The response from tribal leaders was predictable: outrage and threats to orchestrate a repeat of the protest action against Labour’s foreshore and seabed law change in 2004, when then Prime Minister Helen Clark branded activists as “haters and wreckers” and refused to meet.
Helen Clark was clear that as Prime Minister, while she had to understand minority concerns, her role was to govern for all New Zealanders: “We hear the concern being expressed but my method is that we must govern in the interests of all New Zealanders to get the fair balance we are striving for.”
That was the sentiment echoed by Treaty Negotiations Minister Paul Goldsmith when he announced the law change:
“All New Zealanders have an interest in the coastal waters of our country, so Parliament deliberately set a high test in 2011 before Customary Marine Title could be granted. However, last year the Court of Appeal made a ruling which changed the nature of the test and materially reduced the threshold… Therefore, as part of the National-New Zealand First coalition agreement, the Government has agreed to propose legislation which will ensure these tests for applications directly with the Crown or through the Courts are upheld as originally intended.”
With gross misinformation about this law change being deliberately spread by opponents, let’s do a quick recap to remind ourselves what’s at stake.
The Marine and Coastal Area Act covers the distance between the average spring high tide waterline and the 12 nautical mile limit of the Territorial Sea, along with the airspace above, the water space, and the subsoil, bedrock and mineral wealth below.
It’s essentially 10 million hectares of the richest natural resource in the country – a literal food basket, transportation network, security zone, and treasure chest of invaluable non-nationalised minerals including iron, cobalt, nickel, copper, and rare earths.
That’s why every square inch of the coast has been claimed many times over by hundreds of tribal groups. If they succeed in securing a Customary Marine Title (CMT), they will gain an invaluable property right akin to ownership that includes the ability to veto all resource consents and conservation activities in their claimed area, to be involved in coastal planning and policy development, to derive commercial benefit through charging commercial operators and exploiting their natural resource wealth, and to exclude others from their area – temporarily through the use of ‘rahui’, and permanently through ‘wahi tapu’.
As the Minister indicated, it is the actions of activist judges that have led to this alarming situation where our entire coastline is on the cusp of being effectively privatised to Maori.
The problem started in 2003, when activist judges in the Court of Appeal declared that in spite of the foreshore and seabed having been owned by the Crown on behalf of all New Zealanders under British common law since 1840, pockets of customary title might still exist.
That judgement created a tsunami of claims for the coast, forcing Helen Clark’s Labour Government to legislate to restore Crown ownership through the 2004 Foreshore and Seabed Act. While the new law provided guardianship rights to tribal groups that could prove their customary interest in the High Court, there were on-going complaints that the bar was set too high for claims to succeed.
During the 2008 election, the Maori Party campaigned on repealing the Foreshore and Seabed Act and once in coalition with John Key’s National Government, the Marine and Coastal Area Act was introduced to open up the coast for tribal claims.
New Zealanders were overwhelmingly opposed to the law change, but National reassured the public that the tests for customary title were set so high, that relatively few pockets of the coast would end up under tribal control.
To gain a CMT applicants had to satisfy two section 58 tests: under 58(1)(a) they had to “hold the specified area in accordance with tikanga” (Maori custom), and under 58(1)(b) they had to “have exclusively used and occupied the area without substantial interruption from 1840 to the present day.”
The law enabled the 58(1)(a) tikanga test to be determined by so-called tikanga experts agreed to by claimants, rather than a Judge.
The need for ‘exclusive’ use and occupation in the 58(1)(b) test, was expected to rule out claims that were overlapping or where third-party usage represented a substantial interruption.
Since tribal groups had limited ability to navigate far from shore in 1840, few Territorial Sea claims were expected to succeed.
While the law protected the rights of commercial fishing, navigation, and public access, as well as consents for existing marine reserves, aquaculture activities, and essential infrastructure operated by the Crown, port companies, and councils, CMT holders had the power to veto expansion plans.
The Act specified two pathways for claimants – a hearing in the High Court or direct negotiation with the Minister of Treaty Settlements. And while no financial assistance was offered to those opposing claims, significant funding of up to $458,000 was available to claimants!
On the eve of the six-year deadline for lodging claims in April 2017, almost 600 overlapping claims flooded in – some 202 for the High Court and 385 for Crown Engagement.
Given the huge concerns at the time, the NZCPR raised the funds to oppose the claims in the public interest. Our hope was that a sensible outcome in the first case would have a precedent effect on the hundreds of others waiting to be heard.
The first case, Edwards, was for a 44 km stretch of the Bay of Plenty coastline around Opotiki where we understood customary title was unlikely to exist.
Justice Churchman, however, awarded CMT covering the entire area out to the edge of the Territorial Sea – one individual CMT and two joint CMTs shared between six and seven applicant groups.
As far as the section 58 tests were concerned, the judgement ruled that ‘tikanga’ over-rides any common law ‘exclusive use and occupation’ requirements: “The task for the Court is not to attempt to measure the factual situation against western property concepts or the tests at common law for the establishment of customary land rights. The critical focus must be on whether the specified area was held in accordance with the tikanga that has been established.”
With regards to “substantial interruption”, the Judge decided that instead of third-party activities that disrupted ‘ownership’ such as a marine farm ruling out a CMT altogether, the area in question would simply be excluded from the CMT.
And as far as ‘overlapping’ claims were concerned, instead of ruling them out for not being exclusive, Justice Churchman created the oxymoron of “shared exclusivity”, which opened the floodgates for competing claimants to share the “spoils of victory”.
Essentially the Churchman judgement was a free pass to tribal ownership of the coast. His decision that tikanga was to be the only thing that really mattered meant the entire New Zealand coastline was likely to end up controlled by hundreds of competing tribal groups who lodged opportunistic applications at the last minute.
So, we appealed the judgment to the Court of Appeal, asking that the Churchman decision be overruled and the Section 58 test restored to what Parliament originally intended.
The Court of Appeal decision, which was released just after the election, took the extraordinary approach of rejecting Parliament’s view:
“On a literal reading of s 58(1)(b), and its requirement that the group must have exclusively used and occupied the area from 1840 to the present day, it seems likely there would be few areas of the foreshore or seabed where CMT could be made out… In some areas where the common law would recognise that a group had customary title, incursions into that area over the last 180 years by third parties would deprive the group of CMT… MACA would in many cases extinguish those interests… by a side wind, by setting a threshold for recognition of CMT that could not be met… The courts should be slow to attribute to Parliament an intention to prescribe a test for CMT that would operate in this manner, contrary to the stated purposes of MACA.”
As a result, the Court of Appeal lowered the bar so most claims would succeed by essentially ruling that claimants don’t need to demonstrate exclusive use and occupation ‘from 1840 to the present day’ in order to gain a CMT – as long as they can show they had exclusive use and occupation in 1840 which hasn’t been substantially interrupted by third-party activities authorised by legislation.
What that judgement revealed to National was just how badly their law had been corrupted by judicial activism.
While the proposed amendments to the Marine and Coastal Area Act are expected to be tabled in mid-September and passed into law by Christmas, their 27 July announcement has an immediate effect. All cases not already decided will need to be determined under the amended law – including cases where hearings have been held, but decisions have not yet been released.
Those cases that have been decided but are under appeal, will be determined by the outcome of November’s Supreme Court case. This is the case we are fundraising for – see details HERE.
Since we will be asking the Supreme Court to quash the Court of Appeal ruling and reinterpret the law as Parliament intended, their decision will reveal whether New Zealand’s highest appeal Court is working in the public interest to strengthen democracy and the Rule of Law, or whether it is yet another institution that’s been ‘captured’ by tribal activists.
So, where to from here?
Looking at the big picture, a key reason why National’s ill-advised Marine and Coastal Area Act was able to be so easily corrupted from doing what Parliament intended, to delivering what Maori want, was the inclusion of “tikanga” in the law.
To work properly, the law must be certain and predictable, but tikanga is neither. It is a concept that is open to interpretation and can essentially mean whatever Maori want it to mean. Introducing tikanga into the law opens the door for Judges to justify the arguments of race-based activists.
What this means is that if the Coalition’s proposed law change contains “tikanga”, it cannot safeguard the public interest in the coast from the actions of activist judges in the future.
In reality, the only foolproof way to protect the coastline for all New Zealanders is to return it to Crown ownership by repealing the Marine and Coastal Area Act and restoring the 2004 Foreshore and Seabed Act.
This view is echoed by this week’s NZCPR Guest Commentator Frank Newman, convenor of the Landowners Coalition and a former local body councillor, who explains:
“While we should welcome the coalition government putting things right the proposed amendments still fall short of what should happen to the law. How much of the coast will fall into customary title will be up to the courts to determine, based on the new guidelines.
“The question is should judges be trusted with such an important issue? In my view, there is too much activism at all levels within the legal fraternity to allow discretion.
“The right thing to do would be to shut the door on customary title. The entire marine and coastal area should be returned to Crown ownership and managed for the benefit of all New Zealanders. That is the simple and correct solution.”
And, looking ahead, that’s the big question: will the amended Marine and Coastal Area Act be capable of preventing the massive tribal power grab for our coast that’s presently underway, or, as Frank suggests, is returning the foreshore and seabed to Crown ownership the only real option to safeguard the public interest in New Zealand’s coastline into the future?
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