Tuesday, April 16, 2024

Dr Peter Winsley: New Zealand’s democracy, Te Tiriti and the Marine and Coastal Area Act

New Zealand is a democracy that is being challenged by race and tribal-based activism. A democracy implies universal suffrage, one person/one vote, votes being of equal value, the rule of law, and an open and educated society with freedom of speech.

New Zealand is still a well-functioning democracy compared, for example, with the United States. However, voters are not all treated equally. The Canterbury Regional Council (Ngāi Tahu Representation) Act 2022 empowers Te Rūnanga o Ngāi Tahu to appoint up to two members of the Environment Canterbury Council with full decision-making powers. These members are unelected appointees. This sets an undemocratic precedent for the future.

Most New Zealanders seek better socio-economic outcomes for Māori. This would strengthen not weaken our democracy. However, the challenge to democracy is largely ideological and power-driven, not focused on socio-economic outcomes nor enlightened by economic reasoning. Activists seek greater respect for Māori culture and sharper distinctiveness from non-Māori culture through language, tikanga and “ways of knowing”.

Activists claim that Te Tiriti is an equal partnership between the British Crown and Māori tribes. They also contend that Te Tiriti states principles. These misunderstandings are pervasive and often have financial implications.

For example, one of the obligatory requirements for media access to the $55M Public Interest Journalism Fund was to actively “promote the principles of Partnership, Participation and Active Protection under Te Tiriti o Waitangi acknowledging Māori as a Te Tiriti partner.” In fact, Te Tiriti makes Māori subjects of the Crown, not partners with it. Nowhere in Te Tiriti are principles mentioned, let alone defined.

ACT proposes a Principles of the Treaty law that would define what Te Tiriti o Waitangi means, drawing on the actual Te Tiriti text. The wording in the proposed new law may be something like:

1. The democratically-elected New Zealand Government has sovereignty over New Zealand.

2. The New Zealand Government will protect New Zealanders’ property rights.

3. All New Zealanders are equal under the law, with the same rights and duties.

Given the widespread interest in co-governance it might be appropriate to include a principle based on subsidiarity. Subsidiarity means that decisions should be taken at the lowest level possible, or closest to where the effects fall. This may allow devolution of more public services. Some initiatives may have a co-governance element so long as Parliament’s role as law maker is not eroded.

Te Tiriti o Waitangi was the text signed by most Māori rangatira and the Crown’s representatives in 1840. As an international treaty, a domestic government was needed to deliver on Te Tiriti within New Zealand. The NZ Constitution Act 1852 established government administration, Parliament, and a basis for democracy. New Zealand’s constitution and government system evolved, leading to the NZ Constitution Act 1986. This Act reduced the Crown’s role to the symbolic and procedural and conferred on the elected Parliament the full power to make laws.

The Waitangi Tribunal was set up in 1975 to investigate and make recommendations on claims of Crown breaches of Te Tiriti. In 1985 it was given the right to investigate grievances from 1840. However, the Tribunal has since taken Te Tiriti out of its historical context. For example, ‘taonga’ in 1840 meant physical property, not language, broadcasting spectrum, and knowledge of indigenous flora and fauna.

The Waitangi Tribunal, the Human Rights Commission, and activist judges, engage in widespread “scope creep” that goes beyond their core roles. Politicians, academics, and other activists have promoted tribalistic or race-specific interests rather than that of New Zealanders as a whole. This has extended to publication bans and deplatforming those whose views they disagree with. This is a growing threat to our university system.

Tikanga (Māori custom) is now promoted as part of the legal system. However, customs and norms evolve to solve practical problems a society faces, given its technology, institutions, and surrounding environment. These problems include, for example, resource management, food safety, and conflict resolution. Much tikanga is outdated. Some may be suited to the modern world, for example rahui applied in resource management. However, there is no body of tikanga that Māori could agree on to replace much of our common law.

The implementation of the Marine and Coastal Area (Takutai Moana) Act 2011 is a vivid example of what can go wrong when judicial or other non-elected actors depart from Parliamentary intent. Democracy Action has published an excellent analysis of the Act. See also commentary by Graham Adams published by The Platform: ‘Coastal court action flies under the radar’

The Marine and Coastal Area Act creates new rights that are only available to Māori. These include protected customary rights, consultative rights, and Customary Marine Title (CMT). A CMT encompasses ownership elements. These include the right to permit or withhold permission for infrastructure activities, some conservation activities, ownership of non-nationalised minerals, rights to Crown royalties, and the right to control access to wahi tapu sites (trespassers may be fined).

This Marine and Coastal law was enacted under John Key’s coalition government deal with the Māori Party to repeal and replace Helen Clark’s Foreshore and Seabed Act 2004. The 2011 legislation allowed rights over the foreshore and seabed to be granted to Māori through High Court hearings or direct Crown negotiations.

John Key assured the public that only a “relatively small” amount of New Zealand’s marine and coastal area would end up going into customary title, and that most New Zealanders would notice no change. He was wrong on the first point and right on the second. New Zealanders will notice no big changes while the claim process is underway. However, they will certainly notice the scale of the customary title awards that are likely to be awarded.

When the government enacted the legislation in 2011, the Minister responsible, Chris Finlayson, stated that the Act set a very high bar to reach for a court to grant customary marine title to an area. This included proving exclusive use and occupation of the area since 1840 without substantial interruption, and to have held the area in accordance with tikanga.

However, judges decided that a literal application of the test of exclusivity and continuity since 1840 would be too onerous and would mean virtually no claims could succeed. That outcome, they declared, would be “inconsistent with the Treaty/te Tiriti”. Since then, recent judgements have determined that holding an area in accordance with tikanga takes precedence over ‘exclusive use and occupation’.

A 2017 deadline for lodging claims was stipulated. The specific criteria for successful applications were narrow. However, activist judges expanded those criteria, and created new status for tikanga to become part of New Zealand law.

Around 200 applications to the High Court have been submitted, with around 385 subject to behind-doors negotiation with Government. The process has the potential to be one of the biggest transfers of property in New Zealand history. However, voters have little understanding of the claims process despite its enormous ramifications. Applicants receive substantial funding to advance their claims while opposing parties receive no support. With some estimates being around $30M in taxpayer support for claimants so far, the processes have created yet another industry of iwi advisers, lawyers and tikanga “experts”.

Ideally, property rights need to be well-defined, excludable, tradeable, and visibly connected to the wider economy. Property owners may pay rates, be responsible for pest control and biosecurity, and perhaps for mitigating negative impacts their property may have on others. Elinor Ostrom documented how the interaction of people and ecosystems showed that voluntary cooperation can efficiently manage natural resources without state ownership or private markets.

The High Court has awarded Māori groups customary title and other exclusive rights to the entire South Wairarapa coastline. This decision draws on a Court of Appeal interpretation of the Act, which involved a 40km stretch of coastline in the Bay of Plenty. In this case, tikanga was given precedence over the common law test of exclusive use and occupation set out in the Act.

Currently, applications for the recognition of customary rights relating to the northern portion of the Wairarapa coast are being heard in the Wellington High Court. At the same time, 15 Māori groups have applications for Whāngarei Harbour currently being heard in the High Court.

In late March 2024, iwi demanded that the Port of Tauranga pay a “mitigation fee” of $75-100 million as a condition of support for a resource consent for expansion. It is unclear whether such a fee is justifiable or whether it is a form of (lawful) price gouging or “veto economics.”

The Marine and Coastal Area Act seems to be “all rights and no responsibilities” for iwi. It smells of tribalistic rent seeking and nepotism and could turn iwi against each other. It needs amendment to reflect Parliament’s intent in 2011 and to avoid behaviour that can threaten key infrastructure development.

Dr Peter Winsley has worked in policy and economics-related fields in New Zealand for many years. With qualifications and publications in economics, management and literature. Peter blogs at Peter Winsley - where this article was sourced.


Basil Walker said...

We must remeber in regard to the Coastal and Foreshore claims theough the High Court.
Parliament is the soverign power and can cancel the woke and blatantly despicable judgements to the waste paper basket.

The Coalition Government would assist greatly by just reminding their voters they are listening and all can not be done immediately .
We are all concerned they have forgotten the Seabed and Foreshore debacle by Finlayson.

Anonymous said...

Only one way to fix this apartheid mess created by useless politicians masquerading as representatives of ‘we the people’, and that is to address the cause, namely the 1975 TOW Act and all other statutes which give explicit recognition to the treaty, be removed from legislation.

It just requires a majority in Parliament to make it happen and the united will of 'we the people' to force them to get it done..

Anonymous said...

NZF has pledged an amendment to the 2011 MACA law to halt this process - which is clearly proceeding very fast.

So why is this not being accelerated?