Michael Coote: Coastal Maori Tribes Big Winners Under New Bill

The National-led government is fortunate that the South Canterbury Finance payout and the Christchurch earthquake disaster happened when they did.

These events served to distract attention from the Marine and Coastal Area (Takutai Moana) Bill it introduced into Parliament on September 7.

The bill is intended to replace the Foreshore and Seabed Act 2004 and will open up the marine environment to privatization by coastal Maori tribes.

Predictably the Maori Party sounded disappointed at the bill and threatened renegotiation after the next general election, consonant with its background as a political protest movement against the Act and notwithstanding its billion dollar Whanau Ora taxpayer-funded Maori patronage machine it has extorted out of the government.

The Maori Party needs to stay politically relevant, whereas for National the strategy is to appease it to extinction at the ballot box.

The bill itself will excite some attention as it offers coastal Maori tribes the opportunity to get their hands on the marine environment from the spring high tide mark out to the twelve nautical mile limit plus the airspace above and continental shelf below.

Beyond the territorial claims it will open up, however, the bill also provides coastal Maori tribes with some other juicy opportunities for rent seeking and veto wielding that have drawn little public attention but will surely stuff tribal bank accounts once operative.
Business interests who do not happen to be Maori tribal beneficiaries of the windfall the bill portends will need to go through what is proposed line-by-line in preparation for Parliamentary select committee submissions.

Of interest, for example is the new class of coastal Maori planning documents as set out in the bill.

According to its own analysis, the bill states, “Clauses 84 to 86 provide for the right of a customary marine title group to prepare a planning document in relation to its customary marine title area for the purpose of the sustainable management of natural and physical resources within that area and the protection of the cultural identity and historic heritage of the group.”

“A planning document may only relate to the regulatory functions of the relevant local authorities, the Historic Places Trust, the Minister of Conservation or Director-General under the Conservation Act 1987.”

“A planning document must be lodged with the relevant agencies, and their effect is to impose specified obligations on the agencies with which the document is lodged.”

These planning documents are hardly innocuous, as they will be binding upon local and regional authorities and central government agencies, including the ministers of conservation and fisheries.

The major difference between these Maori planning documents, on the one hand, and central, regional and local government plans, on the other hand, is that the former are not subject to democratic accountability to the wider population whereas the latter are.

Voters not happy with what government authorities have planned can always pitch the rascals out come election time, but they will have no such sanction over legally entrenched coastal Maori tribal plans, which will be subject to change only on tribal say-so.

This is a profoundly anti-democratic implication of the bill and effectively imparts a degree of independent sovereignty to coastal Maori tribes who succeed in customary marine title claims.

Moreover, these Maori tribal plans are not restricted in their application only to the exact physical area of customary marine title, but can impinge also on what the bill now styles as the “common marine and coastal area”, the government having dropped its previous proposed designations of “public domain” and “public space”.

This potential impingement is made plain in at least two clauses of the bill.

Section 84, subsection 3 states, “A planning document may relate - (a) only to the customary marine title area of the group; or (b) if it relates to areas outside the customary marine title area, only to the part of the common marine and coastal area where the group exercises customary authority.”

With respect to regional councils, section 91, subsection 7 states, “In relation to the obligations on a regional council under each of [section 91’s] subsections (2) and (5)(b), the council must take the planning document into account to the extent that it applies in a part of the common marine and coastal area that is outside a customary marine title area.”

So there we have it – legally entrenched and democratically unchallengeable coastal Maori tribal plans that bind local, regional and central government authorities not only in respect of customary marine title areas, but also in adjacent common marine and coastal areas.

From the rational commercial perspective – which will prevail overall despite obfuscating Maori cultural mumbo jumbo – it is very much in the interests of coastal Maori tribes endowed with customary authority and customary marine title to make absolutely certain their plans impinge on the common marine and coastal area.

First published in the National Business Review.