F&S articles 2018

Video by Democracy Action with more indepth information here > www.democracyaction.org.nz/marine_act


Attention is also turning to others who may follow Mr English out of Parliament. High on that list is former Treaty Minister Chris Finlayson, who was responsible for the disastrous Marine and Coastal Area Act

If new National is to regain its spine, it needs to end its association with this ill-fated law and return to the racial equality principles it once advocated.

The Act is flawed in many respects, but especially in its failure to define a critical legal test. As it stands, unless the law is amended, it will be Judges rather than Parliament that determines whether Maori interests will own some of the coastal marine area or most of it.

Let me explain....

Section 58 of the Act contains the test for a customary title. Under (1)(a) an applicant group must have held their claimed area in accordance with “tikanga”, which is defined as “Maori customary values and practices”. In effect, this can mean anything the tribal group wants it to mean, so that’s an easy test for claimants to meet.

Clause (1)(b)(i) however, states that in relation to their claimed area, the applicant group must have “exclusively used and occupied it from 1840 to the present day without substantial interruption”.

Yet the exact meaning of exclusively is not defined in the Act.

According to the Oxford Dictionary, ‘exclusively’ means “to the exclusion of others”. If a Judge was to apply such a literal definition, then the only claims that would succeed are for areas that are used by the tribal group and no-one else – apart from those involved in fishing and navigation, which are permitted activities under Section 59(3).

Given that the foreshore and seabed was considered to be publicly owned under common law from 1840 until just recently, there would be very few coastal areas where tribal groups would have been able to continually chase the public away.

However, if a liberal determination was applied – such as that made by the former Minister Chris Finlayson in Ngati Pahauwera’s Crown Engagement case, then tribal groups could well end up controlling a majority of New Zealand’s coastline.

Ngati Pahauwera from the northern Hawke’s Bay lodged a claim in 2011 for an area of coastline around Mohaka, alleging they had held it exclusively and continuously from 1840 to the present day.

However, it turns out that the area had been used as a public road for over 100 years.

Research carried out by the Council of Outdoor Recreation Associations of New Zealand (CORANZ), which quotes newspaper reports on the challenges faced by travellers, drovers, and even the postman, states: “Because of the steep papa cliffs the only way by land for drovers and travellers to get from Napier to Wairoa and beyond was along the coast of the area that is now being claimed by Ngati Pahauwera. That is exactly what all people did – from the early days of settlement from 1840 and before, until the inland road was built between Napier and Gisborne via Wairoa in the 1930s.”

Yet, in his Letter of Determination offering a Customary Marine Title to Ngati Pahauwera, Minister Finlayson ignored 100 years of history, when he stated: “I am satisfied that the combined historical and contemporary third party activities are not of sufficient intensity and scale to amount to a substantial interruption of any exclusive use and occupation that Ngati Pahauwera are able to establish.”

He accepted Ngati Pahauwera’s assertion that because they did not exclude third parties who abided by their tikanga from their claimed area, in effect their occupation was ‘exclusive’: “Ngati Pahauwera evidence asserts that third parties are not excluded provided they abide by Ngati Pahauwera tikanga.”

If the High Court was to use a similar liberal interpretation of ‘exclusive’, as applied by the former Minister, it is entirely possible that most claims to the coast would succeed.

Is that what National really wanted, when they passed the law? Is that what new National wants?.....

Read Dr Muriel Newman’s foreboding NZCPR newsletter here > https://www.nzcpr.com/last-chance-to-oppose-coastal-claims/#more-25358


The Marine and Coastal Area (MACA) Act should be closed down, but instead it remains a privatisation threat to our coast. My Association, the Council of Outdoor Recreation Associations of New Zealand (CORANZ), has been concerned about attempts to privatise New Zealand’s foreshore and seabed since 2004. CORANZ has been a party to MACA claims since 2012, so we have built up extensive knowledge of the process.

The New Zealand Court of Appeal, in its controversial 2003 decision, said that Maori customary rights may still exist, in spite of New Zealand adopting British law, where the state owned the foreshore and seabed out to 3 nautical miles (nm) in 1840, and since 1977, out to 12 nm (22 km). That is, until the MACA Act was passed in 2011.

Crown ownership is essential for outdoor recreation, as it allows public access at will. In New Zealand, there is no charge to the public for access to the coast. In 2004, Helen Clark and her Labour Government, supported by Winston Peters and New Zealand First, decided against the race-based privatisation of our foreshore and seabed to iwi, after significant public consultation, reaffirming Crown ownership through their 2004 Foreshore and Seabed Act.

However, Chris Finlayson and John Key enabled iwi privation of our foreshore and seabed to tribal groups through the Marine and Coastal Area Act in 2011. Labour and the Green Party voted against National’s law change. New Zealand First was not in Parliament between 2008 and 2011 and so could not vote.

The MACA Act sensibly contained a termination clause for new claims after 6 years. This was ample time for cases to be registered and assessed. This deadline – 3 April, 2017 – has now passed. Up until then, around 30 claims were registered by tribal groups, but a number were refused because they obviously did not meet the requirements of the Act. These were for the strongest property right, called Customary Marine Title (CMT), which requires the tribal group to have exclusively used and occupied the claimed coastal and sea area from 1840 to the present day.
One claim that has met this condition, involves two small titi (muttonbird) islands off the coast of Stewart Island. So it is possible to meet the test........

Continue reading Dr Hugh Barr’s concerning NZCPR guest commentary here > https://www.nzcpr.com/tribal-privatisation-threat-to-our-coast/#more-25362


“A spokesman from the local marae said, ‘…We have to put these rahui in place for protection of our culture…’

“But my response is since when did conforming to other people’s culture become compulsory? Why should those who don’t believe in spiritualism be forced to abide by the spiritual beliefs of others? Why it is now compulsory for those who are not Maori, or even Maori for that matter, to live by Maori culture? The whole thing is an absurdity, yet it is becoming the norm.”

It is an absurdity but under the Marine and Coastal Area Act, the absurdity is going to become a whole lot more common as tribal owners of the coast use rahui to keep the public away – claiming environmental protection, of course, as the excuse.

So what are the chances that tribal groups will end up in control of large tracts of our coastline?

To answer that question we need to look at the number of claims and the statutory tests.

Prior to the 3rd of April 2017 six-year deadline for submitting claims, around 50 or so had been lodged across the two pathways specified in the Act – the High Court, and Crown Engagement with the Minister of Treaty Negotiations.

However, just before the deadline, another 580 claims were submitted – 200 to the High Court and 380 for Crown engagement. As could be expected, the large number of claims increases that chance that significant portions of the coast will go under tribal control.

But, the key factor is the statutory test: have claimants used the area exclusively and continuously from 1840 to the present day without substantial interruption.

Only one case has been resolved in the High Court. Judge Mallon stated in her Customary Marine Title finding, “The evidence that has been presented of exclusive use and occupation of the Tītī Islands by Rakiura Māori from 1840 without substantial interruption is overwhelming.”

She also explained, “This makes it unnecessary to consider in detail what may or may not constitute exclusive use and occupation without substantial interruption for the purposes of s 58 of the Act.”

In other words, there has been no judicial determination, as yet, regarding the meaning of “exclusive use”.

If a literal interpretation is made, that the applicant group can be the only group to use and occupy the specified area of coastline – apart from those involved in fishing and navigation, who are excluded under section 59 (3) of the Act – then only remote areas of the coastline would qualify for tribal control.

But on the other hand, if a lenient interpretation is made, then it is likely that large areas of the coast would end up under tribal control.

In the only case of Crown Engagement to be resolved by the former Minister, the leniency of his approach was so extreme that an urgent review of his decision should be undertaken by the new Government, lest it becomes the standard for the hundreds of new claims in the pipeline.

In that case, the Minister offered a Customary Marine Title to Ngati Pahauwera for an area of coastline that they claimed to have held “exclusively” since 1840, when for over 100 years, it was used as the main route of travel and trade between the Hawke’s Bay and Gisborne.

By taking a lenient approach and ignoring historical facts in favour of tribal “oral history”, the former Minister has set a dangerous precedent that could see most of the coastline go under tribal control.

If that was to occur, what would it mean?....... 

Read Dr Muriel Newman’s full NZCPR newsletter here > https://www.nzcpr.com/tribal-control-of-the-coast/#more-25100


The use of rahui becomes more of an issue in the context of the 580 claims by iwi/hapu regarding the ownership of the marine and coastal area. Of these, 380 claims have been referred to the Minister of Treaty Negotiations who will decide whether customary rights exist. The Minister is likely to ask for public submissions on each of the claims that are accepted for consideration, although the Minister alone will decide and there is no appeal process. The other 200 claims have been referred to the High Court. In those cases, those who file a Notice of Appearance as an interested party (and pay $110 per claim) can be involved in the court process and have the right of appeal.

The claims cover the entire New Zealand coastline and the seabed extending out 12 nautical miles from the coast to the edge of the Territorial Sea. In most cases there are multiple competing claims for the same area. In essence, the claims are for ownership and absolute and uninterrupted rights to extract the resources (shellfish, fish, minerals, etc), impose levies, restrict access, and so on.

The applicants appear to be claiming ownership on the grounds that they have occupied the area in accordance with tikanga since before 1840, and they have used and occupied the area from 1840 to the present day without substantial interruption. The statutory test of “exclusive” use and occupation is likely to be a critical point of legal debate in this current round of claims.

Unfortunately court rulings on the matter of aboriginal title have been contradictory and political interference has added to the confusion. The end result is the current legal gravy train where a multitude of lawyers are extracting eye-watering fees, funded by taxpayers.

All of this works against those who wish to have a say in the process. It is very difficult to find the detail of the claims, and a layperson would find it impossible. To find the claims one must first obtain the case (CIV) reference number from your local council (and in our case our local council was not able to provide all of the CIVs) and then contact the High Court and ask for the claim details.

Something that could be very easily posted on a website by the local council or the High Court, isn’t.

This issue is important. If you think access to beaches and harbours will remain freely available as they are now, then think again. It will be at the whim of the Maori owners whether there is a rahui in place and you too will be confronted by an individual saying, “Clear off…You can’t swim here, you can’t fish here, you can’t play on the beach, so get out of here”......

Read Frank Newman’s full NZCPR guest commentary here > https://www.nzcpr.com/the-beaches-are-becoming-a-battleground/