Changes to the foreshore and seabed laws are expected to be introduced to Parliament in September. Photo / Alan Gibson
- Govt plans to overturn a Court of Appeal decision that made customary title easier to get.
- Some iwi with cases heard already will have to have them reheard.
- The Waitangi Tribunal is holding an urgent hearing before the legislation is introduced to Parliament.
The Government’s plan to restore a tougher test for Maori customary title claims in the foreshore and seabed has caused dismay, exhaustion, confusion and chaos, the Waitangi Tribunal heard today.
Justice Minister Paul Goldsmith was also denounced for comments made in a meeting with seafood industry representatives before the changes were announced and saying something quite different to an iwi group the next day.
Treaty of Waitangi lawyer Tom Bennion opened his submissions with a sense of exasperation on behalf of his clients, Muaūpoko Tribal Authority, which had just had six weeks of hearings for a claim on the Kapiti coast.
“I just want to convey the dismay, the exhaustion, the confusion, the chaos which this policy announcement, this pseudo policy announcement, is causing.”
He was involved in customary title applications relating to the Eastern Bay of Plenty, the Whangarei Harbour, and Kapiti Coast.
“So many years getting ready for that difficult process of going to the High Court, going through that, such intense preparation and now scattered to the winds by this proposal.”
Goldsmith announced on July 25 plans to pass a law overturning a Court of Appeal decision that made it substantially easier to succeed in customary title claims - a move foreshadowed in the Coalition agreement between National and New Zealand First.
He also said five cases – out of several hundred applicants – that had been heard but not determined might have to be heard again.
In the meeting with seafood industry reps on May 21, Goldsmith suggested the Court of Appeal decision would result in 100% of the coastline having customary marine title over it and he wanted it to be more like 5%.
The Waitangi Tribunal is undertaking an urgent hearing into the proposed changes to the existing law, the Marine and Coastal (Takutai Moana) Act 2011, (Maca) which sets out criteria for recognition of customary title while guaranteeing public access, fishing and navigation rights, and prohibiting any sale of such title.
At the time the 2011 law was passed, Attorney-General Christopher Finlayson guessed it might affect 10% of the New Zealand coast.
The court has effectively replaced the term “since 1840 without substantial interruption” with “at 1840”.
The court said Section 58 could not be reconciled with the stated purpose of the bill to promote the exercise of customary interests.
“Far from recognising and promoting customary interests, Maca would in many cases extinguish those interests,” the court said.
It said it had a threshold for recognition of customary marine title that could not be met - although in the case before it, customary title had already been recognised by the High Court.
“That outcome would be inconsistent with the Treaty/Te Tiriti,” it said.
Bennion’s submission to the Waitangi Tribunal, both written and oral, brought up the meeting Goldsmith and Oceans and Fisheries Minister Shane Jones had with seafood industry representatives on May 21, and Goldsmith’s meeting with Ngati Koata the next day.
Both meetings included officials from Te Arawhiti and minutes were taken.
“It equals many 19th century meetings where Crown officials would go to one group, iwi, and say ‘we’ve got your interests at heart – we will deal with you in good faith’ and the very next moment, in this case the day before, [a] frank exchange with a private interest group saying ‘your interests are primary to us’.”
Bennion said the meeting with the seafood industry reps included the legal counsel who has been representing the seafood industry in High Court Maca proceedings.
He had appeared, cross-examined witnesses and made submissions about the section 58 test of substantial interruption in nearly all proceedings. At the time of the meeting, he was appearing in live proceedings for the Wairarapa and Kāpiti coasts, Bennion said.
The minutes stated: “The Minister noted that he was committed to the process, and that we will work our way through that. He will get advice on this and other matters. Things are not black and white. We will proceed in good faith, and make sure we do it right. ….”
The next day he met Ngati Koata and minutes noted: “The Minister thanked Ngāti Koata for their visit and noted that he takes the process seriously. He also noted that he gets stacks of briefings, but it helps to see the people involved in the application”.
Bennion said in his written submission the meetings raised many questions, including the following:
“Why are ministers meeting with third-party sectoral interests to discuss Māori customary interests before the courts without affected Māori present, or holding any equivalent meetings with those Māori first, or indeed at any time?
“Why are ministers discussing how to intervene in live court proceedings to secure particular outcomes for third-party sectoral interests, with a lawyer representing those interests?
“Why are ministers talking in blunt disparaging terms about Māori customary interests, to third party sectoral interests, and promising particular outcomes antithetical to Māori interests, but adopting an entirely different tone of pretended objectivity when talking directly to Māori?”
Prime Minister Christopher Luxon was asked about the meetings in his post-cabinet press conference today but would not comment because he had not seen what Goldsmith had said.
He said he had been proud of the 2011 act and the changes would revert the criteria to what had been in the act.
Luxon said it was probably toughest for those who would have to go back through the process but it was a small group.
“It’s the most efficient best way to do it – everybody goes back, prove you’ve had customary title since 1840.”
The Waitangi Tribunal hearing is set to continue in Wellington on Tuesday and Wednesday. The presiding officer is Maori Land Court Judge Miharo Armstrong, with tribunal members Ron Crosby and Pou Temara.
It follows concerns about use-of-force powers being given to staff.