The 2004 foreshore and seabed hikoi in Lambton Quay en route to Parliament. Photo / Kenny Rodger
Māori Party co-leader and Waiariki MP Rawiri Waititi says the new judgment on the foreshore and seabed is a courageous decision and it should not be appealed by the Crown.
"We are absolutely elated by the decision of the High Court," he told the Herald. "I do not think the Crown should appeal it. I think the Crown now needs to let the process lie."
The decision by Justice Peter Churchman was issued on Friday and is the first of the major decisions under the law which replaced Labour's Foreshore and Seabed Act which extinguished the right of Māori to seek customary title through the courts.
The decision awards customary title to specific areas in the Eastern Bay of Plenty to six hapū of Whakatōhea, although under the law rights of public access and navigation are guaranteed.
It also recognises specific customary rights for specified activities for specific hapū, such as whitebaiting or gathering driftwood.
The judge relied on pūkenga or locals with expert historical knowledge to determine which hapu qualified for customary title and which didn't and he accepted the Canadian concept of "shared exclusivity", meaning several hapū could have an interest in the same area.
Treaty Negotiations Minister Andrew Little is still considering the judgment and no decision has been made about an appeal.
Waititi applauded the approach and said it should be used in other cases.
"It's a courageous decision. I applaud the decision because, for the first time ever, the power has gone back to hapū and iwi to make those decisions. I'm happy about it.
"It is now for iwi and hapū to come up with tikanga-based processes to make sure they can continue to look after their foreshore and seabed and their takutai moana as they have for the past hundreds of years."
Waititi said the approach allowed iwi to have conversations with their hapū who knew their own areas intimately.
"That's where the decision-making should be made."
Waititi said Pākehā should not be concerned.
"Absolutely not because we have been living with Pākehā for many, many years and those who are born and bred in those particular spaces understand how it all works."
Many were already supportive because they knew that Māori had indigenous solutions to ensure regeneration of the takutai moana means from which they also benefited.
"This is not an 'either-or', this is an 'and-and' because we look after the moana for all of those who live in our particular space."
WHY IS THE JUDGMENT IMPORTANT?
It is the first major decision under National's foreshore and seabed law which restored the right for Māori to claim customary title in coastal areas – the previous decision was about a couple of small islands off Stewart Island. The decision will be closely read by judges hearing other cases and by lawyers representing the hundreds of claimants for other coastal areas around the country.
WHAT DOES IT DO?
The judge, Justice Peter Churchman, has awarded customary marine title (CMT) in three parts of the Eastern Bay of Plenty coast to six hapū of Whakatōhea: a) a jointly held order for Ngāti Ira, Ngāti Patumoana, Ngāti Ruatakenga, Ngāi Tamahaua, Ngāti Ngahere and Upokorehe, from Maraetotara in the west to Tarakeha in the east and out to the 12-nautical-mile limit; b) in relation to the western part of Ohia Harbour, a jointly held customary marine title between the six iwi mentioned and Ngāti Awa; and c) a customary marine title for Ngāi Tai between Tarakeha and Te Rangi and out to the 12-nautical-mile limit.
He has also recognised protected customary rights (PCRs) to Ngāti Muriwai; Ngāti ira o Waioweka; Te Uri o Whakatōhea Rangatira Mokomoko; Ngāi Tamahaua; Te Upokorehe; and Whakatōhea Māori Trust Board, specifically Ngāti Ruatakenga. The PCRs are specified for each group in the judgment and include catching whitebait for every group, and various other activities such as performing baptisms and tangihanga, gathering sand, shells, stones, plants and driftwood, launching waka and boats, taking water, and planting.
WHAT ABOUT WHAKAARI/WHITE ISLAND?
The judge made no awards in the coastal area of Whakaari/White Island but reserved the position of Te Whānau a Apanui and Ngāti Awa which have claims in the area.
DOES IT AFFECT FISHING RIGHTS?
No. Fishing rights are not dealt with under the Marine and Coast Area (Takutai Moana) Act 2011 but under separate laws.
WHAT ARE THE EXACT BOUNDARIES FOR THE NEW RECOGNITION ORDERS?
They will be determined following the next hearing which is currently set down for February 14, 2022. The judge has directed that lawyers for the successful claimants must file proposed draft orders for recognition of customary marine title or protected customary right by August 30, 2021.
WHAT CRITERIA DID CLAIMANTS HAVE TO MEET FOR CUSTOMARY TITLE TO BE AWARDED?
The law says the claimants must have exclusively used and occupied the area from 1840 to the present day without substantial interruption and held it in accordance with tikanga. The judge's decision introduces a new concept of "exclusivity". He says that he will follow the Canadian concept of "shared exclusivity" which allows for customary title to be jointly held for the same area for different parties, so long as the claimants recognise each other's interests. He also rejected the notion that holding an area in accordance with tikanga required the claimants to show they had some form of control over the area.
WHAT WILL BE THE LIKELY EFFECT OF THOSE DECISION?
Other High Court judges are not obliged to follow Churchman's decision when deciding their cases but if they do, it should make it easier for other claimants to be successful when it comes to their turn in court and it could speed up the process as well. His decision could provide a huge incentive for iwi and hapū with overlapping claims to co-operate rather than to compete because a pre-requisite for "shared exclusivity" is to recognise the other's interests.
WILL THE CROWN FOLLOW THE JUDGE'S PRECEDENT WHEN IT COMES TO THOSE MĀORI WHO CHOSE DIRECT NEGOTIATIONS INSTEAD OF THE COURTS?
That is the first $64,000 question. It is something of a delicate dance between the courts and the Government. They should not be deviating radically from the other. And with the Crown allowing the courts to go first, it could take its lead from the decision, or appeal against the case.
WILL THE DECISION BE APPEALED BY THE CROWN?
That is the second $64,000 decision. During the hearings, the lawyer for the Attorney-General, Rachel Roff, did not oppose the concept of "shared exclusivity" for customary title to the foreshore and seabed but said it should be part of one single applicant group, not various claimants. But the decision about whether to appeal will be made at a much higher level. It is also possible that some of the unsuccessful hapu claimants could appeal against the decision.
WHO WILL DECIDE WHETHER THE CROWN APPEALS AGAINST THE DECISION?
That is the third $64,000 question. It could be argued it should solely be a legal decision and decided between the Attorney-General, David Parker, and the Solicitor-General, Una Jagose, who is the head of Crown Law. But anything to do with the foreshore and seabed is intrinsically political. The minister responsible for claims under the Marine and Coastal Area (Takutai Moana) Act is Andrew Little, who is also Treaty Negotiations Minister. And it won't be lost on him or Parker that many Māori are celebrating the decision. It would be safe to assume that the large and influential Māori caucus in the Labour Party will not want the decision to be appealed.
WILL THE SUCCESSFUL CLAIMANTS OWN THE FORESHORE AND SEABED?
No, not in terms of proprietary ownership. Customary title under the current act means control over some things but not others. They will not be able to stop access to the beach, navigation or fishing unless parts of the area are subject to a wahi tapu order which, again, would need to be from the court and spelled out. The Government will continue to own nationalised resources, gold, silver, petroleum and uranium. But the holders of customary title will have a veto on any consents required for activity by others or development of the area in question.
THE BACKSTORY
2003
The Court of Appeal overturns settled law (from the 1963 Ninety Mile Beach decision) which had assumed that the foreshore and seabed had been vested in the Crown from 1840 unencumbered from customary rights and title. Under its decision on the Ngāti Apa case, the Māori Land Court had the power to investigate claims for customary title in the foreshore and seabed and use its powers to convert it to freehold title.
2004
Labour passes the Foreshore and Seabed Act asserting Crown ownership of the foreshore and seabed, extinguishing the right of Māori to claim customary title in the courts but provides for negotiated redress where the court holds that customary title (termed "territorial customary rights" in the act) would have existed if it had not been for the extinguishment.
It sets out a criteria for being awarded territorial customary rights, including having had continuous title of land adjoining the foreshore and seabed, and for lesser non-territorial rights such as collecting hangi stones.
The act precipitated the foreshore and seabed hikoi on Parliament, the resignation of Tariana Turia from Labour, and the formation of the Māori Party which won four of the seven Māori seats in the 2005 general election.
2011
National's Chris Finlayson repeals Labour's Foreshore and Seabed Act and restores the right of Māori to claim customary marine title (CMT) in a new act, the Marine and Coastal Area (Takutai Moana) Act 2011, and lesser protected customary rights (PCR). Together they are called recognition rights.
The criteria for customary title is more liberal than for Labour's "territorial customary rights", and it removes the requirement to have had continuous title of land adjoining the foreshore and seabed.
The act also allows Māori to negotiate directly with the Government for customary title. The law does not allow customary title holders to sell their titles and they must allow public access, navigation and existing fishing rights.
But customarty title gives other rights of ownership, including development rights subject to the RMA and the right to veto anyone's else's consents in the area concerned.
2016
The first successful court claim for customary marine title is issued in a decision by Justice Jillian Mallon to Māori on Rakiura (Stewart Island) to two of the Titi Islands, also known as Muttonbird Islands.
2017
The Government sets a deadline for Māori to lodge claims for recognition under the Marine and Coastal Area (Takutai Moana) Act 2011 as April 3, either to the High Court or for direct engagement with the Crown. Of all the claims, 30 were made solely to the High Court, 207 were made to the Crown only and 175 claims were made to both forums. Four cases were prioritised by the High Court because they were carried over from the Maori Land Court under the Foreshore and Seabed Act and one of them was the one known as the Edwards case on behalf of hapu of Te Whakatōhea.
2019
Ngāti Porou seals deal foreshore and seabed after direct negotiation with Government which was started under Labour's law in 2008.
2020
The Waitangi Tribunal issued findings on part one of an inquiry into the Marine and Coastal Area Act, saying aspects of procedure and resourcing including failure to fund claimants 100 per cent breached the Treaty of Waitangi.
Three sets of hearings on the Whakatōhea claim were held in the High Court between August and October and final written submissions were received on December 15.
2021
Last Friday the judgment was issued involving 12 separately named claimants, although many more laywers were involved representing groups with an interest in the case including the Attorney-General, the Whakatāne District Council, the Bay of Plenty Regional Council, the Ōpōtiki District Council, seafood industries and a group called the Landowners Coalition, who were represented by former attorney-general Chris Finlayson.
The popular display will be auctioned as a Mount Surf Club fundraiser.