against CMT Order 2 is dismissed.

  • (C)The cross-appeals of Te Kāhui and Ngāi Tai are dismissed so far as they seek a recognition order for CMT over the common marine and coastal area around Whakaari and Te Paepae o Aotea.

  • (D)Te Kāhui’s cross-appeal is allowed in part. CMT may extend to the beds of navigable rivers which form part of the common marine and coastal area as MACA defines that term.

  • (E)We order a rehearing of the applications for CMT recognition orders over the area covered by Orders 1 and 3. The rehearing will not extend to the common marine and coastal area around Whakaari and Te Paepae o Aotea.

  • (F)The appeal of Ngāti Ruatakenga against the granting of recognition orders for protected customary rights (PCR) to Ngāti Muriwai is dismissed.

  • (G)The appeal of Ngāti Patumoana against the refusal to grant a recognition order for PCRs is allowed to the extent set out at [350]. The form of the orders is to be settled in the High Court.

  • (H)Costs will lie where they fall.

The question which was and still is before the Supreme Court is whether the judgment of the Court of Appeal set out in paragraph [447] was correct.

As can be seen from paragraph [446] of the Court of Appeal’s conclusion, the “approach to s 58” was not what the Court of Appeal decided but was part of the reasons for the decision.

I can find no indication that the Attorney-General made an appeal “in relation to s 58,” as opposed to seeking leave to appeal against the Court of Appeal’s determinations as recorded in paragraph [447] of the Court of Appeal’s judgment.

If the Attorney-General had sought to make such an appeal, it would not have been valid as it would have been an appeal not against “a judgment, decree, order, direction, or determination” of the Court of Appeal, but against the Court of Appeal’s reasons for judgment.

Illegitimate appeal

Among other cases, FB Duvall Ltd v Commissioner of Inland Revenue [2009] NZCA 413 shows an appeal against reasons is illegitimate. Hammond J for the Court of Appeal stated:

[3] It is a fundamental appellate principle that what has to be appealed is a judgment, decree or order of the High Court (see s 66 Judicature Act 1908). That is, a party appeals the judgment, not any observations in it, provisional findings of a Judge, or even the reasons of the Judge. There must be an appealable judgment….

[6] In our view, we are without jurisdiction. There is no judgment in the Judicature Act sense. In any event, there is non-compliance with r 11.13 [relating to sealing judgments]. And the reason there is non-compliance with that rule is likely that it would in any event have been impossible to seal a judgment, on the basis of what the Judge had said.

[7] The appeal is accordingly dismissed for want of jurisdiction. It is remitted to the Associate Judge for such further orders or directions as he may consider appropriate.

Even more telling is a judgment of the Supreme Court itself:

[25] It is fundamental that an appeal must be against the result to which a decision maker has come, namely the order or declaration made or other relief given, not directly against the conclusions reached by the decision maker which led to that result, although of course any flaws in those conclusions may provide the means of impeaching the result. A litigant cannot therefore, save perhaps in very exceptional circumstances, bring an appeal when they have been entirely successful and do not wish to alter the result. The successful litigant cannot seek to have the appeal body overturn unfavourable factual or legal conclusions made on the journey to that result which have had no significant impact on where the decision maker ultimately arrived. In short, there is no right of appeal against the reasons for a judgment, only against the judgment itself. [Italics added.]
Arbuthnot v Chief Executive of the Department of Work and Income [2008] 1 NZLR 13.

I also draw attention to the Court of Appeal’s decision in Gao v Body Corporate 183930 [2016] NZAR 1313, [2016] NZCA 458. There is an extensive discussion of the rule that there can be no appeal against the reasons for a judgment. I mention the case to show that the Supreme Court’s 2 December pronouncement cannot gain jurisdictional credence based on its being an interim judgment, were this to be argued.

When Gao sought to persuade the Court of Appeal that it had jurisdiction, the appellant relied on the High Court’s judgment being an interim judgment made after the High Court Rules had been amended to make specific provision for interim judgments.

Mallon J, delivering the Court of Appeal’s decision, stated:

[34] However we note that FB Duvall Ltd was decided after the 1 February 2009 amendment. We consider that any intended amendment to the fundamental principle (that an appeal is against the result not the reasons) would need to have been made clear. An interim judgment is, of course, potentially appealable. But the appeal must be against the result of the judgment not the reasons. Where there is no result, as is the case here, the appeal right does not arise until the result is given.

The fix

Beyond any doubt, it is a fundamental principle that an appeal is against a result, not against the reasons for the result. On 2 December the Supreme Court purported to deliver reasons without a result. Not only was there no result but also the reasons were only partial. Full reasons require establishment of a reasoned pathway to a stated result.

What it has called a “Judgment of the Court” is nothing of the sort. There will be no judgment of the Supreme Court until the court has delivered a judgment determining whether the “judgment, decree, order, direction, or determination” of the Court of Appeal has been confirmed, overturned or amended and there have been appropriate judgments, decrees, orders, directions or determinations of the Supreme Court.

As a pronouncement made without jurisdiction, the pronouncement of 2 December should be treated as a nullity.

Quite apart from the fundamental error involved in making what is no more than a pronouncement which the Supreme Court has no jurisdiction to make, there is no way of knowing the real effect of the Supreme Court’s discursive discussions about s 58 until they have been applied to the facts.

The outcome may turn out to be worse than the consequences of applying the Court of Appeal’s decision.

What should the government do? It should introduce a Supplementary Order Paper at the bill’s committee stage to declare the court’s 2 December pronouncement to be a nullity and to require the court to decide the appeals in accordance with the law stated in what will be the Amendment Act.