Hugh Barr: Tribal groups threatening the public’s foreshore and seabed

National’s Marine and Coastal Area Act (2011) controversially gave Maori tribal groups the ability to privatise New Zealand’s foreshore and seabed out to 22.2 Km (12 nautical miles) from shore, if they could prove that they had exclusively used  and occupied an area of the coast and territorial sea from 1840 to the present day.

Until the 2011 Act, New Zealand’s foreshore and seabed had been in public ownership since 1840, when the colony adopted British law, under which the territorial sea is declared a public common, to which the public generally has access.

This right of public access allowed roads along the foreshore, which, in many eastern areas, provided much easier access than the rugged, forested jungle of the North Island’s interior. This has made it almost impossible for tribal groups to prove they had exclusively used and occupied our foreshore and seabed since 1840.

In April 2017, the six year window in which to lodge MACA tribal claims closed. It was followed by an enormous tsunami of new claims.

The negotiating process under the Act is either by secret negotiation with the Minister, Christopher Finlayson, or through the High Court, where the tribal group has to convince a judge that they meet the conditions of exclusive occupation and use, wahi tapu, (the right to exclude the public from parts of the claim), protected customary rights, and other private property rights provided for in this Act.

An enormous number of claims for secret negotiation with the Crown, said to be over 500, have been received. These appear to cover all the coasts of mainland New Zealand, out to 12 nautical miles, the mainland territorial sea, shown on the map below. It covers over 100,000 square kilometres in area. Claims often overlap other claims, sometimes doubly and triply.

The contrast with the number of claims lodged before the 3^rd April is stark. Only about 30 claims to secret negotiations were received in the previous six years, and only about eight for the High Court process. A number of secret negotiation claims were turned down by the Crown because they did not qualify.

Even more disturbing, this tsunami of claims suggests collusion between tribal groups to flood the system, presumably to create strong pressure on the wobbly National Government to recognise such so-called “rights”.

Treaty claims are not a part of the MACA Act:

The Act is clear (S 95 (4) (b) ) that MACA claims cannot be part of a Treaty Claim settlement, but must instead meet the requirements of S 58 to exclusive use and occupation of the area since 1840.

However, Attorney-General Christopher Finlayson is blurring this requirement. He is already asking tribal groups to have votes on whether they want to accept Customary Marine Title (CMT), etc., as happens with Treaty Claims..

Finlayson has also invented  another diversion, namely what he calls an “independent non-binding adjudicator”, to assess whether the claim has merit. Non-binding adjudicators are not mentioned in the MACA Act. The test is S 58, exclusive occupation and use.

Overlapping claims:

Given that there are said to be 500 Crown “secret negotiation” claims, and 200 High Court claims, the mainland coastline and territorial sea, out to 22.2 km, is covered two or three times over.  It is not possible for two different claims to be valid for the same area of coast, as only one claim can be “exclusive”. Hence the first decision for any multiple claimed area is to decide who, if any claimant, has had  “exclusive” occupation and use since 1840. It is unlikely that any claimant will qualify, because there is no part of the coast/seabed that the public has not used since 1840.

Despite this, on registering a claim, all claimants pick up exclusive property rights in their claimed area, including veto rights on any Resource Management Act (RMA) consents. These veto rights give them the consequent ability to clip the ticket on those who do want these consents, even though the tribal groups have not yet had to prove their claim.

Adverse impact on provision of facilities:

These unfair “rights” are likely to greatly reduce coastal development, such as boat shed extensions or replacements, marinas, mooring buoys, boat-launching ramps, wharves,  etc, to the detriment of coastal users, especially recreational ones. This free ride for tribal groups would seem a reason why so many tribal claims were made. They gain a lot without having to do anything to earn it, and can stop other groups providing infrastructure. It shows that these tribal groups are treating the rest of the community with contempt. It is also a serous miscarriage of justice.

Massive taxpayer subsidies for claimants:

Another major issue is the enormous amount of funding that is available to tribal claimants. As well there are at least eight additional rights with money-making potential for any tribal group that can prove that it qualifies for CMT. Another spur to the tsunami of claims is that each tribal group registering a claim has a guarantee from the Office of Treaty Settlements that it will be reimbursed with taxpayer funds for legal and historic research fees. This taxpayer subsidy can be significant, from up to $156,000 for small claims, to over $300,000 for the more complicated ones. This is another massive inducement for tribal groups and their lawyers to make all these claims.

In contrast, any non-tribal group, such as the Council of Outdoor Recreation Associations of NZ (CORANZ) which represents tens of thousands of recreational users; has to pay all its expenses itself.

The ease of getting reimbursed by the taxpayer is a very large incentive for tribal groups and their historians and lawyers to lodge this tsunami of claims. It’s money for jam. They have nothing to lose, and lots of taxpayer money to gain.

This sorry state of affairs over the Marine and Coastal Area highlights just how far New Zealand has degenerated in the nearly nine years of National Government rule from being a democracy to being a place where people claiming to be of Maori descent from a tribe living on the coast have race-based rights that other citizens do not have.

Hugh Barr is the secretary of the Council of Outdoor Recreation Associations of New Zealand, (CORANZ) and has been involved in challenging MACA Claims since 2010.