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
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