By Tim Murphy of 
The Supreme Court says Marine and Coastal Areas Act claimants should be paid costs in advance by the Crown. Photo: RNZ / Angus Dreaver
In a rare decision, heavy with judicial and political implications, the country's top court has told the Crown it must give advance financial support to a group of hapū challenging it over the Marine and Coastal Areas Act.
The Supreme Court's intervention, ahead of seven appeals scheduled before it in November in the Edwards case for coastline around Ōpōtiki, followed the Crown cutting funding to the Māori claimants ahead of this final legal hurdle.
Crucially, the coalition government intends to repeal part of the Maca law in advance of the Supreme Court being able to consider it. It has opted not to wait for the result of a case for which its own lawyers have lodged an appeal.
It has also reduced funding to Maca claimants via Te Arawhiti (the Office for Māori-Crown Relations) as part of its public service cost-cutting - and suggested to the courts that High Court hearings scheduled on other cases might best be deprioritised.
But an early application to the Supreme Court to make the Crown provide adequate financial support to claimants, as it had in the past and at earlier stages of the case under appeal, has led to a novel intervention.
The five-judge panel of the Supreme Court observed the Crown had previously been an interested party in the case.
Now it had become a direct party by appealing the Court of Appeal's findings on customary marine title, raising the prospect of one party to the argument taking funding away from the other.
"This alteration represents a substantial disadvantage in effect now imposed by one litigant upon another, at the final stage of proceedings," the Supreme Court found, "despite that litigant having previously recognised the responsibility to ensure all sides of the argument before the courts could be advanced with full and adequate funding."
The court stepped in after an application by four hapū groups, collectively known as Te Kāhui, for a 'prospective costs order' meaning the Crown would need to come up with the money while the case is being prepared, not wait for any final costs order and pay retrospectively.
The top court had not previously made such an order in a public interest case and noted just two had been issued at the High Court level.
The Supreme Court agreed on 4 July to hold its hearings on the Edwards case in November. The next day, Te Arawhiti wrote to all Maca claimants saying it was scaling back financial support.
Te Arawhiti had put a ceiling of $30,000 for each hapū's costs ahead of the Supreme Court appeal, but that $120,000 total has now been increased by just under $100,000.
The judgment said the elements being appealed by the hapū were "seriously arguable".
While noting it was not the court's role to direct the government how to spend its money, it was its right to make one party (any party, not just the Crown) put up costs funding if issues of fairness arose.
The judgment, given by Justice Stephen Kos, said the case was clearly one of public importance.
"Few matters have caused greater division and dissensus between Pākehā and Māori, and between Māori and Māori, than rights of title and access to New Zealand's coastline."
"The present appeals are the first test at the level of this Court of Parliament's most recent attempt to provide for customary marine rights," the judgment said.
"The importance of the issues may be measured by the Crown's recognition hitherto of an obligation to fund the participants' legal costs on an indemnity basis.
"That might reflect a recognition of the Crown's responsibilities to give active protection to rights of Māori under the Treaty 'in the use of their lands and waters to the fullest extent practicable'."
The judgment quoted a 25-year-old ruling by Justice Anderson in a Waitangi Fisheries Commission case: "Prospective Costs Orders were ordered because, as the Judge put it, 'he transparency of the process requires that it be argued appropriately for each side' in a case of deep, enduring significance with the potential for perceived injustice to fester across generations."
Tellingly, the current Supreme Court noted: "What was true over 25 years ago in the context of fisheries is all the more applicable today in the context of customary rights to the marine and coastal area."
In making the $97,500 prospective costs orders, the court said it "did not condemn the Crown's change of funding stance, which is the result of parliamentary appropriations".
"However, having regard to the combined effect of advantage to the Crown, the subject-matter concerning customary rights, and the disadvantage to the Te Kāhui applicants who cannot now make alternative funding provision at this eleventh hour, we consider this the exceptional case in which it is necessary in the interests of justice to make a PCO for advance costs, the burden of which the Crown should justly bear."
If the government moves ahead and amends the Marine and Coastal Areas Act, Parliament could be debating the changes through the period the Supreme Court case is scheduled. Justice Minister Paul Goldsmith had originally wanted the amendment merely introduced in 2024, but now aims to pass it this year.
* This story was first published by Newsroom.
