Foreshore claim will test act

An iwi seeking rangatiratanga (authority) to a 50 km stretch of Whakatane coastline will appear before the Maori Land Court in Opotiki today.


The case is set to be the first court test of the Foreshore and Seabed Act and has been controversial as it has been designed to challenge the court to to award greater recognition of rights than the Government says it intended.


The Whakatohea iwi is seeking rangatiratanga and kaitiakitanga (guardianship). But Crown Law says the act relates to customary uses such as planting and harvesting, not land ownership.

The claim avoids mention of ownership rights, but seeks recognition of clearly related rights through its request for the to court preserve and maintain its "mana motuhake, rangatiratanga and kaitiakitanga of the foreshore and seabed".

Prime Minister Helen Clark said last year "the claim looks wider than the law would allow for".

But the court's chief judge Joe Williams said in a memo last year: "There is nothing in the legislation to prevent the approach taken by the Whakatohea claimants.

"On the contrary the legislation appears to contemplate just this approach."

Today's hearing is procedural and won't include debate on the substance of the claim, which Whakatohea lawyer Tim Castle said yesterday he hoped would be held later this year.

But there will be debate about evidence, research and who is entitled to take part in the case.

It has been preceded by a series of meetings between neighbouring iwi, local authorities and the Crown.

The Foreshore and Seabed Act allows the High Court to award redress for territorial title that could have been recognised before the act.

The Maori Land Court can't hear those cases - prompting Government concern that by deciding to hear the carefully crafted Whakatohea claim it may have signalled an intent to "subvert" legislators' stated intent.

Mr Castle was a special adviser to the parliamentary select committee which examined the legislation and advocated for the law to recognise qualified customary titles for the foreshore and seabed.

"What Whakatohea does want to have recognised is their customary rights to the fullest possible extent that the legislation allows and they are strongly committed to demonstrating that what those customary rights really reflect is their mana motuhake and their rangatiratanga," he said.

Asked what rights would flow from a court ruling upholding the claim, Mr Castle said: "Well that will be the subject of evidence which we do have confidentiality over at the moment."

Whakatohea might have the ability to go to the High Court for a territorial right order, but didn't have the resources to do so, he said.

The case would "crystalise just how extensive is the rights recognition provided under the Act".

"It will definitely test the extent of rights recognition available for customary rights and that's a constructive thing."

Whakatohea was not claiming other neighbouring iwi did not also have claims in the area covered by the application, Mr Castle said.