THE LABOUR PARTY’S PROMISE to repeal the Marine and Coastal Areas Act, as recently amended, poses a disturbing democratic question. What comfort can citizens take from the legislature intervening to right a wrong if, just months later, a newly elected legislature intervenes similarly to restore the wrong just righted? Surely, such wild whipsawing lurches from wrong to right and back again cannot be good for our democracy.
In the case of the Marine and Coastal Areas Act the need for the legislature’s intervention was created by the reckless overreach of the judiciary. In essence, the Courts had reconstrued the Act’s meaning in a manner contrary to the clear intentions of the original legislators. If the legislature was not to surrender its constitutional primacy, then legislative restoration was unavoidable.
Judicial activism in relation to the Marine and Coastal Areas Act thus forestalled the most obvious solution to the problem of whipsawing parliaments. By demonstrating the dangers inherent in allowing unelected judges to second-guess the will of elected representatives, the notion that the judiciary might ride to the rescue of a legislatively whipsawed citizenry has been discredited by the courts themselves.
But what if the courts – setting aside for one moment the fact that they lack the constitutional power to second-guess the nation’s legislators – were right? What if Māori tikanga and the guarantees of the Treaty of Waitangi should (and according to some jurists do) take precedence over historical processes from which Māori were effectively excluded. Surely indigenous customary title cannot be extinguished by the victors’ simply eliminating the conditions that would have ensured its persistence.
And if, in principle, the courts were right, then so, too, were the political parties who argued and voted against the Coalition Government’s amendments to the Marine and Coastal Areas Act. If the Coalition’s amendments really were in breach of the Treaty and a crude negation of tikanga, then investing them with the full force of statute law was indeed an overt and brutal act of recolonisation. Which must also mean that upon returning to power, Labour, the Greens, and Te Pāti Māori, would be morally obliged to restore the status quo ante.
Except, the world does not stand still, and any attempt to order things as if the forward march of history can be halted and reversed is fraught with enormous danger.
New Zealand was colonised; Māori were dispossessed; and the legal rights of the victors did override the customary rights of indigenous tribespeople who now found themselves on the losing side of history. These are facts.
That the Treaty protected the lands, forests, fisheries, and other treasures presided over by tribal chiefs, while indisputable, was also inadmissible. The victors would not be deprived of their spoils by what the colony’s Chief Justice very conveniently ruled “a simple nullity”.
The world did not stand still. A century of nation-building produced the state known to the world as “New Zealand”. That somehow, in the name of historical justice, the New Zealand state can be unbuilt, and “Aotearoa” erected in its place, is an idea filled with the most extraordinarily dangerous implications. Unfortunately, if history is any guide, it’s the dangerous ideas that human beings embrace most fervently.
If, for the sake of argument, there is a change of government at the next election and Labour, the Greens, and Te Pāti Māori move swiftly to fulfil their promises to restore the Marine and Coastal Areas Act to the condition in which the Coalition Government found it, what is likely to happen?
Given the makeup of the new regime, what is most unlikely to happen is a restoration of the status quo ante. In the period leading up to the 2026 election the Marine and Coastal Areas Act will be a cause celebre, decried by all three “progressive” parties as a symbol of the recolonising ambitions of the despised Coalition Government. With legislative power now in their hands, why would Te Pāti Māori and the Greens permit Labour to get away with doing no more than eliminating the Coalition’s changes to the Act?
Is it not more likely that Te Pāti Māori, the Greens, and most of Labour’s Māori caucus, caught up in the heady emotions of their electoral success, will press for a much more radical redress of wrongs? Are the chances not very high that a brand-new piece of legislation, one in which tikanga and Te Tiriti are explicitly accorded primacy over “colonial” law, emerges as a central element of the new government’s coalition agreement?
With the eager assistance of the judiciary, this new law will in the space of three years see vast swathes of New Zealand’s shoreline, its estuaries, even its rivers, fall under the sway of customary Māori titles – or whatever new name is bestowed upon them. Property rights and access guarantees which Pakeha believed to be inscribed in legal granite will be reduced to dust in the wind. History will, indeed, be marching backwards.
And what will be the first political move of those who now find themselves of the losing side of this historical custody battle? It will be to extract a solemn promise from the opposition parties that the moment they are once again in control of the House of Representatives they will repeal this abhorrent piece of “indigenising” legislation. They will not be demanding the restoration of the status quo ante, because that will no longer be enough. Their next demand will be the reintroduction of Helen Clark’s Foreshore & Seabed Act. The wholesale nationalisation of the country’s beaches and waterways. Raupatu.
The response of Iwi and Hapu is not difficult to envisage. Those who observed the Māori reaction to David Seymour’s Treaty Principles Bill with concern, will recoil in alarm from tangata whenua reaction to the Crown’s unilateral abrogation of customary Maori title. The cry will go up (and not from Māori alone) for some form of constitutional intervention to rescue the Treaty from once again being reduced to a simple nullity.
That cry may not fall on deaf ears.
Lord Cooke of Thorndon, the jurist who formulated the concept of a “Treaty Partnership” between Māori and the Crown, was strongly of the view that a legislature hellbent on extinguishing the rights of the nation’s citizens should and could be overruled by a judiciary pledged to their preservation. In his own words: “it is arguable that some common law rights may go so deep that even Parliament cannot be accepted by the Courts to have destroyed them.”
It is likely, therefore, that the problem of our whipsaw democracy will end up being resolved by precisely the judicial intervention that inspired the legislature’s push-me-pull-you “solutions”. Confronted with the threat of civil war, that part of the Crown which operates at some distance from the legislature: the judiciary, the civil service, the Police, and the armed forces; strongly supported by their adjutant institutions, the universities and the mainstream news media; will prevail upon the Governor-General to declare vacant the parliamentary seats of those attempting to destroy the common law rights of New Zealanders.
The remaining “rump” of this winnowed Parliament would then proceed to enact constitutional reforms which retired the whole notion of parliamentary sovereignty in favour of a written constitution which not only enshrines Te Tiriti o Waitangi but establishes the legal machinery for its contemporary application and enforcement.
The phenomenon of the whipsawing parliament is emblematic of a representative democracy no longer able to rely upon a solid and enduring consensus on what is and is not within its legislative purview. The moment that all-important consensus dissolves into rancorous polarisation, effective democratic government dissolves along with it.
A legislature that cannot reach agreement as to whether it is fish or fowl is begging for those other elements of the state quite certain of its nature to either fry it or roast it.
This essay was originally posted on The Good Oil website on Monday, 27th October 2025.