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Opinion piece by Prof Roger Bowden
14 November 2010
Marry in haste, repent at leisure

The new Marine and Coastal Area (Takutai Moana) Bill brings to mind the old saying ‘marry in haste, repent at leisure’. The problem is that it’s the National and Maori parties that joined in unholy matrimony, and it’s the rest of us will do the repenting. For this is a Bill hastily cobbled together and it shows.

Nowhere is it defined what sort of tests would suffice to establish customary title (CMT), as distinct from customary use rights. The only one explicitly incorporated is §60 which in the case of §60a (power to exclude) can rarely, if ever, be true literally.  In this respect, the Bill shares a difficulty with the 2003 (Ngati Apa v. Crown) Court of Appeal ruling. For instance, burial at sea may well be a customary use, but is it really a use of the seabed; and if so, does the use qualify for customary title in the sense of the Bill?

Likewise, no criteria are given as to how to define the areas to be allocated under CMT. Should the 12 mile territorial limit apply to gathering sea lettuce (an example cited in the 2003 Appeal)? Burial at sea will become a blank cheque for access to the full 12 mile limit.

Who can endow customary marine title?  Clauses 96-113 in their wording refer to recognition through the channel of the High Court, establishing a number of procedures to obtain such recognition.  But similar procedures do not appear to apply to Clause 93, the alternative channel via Order in Council[1], i.e. government gift. In view of the potential for back room sweetheart deals and other abuses, they should do so explicitly. In particular, the rights of the public have to be recognised in being fully informed in advance of applications and in raising objections (c.f. clauses 102,103 for the Court channel).  Even under the Court channel, pretty much zero guidance is given on tests warranting customary title as distinct from customary use, leaving the sort of vacuum that activist judges just love to fill.

Operational problems arise from fragmented boundaries. The Bill assures currently licensed commercial fisherman access and harvesting rights for the duration of their licence. What happens when the licence runs out and will they be compensated for the economic loss in the interim value of their licences? Likewise, there will be problems for other commercial users in contiguous non-CMT areas.  If they do not wish to pay the inevitable royalties, the fishermen will evidently have to be confined to within areas not subject to CMT. This will be operationally difficult because CMT areas will likely be fragmented in extent and there are no lines and lanes marked in the sea. In addition, a monitoring and policing effort will have to be mounted. Who is responsible for that, and who pays?

That public access for recreational purposes is free should be explicitly written into the Bill. Not mentioning it (in contra-distinction to the 2004 Act) is significant. It would allow iwi or hapu to levy a ‘service fee’, e.g. for real or alleged conservation purposes. Lake Ellesmere provides a precedent. If there is a cost arising from conservation needs, then that should be borne by the taxpayer at large under the  general Conservation or other appropriate expenditure vote.

But everything has its lighter side. Clause 19(2e) allows iwi wardens to demand from suspected ‘intentional’ offenders their personal details such as date of birth. Ladies, you’ll have to own up.

Legal and other eagles will doubtless point out further inconsistencies or gaps. But on a more general level, the logic underpinning the qualifying CMT criteria of ‘uninterrupted and exclusionary use since 1840’ continues to baffle me. If iwi or hapu enjoyed customary use prior to 1840, why not now?

For the objection can (and surely will) be made that in selling off the contiguous land at some point in time subsequent to 1840, the hapu concerned did not sell off the attached property right that is now to be recognised as customary marine title. It therefore qualifies for compensation for the economic loss, on the same basis as land cases under the Waitangi process, notwithstanding the impending closure of the Tribunal itself.

This would either or both (a) generate an entirely new round of Waitangi style settlements; or (b) relaxations of the F&S qualifying criterion. Alternatively, when non qualifying iwi come to realise the magnitude of royalties to be derived from mining, commercial access rights, or other economic activities associated with the seabed, the bar will be raised for previous Waitangi settlements now to be privately renegotiated with the government.

Moreover, customary marine title amounts to an entirely new frame of reference for economic ownership; and a fuzzy frame, given the lack of criteria for establishing title or defining areas.  The stage will be set for progressive relaxation of the criteria by future governments pressured by coalitional or other imperatives. The likely outcome[2] is an expansion of areas and activities qualifying for CMT.   The economic cost of the NZ economy will likewise become an increasing burden, for this is in effect a tax on the whole in favou r of a part. Maori will become popularly identified as a sub-nation of rent seekers. That is immensely damaging for our long term economic prospects.

To conclude, the proposed Act establishes property rights and it cannot be easily reversed. To that extent, it is constitutional in character. A change of this magnitude, and such lasting effects, should be referred to a referendum, in which each side can present their case in public debate according to a democratic process; with enough time for arguments, both pro and contra, to come to light and be aired. The Australians can do it, so should we. But then, that is the ALP. Now that Helen has gone, will the NZLP ever stand up and be counted?

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