NEW ZEALAND’S COASTLINE UNDER THREAT (Archive article)
Almost 600 claims to the coast have been lodged under National’s Marine and Coastal Area Act. Every single New Zealand beach has been claimed many times over. Hundreds of millions of dollars is fuelling tribal lawyers. The entire coastline could end up under tribal control.
LET’S LOOK BACK ON HOW THIS HAPPENED…
Under British Common law, the foreshore and seabed were owned by the Crown on behalf of all New Zealanders. This was affirmed in the 1963 Ninety Mile Beach case, when the Court of Appeal found that no common law ‘customary title’ existed in the foreshore and seabed.
However, in 1997 South Island Maori lodged a foreshore and seabed claim with the Maori Land Court over a marine farming consent dispute with the Marlborough District Council. The Court found in the claimants’ favour. The Crown argued that the Maori Land Court had no jurisdiction over the foreshore and seabed and appealed the case to the High Court. They won, with the Judge ruling that the foreshore and seabed were beneficially owned by the Crown.
The Maori claimants appealed the case to the Court of Appeal, and in 2003 the activist Chief Justice Dame Sian Elias overturned the High Court ruling, to find in Ngati Apa’s favour, that ‘customary title’ in the foreshore and seabed might exist, and that such rights should be tested in the Maori Land Court. This ruling was extremely controversial since it overturned the 1963 finding, throwing into disarray all of the case law based on the original decision. At the time, some commentators suggested the Chief Justice was following the direction of the Attorney-General, Margaret Wilson, to develop an “indigenous law”.
Since the Maori Land Court had the power to convert customary title into private title which could be sold, this highly controversial Court of Appeal decision set the scene for the privatisation of the entire coastline, forcing Helen Clark’s Labour Government to legislate to re-affirm Crown ownership through their 2004 Foreshore and Seabed Act.
Even though the new law allowed Maori claimants to have their day in the High Court, to prove their customary rights existed and gain management rights to the coast, the law change caused outrage and the Labour Minister Tariana Turia resigned in protest. She went on to establish the Maori Party.
When National was elected to Government in 2008, the Maori Party agreed to join their coalition on condition that Labour’s Foreshore and Seabed Act was repealed. Since National had not campaigned on such a law change, then Prime Minister John Key went to some lengths to reassure the public. He launched a review, saying that a law change would only go ahead if there was widespread public support. But in spite of 91 percent of submissions opposing their change, National pressed ahead anyway.
New Zealanders were led to believe that the “customary title” introduced into the new law by Attorney General Chris Finlayson was an ancient right that had always existed, when instead, it was a new property right created for the Maori Party – to enable their supporters to control the coast.
As an iwi spokesman explained at the time: “Until now there’s never ever been such things as ‘customary title’ and from our point of view it’s a new one for New Zealand legislation and in so many ways it’s been untried and untested. We know lots about ‘customary interest’ about how they’ve been expressed in the past but never before has the state gone outside the Westminster paradigm to create a new form of title. So for us it’s a new territory and I’m sure it is for the government as well and we have to really feel our way into it.”
Chris Finlayson went even further down the appeasement path by including ‘tikanga’ – defined as “Maori customary values and practices” – in the law’s main statutory test: Section 58 states, “Customary marine title exists in a specified area of the common marine and coastal area if the applicant group holds the specified area in accordance with tikanga; and has exclusively used and occupied it from 1840 to the present day without substantial interruption.”
At the time, Canterbury University law lecturer David Round said that because of its varied meaning ‘tikanga’ should never have been included in the law and warned, “that ‘tikanga’ will actually say that Maori still own a part of the foreshore and seabed even if other people visit it!”
Indeed, that’s exactly what has happened. In the only Crown Engagement case to have been finalised under the new law, Ngati Pahauwera successfully claimed that they had held an area of Hawke’s Bay coastline between Napier and Gisborne that had been used as a public road for over 100 years exclusively and continuously since 1840 in accordance with tikanga.
What’s clear from the Minister’s decision is that by referring to ‘tikanga’ the claimants were able to satisfy the statutory test of ‘exclusive’ use and occupation – even though the area had been continually used by many other people – because the claimants’ own use of the area had not been interrupted.
If the Judges hearing the High Court claims take a similar view then it is likely that virtually the whole coast will pass into tribal hands.
Further, the Attorney General David Parker, who most people had thought would oppose the High Court claims in the public interest, recently clarified that this in not his role: “To be clear, the Attorney-General does not consider it is his role to oppose applications in the public interest”.
While he then went on to explain that he will act as an ‘interested party’ in each claim to ensure that the statutory tests are met, it seems there is no guarantee that the claims will be opposed.
With tens of millions of dollars of taxpayers’ funding filling the legal war chests of claimants - up to $400,000 for each claim - and without a guarantee that our elected Government will defend the public interest in the coast, there is a chance that even spurious claims will succeed.
Furthermore, while the public may have been reassured by the fact that since all of the claims overlap, they would fail the ‘exclusive’ use and occupation test, this too may have been premature. High Court claimants are being asked by the Judge to resolve boundary issues ‘according to tikanga’, so that by the time their claims progress to a hearing, they will no longer overlap.
And as a result, claimants are now busy carving up the coast between themselves ahead of advancing their ‘exclusive use’ arguments. Many tribal groups believe it is only a matter of time before the coast is theirs.
When National introduced the Marine and Coastal Area Act, they reassured the public that no more than 10 percent of the coast would be claimed. They said the claims would be for remote areas of the coast and would not impact on most Kiwis. But with almost 600 claims lodged – 200 in the High Court and the balance for Crown Engagement, to be resolved through negotiations with the Minister of Treaty Settlement Andrew Little, it looks increasingly likely that New Zealand’s entire coastline could end up under tribal control.
When the Labour Government faced a similar situation in 2003, with tribal groups claiming the whole coastline, and the ownership of this strategically crucial part of New Zealand in the hands of a Judge, they legislated in favour of Crown ownership. We need them to do the same again.
This situation of multiple claims covering the whole coastline is not what Parliament intended when the law was changed. Nor is it what was sold to the New Zealand public.
If tribal groups gain customary title, they will control the coast. And if belligerent tribal groups want to exercise their ‘rights’ to the coast and drive the public away, they could threaten and intimidate them, impose rahui and establish Wahi Tapu - with $5,000 fines for trespassing. They could charge commercial operators extortionate fees and force them out of business. They could begin exploiting the minerals and natural resources in their claimed areas through mining and other forms of resource extraction.
PARLIAMENT NEEDS TO FIX THIS PROBLEM.
To reiterate, the possibility that New Zealand’s strategically important coastline could effectively be privatised to tribal groups, was never the intention of Parliament. The Marine and Coastal Area Act should be repealed and the foreshore and seabed returned to public ownership, with the Crown managing it for all New Zealanders.
WILL YOU HELP?
We need every New Zealander who cares about the future to join the call for the coast to be returned to public ownership. Here’s three things you can do.
1. Help to raise awareness by telling others what’s going on: deliver flyers, write letters to newspapers, call talkback radio, share information on social media.
2. Contact MPs and ask them to repeal the Marine and Coastal Area Act to restore public ownership of the coast as the common heritage of all New Zealanders. You can write letters (freepost) to MPs, c/o Parliament Buildings, Wellington, or email them using: FirstName.LastName@parliament.govt.nz
3. Find out more about the claims process by visiting the New Zealand Centre for Political Research website at www.nzcpr.com/claims. If you would like to help, please visit the website for options – or use our postal address: NZCPR, PO Box 984, Whangarei.