Friday, December 3, 2010

Mike Butler: How can the troubled coastal area bill bring lasting peace on the foreshore?

Some Maori Party supporters claim the customary title criteria in the Marine and Coastal Area (Takutai Moana) Bill are too tough, the Human Rights Commission says the bill is discriminatory, and the Coastal Coalition claims customary title criteria are too easy. Why? A closer look reveals that the bill is worded in such a way that it can be interpreted as both tough and easy. The word “exclusive”, for instance, has been redefined to allow a wide range of other users, and “uninterrupted” allows interruptions. Even the word “tikanga”, or the Maori way of doing things, allows for evolution, so that tikanga in 2010 includes things unimagined in 1840.

Attorney General Chris Finlayson argued his case to around 200 mainly elderly Pakeha voters at a National Party constituent meeting at the Napier Municipal Theatre, on Monday night. The meeting included a handful of Maori voters, although a private marae meeting had been held earlier. Pity a mixed Maori-Pakeha meeting was not held, where the beleaguered attorney general could answer “Maori already own the foreshore and seabed and the Crown should argue its case” claims alongside the “why does the bill not specify free public access” questions.

Finlayson laid out the history of the issue in his 20-minute presentation. He said the issue appeared when Ngati Apa banded together with other northern South Island iwi seeking orders to vest the foreshore and seabed in them. He didn’t mention the commercial origins of their reason to go to the Maori Land Court, in 1997, was because they had failed in a bid for rights for mussel farming.

The Crown subsequently succeeded in its application to strike out the claim, so the case went to the Appeal Court which resulted in the 2003 Ngati Apa ruling that “the Maori Land Court had jurisdiction to determine whether any part of the foreshore and seabed was Maori customary land,” Finlayson said, noting that “folk could go to court to seek to prove their case.”

The Court of Appeal also said “the fact we became a British colony was not inconsistent with common law recognition of native property rights that remain until they were lawfully extinguished,” he said. The Appeal Court was not sure what “customary title” meant, noting “it could mean anything from use rights to exclusive ownership”.

The ruling meant the Clark Labour government had three options – legislate, appeal to the Privy Council (which they were in the process of cutting ties with), or tell the various groups to go to court. The government opted to legislate, passing the Foreshore and Seabed Act 2004, which vests the foreshore and seabed in the Crown, and extinguishes all uninvestigated Maori customary rights. Fifty thousand disgruntled Maori marched on parliament and the Maori Party was born.

A change of government in 2008 brought a coalition agreement with the Maori Party and an agreement to review the 2004 Act. A ministerial review panel was appointed in March 2009. This nominally independent body comprising members who opposed the 2004 Act predictably recommended repeal of the 2004 Act, advised that public access be respected as a birthright, and urged that the right for Maori to go to court should be restored. Finlayson didn’t mention that this group also recommended a national settlement to compensate for extinguished uninvestigated rights, if any, allocation of rights and interests, local co-management by tribes and the government, and an ability to gain more specific access and use rights.

Finlayson thinks the Clark government bungled the issue by legislating it away rather than allowing Maori to go to court, but he does not like the ACT Party proposal of repealing the 2004 Act to restore the 2003 situation because “simple repeal would have cases go to the Maori Land Court with the possibility that people would be able to get a fee simple title” and “that is not what New Zealanders, both Pakeha and Maori, want”, he said.

His Marine and Coastal Area (Takutai Moana) Bill repeals the 2004 Act, puts the marine and coastal area in the public domain, protects public rights of access, protects existing use rights, and provides for the recognition of customary interests where they can be proven to exist. Examples of customary rights given in the bill include “launching waka and gathering hangi stones".

He stressed that “customary title is a common law concept recognised through the Commonwealth with centuries of legal precedent in Australia and British Columbia”.

Customary title, according to Wikipedia, is also known as aboriginal title, native title, indigenous title, or Indian title, depending on the jurisdiction. It is generally described as a right-to-use title, is part of the English colonial legacy, and was originally articulated by the Judicial Committee of the Privy Council. The first indigenous land rights case, Mohegan Indians v Connecticut, was litigated from 1705-1775.

To prove customary marine title, “an applicant group has to prove they have exclusively used or occupied a specific area since 1840 without substantial interruption and that they have held it in accordance with tikanga, or Maori custom. This is going to be a hard test to meet,” Finlayson said.

The qualifying criteria are spelled out in Clause 60 of the bill. Despite Finlayson’s assurances, in the absence of any definition of what constitutes tikanga, the fact that a resource consent for an activity to be carried out in that area does not interrupt exclusive use, and in the absence of any requirement to own or have an interest in land in or abutting the specified part of the common marine and coastal area (Clause 53), it is difficult to see how any test could be rigorous, or in fact objective.

Countering criticism that customary marine title is a lesser form of title, Finlayson said it would be a different form of title from fee simple. What makes it different is the public access and the inability to sell it, he said. He detailed the benefits of holding customary marine title as having the ability to permit activities requiring a resource consent, as having some input into conservation, ownership of minerals other than gold, silver, petroleum and uranium, and the right to have a say in the sustainable management of resources in the area.

Countering another criticism that tribes up and down the countryside would declare the entire coastline wahi tapu, Finlayson said that is not going to happen because “wahi tapu are sacred sites. They are going to have to be specified sites that are approved by Cabinet”. Clauses 77 paragraph 2 in the bill says “a wahi tapu protection right may be recognised if there is evidence to establish—(a) the connection of the group with the wahi tapu or wahi tapu area in accordance with tikanga; and (b) that the group requires the proposed prohibitions or restrictions on access to protect the wahi tapu or wahi tapu area.”

Opponents of the bill who fear that tribes will charge for access to the coastal area point to the absence of any clause like Clause 40 of the 2004 Act. Finlayson countered that Clause 40 refers to access to a foreshore reserve, and added that “we are going to make it explicit that there is free public access and there is no charging.”

Regarding concern that the government is going to sign up shoddy deals with Maori in secret, Finlayson said “a very clear procedure is set out in the bill for transparent negotiations with iwi if there is to be a settlement without recourse to litigation. It’s not approved by any one Minister; it’s approved by Cabinet.”

Clause 93 says “an applicant group and the responsible Minister on behalf of the Crown may enter into an agreement recognising a protected customary right or customary marine title”, clause 94 says “An agreement made under section 93 comes into effect on a date appointed by Order in Council and until that date has no effect”, and clause 95 describes registration and notification of the agreement. The bill is quite clear that the process would bypass any parliamentary oversight or select committee process that treaty settlements go through.

Why would the National-led government embark on such a vote-losing exercise, especially considering many who voted for them in the 2008 election thought the party stood for the “one law for all” message espoused by former leader Don Brash?

Finlayson possibly exemplifies the somewhat sensitive, new age National Party that currently occupies the Treasury benches. He sees that his coastal area bill does bring “one law for all, justice for all; not access to justice for all but 15 per cent of the population”, adding that “what’s most objectionable about the 2004 Act is that it extinguished the right of one group of New Zealanders from going to court to protect their property rights.”

Question time brought a few gems. The Court of Appeal issued a finding that the Maori Land Court had jurisdiction to determine whether any part of the foreshore and seabed was Maori customary land. It did not set up a test. That test remains to be created, and that is precisely what Finlayson is seeking to do in his coastal area bill. If this process becomes law, judges and courts will develop tikanga, which is a source of law, into law, which would eventually be codified into statutes.

Do the 12,500 titles that include part of the foreshore and seabed extend out 12 miles? Finlayson said that “if an applicant group successfully argues for customary marine title, it doesn’t necessarily follow that they will get title out to 12 miles. Fifty metres is more usual.”

Is it possible that customary title may be agreed to despite the fact that there may not be continuous occupation of the land for the full period? Finlayson said “I can’t see how it would be possible. It’s important to note that some original inhabitants were victims of raupatu (confiscation), and even if they lost the adjoining land they might be able to prove that, notwithstanding, they still had customary right to the foreshore and seabed.”

My experience of the exercise of Maori customary rights in the coastal marine area in my home town in the 1960s involved fully clad Maori women gathering shellfish from the rock pools 200-metres from Napier’s Perfume Point, where the sewage flowed in to the sea. The type of Maori customary rights in the coastal marine area, as envisaged by this bill, is a quantum leap in terms of the benefits to customary title holders, since they would gain ownership of non-reserved minerals, the value of which was not imagined 170 years ago, within their customary title area, and can derive commercial benefit from their areas

The Iwi Leaders Group, Ngai Tahu, Te Atiawa, Ngati Tama, and the Wellington-based Te Upoko o te Ika branch of the Maori Party have put in submissions opposing the bill, as have numerous members of the Coastal Coalition, legal experts, local government politicians, among others. If the Marine and Coastal Area (Takutai Moana) Bill is already contentious, how can passing into law be expected to bring lasting peace?

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