Great gains for Maori under national foreshore plan

Maori have much to gain under the proposed foreshore and seabed law. Photo / Brett Phibbs

Updated: Since filing yesterday's blog on the Foreshore and Seabed Act, I have participated in a stand-up press conference with Prime Minister John Key on the way to the debating chamber, had a stand-up with Maori Party co-leader Tariana Turia, had a conversation with the Attorney-General, had a conversation with shadow Attorney General David Parker, listened to the other Maori Party co-leader Pita Sharples on Radio New Zealand's Checkpoint and read the iwi leadership group's initial response.

It is clear that the lowering of the threshold to establish customary title is of big interest to most - whereby a tribe no longer has to have continuously owned the land next to the coastal area in question.

But one adviser to Finlayson took issue with me for using Ngati Whatua as an example.

Maybe he is right. The adviser and Key are insisting that the awarding of customary title will still be a very difficult test and will apply to only a few places because an iwi will have to prove "exclusive use and occupation" of the area in question since 1840.

Under that test, Ngati Whatua may not qualify because its use of, say, Okahu Bay has not been exclusive. That in itself could be seen as an injustice by the iwi.

It may be an unfortunate outcome for iwi that have had a welcoming and open-door approach to coastal areas in their patch, that they do not meet the test for customary title precisely because they have never made access an issue.

Yet iwi in a more isolated part of the country that may have as strong a relationship with its foreshore may gain customary title because no one goes there.

Under the present test for customary title (called "territorial customary rights" in the law passed by Labour) an iwi can establish customary title without having had exclusive use and occupation if it can prove that it gave express or implied permission to allow others to use or occupy and that the other users recognised the iwi's right to exclude it.

Whether the same detail will be written into National's test is not yet known.

One thing is clear: that any iwi or hapu that passes the test will get an awful lot more now than under the Labour act.

Labour's law does not specify the rights to be awarded from customary title but simply says it is to be negotiated.

National's proposal sets out the substantial new rights, though mostly based on the Ngati Porou customary title negotiation. If there is any improvements of rights under the new proposals, I guess Ngati Porou should be offered them too.

But after hearing John Key and Pita Sharples, I am less confident that the Government's proposal will even go through because there seems to be a substantial gulf between what National is planning and what the Maori Party wants.

Pita Sharples made much of the lowering of threshold for customary title.

"The reality is there are some tribes - their awards will be tantamount to ownership because they will have control completely of their area."

If the Maori Party are true to form, they will raise expectations of Maori that most of them will qualify for customary title awards.

John Key will continue to suggest that nothing much changes. They are both wrong.

Sharples and Finlayson are hitting the road for consultation from April 9 to April 23 holding a hui and a general meeting in Picton, Bay of Plenty, Auckland, Gisborne, Hawkes Bay, Wellington, Otaki, Kerikeri, Christchurch, New Plymouth and Hamilton.

Wednesday's blog: National's foreshore and seabed proposal goes a lot further than Labour's law did and will result in more tribes gaining a great deal more power around coastal areas of New Zealand - such as veto rights over developments in their patch.

It effectively sets out a blueprint for a large degree of co-management of parts of New Zealand.

The Maori Party and its supporters should be delighted with what is being proposed.

The proposal invests a great deal of confidence in the goodwill of iwi to exercise new powers reasonably.

National has ditched any preference for simply restoring the right of iwi to explore customary title at the High Court under the common law - guided only by other court judgements.

Instead, it has gone down exactly the same path as Labour in proposing in statute two sets of rights: territorial rights (otherwise known as customary title); and non-territorial, (less significant ones like collecting hangi stones), and the tests that must be met before they can be awarded.

The most important change between National and Labour's laws is that Labour set the test for the award of customary title extremely high and National has lowered it.

Only a handful of iwi would have qualified to be awarded customary title under Labour because they had to have had continuous title of land adjoining the foreshore and seabed.

National has lowered the hurdle substantially by requiring the relevant iwi to prove that it has had a continuous relationship with the relevant foreshore and seabed area since before 1840. For most iwi that should not be hard.

Under National's proposal, the iwi gains a lot of legal rights it doesn't have already.

One of them would be the right of veto over consents for coastal permits given by either the regional council, or even the Ministers of Conservation or the Environment on matter that have been sent to them.

In practical terms, if hypothetically the law had been in place 10 years ago and the local Whangamata iwi Ngati Hako had convinced the Government that it had customary title over that area, it could have killed the marina project at birth. It would never have got off the ground.

The document says: "There would be no obligation on a coastal/hapu to comply with the requirements of the Resource Management Act when giving or declining permission for a coastal permit.

"The decision of the coastal hapu/iwi could be made according to a Maori world view, on grounds which are not covered by the RMA."

Imagine how it will work in Auckland. There would be no imperative for Ngati Whatua to have mana whenua seats on the Auckland Supercity because if it could have a lot more power through having its customary title in Auckland recognised .

National's plan proposes to put ownership in the public domain, and to guarantee access except when the iwi wants to protect a burial site - but in that case, the test is set high because the Minister of Conservation and Maori Affairs must agree to gazette the no-go area.

The system might work extremely well.

Or iwi could start exercising unreasonable vetos.

The regime as it is developing, is also open to abuse from Government.

What National is proposing in the interests of getting the issue settled fast is that iwi and hapu negotiate directly with the Government, a trend started under Labour and accelerated under National.

That direct negotiation, which is always conducted in secret and presented as a done deal, has the potential to politicise the process in a way that has not occurred with the filters of the Office of Treaty Settlements and the Waitangi Tribunal.

UPDATE: 9:45 pm

Since filing the first part of this blog on the Foreshore and Seabed
Act, I have participated in a stand-up press conference with Prime
Minister John Key on the way to the debating chamber, had a stand-up
with Maori Party co-leader Tariana Turia, had a conversation with the
Attorney-General, had a conversation with shadow Attorney General
David Parker, listened to the other Maori Party co-leader Pita Sharples on Radio New Zealand's Checkpoint and read the iwi leadership group's
initial response.

It is clear that the lowering of the threshold to establish customary
title is of big interest to most - whereby a tribe no longer has to have continuously owned the land next to the coastal area in question.
But one adviser to Finlayson took issue with me this afternoon for
using Ngati Whatua as an example.

Maybe he is right. The adviser and Key are insisting that the
awarding of customary title will still be a very difficult test and will apply to only a few places because an iwi will have to prove "exclusive use and occupation" of the area in question since
1840.

Under that test, Ngati Whatua may not qualify because its use of, say,
Okahu Bay has not been exclusive. That in itself could be seen as an
injustice by the iwi.

It may an unfortunate outcome for iwi that have had a welcoming and
open-door approach to coastal areas in their patch, that they do not
meet the test for customary title precisely because they have never
made access as issue.

Yet iwi in a more isolated part of the country that may have as strong a relationship with its foreshore and gain customary title because
no one goes there.

Under the present test for customary title (called "territorial customary rights" in the law passed by Labour) an iwi can
establish customary title without having had exclusive use and occupation if it can prove that it gave express or implied permission to allow others to use or occupy and that the other users recognised the iwi's right to exclude it.

Whether the same detail will be written into National's test is not yet
known.

One thing is clear: that any iwi or hapu that passes the test will get an awful lot more now than is in Labour act.

Labour's law does not specify the rights to be awarded from customary
title but simply says it is to be negotiated.

National's proposal sets out the substantial new rights, though mostly
based on the Ngati Porou customary title negotiation. If there is any
improvements of rights under the new proposals, I guess Ngati Porou
should be offered them too.

But After hearing John Key and Pita Sharples, I am less confident that the Government's proposal will even go through because there seems to be a substantial gulf between what National is planning and what the Maori Party wants.

Pita Sharples made much of the lowering of threshold for customary
title.

"The reality is there are some tribes - their awards will be tantamount to ownership because they will have control completely of their area."

If the Maori Party are true to form, they will raise expectations of
Maori that most of them will qualify for customary title awards.

John Key will continue to suggest that nothing much changes.

They are both wrong.

Sharples and Finlayson are hitting the road for consultation from April 9 to April 23 holding a hui and a general meeting in Picton, Bay of Plenty, Auckland, Gisborne, Hawkes Bay, Wellington, Otaki, Kerikeri, Christchurch, New Plymouth and Hamilton.