A long, personal and painful read for the minister they call Goldie

Analysis: Seldom have the actions of one Cabinet minister been more thoroughly exposed by a statutory tribunal than those of the Hon Paul Goldsmith in his moves to limit Māori customary rights on the coastline.
The Waitangi Tribunal’s urgent report on the Government’s proposed changes to the Marine and Coastal Areas – Takutai Moana – Act (Maca) is withering in its assessments of Goldsmith’s approaches throughout the policy process.
The report concluded that the Government passing its proposed amendments to overturn a Court of Appeal decision would amount to a “gross breach” of the Treaty of Waitangi and urged it to stop its plans.
It roundly criticised the way the Government deemed the appeal court’s decision had diverged too far from Parliament’s intent in 2011 when Maca became law.
It frowned on the way the Government restricted consultation with Māori, and disapproved of its intent to cancel existing court cases.
And it said an existing Crown appeal to the Supreme Court for a decision on the criteria for granting customary marine title was the appropriate place for the matter to be determined. A Supreme Court hearing is set for November.
The Government was instead seeking to circumvent “the process of final judicial interpretation of legislative intent”.
The tribunal warns the Government’s path “is in clear Treaty breach and repeats the approach of the Foreshore and Seabed Act 2004”, which it notes led to a “powerful resistance from Māori”.
“We caution the Crown that, on the strength of the evidence we have received, to proceed now on its current course will significantly endanger the Māori-Crown relationship.”
Waitangi Tribunal reports have strongly criticised Government proposals in the past.
But this 72-page report was almost unique among judicial and semi-judicial findings in the way it systematically analysed and then found fault with a minister’s arguments and political conduct.
It inveighed against Goldsmith’s justification for the changes, his closed-mindedness to officials and others, and his desire to go way further than the coalition agreement seems to require in restricting Māori hopes of establishing customary rights to areas of the coastline.
Goldsmith, the tribunal found, made no effort to balance Māori rights and tino rangatiratanga against his highlighted “rights of all New Zealanders”.
He provided no evidence to support one of his key justifications for amending the act, that any public right or interest was currently not protected by Maca. “We find the minister’s decision to be so fixed as to be arbitrary in nature.”
Below is a curated selection of the three-person tribunal’s views on the Minister of Justice and Minister for Treaty Negotiations and his role in this law change.
But first, a quick recap on the Maca reforms and the tribunal’s urgent intervention.
The law was National’s response in 2011 to the highly controversial 2004 Foreshore and Seabed Act brought in by Helen Clark’s Labour Government after the appeal court at the time found Māori could claim customary ownership rights of their shoreline and inshore waters.
The 2004 law extinguished any customary rights and vested the foreshore and seabed in the Crown, leading to widespread Māori protest and ultimately the formation of the Māori Party.
National’s compromise Maca law seven years later declared no one owned the foreshore and seabed – not Māori and not the Crown. It restored any customary rights extinguished by the 2004 law, and provided instead for Māori groups to apply for Customary Marine Title (CMT) recognising that certain areas were held by them and giving them influence over uses in those zones. It covers the area between high-water springs and the 12 nautical mile limit of the territorial sea.
Iwi and hapū around the country have lodged more than 200 court applications for customary marine title. Some have separately chosen to seek CMT in direct negotiations with the Crown.
Customary marine title is a property interest that allows them to have a say over certain activities that need resource consent. This could include the building of new – not existing – wharves or fish farms, but there are various restrictions even on those.
Maca did not restrict free public access, fishing, recreation and many other common activities.
The Court of Appeal decision on a case known as Edwards for an area of Bay of Plenty coastline east of Ōpōtiki found that the Maca section on how iwi could qualify for customary marine title was too restrictive when read against the act’s purpose, which was to make CMT possible. The court favoured the ‘purpose’.
A dissenting judge said the two-judge majority’s decision would make claims for CMT “very much easier”.
When the coalition agreements emerged about a month later, in late November, New Zealand First had won a commitment for the new Government to amend the Maca to overturn that judgment, and return the law to what it argued Parliament intended 13 years ago.
Various claimants for CMT applied to the Waitangi Tribunal for an urgent hearing, which happened over two days in late August. Its first report was released on Friday September 13.
It found the Crown’s actions had breached numerous Treaty principles of good governance, good faith, partnership, and tino rangatiratanga. 
Crucially, it said: “There is no identified public right or interest that requires protection.”
It caned the Government over making the amended law retrospective – “such an unfair, unilateral decision”.
First, the tribunal’s hearing and research disclosed considerable detail of Goldsmith’s interactions with officials from Te Arawhiti – the Office of Crown-Māori Relations, and with his ministerial colleagues at Cabinet committees and full Cabinet meetings.
What becomes clear is that though New Zealand First is attributed with the initiative to amend Maca, Goldsmith has embraced the task enthusiastically.
The tribunal report revealed he wanted to go further than just overturning the Court of Appeal decision on Edwards. He also wanted to reach back in time to overturn the High Court’s judgment on customary marine title when it dealt with the same case.
Further it was Goldsmith who was most gung-ho on making the new (in his view, restored to 2011 intent) requirements retrospective – thus affecting cases that had benefited from the Court of Appeal’s decision.
From his first interaction with officials on the law change in December 2023, a month after the coalition signing, Goldsmith was resolute, writing in the margins on a briefing paper on Parliament’s passing of Maca in 2011, “the intent is clear”.
The next month in another handwritten note in the margins, he noted of the appeal court finding:
“This has led to real possibility that most of coastline [illegible] fall into customary ownership + hugely expensive process to determine overlapping claims + real conseq[uences] for expectation of NZers to have equal say in what happens on coast.”
The tribunal goes to some lengths to show how those phrases and sentiments were then picked up by the officials and included as justification for the law change in a series of briefings and documents.
By March, Goldsmith had moved from wanting the change introduced to Parliament in 2024 to wanting to pass it in 2024. 
He and the Minister for Oceans and Fisheries Shane Jones met seafood industry representatives that month, a meeting in which Goldsmith told them he believed his law change would cut the proportion of coastline available for Māori CMT from 100 percent to about 5 percent.
Jones, hearing the industry people claiming some CMT claims were still to be decided on claims for wāhi tapu, or sacred areas, is recorded as saying “we need to change the law re wāhi tapu areas”.
When Jones heard CMT claims were being handled not just via court cases but also in direct settlement processes with the Crown, he told the meeting “we’re under no duty to settle these claims”.
He even commented that he was “trying to have the RMA [Resource Management Act] removed from fisheries”.
The fact the ministers met the seafood industry, which is only a third party to the claims process, rather than Māori claimants, was roundly criticised by the tribunal in its report.
One tribunal member, Ron Crosby, was “perplexed” there had been any need to meet the industry or give any ministerial assurances, given a section of Maca expressly protected fishing rights and wāhi tapu provisions did not affect fishing quota rights.
The tribunal report acidly notes: “From the evidence available, this meeting appears to be the only instance where ministers sought to directly consult with any New Zealanders.”
In a letter from Goldsmith, Māori claimants were given three weeks to provide feedback on the proposed Maca changes, without the benefit of the wording being considered to change the ‘purpose’ ‘preamble’ and other elements. And the invitation occurred after the Cabinet had approved the main thrust of the changes suggested by Goldsmith.
In April Goldsmith told officials he wanted it to be made retrospective.
Later that month, the minister pushed for the amendments to be expanded to also cover the 2021 High Court decision’s view of Māori claims to customary rights.
“The High Court’s interpretation was too liberal and went beyond Parliament’s intent,” officials recorded him saying. “He reiterated his recall of Parliament’s intent – high threshold, small areas [of coastline].”
The tribunal report offers a litany of criticisms of Goldsmith: