Who’s running our country?
It seems like a simple enough question.
In New Zealand, our Parliament is sovereign. With National, ACT, and New Zealand First commanding a majority of votes in the House, the elected Coalition hold the reins.
But is it that straightforward?
In a representative democracy like ours, three pillars share the work of governing: the Legislature, the Executive, and the Judiciary.
The Legislature – our elected House of Representatives, acting through Parliament – is responsible for law-making.
The Executive, made up of the Prime Minister’s Cabinet and government ministries, designs the legislation, puts it into action, and manages day-to-day affairs.
And the Judiciary, which operates independently, interprets and applies the law according to the intention of Parliament when it was passed.
In reality, the law-making process can be fraught. Not only is it complex, but unintended consequences will often not emerge until long after legislation is enacted.
When problems do appear, if they are serious enough, it is the responsibility of Parliament to correct the law, so it delivers what was originally intended – or if circumstances have changed, repeal the law altogether.
A current example of a fundamentally flawed law is the Marine and Coastal Area Act. Fourteen years after being introduced by National, at the behest of their Maori Party coalition partner, this law that replaced Crown ownership of the foreshore and seabed with a regime that opened up the coast to tribal claims, has turned into a disaster that now threatens national security.
At the time, the public, who were overwhelmingly opposed to the law change, were assured by then Attorney-General Chris Finlayson, that no more than 10 percent of New Zealand’s 20,000 km coastline would end up controlled by Maori.
He argued the test for a Customary Marine Title was so stringent that only a minority of claimants would succeed.
The first requirement was that applicants must have held their claimed area in accordance with Maori custom or “tikanga”.
A Regulatory Impact Statement issued by the Ministry of Justice at the time, explained that while tikanga was to be applied to the first limb of the test, it was specifically ruled out of the second limb on the basis it would create too much “uncertainty”.
The second limb of the test was instead based on common law: claimants had to have “exclusively used and occupied the area without substantial interruption from 1840 to the present day.”
Under a common law interpretation, “exclusively used” meant claimed areas could not be shared by others – ruling out overlapping claims. And “occupied without substantial interruption” ruled out raupatu applicants whose coastal land had been confiscated for historical insurrection, along with those whose land had been willingly sold.
This reasoning led to reassurances: there was nothing to fear from the repeal of Crown ownership of our coast since successful claims would be limited to a small number in remote areas.
However, the Maori Party, which was fully involved in the law-making process, had other ideas. In a “Keeping our promise” pamphlet, they informed supporters that the tests for customary title had been designed to work in their favour:
“Tests incorporate tikanga, allowing for variations among iwi, transfers of rights between hapu, and for tikanga to evolve. Tests do NOT require claimants to hold adjoining land (so raupatu iwi can claim customary title). Allowing others to fish, and overlapping rights of neighbouring hapu, do not disqualify claims (manaakitanga is part of tikanga)…”
In other words, the Maori Party had made sure that applicants with alienated land that had either been confiscated or sold would not be disqualified, and, as long as “tikanga” – which includes ‘manaakitanga’ or ‘sharing’ – was included in the test, nor would the multitude of overlapping claims.
And that’s how it played out in Court: All of the Courts – the High Court, the Court of Appeal and the Supreme Court – have interpreted the law exactly as the Maori Party claimed, with tikanga taking precedence over the common law requirements in the test.
If only a handful of claims had been lodged, it probably wouldn’t matter much. But word had gone out and on the eve of the seven-year deadline for lodging claims, upwards of 600 applications flooded in, covering the entire New Zealand coastline many times over.
The implications of the Marine and Coastal Area Act for our country are alarming. As the first cases coming before the Courts were found – almost without exception – in favour of claimants, it became glaringly obvious that the “no more than 10 percent” guarantee was fiction, and Maori tribal groups were on the cusp of securing strategic control of our entire coastline and Territorial Sea.
In other words, New Zealanders had been duped.
In response, the new Government promised to “put it right” by introducing an amendment to the Act that strengthened the tests to ensure they delivered what Parliament intended – namely a minority of successful claims in remote coastal areas.
In addition, all judgments on claims that had been through the Courts but were not finalised when the law change was announced in June last year were to be annulled, with the cases re-heard under the amended law.
The only exception was a handful of cases that had been appealed to the Supreme Court, which were scheduled to be heard last November, with a judgment not expected until well into 2025.
However, two weeks after that November hearing – and just days before the Coalition’s Amendment Bill was expected to be passed into law – the Supreme Court rushed out a partial judgment that aimed to stop the law change going ahead by essentially declaring that tikanga must be the over-riding consideration in claims for the coast.
In other words, since the activist judges of the Supreme Court didn’t support Parliament’s intention to restrict the number of successful applications, they changed the law to ensure most claimants will succeed.
In response to the judgement, the Coalition put their Amendment Bill on hold pending advice from Crown Law. Now, six months later, there’s been nothing but silence.
So, in answer to our question of who runs the country, it appears it is not our elected Government, but the unelected and unaccountable judges of our highest Court.
Whether Parliament has in fact forfeited sovereignty to the Supreme Court – remains to be seen.
But the defiant manner in which the judiciary is circumventing the intentions of Parliament should leave the Coalition in no doubt whatsoever, that no matter what changes they make to the Marine and Coastal Area Act, activist judges will still find a way to deliver the coast to Maori.
In such a hostile environment there is no other option than to deal with this law in a similar way to the disastrous Resource Management Act reforms. Since Labour’s attempt to update and improve the RMA was widely regarded as being far worse than the original legislation, it has been repealed and the original law re-instated to provide certainly, while an alternative is developed.
With the Marine and Coastal Area Act clearly beyond legislative repair, it should also now be repealed and the original 2004 Foreshore and Seabed Act reinstated to provide certainty while future options are considered.
And with the Courts once again starting to award Customary Title to claimants, this matter is now urgent.
This week’s NZCPR Guest Commentary features extracts from research undertaken in 2010 by Treaty expert and then Canterbury University Law Lecturer David Round, warning about the dangerous consequences of the proposed Marine and Coastal Area Act:
“This new law will be the most indescribable gift to Maori of an enormous part of the remaining public property and public wealth of this country. It will deprive the rest of us of any possibility of enjoying the immense economic opportunities which the foreshore and seabed affords and which, heaven knows, we so desperately need…
“Over an enormous part of the coastline of our wonderful country, perhaps all of it, the way will be laid open for Maori ownership rights – they will have immense influence on any proposal for anything. Undersea cables, marine farms, tidal power, airspace, all sorts of minerals…
“Customary owners will have a veto on all Resource Management Act proposals for or near their coastline. Boat ramps, whitebait stands, jetties, anything…
“The foreshore and seabed deal, if properly handled, will guarantee tribal elites a long-term future clipping the ticket on everything that goes on, and will keep them in the luxury to which they are rapidly becoming accustomed.”
David’s warning is as relevant today as it was back then. It’s why Maori radicals are so viciously asserting what they say are their rights.
The foreshore and seabed represents an indescribable win – if they control it, they will be well on their way to realising their He Puapua ambition of tribal rule by 2040.
These days, the Maori Party, which was behind the law change, has dropped its benign façade. MP Tuketai Ferris revealed their true colours in a recent Parliamentary debate, when he stated: “It’s our country. You’re in a Maori country.”
Imagine how it will play out if claimant groups that are also openly hostile to the Crown and the public good are given control of New Zealand’s coastline.
Such an outcome would create a profound national security risk.
The point is that New Zealand is no longer the “benign strategic environment” described by former Prime Minister Helen Clark.
Today’s geopolitical climate is undeniably hostile – through both internal and external threats.
Only weeks ago, the Chinese People’s Liberation Army dispatched three warships armed with ballistic missiles with a 1,000 km range into our region to undertake live fire exercises within 300 km of the Tasmanian coast.
Authorities only became aware of what was happening when a Virgin Australia commercial airline pilot with a flight path over the area, intercepted an emergency call from a warship warning him to immediately divert. Altogether 49 commercial aircraft with flight paths over the area were forced to change course.
The Chinese not only failed to notify our government of their deployment of warships to patrol our region and conduct live-fire drills, but they also deliberately excluded us from their negotiations with a New Zealand Realm Nation – despite our constitutional responsibility for the foreign affairs and security of the Cook Islands.
The Chinese are hungry for rare earths and other strategic seabed minerals. Should title to our foreshore and seabed pass to iwi, how long will it be before the Chinese are raping our coast under long-term mining arrangements providing a perpetual royalty income stream to the tribal elite?
In this strategic environment of increasing geopolitical tensions, it is no longer safe to allow control of our country’s coastline and Territorial Sea to fall into tribal hands. National security concerns demand that any move that could undermine sovereign control of our coast should be abandoned.
As a nation we simply cannot afford to put New Zealanders at risk by compromising defence operations, nor limiting the government’s ability to adequately respond to national security concerns.
Indeed, it is ridiculous that anyone or any group should have rights akin to ownership over the nation’s foreshore and seabed. It should be “owned” by the Crown on behalf of all New Zealanders – as it was for most of our history. To give it away to a group of rent-seekers acting in their own self-interest is not only grossly stupid it is bordering on treasonous.
Since one Parliament cannot bind another, the Coalition needs to realise it no longer has to prop up a dangerous and highly destabilising law that was promoted by a Party that is now openly advancing anarchy.
The fatally flawed Marine and Coastal Area Act should be repealed and the 2004 Foreshore and Seabed Act restored to provide certainty, security and to protect the public good.
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THIS WEEK’S POLL ASKS:
*Is it in the national interest for the Coalition to carry on trying to reform the Marine and Coastal Area Act, or should they repeal it and restore the Foreshore and Seabed Act?
*Poll comments are posted below.
*All NZCPR poll results can be seen in the Archive.
THIS WEEK’S POLL COMMENTS
| John Key, at the behest of Pita Sharples, sold us down the river by allowing Sharples to sign NZ up to the UN Charter for Indigenous Peoples, a fiction in its own right, just so Key could use the Maori party to form a government. This needs to be undone/nullified along with the repeal of the MACA and the Foreshore and Seabed Act restored. | John |
| Revert it. | Carl |
| The Seabed & foreshore Act was the only good outcome of Helen Clarks government. Should have been left as it was. | Dave |
| Everyone is entitled to enjoy the whole foreshore within the common fishing limits. | Raymond |
| Fix this mess now! | Greg |
| Repeal or the future for NZ IS DIRE | Dave |
| New Zealand is in a very dangerous position at present. If the status quo remains, or is further weakened by radical decline, we are in danger of losing our right to live here freely and without right to any recourse. | Malcolm |
| URGENT ACTION REQUIRED | Ronald |
| Urgent | Don |
| I’ve said all along that what’s happening with the seabed and foreshore debacle will cause the ruination of New Zealand. Those rapacious maori, who think that they have some kind of elite status, should be sidelined. Even if they get their own way, is “Joe Average” maori going to be better off? i doubt it. Just another Zimbabwe in the making | Trevor |
| How on earth did we get into such a dangerous situation? For goodness sake, Luxon, Peters,Seymour sort out this bloody mess. Do your job and protect our foreshore and seabed. | Claire |
| Start again with a clean slate to set things back as they were … as New Zealanders always assumed they were, The Government owns the seabed and foreshore on behalf of all New Zealand. | Robbie |
| According to Minister Goldsmith’s office ” The Minister is currently considering next steps on the Bill, in light of the Supreme Court’s judgement on this matter in December last year. Next steps and potential timeframes will be announced in due course. ” Gross procrastination = confirmation of more “bugger all action by National” aka sheer bloody incompetence. Of course it must revert to the 2004 Act and be completely retrospective. | Doug |
| This is a national security issue of the highest order. | Gregg |
| The legislation has been highjacked by woke judgements. We need to protect long-term ownership for all New Zealanders | Jim |
| The matter is beyond question. End of story. | Logan |
| Should have been done a long time ago. The Foreshore and seabed belong to all of us and should never be just handed over to these tribal claimants who are just after control and power and money. | Lee |
| The MACA Act should definitely be repealed. Our coastal areas and ocean control areas should all be under the ownership / direct control of the Crown for the benefit of all citizens . The same should apply to all lakes , lakebeds , rivers – all water resources. Water is a perpetually renewable resource which should be unquestionably owned and controlled only by the Crown for the benefit of all . Hugh Perrett | Hugh |
| The people own the right to ownership | RAY |
| more judicially inspired feeding at the trough if this Act is not repealed, NOW. Parliament has to take control and legislate accordingly. Judges….. beware | martyn |
| Repeal is the only option | peter |
| It must be repealed | Jan |
| It is way past time and may already be too late to Repeal. | Kevin |
| This is a no Brainerd. Restore the foreshore and seabed to crown ownership in its entirety. | David |
| Urgency is needed | Christine |
| Finlayson was in the pay of maori, whatever they asked for they got, before going into parliament he worked for the maori claims and once he got elected it was a land slide, his Knight hood should be taken of him as he is against the majority of NZers | Colin |
| MACA is a dog, take it out the back & put it out of our misery. | john |
| Findlayson has proven to be a traitor and is lining his pockets with Maori bribes. Kill the bill. | Gerry |
| the coast is public land belonging to all N Z ers | mark |
| All essential assets and infrastructure including Foreshore and Seabed should be under ownership and control of the Crown. No separate entity should have control over these items of national importance. | Martin |
| The danger of the collapse of a truly democratic society is more and more real with this alarming separatist agenda. It must be stopped. | Gina |
| At the same time dismiss the activist judges | Mick |
| Difficult decision but I must vote yes | Derek |
| If the coalition government doesn’t repeal MACA, then NZ is doomed. It’s a no brainer. How stupid are they? Time will tell. | Koreen |
| Woke activist judges appointed by Adern during her ‘back-room’ discussions with MP Mahuta have seriously eroded NZ’ers rights and circumvented democracy. It is exactly how she expected this to play out. Findlayson is the other guilty party in this act of treason. | John |
| Repeal the act with urgency! | Vern |
| Repeal..repeal..repeal. | Des |
| Too much time and money has been wasted on this. The foreshore and seabed belong to all New Zealanders. | Chris |
| To do otherwise is to invite perpetual litigation beyond the public interests. | Chris |
| ENOUGH | mike |
| Before it is too late | Ian |
| Repeal. If Goldsmith is involved nothing will happen. He is useless. | Robert |
| Repeal repeal repeal | Evans |
| Time to correct some of the serious issues created for Kiwis by soft liberally leaning preceding governments. | Andrew |
| We are heading for the rocks unless this government stands up which is looking doubtful | john |
| absolute nonsense that something no one can own causes such division | john |
| We have been duped for far to long there should never been a claim on the foreshore and seabed how could the government aloud this to happen. Who’s actually running this country do we the taxpayers not have any say ? We seem to have a bunch of idiots trying not to upset the Maori to timid to actually do anything | Peter |
| NZers are too ignorant to understand the full implicatioms | Jodi |
| This internal fighting is so unproductive and causing increased division and anger. NZ has totally lost its innocence. | Hilary |
| Repeal MACA without delay. | John |
| New Zealand is comprised of one people in so far as Parliament is concered | John |
| Immediately if not sooner | Rosa |
| We need to organise a national march on this issue. New Zealanders are being betrayed by an incompetent government and We the People need to act before it is too late. | John |
| I’m afraid National is too spineless to do this. They simply roll over to maori wishes. Chirs Finlayson was never on our side. | jan |
| Govt needs to retain control of foreshore and seabed for all New Zealanders | Kathy |
| Maori do NOT own the seabed and foreshore. This needs to be STOPPED. | Helen |
| The seas, rivers and foreshore should belong to EVERY Kiwi whatever their race and therefore bring back the ‘Crown”. | Graham |
| This must be repealedvurgently. Get into gear Coalition and domwhat you promised. The Supreme Court need to be hauled back into line and made to do their job , not impose their own ideas. This cannot be allowed to happen. | Gail |
| The Government must act now. | Michael |
| Action is needed now by Parliament | Brenda |
| I disagree with most of what Helen Clark did but not in this case. SHE WAS TOTALLY CORRECT. The seabed etc .must be protected for ALL New Zealanders. | COOKIE |
| Without doubt or delay.. | Robyn |
| Back to basics! | Ian |
| As soon as reasonably possible, this is a battle that must be won | Roy |
| When we lazy New Zealnders wake up to this garbage there will be hell to pay. Wake up now. | Graham |
| God help New Zealand | Anthony |
| The end of this nonsense. | mary |
| I do not care about all the tiny bits of legislation from the coalition agreement. Only the repeal of the seabed and foreshore matters this term | Basil |
| Let’s go back to Helen Clark’s solution. At least it worked. Luxon, Finlayson, Key, Bolger, Graham are all treasonous liars and should be prosecuted. | Juliet |
| Treaty Negotiations Minister Paul Goldsmith said on the 17/6/25; The Government will not agree to Treaty settlements that dispute whether the Crown is now sovereign. The Crown’s position is clear; the Crown is sovereign. The Crown is simply the representation of the democratic will of the people of New Zealand. Problem solved. Message to Crown. The will of the people is for you to repeal the Marine and Coastal Area Act and restore the 2004 Foreshore and Seabed Act, asap. It is time for the people to rise up in anger, make the government fear its people and act in accordance with the will of the people. | neil |
| Parliamentarians who are elected to REPRESENT us, the people of NZ and the Judiciary which is required to interpret and apply the law as parliament intended, have both sold the majority of the people of NZ short. Clearly, the executive ignores the wishes of the majority. So what do we, the people do?? As I see it, ultimately we will need to take matters into our into our own hands and that won’t be pretty! | Alan |
| Don’t play on words that can be manipulated. Make it plain and simple. | Noel |
| The foreshore and seabed laws should never have been tampered with. The whole thing was an outrage. And to think National would agree with the Maori Party to give away our coast defies logic! Let’s hope they come to their senses before it’s too late! | Dave |
| As you say, New Zealanders never agreed to repeal Crown ownership, so it should be restored ASAP so the area belongs to everyone. | Murray |
| The Marine and Coastal Area Act is toxic. The coast belongs to all New Zealanders. It is shameful that National was prepared to give it away. They should restore the Foreshore and Seabed Act without delay. | Pauline |
| Thank you for the clear summary. David Round was spot on with his advice. I intend writing to all government MPs urging them to repeal MACA and restore the F&S Act ASAP. | Colin |
| When will the Coalition bring the judiciary back into line. They are acting like dictators and they should not be allowed to carry on in such a high handed manner. Repealing the Marine and Coastal Area law will restore the sovereignty of Parliament and pull them down a peg or two! | Hugh |