Former Attorney-General and Minister for Treaty of Waitangi Negotiations Chris Finlayson is known for his forthright and sometimes combative language. In 2022, in discussing opposition to co-governance, he referred to “the sour right” and “the KKK brigade”.
Last week, in “Te Ao with Moana” broadcast on Māori TV, the National Party stalwart, who was a Cabinet minister during the John Key administration, lambasted David Seymour’s proposed referendum on a Treaty Principles Bill:
“[While] good people can raise sensible questions about what the Treaty actually means and what the principles actually mean… you can’t have a referendum on this material because it will bring out of the woodwork the sort of people who used to write to me and say, ‘Why don’t you get cancer? How dare you give property rights to people above their station?’”
However, it is not only those Finlayson might dismiss as deplorables who are questioning his record in enabling the transfer of property rights to iwi, hapū and whanau. “Good people” are asking “sensible questions” about how a law he shepherded through Parliament in 2011 is being used to grant extensive coastal rights to possibly hundreds of Māori tribal groups when he had intimated at the time only a small number living in remote areas would qualify.
The Marine and Coastal Area (Takutai Moana) Act 2011 — known as MACA — was introduced as part of National’s coalition deal with the Māori Party to repeal and replace Helen Clark’s Foreshore and Seabed Act 2004. It restored the customary interests extinguished by that Act to allow rights over the foreshore and seabed to be granted to Māori — either through hearings in the High Court or direct negotiation with the Crown — but made the specific criteria for a successful application narrow.
Since then, to the horror of opponents, activist judges have expanded those criteria to open the floodgates to claims lodged by iwi, hapū and whanau that will likely cover much, if not most, of New Zealand’s coastline. More than 200 claims have been filed in court, with as many as 300 seeking direct ministerial grants of title.
Finlayson himself has acknowledged that the elastic way MACA is being interpreted is a concern. Last year he told the Listener that the law’s “tests are being routinely ignored by the courts, but that is an issue for another day”.
That day can’t come soon enough for critics like NZCPR’s Muriel Newman, who commented on a Court of Appeal judgment released last October which significantly lowered the bar for awarding customary title and rights and is now the leading case on how MACA is interpreted:
“Poor [legal] drafting and a radical application of ‘tikanga’ by the judiciary has delivered the exact opposite outcome from what the public was promised [by Finlayson]… The Court of Appeal decision will result in virtually the entire New Zealand coastline and Territorial Sea passing into Māori control.”
Before MACA became law, Finlayson reassured critics that only around 2000km of New Zealand’s 20,000km coastline — or roughly 10 per cent — would end up being under the control of iwi and hapu via customary title. That promise looks to be hollow.
The public has been very poorly informed about MACA’s practical ramifications. Anyone who imagines customary rights and marine title might be confined to gathering shellfish or gathering hangi stones is mistaken.
The law confers the right for iwi and hapū to be involved in coastal planning and policy development, including vetoing resource consents in an area from the high tide mark to 12 nautical miles out to sea. This could affect applications to set up fish farms, marinas, offshore wind turbines or to build new wharves in their designated areas.
Financial windfalls will also be available through charging commercial operators a fee. Some fear that could devastate business enterprises such as inshore fisheries as ticket-clipping renders coastal industries uneconomic.
And although the government will continue to own nationalised minerals and resources — gold, silver, uranium and petroleum — other valuable commodities such as rare earth elements will belong to tribal groups.
Not least, the right to public access may be infringed by their imposing rahui (bans), or declaring some or all of their area to be wahi tapu (sacred places), with a fine of up to $5000 for trespass.
How the Court of Appeal arrived at its expansive ruling on MACA seems to be a result of the legislation being poorly drafted and activist judges interpreting the law to accord with their views of the Treaty’s role and the importance of tikanga (Māori customs and practices).
Shane Jones has laid at least some of the responsibility at Finlayson’s door. Last November, NZ First’s deputy leader said that the Foreshore and Seabed Act “agreed between and passed by Helen Clark and Winston Peters was simple. There wasn’t any ambiguity — unlike the one by Chris Finlayson.”
The Court of Appeal itself found MACA “difficult and complex legislation”.
The court’s treatment of Section 58 of MACA is proving particularly contentious. It sets tests for customary marine title — including that the applicant group “holds the specified area in accordance with tikanga; and has, in relation to the specified area, exclusively used and occupied it from 1840 to the present day without substantial interruption”.
The majority judges decided that a literal reading of the second leg of the test — with its emphasis on exclusivity and continuity since 1840 — would be too onerous because it would mean virtually no claims could succeed. That outcome, it declared, would be “inconsistent with the Treaty/te Tiriti”.
Further, the majority judges effectively said they were choosing not to apply the plain words of Section 58 because it considered they were not consistent with the Act’s stated purposes.
In any event, the result of the attempts by judges in the High Court and Court of Appeal to square the circle between the actual words in the legislation in Section 58 and what they thought would make better and more consistent law is that we now have the novel concept of “shared exclusivity”. (This has prompted some observers to recall George Orwell’s quip: “There are some ideas so absurd that only an intellectual could believe them.”)
That strained notion is designed to solve the thorny problem arising from the overlaps among competing claims; in fact, six or more claimants per area is common. A reasonable person might quickly conclude that multiple credible claims over the same area would clearly breach the requirement in MACA for individual iwi and hapū to have used and occupied a territory exclusively for 184 years. However, our judges have somehow circumvented that obstacle.
That manoeuvre has been made possible in large part by the magic of tikanga. The courts have embraced the findings of pūkenga (specialists in Māori lore) to reconcile how several competing tribal groups sharing an area can plausibly pass the test for exclusivity. The fact tikanga is fluid and includes cultural values, customs, oral history and ancient legends — and varies from one tribal group to another — has provided a dimly lit path through that particular conundrum. Apparently, sharing can be part of tikanga and that trumps Western notions of property rights, as well as the obvious meaning of Section 58.
Those opposed to the courts’ expansive interpretation of MACA are pinning their hopes on Winston Peters obliging the judiciary to respect what Parliament actually said. NZ First’s coalition agreement with National, under the heading “Equal Citizenship”, promises the government will, in light of the Court of Appeal judgment, “amend Section 58 of the Marine and Coastal Area Act to make clear Parliament’s original intent…”
Lobby group Democracy Action hoped the proposed amendment would have been included in Christopher Luxon’s plan for the government’s first 100 days. It didn’t, and it hasn’t appeared in the worksheet the Prime Minister announced this week for the next quarter either.
The group has encouraged its supporters to contact the coalition’s party leaders to ask that they treat the amendment “as a matter of urgency”. It wrote in a February newsletter: “While the government is dragging its heels, the High Court continues to hear applications from Māori groups seeking orders to recognise Customary Marine Title and Protected Customary Rights in the marine and coastal area.”
It noted that applications were being heard in February from 15 Māori groups for the Whāngarei Harbour and seven groups for the northern Wairarapa Coast. Hearings for claims to the Kapiti Coast and Aotea Harbour (between Raglan and Kawhia harbours) have been scheduled for May and June.
One legal analyst who wishes to remain anonymous told The Platform: “The longer the government leaves it before restating what was clearly intended [in MACA] and making the courts apply it, the more ‘wins’ will have been banked by claimants, according to the lottery of whose cases are dealt with first. The political damage when the intention of Parliament is restored will intensify the longer this drags on.”
And the longer the court process is allowed to run, the higher the extravagant cost to the taxpayer. Applicants for customary title can get up to $458,000 of taxpayer money per claim to finance their case — with some estimates putting the bill for court action by iwi, hapu and whanau already as high as $30 million. By any reckoning, it has turned into a state-funded bonanza for lawyers, researchers and advisers acting for iwi.
Parties opposing the claims, however, have to fund registration, research and legal fees entirely by themselves — which means only organisations with deep pockets have the means to enter the court arena. Local communities and small organisations such as outdoors recreational groups which may be adversely affected by the grant of a claim can’t afford to participate.
The implications of the judicial decisions regarding MACA continue to fly mostly under the public’s radar. And no doubt the nation’s political, academic and media elites who are strongly opposed to Seymour’s Treaty Principles Bill and referendum will be fervently hoping the lack of awareness about MACA continues as the debate over race-based policy heats up — as it surely will once Act’s legislation is introduced to Parliament.
Certainly, after the furore surrounding her law change in 2004 Helen Clark could attest that if there’s a particular issue guaranteed to raise voters’ blood pressure to giddy heights it’s the government and courts dispensing private rights to the foreshore and seabed.
Graham Adams is an Auckland-based freelance editor, journalist and columnist. This article was originally published by ThePlatform.kiwi and is published here with kind permission.
However, it is not only those Finlayson might dismiss as deplorables who are questioning his record in enabling the transfer of property rights to iwi, hapū and whanau. “Good people” are asking “sensible questions” about how a law he shepherded through Parliament in 2011 is being used to grant extensive coastal rights to possibly hundreds of Māori tribal groups when he had intimated at the time only a small number living in remote areas would qualify.
The Marine and Coastal Area (Takutai Moana) Act 2011 — known as MACA — was introduced as part of National’s coalition deal with the Māori Party to repeal and replace Helen Clark’s Foreshore and Seabed Act 2004. It restored the customary interests extinguished by that Act to allow rights over the foreshore and seabed to be granted to Māori — either through hearings in the High Court or direct negotiation with the Crown — but made the specific criteria for a successful application narrow.
Since then, to the horror of opponents, activist judges have expanded those criteria to open the floodgates to claims lodged by iwi, hapū and whanau that will likely cover much, if not most, of New Zealand’s coastline. More than 200 claims have been filed in court, with as many as 300 seeking direct ministerial grants of title.
Finlayson himself has acknowledged that the elastic way MACA is being interpreted is a concern. Last year he told the Listener that the law’s “tests are being routinely ignored by the courts, but that is an issue for another day”.
That day can’t come soon enough for critics like NZCPR’s Muriel Newman, who commented on a Court of Appeal judgment released last October which significantly lowered the bar for awarding customary title and rights and is now the leading case on how MACA is interpreted:
“Poor [legal] drafting and a radical application of ‘tikanga’ by the judiciary has delivered the exact opposite outcome from what the public was promised [by Finlayson]… The Court of Appeal decision will result in virtually the entire New Zealand coastline and Territorial Sea passing into Māori control.”
Before MACA became law, Finlayson reassured critics that only around 2000km of New Zealand’s 20,000km coastline — or roughly 10 per cent — would end up being under the control of iwi and hapu via customary title. That promise looks to be hollow.
The public has been very poorly informed about MACA’s practical ramifications. Anyone who imagines customary rights and marine title might be confined to gathering shellfish or gathering hangi stones is mistaken.
The law confers the right for iwi and hapū to be involved in coastal planning and policy development, including vetoing resource consents in an area from the high tide mark to 12 nautical miles out to sea. This could affect applications to set up fish farms, marinas, offshore wind turbines or to build new wharves in their designated areas.
Financial windfalls will also be available through charging commercial operators a fee. Some fear that could devastate business enterprises such as inshore fisheries as ticket-clipping renders coastal industries uneconomic.
And although the government will continue to own nationalised minerals and resources — gold, silver, uranium and petroleum — other valuable commodities such as rare earth elements will belong to tribal groups.
Not least, the right to public access may be infringed by their imposing rahui (bans), or declaring some or all of their area to be wahi tapu (sacred places), with a fine of up to $5000 for trespass.
How the Court of Appeal arrived at its expansive ruling on MACA seems to be a result of the legislation being poorly drafted and activist judges interpreting the law to accord with their views of the Treaty’s role and the importance of tikanga (Māori customs and practices).
Shane Jones has laid at least some of the responsibility at Finlayson’s door. Last November, NZ First’s deputy leader said that the Foreshore and Seabed Act “agreed between and passed by Helen Clark and Winston Peters was simple. There wasn’t any ambiguity — unlike the one by Chris Finlayson.”
The Court of Appeal itself found MACA “difficult and complex legislation”.
The court’s treatment of Section 58 of MACA is proving particularly contentious. It sets tests for customary marine title — including that the applicant group “holds the specified area in accordance with tikanga; and has, in relation to the specified area, exclusively used and occupied it from 1840 to the present day without substantial interruption”.
The majority judges decided that a literal reading of the second leg of the test — with its emphasis on exclusivity and continuity since 1840 — would be too onerous because it would mean virtually no claims could succeed. That outcome, it declared, would be “inconsistent with the Treaty/te Tiriti”.
Further, the majority judges effectively said they were choosing not to apply the plain words of Section 58 because it considered they were not consistent with the Act’s stated purposes.
In any event, the result of the attempts by judges in the High Court and Court of Appeal to square the circle between the actual words in the legislation in Section 58 and what they thought would make better and more consistent law is that we now have the novel concept of “shared exclusivity”. (This has prompted some observers to recall George Orwell’s quip: “There are some ideas so absurd that only an intellectual could believe them.”)
That strained notion is designed to solve the thorny problem arising from the overlaps among competing claims; in fact, six or more claimants per area is common. A reasonable person might quickly conclude that multiple credible claims over the same area would clearly breach the requirement in MACA for individual iwi and hapū to have used and occupied a territory exclusively for 184 years. However, our judges have somehow circumvented that obstacle.
That manoeuvre has been made possible in large part by the magic of tikanga. The courts have embraced the findings of pūkenga (specialists in Māori lore) to reconcile how several competing tribal groups sharing an area can plausibly pass the test for exclusivity. The fact tikanga is fluid and includes cultural values, customs, oral history and ancient legends — and varies from one tribal group to another — has provided a dimly lit path through that particular conundrum. Apparently, sharing can be part of tikanga and that trumps Western notions of property rights, as well as the obvious meaning of Section 58.
Those opposed to the courts’ expansive interpretation of MACA are pinning their hopes on Winston Peters obliging the judiciary to respect what Parliament actually said. NZ First’s coalition agreement with National, under the heading “Equal Citizenship”, promises the government will, in light of the Court of Appeal judgment, “amend Section 58 of the Marine and Coastal Area Act to make clear Parliament’s original intent…”
Lobby group Democracy Action hoped the proposed amendment would have been included in Christopher Luxon’s plan for the government’s first 100 days. It didn’t, and it hasn’t appeared in the worksheet the Prime Minister announced this week for the next quarter either.
The group has encouraged its supporters to contact the coalition’s party leaders to ask that they treat the amendment “as a matter of urgency”. It wrote in a February newsletter: “While the government is dragging its heels, the High Court continues to hear applications from Māori groups seeking orders to recognise Customary Marine Title and Protected Customary Rights in the marine and coastal area.”
It noted that applications were being heard in February from 15 Māori groups for the Whāngarei Harbour and seven groups for the northern Wairarapa Coast. Hearings for claims to the Kapiti Coast and Aotea Harbour (between Raglan and Kawhia harbours) have been scheduled for May and June.
One legal analyst who wishes to remain anonymous told The Platform: “The longer the government leaves it before restating what was clearly intended [in MACA] and making the courts apply it, the more ‘wins’ will have been banked by claimants, according to the lottery of whose cases are dealt with first. The political damage when the intention of Parliament is restored will intensify the longer this drags on.”
And the longer the court process is allowed to run, the higher the extravagant cost to the taxpayer. Applicants for customary title can get up to $458,000 of taxpayer money per claim to finance their case — with some estimates putting the bill for court action by iwi, hapu and whanau already as high as $30 million. By any reckoning, it has turned into a state-funded bonanza for lawyers, researchers and advisers acting for iwi.
Parties opposing the claims, however, have to fund registration, research and legal fees entirely by themselves — which means only organisations with deep pockets have the means to enter the court arena. Local communities and small organisations such as outdoors recreational groups which may be adversely affected by the grant of a claim can’t afford to participate.
The implications of the judicial decisions regarding MACA continue to fly mostly under the public’s radar. And no doubt the nation’s political, academic and media elites who are strongly opposed to Seymour’s Treaty Principles Bill and referendum will be fervently hoping the lack of awareness about MACA continues as the debate over race-based policy heats up — as it surely will once Act’s legislation is introduced to Parliament.
Certainly, after the furore surrounding her law change in 2004 Helen Clark could attest that if there’s a particular issue guaranteed to raise voters’ blood pressure to giddy heights it’s the government and courts dispensing private rights to the foreshore and seabed.
Graham Adams is an Auckland-based freelance editor, journalist and columnist. This article was originally published by ThePlatform.kiwi and is published here with kind permission.
12 comments:
What is the sovereign right of Parliament?
The Essence of Parliamentary Sovereignty as a Legal Doctrine
"No Parliament may be bound by a predecessor or bind a successor; no person or body - including a court of law - may question the validity of Parliament's enactments".
Judging by the amount of work Finlayson does for iwis, this is maybe his retirement planning. Create legislation then foster co-governance that will generate a steady income stream of work.
He is rabidly against the Treaty Principles Bill, which quite simply says that we are all equal under the law and have the same rights and privileges. When people in positions of power, and ex-Cabinet ministers, vehemently oppose something so democratic the alarm bells start ringing of the wall.
Luxon falls into the same boat.
What is it with National MPs and their irrational opposition to strengthening democracy?
Because our activist judges are clearly refusing to interpret and apply this law as parliament intended, funding for the legal costs of the applicants should cease immediately. That in itself will not of course halt all claims but it might provide breathing space for the government to get off its collective backside and save our foreshores for the benefit of all New Zealanders.
A good commentary Graham, but I'm a little surprised you didn't mention that the High Court has already granted Customary Title (according to "The Post", 11 March 2024, P 7) relative to seabed and foreshore on the Wairarapa Coast - ranging from 3km to 10km offshore, depending on the party. Other than the aforementioned leftist tabloid, I've seen nothing of it mentioned anywhere else in MSM or where you would otherwise think it might have received a headline - certainly before page 7?
The Minister you mention, who dreamt up MACA and more rightly deserves the "deplorable" handle (for he has filled his pockets handsomely over many years on Treaty issues) for he should have left well enough alone, but it seems he created a deep trough for his fellow practitioners to sate themselves. As for the activist Judiciary, they deserve the contempt of everyone who identifies, first and foremost, as a New Zealander, and not least our Parliament whose intentions were (arguably) fairly clear.
I have, some weeks ago, written to the PM, his relevant Ministers, and the leaders of his coalition with nothing meaningful by way of a response from any of them. As you note, the PM's latest pronouncements mention nothing of this sort as being accorded priority status. But as you intimate, once the issue and the effects become known, it most assuredly will 'hit the fan' with the public and this will only be the more difficult and costly to address as time marches on.
Oh, and nevermind the nationalised minerals and resources that we can all recognise the immediate value in, there's now the likes of humble ‘sand’ and now even nitrogen will soon become taonga and in the grasp of unworthy Treaty claims.
Just when, and who is going to bring this to an end, or do we have to wait until the crowds again fill the grounds of Parliament; social unrest boils over; and/or, our country just becomes another a banana republic?
Yes, I struggled to decide what details I would/should include... including settlements already made. (As you'll be aware, in 2021 the courts also granted recognition orders for customary marine title and protected customary rights to several applicant groups in the eastern Bay of Plenty.)
My aim in writing the column was to raise awareness of the issue rather than to offer a comprehensive analysis. To that end, I tried to sketch the situation in a way that would interest as many people as possible.
Court decisions make most people's eyes glaze over.
However, once there is enough public concern, people are ready to delve further into the issue. I intend to write more on the topic but getting ordinary people interested is the first step.
Is there a democratic country as ill informed as New Zealand.
In a recent interview in March with Mike Hosking, Shame Jones stated that the MACA law would be amended.
But it is not on the immediate agenda. Action by the 83 % is needed?
Mr Finlayson should realize that his credibility is not good - at all.
Do we need more Treaty Principles David?
Hon David Seymour, why do we need a Treaty Principles Bill when Lt Governor Hobson made it perfectly clear when he signed the Treaty of Waitangi on 6 February 1840, there was only one Principle in the Treaty of Waitangi and that was, “He iwi tahi tatou – We are now one people”? These are the only word’s Hobson spoke to the gathering after he had signed the Treaty of Waitangi on 6 February 1840. No more, no less.
Just one Principle, “He iwi tahi tatou - We are now one people”!
In 1986, Attorney General, Hon Geoffrey Palmer and Maori Affairs Minister, Hon Matiu Rata dreamt up Five Principles for Crown Action of the Treaty of Waitangi that were the biggest injustice ever imposed by any government on the people of New Zealand. While Prime Minister David Lange said “They are not an attempt to rewrite the Treaty of Waitangi”, they gave one race of people special rights and privileges over all others that was never intended by those who signed the Treaty of Waitangi in 1840.. The Principles were endorsed by Prime Minister Hon David Lange in 1989. See page 3.
On 6 March 1992, Prime Minister, Hon Geoffrey Palmer and Attorney General, Hon David Lange knew they had made a terrible mistake when they appeared on the Australian Broadcasting Commission’s programme, “Four Corners” in a dispute with the Governor General, Rev Paul Reeves over the meaning of the Treaty of Waitangi. See page 2.
Now Prime Minister, Hon Geoffrey Palmer stating, “The meaning of the Treaty, in terms of its operational consequences, now, was ‘far from clear’. In fact, it’s a document that is so vague that is its primary problem”.
But six years earlier, Hon Geoffrey Palmer had used this unclear, vague document to write, “Five Principles for Crown Action on the Treaty of Waitangi”!
Now Attorney General, Hon David Lange stating, “Did Queen Victoria for a moment think of forming a partnership with a number of signatures, a number of thumb prints and 500 people, Queen Victoria was not that sort of person”.
But three years earlier, Hon David Lange had endorsed the Hon Geoffrey Palmer’s Principle of “A Partnership between Maori and the Queen”!
Both David Lange and Geoffrey Palmer realised the terrible errors that had been made by introducing the Five Principles for Crown Action on the Treaty of Waitangi, but instead of fixing the problem they had made, they both left front line politics.
Hon Geoffrey Palmer did write a way out in his book, New Zealand’s Constitution in Crisis - Reforming Our Political System, "It is true the Treaty of Waitangi Act 1975 and all the other statutes, which give explicit recognition to the Treaty are not entrenched. They can be swept away by a simple majority in Parliament” but he failed to sweep them away! In fact, Geoffrey Palmer went back to his old law firm helping Maori with their Treaty claims he had helped set up!
Queen Victoria’s Royal Charter/Letters Patent dated 16 February 1840 ratified the Treaty of Waitangi when it made New Zealand into a British Colony under “One people, one flag and one law, irrespective of race colour or creed”. See: www.onenzfoundation.co.nz.
David, please don’t make the same mistake as Hon Geoffrey Palmer and Hon David Lange made in 1986 by introducing your Treaty Principles Bill, instead support the Hon Winston Peters to abolish the 1975 Treaty of Waitangi Act and the Five Principles for Crown Action on the Treaty of Waitangi.
Remember, the Treaty of Waitangi only had one Principle, “He iwi tahi tatou – We are now one people” and no one has the right to dream up further Principles David!
Finlayson was either naïve or part of the activist 5th column. I suspect the latter as in imo his actions would suggest that. Or perhaps more likely he never had to deal with iwi interests that held up development for years? May he live to regret such infidelity.
Finlayson should be hung for treason,I’ll kick the chair
Christopher Finlayson is what in the USA would be referred to by those on the Conservative side of American politics as a “Wigger.”
Not a nice term, but sums up perfectly the kind of sickly white liberal—feeling guilty for what his Communist university lecturers have helped him to see what past generations supposedly did—who rats out his own race and culture for that warm glow from cosying up to the cannibals.
Sadly, there are many like him.
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