Wednesday, March 29, 2023

NZCPR Newsletter: Tribal Takeover

Probably the most important court case of recent times was held in Wellington last month, yet it  attracted no mention in the media.

It was a Court of Appeal hearing seeking to overturn a High Court decision to grant multiple customary marine titles over a 40 km stretch of coastline near Opotiki. If the Edwards Marine and Coastal Area Act ruling stands, it will set a precedent for almost 600 yet to be determined claims, with the likely result that the ownership of virtually the entire New Zealand coastline – right out to the 12 nautical mile edge of the Territorial Sea – will pass to Maori.

The implications of tribal control should not be underestimated. Gaining customary title provides rights akin to ‘ownership’. Tribal owners can ban public access to beaches and fishing spots by declaring an area is ‘sacred’ or wahi tapu – or they can impose rahui. And commercial operators holding coastal permits – including councils, port companies, marina operators, and boat ramp owners – are likely to be targeted with annual levies to create an income stream in perpetuity. 

The rich mineral wealth and natural resources like seaweed found within the coastal marine area will belong to tribal ‘owners’, who will have the right to mine it, sell it, or otherwise exploit it. 

And while the legislation is meant to guarantee on-going public access to the coast, if aggressive tribal owners decide to block others from using ‘their’ area, it is difficult to see how access could be enforced. 

This situation, where New Zealand’s coastline could effectively be privatised to Maori, is the complete opposite of what the National Government promised in 2011, when they repealed Crown ownership of the foreshore and seabed and opened up the coast for tribal claims.

They assured the public the law change would result in only a relative handful of successful claims – all in remote areas. And we were never informed that there was a chance the whole coast could end up in tribal hands.

To make matters worse, while no financial assistance is available for anyone wanting to oppose tribal claims, the government has provided lucrative funding of up to $458,000 for applicants to prepare their case, with further funding available for historical research as well as for legal fees and other costs associated with court hearings – including accommodation, air fares, meals and so on.

At the time National passed the Marine and Coastal Area Act they assured New Zealanders that the criteria for gaining a customary marine title were stringent. Under section 58 of the Act claimants had to satisfy two tests: firstly, they had to “hold the specified area in accordance with tikanga” – where ‘tikanga’ was defined as “Maori customary values and practices” – and secondly, they had to have “exclusively used and occupied the area without substantial interruption from 1840 to the present day.”

Overlapping claims, which are inconsistent with the concept of ‘exclusive’ use and occupation, were expected to be ruled out, as were claims for areas where third-party usage resulted in substantial interruption. And since tribal groups had limited ability to navigate far from shore back in 1840, it was expected that few Territorial Sea claims would succeed.  

The Court of Appeal case hinges on the fact that in the High Court case Justice Churchman determined that since applicants had been found by a Court appointed ‘expert’ to have held their claimed areas according to ‘tikanga’, this was sufficient for Customary Marine Titles to be awarded, thereby over-ruling any requirement to consider the second limb of the test – whether the areas had been used and occupied ‘exclusively’ and continuously since 1840.

Furthermore, instead of ruling out overlapping claims for failing to meet the ‘exclusive’ use and occupation test, the Judge created “shared exclusivity” in order to accommodate them all.

Should the Appeal Court find the High Court’s interpretation of section 58 was wrong in law, then it is likely the case will be returned to the High Court for further consideration, although such a ruling would more than likely be appealed to the Supreme Court by claimants.

However, the bigger issue is that by prioritising tribal demands over the public good rights of all New Zealanders, the National Government has put the nation into an untenable situation where it could effectively be held to ransom by private owners of the country’s foreshore and seabed.

The last time this happened was after the former Chief Justice Sian Elias ruled in 2003 that ‘some’ customary title might still exist in the coastal marine area. That decision triggered such a flood of tribal claims for the coast that Labour Prime Minister Helen Clark was forced to step in, cancelling the claims, and reaffirming Crown ownership through the 2004 Foreshore and Seabed Act.

And that is the only practical solution for the situation New Zealand is now in – an incoming government must revoke the Marine and Coastal area Act and return the foreshore and seabed to Crown ownership.

What this case highlights is the huge threat to the Rule of Law and the stability of our country that’s being caused by the inclusion of ‘tikanga’ – which can be interpreted as meaning virtually anything Maori want it to mean – into legislation.

There should be no place in the law for tikanga.

Nor for Treaty ‘principles’, since the Treaty of Waitangi contains no principles.

Nor should there be any place in our regulatory system for the fictional Treaty of Waitangi ‘partnership’, since it is constitutionally impossible for subjects to be ‘partners’ with their Sovereign.

Yet, the brazen claim that Maori are ‘partners’ with the Crown is being used by the tribal elite to justify ‘co-governance’. Through 50:50 decision-making powers and the right of veto, they are gaining political control across the public and private sectors – and accumulating wealth.

Back in 2010, political commentator Chris Trotter warned what can happen if separatists gain control of organisations, by describing the demise of Corso, a charity established in 1944 to provide clothing and footwear to millions of people around the world:

“Throughout the 1980s Corso was steadily infiltrated and eventually taken over by radical Maori nationalists. Led by the Harawira family, the radicals insisted that Corso recognise and promote tino rangatiratanga – the Maori right to self-determination. To prove its bona fides to the cause of the tangata whenua, Corso was also required to devote two-thirds of its income to Maori projects. When Corso workers and supporters objected to this takeover they were subjected to withering criticism – it was much easier to leave than to fight. By 1990, the organisation was little more than a hollowed-out shell. New Zealand’s largest and most successful home- grown aid organisation had been destroyed: initially, by ideological extremism; and finally, by radical Maori nationalism.”

Under the Labour Government, not only has the public sector been radicalised by being forced to embrace the Maori supremacist agenda, but private sector organisations that have some association with the government, either through registration or funding are now being pressured to swear allegiance to the Treaty, embrace the Treaty partnership lie, and establish co-governance boards.

Sport New Zealand is a case in point. With a new Maori name, “Ihi Aotearoa”, its website states its “commitment to Te Tiriti o Waitangi and the Treaty principles of Partnership, Protection and Participation”. Affiliated bodies, like Sports Northland, have already introduced co-governance.

Local Government New Zealand, the so-called industry body for councils, has been well and truly captured, not only through their funding agreement with Nanaia Mahuta to promote Three Waters, but through their prolific advocacy for the Treaty and co-governance – including Treaty training for newly elected local government representatives.

Auckland Council’s withdrawal from LGNZ is to be applauded. Other councils should follow suit.

Real Estate Agents have also been targeted with a new requirement to undertake compulsory Treaty training: “A practical introduction to Maori culture, language (te reo), custom (tikanga) and te Tiriti o Waitangi (the Treaty of Waitangi) in the real estate context”.

To say the profession is outraged by this requirement is an understatement, but since their registration will depend on it, they will need to endure it until new political leadership hopefully sweeps it away.  

Treaty training is also underway for engineers, as their website explains “a two-hour Treaty training module has been developed to help engineers understand the modern day implications and obligations of The Treaty.” 

Even the accounting profession has been caught: “Chartered Accountants Australia and New Zealand is committed to honouring the Treaty of Waitangi through a process of building our own cultural competency, knowledge and connection to te ao Māori…”

This week’s NZCPR Guest Commentator, former Judge and Law Lecturer Anthony Willy, outlines how lawyers are now being pressured into swearing allegiance to the Treaty:

“On 1st March 2022 the New Zealand Law Society or as they now call themselves Te Kahui Ture o Aotearoa commissioned a report by an ‘independent panel’ into ‘Legal and Structural Change in the Law Society’… Three Commissioners were appointed: Professor Ron Paterson ONZM whose area or expertise is in health and disability services and ‘medical law’; Professor Jacinta Ruru Australian born of some Maori ancestry and lecturing at Otago Law School; and Jane Meares who has an extensive background in commercial legal work at a high level and could be presumed to understand how the legal profession works. Neither of the other two appear to have practised as barristers or solicitors and must therefore take their understanding of the profession from others.

“The report comprising 192 pages was tabled in the House in March 2023. It has a Maori name which apparently in English translates as ‘Regulating Lawyers in Aotearoa New Zealand’.

“Much of the report, deals at tedious length, with the case for an independent regulator and an independent complaints system. But at page 95 the commissioners record that their terms of reference require them to: ‘Consider changes needed to promote a commitment to honouring Te Tiriti o Waitangi and the bi cultural foundations of New Zealand including Te Ao Maori concepts… We believe it is time for this to change.’

“Interestingly this approach was rejected by 44% of those surveyed on the grounds that it would cause separatism and uncertainty within the profession and the public and dilute the lawyers’ obligation to uphold the Rule of Law…

“The commissioners had no hesitation in rejecting the view of the majority of practising lawyers and recommended that a clause be included in the proposed legislation that: ‘All persons exercising powers and performing functions and duties under this Act must give effect to the principles of the Te Tiriti o Waitangi’.”     

Against the wishes of the majority of lawyers, those driving this separatist agenda not only want to force the Treaty into their regulatory framework, they also want the new regulator to ‘partner’ with Maori.

Orchestrated by the Labour Government without any mandate from the public, the  tribal takeover that is now underway in New Zealand is creating deep social division and unrest. And while the State Sector has been their priority, using threats of deregulation and funding cuts, it is now being forced onto private enterprise.

Those New Zealanders who are aware that Labour is giving the iwi leaders of multi-million-dollar business development corporations power over our lives, are horrified.

But not enough Kiwis understand the threat that ‘co-governance’, which is of course a euphemism for totalitarian tribal rule, poses to freedom and democracy.  

With the election fast approaching, it’s imperative that we do all we can to alert voters to the danger – and please feel free to use our newsletters to inform others, if that helps.

But we also need to know whether politicians will step up and defend our Kiwi way of life. Will they stop the tribal takeover? Will they remove references to tikanga and the Treaty from legislation? And will they repeal the Marine and Coastal Area Act?

Why not contact MPs you are thinking of voting for and ask those sorts of questions – then let us all know what they said!

All MP email addresses can be found through our Have Your Say page HERE.

Please note: To register for our free weekly newsletter please click HERE.


*How important do you believe it is to repeal the Marine and Coastal Area Act? 
(Very important; Moderately important; Not important at all)

Dr Muriel Newman established the New Zealand Centre for Political Research as a public policy think tank in 2005 after nine years as a Member of Parliament. The NZCPR website is HERE. We also run this Breaking Views Blog and our NZCPR Facebook Group HERE

1 comment:

Robert Arthur said...

The legal outcomes can be largely predicted by applying the sure test. "What will create the greatest degree of future employemnt for the legal profession?"