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Dual mechanism for customary interests could raise issues

MEDIA RELEASE – For immediate use, 26 November 2010

Dual mechanism for customary interests could raise issues

The use of two mechanisms for recognition of customary interests in the Marine and Coastal Area (Takutai Moana) Bill raises some potential issues, the New Zealand Law Society says.

In its submission on the Bill, the Law Society says while the Court process ensures anyone interested in or affected by a recognition order application has the chance to be heard, third parties do not receive the same protection if the applicant group and the Crown enter into negotiations.

Law Society President Jonathan Temm says the Society’s view is that it is important that third parties be protected. He says they should be given the opportunity of participating in the negotiation process before agreements are concluded.

“To provide an appropriate safeguard, before negotiations begin between the Crown and the applicant group, the Crown should be required to give public notice of its intention to enter into those negotiations.”

Mr Temm says the Society’s submission also points to differing statutory tests between the recognition of customary interests by agreement and recognition through the Court process.

“If an application is made to the High Court, the Court will give a judgment containing reasons for its decision. There is a right of appeal to the Court of Appeal on both matters of fact and law.

“In contrast, there is no requirement that reasons be given for the making of an agreement, and there is no right of appeal. As the entry into an agreement and the making of an Order in Council giving effect to an agreement could be the subject of judicial review proceedings, we believe the Minister should be required to give reaons for recognising the customary interest.”

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Mr Temm says requiring the Minister to give reasons would give transparency to the decision making and ensure that the right of judicial review is meaningful.

One more difference between the two mechanisms lay in the requirement to register both agreements and orders. While the content of an order was specified by the Bill, there was no prescription for the contents of an agreement.

“Because the register is notice to the world of customary interests, an agreement which is registered should include the same information as an order,” Mr Temm says.

The Law Society states that its submission refrains from comment on the policy underlying the Bill. The submission examines and comments on some of the Bill’s legal implications and suggests a number of drafting changes to enhance its workability.

“We recognise that there are differing viewpoints within New Zealand’s legal profession on the policy and objectives of the Bill,” Mr Temm says. “As usual, the Law Society has given a searching examination to the way the legislation is drafted and put together, and has looked at ways in which it can be made more effective in achieving its aims.”

Mr Temm says a large part of the Law Society’s submission identifies drafting errors, inconsistencies and areas where clarification would improve interpretation and use of the legislation. In all cases the submission suggests remedies.


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