Thanks Halfling. This is exactly the sort of exchange we're aspiring to broadcast, eh? 'll come back to you more fully. I read your erudite post before I posted mine...but jumped anyway!
I can go some of the way with you but I think your critique of Churchman J and Gwyn J are more ad hominem (and feminam). Better to have pointed out why they are wrong and why it is that Gwyn J was bound to follow the Court of Appeal.
Ultimately the resolution of the matter is with Parliament as it was with the Foreshore and Seabed Act - remember that was as a result of judicial interpretation as well.
A couple of other things.
Lest it be thought that you might advocate for an elected judiciary who can be turfed out every so often, remember that a lot of blood has been spilt over the establishment of judicial independence. Security of tenure means that Judges do not have to worry about whether the decision is popular or unpopular as long as it is according to law.
To my second point - what we are really talking about here is a law which begs different interpretations. That is not good law because it is uncertain. That should be the focus of attention rather than in personam attacks on the Judiciary.
I might say that on a number of occasions in my judicial career I made decisions according to law and pursuant to my judicial oath. Some of those decision attracted quite a bit of adverse comment (even from a Minister of the Crown). Was I intimidated by that - not at all, nor did it cause me to question my decision or recall ther judgement. If I was in error I would be corrected on appeal. In a couple of cases I was, and that was fine - because that was the way that the law works.
Hi Halfling, thanks again for your considered thoughts.
The difficulty I see with your notion that “Ultimately the resolution of the matter is with Parliament” is that if (as is the case) the Judiciary is willing to ignore what statutes actually say and the clear ordinary meanings of words, then no amount of legislating will put things back on track. And then of course the Courts just import crazy notions like the existence of a pre-human indigenous law that trumps legislation, Parliament and everything else (the Smith case). These sorts of judges are self-styling as societal Shamans.
Perhaps I was a bit harsh on Gwyn (who I acknowledge was bound to follow Churchman) but I have no truck with Churchman whatsoever. He oozes aloof unaccountable arrogance. He and his ilk (Winklemann, Glazebrook and all the rest) are in my view (and based on the clear evidence) complicit in a direct attack on New Zealand Parliamentary sovereignty and equal-citizenship democracy. I don’t see why these types should be immune from a bit of ribbing for their brazen over-reach.
What they doing goes beyond resolving legislative ambiguity; they’re rewriting statutes generated by our democratically elected representatives. The clear and incontrovertible evidence of this is that the traffic is all one-way - all pro-Partnership Treaty/anyone with Maori ancestry is mystically special etc etc.
I’m not advocating for an elected judiciary. I and a big majority of other New Zealand lawyers just want our elite judges to cut the extreme activism and stay in their lanes.
Thanks for the clarification John and I must say I agree with many of the sentiments behind your remarks. As a professed black letter lawyer and Judge there were times when it was difficult to keep up with the shifting sands generated by those further up the food chain.
As to the indigenous law point Gary Judd KC has written an excellent piece which he published yesterday.
I wonder if it may be time to do an analysis of SC and CA decisions to track down elements of post modern critical theory.
There are two problems about that. The first is I have already done one PhD and just thinking about the research question suggests another on the horizon.
The second is that I have a pile of books to read and a limited and unknown amount of time left. So much to read, so little time.
And then there is the compulsion to hit the keyboard each day…..
Re your second point Sir: Yet in this case, and many others, the law seems rather clear. Exclusive has a well defined meaning in English but was just ignored by the judge. Same for our old tree-hacking mate Mike Smith with his daft case. This is of course one of the (many) dangers of introducing bullshit like tikanga into NZ law. Please could you well-connected important law folk encourage Luxon & co to legislate these activist judges back into line?? I doubt he’ll listen to me.
Another very good rant thank you. Muriel Newman is to be praised for her tireless work shining light on this and similar matters. Her NZCPR site is most worthy of our financial support.
I only ever use "Aotearoa" ironically, to take the piss - as the Aussies would say - out of the mindless Woke Groupthinkers (Aotearoans) who incessantly use Aotearoa in vain attempts to project virtue/Maori ancestry/enlightened status
Is it a fact that there are today over 200 Māori claims in High Court Registries throughout NZ for almost 100% of the NZ coast line? If so then why is this not a well publicised fact?? Again if so ,who is paying the Lawyers to lodge these claims? After all it is almost extraordinarily expensive for most of us to launch [dubious] claims in the High Court?
Thanks Halfling. This is exactly the sort of exchange we're aspiring to broadcast, eh? 'll come back to you more fully. I read your erudite post before I posted mine...but jumped anyway!
John
I have covered an aspect of this issue in "Mere Rhetoric, Descriptive or Something Else" - see https://djhdcj.substack.com/p/mere-rhetoric-descriptive-or-something
I can go some of the way with you but I think your critique of Churchman J and Gwyn J are more ad hominem (and feminam). Better to have pointed out why they are wrong and why it is that Gwyn J was bound to follow the Court of Appeal.
Ultimately the resolution of the matter is with Parliament as it was with the Foreshore and Seabed Act - remember that was as a result of judicial interpretation as well.
A couple of other things.
Lest it be thought that you might advocate for an elected judiciary who can be turfed out every so often, remember that a lot of blood has been spilt over the establishment of judicial independence. Security of tenure means that Judges do not have to worry about whether the decision is popular or unpopular as long as it is according to law.
To my second point - what we are really talking about here is a law which begs different interpretations. That is not good law because it is uncertain. That should be the focus of attention rather than in personam attacks on the Judiciary.
I might say that on a number of occasions in my judicial career I made decisions according to law and pursuant to my judicial oath. Some of those decision attracted quite a bit of adverse comment (even from a Minister of the Crown). Was I intimidated by that - not at all, nor did it cause me to question my decision or recall ther judgement. If I was in error I would be corrected on appeal. In a couple of cases I was, and that was fine - because that was the way that the law works.
Hi Halfling, thanks again for your considered thoughts.
The difficulty I see with your notion that “Ultimately the resolution of the matter is with Parliament” is that if (as is the case) the Judiciary is willing to ignore what statutes actually say and the clear ordinary meanings of words, then no amount of legislating will put things back on track. And then of course the Courts just import crazy notions like the existence of a pre-human indigenous law that trumps legislation, Parliament and everything else (the Smith case). These sorts of judges are self-styling as societal Shamans.
Perhaps I was a bit harsh on Gwyn (who I acknowledge was bound to follow Churchman) but I have no truck with Churchman whatsoever. He oozes aloof unaccountable arrogance. He and his ilk (Winklemann, Glazebrook and all the rest) are in my view (and based on the clear evidence) complicit in a direct attack on New Zealand Parliamentary sovereignty and equal-citizenship democracy. I don’t see why these types should be immune from a bit of ribbing for their brazen over-reach.
What they doing goes beyond resolving legislative ambiguity; they’re rewriting statutes generated by our democratically elected representatives. The clear and incontrovertible evidence of this is that the traffic is all one-way - all pro-Partnership Treaty/anyone with Maori ancestry is mystically special etc etc.
I’m not advocating for an elected judiciary. I and a big majority of other New Zealand lawyers just want our elite judges to cut the extreme activism and stay in their lanes.
Thanks for the clarification John and I must say I agree with many of the sentiments behind your remarks. As a professed black letter lawyer and Judge there were times when it was difficult to keep up with the shifting sands generated by those further up the food chain.
As to the indigenous law point Gary Judd KC has written an excellent piece which he published yesterday.
I wonder if it may be time to do an analysis of SC and CA decisions to track down elements of post modern critical theory.
There are two problems about that. The first is I have already done one PhD and just thinking about the research question suggests another on the horizon.
The second is that I have a pile of books to read and a limited and unknown amount of time left. So much to read, so little time.
And then there is the compulsion to hit the keyboard each day…..
The joys of retirement!
Lotsa Scotch to get through too!
😊
Re your second point Sir: Yet in this case, and many others, the law seems rather clear. Exclusive has a well defined meaning in English but was just ignored by the judge. Same for our old tree-hacking mate Mike Smith with his daft case. This is of course one of the (many) dangers of introducing bullshit like tikanga into NZ law. Please could you well-connected important law folk encourage Luxon & co to legislate these activist judges back into line?? I doubt he’ll listen to me.
Thanks John. In answer to your final question...
- Government composed of people elected to our Parliament.
That's my choice. I like democracy.
Correct Johanna, no list MPs as they HAVE to vote with whatever the party thinks is the best for the PARTY and NOT for NZ.
(sorry about capital letters, I'm not screaming, just accentuating 😊)
I AGREE! (I am yelling... but in support...😁)
I like that 👍
Another very good rant thank you. Muriel Newman is to be praised for her tireless work shining light on this and similar matters. Her NZCPR site is most worthy of our financial support.
Could authors please refrain from calling it “Aotearoa New Zealand.” We live in “New Zealand.”
I only ever use "Aotearoa" ironically, to take the piss - as the Aussies would say - out of the mindless Woke Groupthinkers (Aotearoans) who incessantly use Aotearoa in vain attempts to project virtue/Maori ancestry/enlightened status
Great read, our public servants and Judiciary are weak and woke. Scary road we are travelling
Is it a fact that there are today over 200 Māori claims in High Court Registries throughout NZ for almost 100% of the NZ coast line? If so then why is this not a well publicised fact?? Again if so ,who is paying the Lawyers to lodge these claims? After all it is almost extraordinarily expensive for most of us to launch [dubious] claims in the High Court?
Terrific. Featured this morning on FB's 'Fake News and the NZ Herald'.
Well why can't we impeach the judges.....??
Surely there should be a process for that??