Hugh Barr: Bill means public pays twice for Maori customary rights

Attorney-General Chris Finlayson. Photo / Dean Purcell.

There are so many untruths about National's Marine and Coastal Area Bill that the public is right to distrust it. The bill claims to address the uncertain issue of Maori customary rights in 1840, something that nobody alive today has any direct knowledge of.

In 2003 the Court of Appeal's Ngati Apa decision said that Maori customary title to the foreshore and seabed might exist. The most important customary marine right is over customary food-gathering places, which are important for survival.

Maori customary rights for marine food gathering are already recognised in legislation. These include Stewart Island harvesting rights for muttonbirds, the 1993 Sealord's commercial fishing agreement, which gave iwi 20 per cent of the commercial quota, and the 2004 Maori Commercial Aquaculture Claims Act that set aside 20 per cent of aquaculture sites for Maori.

There are also provisions in the Fisheries Act for exclusive customary fishing areas (mataitai).

Why is the National Government asking non-iwi Kiwis to pay again for customary rights to fisheries and other rights that are not customary, in this bill? Were there any other marine customary rights in 1840?

Probably not. Certainly not mining, building marinas, aquaculture or so on that National proposes to include for the benefit of corporate iwi.

Before 1840, anarchy reigned over much of the country. In 1836 a war raged in the Bay of Plenty between Ngati Haua (Matamata) and Te Arawa (Bay of Plenty). Ngati Haua sought revenge for the killing of one of their chiefs.

Missionary records show many hundreds were killed in these battles. There was no Maori nation and no police force to stop the incessant wars. Only after 1840 was law and order established.

National's bill evades questions of proof of customary activity by setting up an artificial framework and rules for privatising part or all of the 100,000sq km of the foreshore and seabed (equivalent to 35 per cent of New Zealand's dry-land area) solely to Maori groups.

Since 1840 the foreshore and seabed have been Crown-owned - owned by all New Zealanders. So this bill introduces iwi seabed privatisation on a potentially grand scale.

The only marine areas which pre-1840 tribes would have visited regularly were good fishing spots including shellfish beds.

These can already be protected for customary use as mataitai under the Fisheries Act. They do not need this marine bill.

Deciding in the High Court whether the bill's conditions have been met will be difficult because of lack of verifiable evidence of which areas were actually used, especially at about 1840.

Evidence will be even more uncertain with wahi tapu areas, from which the public will be prohibited and can be fined up to $5000.

These will be defined solely by the applicants and "custom" (tikanga). This highlights the unverifiable, and so unacceptable, nature of this bill.

The bill will allow iwi to bypass the High Court and have agreements decided in secret to be passed in Parliament. The Maori affairs select committee made no changes in spite of overwhelming public opposition.

Guaranteeing free public access is a major issue. The 2004 act provides this. Attorney-General Chris Finlayson dropped this guarantee in his bill but now says he will add it back in.

However, after six months, he has not provided his wording. So we still don't know. Free access cannot be guaranteed unless wahi tapu are prohibited. National is not considering this.

The controversial part of the 2003 Ngati Apa decision was that foreshore and seabed (wet land) was legally the same as dry land, out to the deepest part of the ocean.

Yet Maori land ownership customs show they are quite different. Dry land required fires of occupation, "ahi kaa", to be kept burning - not possible on the foreshore and seabed. So Maori ownership of it cannot exist in the traditional way it does for land.

National's bill sets up major exploitation privileges for Maori tribes who qualify, and waives significant laws applying to the rest of us such as parts of the Resource Management Act. This is an apartheid system masquerading as customary property rights.

Labour's 2004 Foreshore and Seabed Act re-asserted Crown ownership, nullifying the Court of Appeal's 2003 decision. By doing this, Labour averted Maori apartheid on the foreshore and seabed. Now National wants to introduce it.

In early 2008, National worked secretly with the Maori party on repealing the 2004 act but did not tell the public.

A week after the 2008 election, National signed an agreement with the Maori Party to review and repeal the 2004 act.

In April last year, National's coastal privatisation proposal went out for public consultation. This was rushed through so as to minimise opposing submissions. Yet 77 per cent opposed repealing the 2004 act and 92 per cent opposed privatising the coasts to Maori.

This bill will be a massive fraud against the public, as customary fishing rights have already been compensated for.

John Key has said he would drop it if there was not widespread support. He should honour his word.