MP says Court cannot hear iwi claim

The Maori Land Court has no jurisdiction to hear a claim for guardianship of a 50km stretch of the Eastern Bay of Plenty foreshore, says New Zealand First.

Chief Maori Land Court Judge Joe Williams has agreed to hear Whakatohea's claim under the Foreshore and Seabed Act that it held rangatiratanga and kaitiakitanga (authority and guardianship) over the coastline.

But NZ First law and justice spokesman Dail Jones said Judge Williams had overstepped his authority by agreeing to hear the claim.

"Only the High Court can do this,"Mr Jones said.

"The Maori Land Court can only rule on a customary use like launching a waka or collecting stones for a hangi."

The law as written was intended to allow the courts to recognise and protect specific Maori customary practices that had gone uninterrupted for more than 150 years. The courts could consider wider issues, such as guardianship over an area and incidents where claims may have converted to private title before the law was changed. But these would ultimately be dealt with in negotiation between the claimants and the Government.

The law explicitly prohibits the courts from issuing ownership titles to the foreshore and seabed.

Officials spoken to by NZPA said it was still "early days", but problems could arise if judges took a wider interpretation of the act than Parliament intended.

"The law is very narrow and specific, there will be concerns if judges read more into it and give themselves wider powers than envisaged," an official said.

"There is no doubt that the Government will watch the case with interest, but I think there is a lot of water to flow in this yet. The judge has yet to hear a claim, let alone make a judgment.

"Any way the case goes, it is likely to go all the way to the Supreme Court, knowing the litigious history in this area."

Mr Jones said Judge Williams had voiced opposition to the legislation during submissions to the select committee considering the Foreshore and Seabed Bill last year.

Mr Jones was a member of the committee.

Judge Williams' submission called for the Government to allow legal aid to foreshore and seabed claimants, and for a 2015 time limit for lodging claims to be removed.

"Judge Williams had made repeated comments consistent with his opposition to the Foreshore and Seabed Bill," Mr Jones said. As a result, the judge had a potential conflict of interest, Mr Jones said, and logically should withdraw from any case involving the issue.

Last night Judge Williams said he had no comment to make.

Select committee chairman Russell Fairbrother urged caution over interpretation of the decision to hear the claim.

He said the act did not give new rights or powers to the Maori Land Court. "No whanau, hapu or iwi can claim control of the foreshore and seabed through the Maori Land Court."

It could accept only customary orders that described a "physical activity" still practised today, that had been exercised since 1840.

It was also important to remember that fishing was excluded from the act.

Lawyer Tim Castle, acting for Whakatohea, said the purpose of the claim was to seek acknowledgement that the iwi continued to exercise kaitiakitanga status over the area since 1840.

He said guardianship involved a number of activities including protecting the environment, and also included customary practices including collecting grass for weaving, extracting minerals from sand, and for creating produce for trade.

National's Maori Affairs spokesman, Gerry Brownlee, said the decision to allow the claim to continue highlighted flaws in the legislation, flaws he believed would be paid for by the taxpayer.

"If customary rights are allowed for such broad areas then the Government will have to compensate, not maybe, must.

"We are talking about large tracts of the Bay of Plenty coastline.

"This is financially driven, without a doubt."