LANDOWNERS COALITION INC SUBMISSION: Marine and Coastal Area (Customary Marine Title) Amendment Bill

LANDOWNERS COALITION INC SUBMISSION: Marine and Coastal Area (Customary Marine Title) Amendment Bill

14 October 2024

Committee Secretariat
Justice Committee
Parliament Buildings
Wellington

 

Dear Sir, 

Thank you for providing the opportunity to make a submission on the Marine and Coastal Area (Customary Marine Title) Amendment Bill.

This submission is on behalf of the Landowners Coalition Inc which is an Interested Party to the Edwards case in the High Court, and the subsequent appeals to the Court of Appeal and Supreme Court. We have registered as an interested Party in all 202 cases before the High Court. Our purpose is to act on behalf of the public interest to give the public a voice they would otherwise not have.

The Landowners Coalition supports the Bill and its intention to reaffirm the intention of Parliament when the Marine and Coastal Area Act (MACA) was originally introduced in 2011.

However, we would like to make the following recommendations that we believe would improve the effectiveness of MACA to achieve its intended outcomes. 

1.       Section 57 – definitions

We support the new “interpretation” clauses to Section 57 that define “exclusive use and occupation” (S57A) and “substantial interruption” (S57B).

We are concerned the meaning of “Substantial interruption” remains open to judicial reinterpretation. We believe the inclusion of an Explanatory Note with examples to show how Parliament intends it to be interpreted would assist parties engaged in the judicial process.

2.       Section 58 – conditions to gaining customary title

Section 58(1) has two limbs. The first expressly refers to tikanga; the second does not. Despite the separation, the Courts have applied tikanga to both limbs. This substantially lowered (removed) the bar to the granting of Customary Marine Titles.

It is our submission that the proposed amendments do not fully eliminate the risk of the courts imposing a tikanga influence on the second limb. We ask that it does so expressly, and believe it can be achieved in one of two ways.

1.       Remove limb 58(1)(a) entirely. We believe the tikanga requirement provides an unnecessary constraint on applicants and adds unnecessary costs and delays to the court process. We believe it is a sufficient hurdle for applicants to prove 58(1)(b), OR

 

2.       Should the Committee wish to retain the tikanga requirement, we ask that a S58(1)(c) be added to expressly exclude matters of tikanga from 58(1)(b). 

 

3.       Section 59 – matters of relevance

We support the amendment to Section 59 that changes “may have regard” to “must have regard” and extending the matters to be considered when applying S58.

We believe there remains the possibility of bias from judges too easily persuaded by pūkenga. This has the potential to negate the purpose of the Bill.

It is our submission that greater certainty would be achieved by amending 58(1)(b) from:

“exclusively used and occupied it from 1840 to the present day without substantial interruption”, to

“had continuous title to contiguous land from 1840 to the present day without substantial interruption”.

This would restore a requirement of the Foreshore and Seabed Act 2004 (S32 (2)(b).

 

4.       Section 160 – burden of proof

We support the amendment to S106(2). However, there is nothing in the Bill that addresses the poor evidential standards in the MACA cases.

The cases are unusual in that they are conducted in an adversarial process, without an adversary. This has been created by the fact that Parliament is providing funding for applicant groups only, not public interest groups like ours. With some 200 or so claims yet to be heard, it is financially impossible for a private entity to challenge the claims and provide counter evidence.

The process is better suited to an inquisitorial process, with the courts co-ordinating a public submissions process to establish evidence of historical use, or alternatively offering the same funding for public interest groups as it does applicants.

It is our submission that S160 be amended to require the courts to adopt an inquisitorial approach to MACA claims.

There is the compounding problem that in the absence of factual evidence, the courts will default to unsubstantiated intergenerational recollections when determining critical issues like continuous use and exclusivity.

It is our submission that S160 should be amended to expressly exclude reliance on what is hearsay evidence.

 

5.       Shared exclusivity

To most people exclusive means used by one particular person or group. Churchman J in the High Court looked at it through a tikanga lens and ruled exclusive can mean more than one and issued “jointly held Customary Marine Title”.

Shared exclusivity should be expressly negated. We submit the Bill should prohibit jointly held Customary Marine Title.

 

6.       Wahi tapu

The Marine and Coastal Area Act specifies that Customary Marine Title claimants can nominate areas to be designated as wahi tapu by the Courts, but after CMT has been granted. Many applicants want to declare their entire claimed area as wahi tapu. The effect is to exclude the public, despite assurances in the Act that public access would not be interrupted.

Our submission is that all references to wahi tapu in sections 78, 79, 80, 81 and all consequential references be removed from the Act and a clause to that Effect be inserted in the Amendment Bill.

 

7.       Section 62A – resource consents

Section 62A of the 2011 Act requires applicants for resource consents to notify the applicant groups, and to record their views in the application. The effect is to add barriers and cost that discourage coastal development. This is unreasonable and more so given the number of applications for MACA claims, including a large number of contested claims that are being challenged by other applicants.

This would not be an issue if there were a small number of claims that could be resolved quickly. With some six hundred coastal claim applications waiting to be resolved, the process will inevitably take decades.

Our submission is that Section 62 of the Act should be removed.

Conclusion

We believe these recommended changes will improve the Bill and the outcomes for New Zealand. This is the single opportunity for Parliament to correct what is a very important piece of legislation. We urge the Select Committee to adopt them in their amended Bill.

 

Frank Newman

For the Landowners Coalition Inc