Treaty Negotiations Minister Paul Goldsmith on the Government's plans to legislate to overturn the Court of Appeal decision on the Marine and Coastal Area Act.
The Government will overturn a Court of Appeal decision covering Māori customary rights to the foreshore and seabed because it would give too much power to iwi and hapū over what happens on too much of the country’s coastal areas.
Instead, only a small fraction of the coastline – about 10% – would be up for customary marine title (CMT), which was the intention of a 2011 law that the Court of Appeal had ruled on.
“What we’re trying to do is to balance the natural expectations of all New Zealanders to have a broadly equal say in what goes on in coastal areas,” Treaty of Waitangi Negotiations Minister Paul Goldsmith said.
“In a modern democracy, there’s a basic expectation that people will have an equal say in major decisions affecting their lives.”
Holders of CMT do not have ownership rights such as over public access, but have other rights such as a veto over certain resource consents.
The move is not unexpected as it was part of the National-New Zealand First coalition agreement, but it is still likely to lead to heated protest from parts of Māoridom that already consider the Government to be anti-Māori – a charge the Government rejects.
Te Pāti Māori MP for Te Tai Tonga, Tākuta Ferris, said many Māori would already feel threatened by the Government’s recent legislative moves, such as the repealing of section 7AA from the Oranga Tamariki Act, Māori wards and the Treaty Principles Bill, and this was another “grenade”.
The Government will also be aware of the hīkoi of 2004, which led to the birth of Te Pāti Māori and the intense debate over whether anyone should have special rights over the foreshore and seabed.
The then-Labour Government's law over the foreshore and seabed led to a massive hīkoi in 2004 and the birth of Te Pāti Māori. Photo / Kenny Rodger
“These actions definitely threaten te iwi Māori, and many of te iwi Māori, particularly the ones that have fought this battle, because this is a long battle, this is 20 years plus,” Ferris said.
“The things that have occurred in the first six to eight months of the Government have rallied up the younger generation of te iwi Māori, and this issue here will fire up the more senior people in te iwi Māori. It’s absurd.
“There will definitely be protests. It’s just compounding the protest factor of this Government.
“To our people, we just got to stay positive. Governments come and go. Our people remain forever.”
Labour also condemned the Government’s move. The party’s Treaty negotiations spokeswoman Ginny Andersen said: “We do not support these changes, which restricts the ability of Māori to be able to test their customary rights in the courts.
“We must respect decisions of the courts, not jump to overrule them.
“Labour opposed National’s 2011 changes, and our position today reflects that.”
The court decision
At issue is CMT under the Marine and Coastal Area (Takutai Moana) Act (Maca).
An iwi or hapū applicant has to meet two main criteria before CMT is recognised: it has to hold the area in accordance with tikanga (Māori customs and practices); and it has to have exclusively used and occupied it from 1840 to the present day without substantial interruption.
Last year the Court of Appeal, in Re Edwards, made a ruling that changed the nature of the test and materially reduced the threshold, saying it was inconsistent with the Treaty of Waitangi and entrenched the Crown’s breaches of the Treaty.
Goldsmith said the decision effectively meant that exclusive use no longer had to be demonstrated, opening up much more of the country’s coastline to CMT than what was intended when the Maca was passed.
Public access, navigation and fishing rights are not affected by CMT, which falls short of an ownership right.
The Government continues to own nationalised resources – gold, silver, petroleum and uranium – but a CMT holder has a veto on any consents required for activity by others or for the development of the area in question, which can range from the wet sand to 12 nautical miles (22km) out to sea.
“One particular group would be able to stop anybody else from having a resource consent to start aquaculture, which is a very significant thing,” Goldsmith said.
Treaty of Waitangi Negotiations Minister Paul Goldsmith. Photo / Ben Dickens
The Government will restore the CMT test to the high threshold originally intended by:
Inserting a declaratory statement that overturns the reasoning of the Court of Appeal and High Court in Re Edwards, and the reasoning of all High Court decisions since the High Court in Re Edwards, where they relate to the test for CMT; the nine existing CMT decisions will continue to be recognised.
Adding text to section 58 of the Maca to define and clarify the terms “exclusive use and occupation” and “substantial interruption”.
Amending the “burden of proof” section of the Act (section 106) to clarify that applicant groups are required to prove exclusive use and occupation from 1840 to the present day.
Making clearer the relationship between the framing sections of the Act (the preamble, purpose, and Treaty of Waitangi sections) and section 58 in a way that allows section 58 to operate more in line with its literal wording.
The Court of Appeal decision said the CMT test was too high, producing an outcome “inconsistent with the Treaty/Te Tiriti”, and inconsistent with the common law.
“Where the Treaty/Te Tiriti had been breached by Crown failures to protect customary rights and interests, Maca would entrench and perpetuate those breaches.”
Incursions into an area by third parties since 1840 would wrongfully deprive an iwi or hapū of CMT, the court said.
“Far from recognising and promoting customary interests, Maca would in many cases extinguish those interests.
“The courts should be slow to attribute to Parliament an intention to prescribe a test for CMT that would operate in this manner.”
Goldsmith said restoring a high CMT test would not impact the nine cases that had already passed through the courts, but it would affect the five cases still before the courts.
That’s because a bill to affect the changes wouldn’t be introduced until mid-September, but when passed into law it would take effect from today.
“There will be some people who are not happy with it on the application side. Of course there are many other people who have not been happy with the way the Court of Appeal made their decision,” Goldsmith said.
“People of course are absolutely entitled to express their point of view. I’d hope people wouldn’t be whipping up reactions to this.”
