Te Rūnanga o Ngāi Tahu Kaiwhakahaere Justin Tipa says Government moves risk reopening the foreshore and seabed controversy.
Te Rūnanga o Ngāi Tahu Kaiwhakahaere Justin Tipa says Government moves risk reopening the foreshore and seabed controversy.
Ngāi Tahu says the Government’s move to make it harder for Māori to gain customary titles in marine areas and overturn a Court of Appeal decision will reopen the decades-old foreshore and seabed controversy that sparked mass protests and led to the birth of Te Pāti Māori.
Hapū and iwi can apply to the courts for customary titles to coastal areas under the Marine and Coastal Area (Takutai Moana) Act (Maca). Last year the Court of Appeal 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.
However, Treaty of WaitangiNegotiations Minister Paul Goldsmith confirmed yesterday the Government would appeal the decision and amend the law to restore the test to the higher threshold.
Te Rūnanga o Ngāi Tahu kaiwhakahaere Justin Tipa said the move was reopening the foreshore and seabed controversy by changing the rules around recognising centuries-old Māori customary titles for a third time.
“The foreshore and seabed issue exploded 20 years ago because the Labour-led government stopped Māori from having their day in court,” Tipa said.
An estimated 10,000 people at Parliament after a hikoi two decades ago to protest proposed seabed and foreshore legislation. Photo / AFP / RNZ
“In 2011, under Prime Minister John Key and Attorney-General Christopher Finlayson, the National-led government passed the Marine and Coastal Area (Takutai Moana) Act 2011. Now another National-led government are undoing the work of their own predecessors.
“Worse, Goldsmith has announced the law will be retrospective. They’re telling iwi and hapū whose cases are before the courts, and who may get a judgment before the law is changed, don’t bother, we will just alter those decisions and take your rights away anyway.”
Goldsmith said restoring a high customary marine title (CMT) test would affect 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.
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 protests from parts of Māoridom that already consider the Government to be anti-Māori – a charge the Government rejects.
Tipa said government ministers were paying too much attention to “the extremes” while ignoring the vast majority of New Zealanders who were concerned about housing, the state of the “failing” healthcare system, the cost-of-living and the economy.
“The way this government is increasingly conducting itself is simply not how we do things as New Zealanders.
“Kiwis support the rule of law and access to justice and are proud of the country we’ve built on the foundations of the Treaty.
“An increasing number of actions by this government are simply inconsistent with New Zealand values.”
The court decision
At issue is CMT under the 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.
Treaty Negotiations Minister Paul Goldsmith. Photo / Mark Mitchell
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.
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.