After months of procedural work, developments relating to the Marine and Coastal Area Act claims process are coming thick and fast. They include a new Bill in front of Parliament, a series of High Court case management conferences for claimants, the notification of priority claims for Crown Engagement, and a Waitangi Tribunal inquiry.
The Nga Rohe Moana o Nga Hapu o Ngati Porou Bill (No 2), which gives effect to a deed of agreement between Ngati Porou and the Crown for around 200 km of the East Coast coastline north of Gisborne, highlights the cost to taxpayers of bogus coastal claims.
Until seven years ago, the whole coastal marine area was vested in the Crown under common law, on behalf of all New Zealanders. The area stretched out from the mean high-water springs mark to the 12-nautical mile Territorial Sea limit. Everyone had free access, and the rules associated with the use of the area for defence, commerce, conservation, and recreation, were governed by a variety of Acts of Parliament.
Then in 2002, as a result of an escalating dispute between Nelson tribal groups and their local council over a marine farming application, the Court of Appeal overturned settled law, to find that customary title might exist in the coastal area and that it should be tested in the Maori Land Court. A tsunami of opportunistic claims followed which led to the Labour Government’s 2004 Foreshore and Seabed Act, which re-affirmed Crown ownership but enabled Maori tribes to claim territorial customary rights.
Qualifying for these rights involved a two step process. Firstly – and most importantly – the evidence, that the tribal group had used the area continuously and ‘exclusively’ since 1840 and that they owned the land bordering their claim, had to be proven in the High Court. And secondly, an agreement with the Government had to be negotiated.
While Ngati Porou pushed ahead to reach an agreement with Labour’s Minister of Treaty Negotiations, Michael Cullen, in 2008, they delayed their day in Court. In the end, the 2008 General Election, which resulted in John Key’s National Government taking office, derailed the process.
To appease their Maori Party coalition partner, National repealed the Foreshore and Seabed Act and replaced it with the Marine and Coastal Area Act, to encourage claims and make it easier for claimants to succeed. As a result, over 600 claims were lodged before the six year deadline – most within the last few days.
For whatever reason, Ngati Porou, with their agreement half finished under the old Act, did not lodge a claim under the new Act within the six year time limit. This new Bill gives them an extra two years to lodge their claim.
An article published last month by the Gisborne Herald newspaper was very critical of the way their claim had been dealt with by the Government: “Everybody knows Ngati Porou has no land or water rights. In 2008 the Crown promised traditional tribes the right to challenge Ngati Porou foreshore and seabed interests before the High Court under the Foreshore and Seabed Act 2004. The Treaty Negotiations Minister took a different route under the Marine and Coastal Area Act 2011, which enabled Ngati Porou to bypass a High Court challenge and enter an agreement.”
It certainly appears that Labour had put the cart before the horse when Michael Cullen negotiated a deal with Ngati Porou before their foreshore and seabed claim was tested in the High Court.
National appears to have followed suit by renegotiating that deal and recognising new privileges in a Parliamentary Bill, even though the validity of Ngati Porou’s claim had never been verified.
Furthermore the new Labour-led Government has now compounded the problem by sending that Bill, with its unproven rights, to a Select Committee.
Essentially the Ngati Porou Bill outlines a legislative framework that honours a deal agreed to with Michael Cullen in 2008, and amended by Chris Finlayson in 2017, to transition into the Marine and Coastal Area Act regime.
Part 1 gives effect to the deed of agreement between Ngati Porou and the Crown. Part 2 outlines a range of unique privileges that Ngati Porou will gain across their whole claimed area – as part of their 2008 agreement – covering resource consents, conservation activities, customary fishing, and the introduction of wahi tapu. Part 3 outlines changes that will apply once a Customary Marine Title has been agreed, and Part 4 identifies special conditions including a two-year extension to apply for a Customary Marine Title.
As with all other claimants, Ngati Porou has a choice of negotiating their claim with the Minister through ‘Crown Engagement’, or lodging it with the High Court. The same statutory tests that apply to all other claimants – that the tribal group has exclusively used and occupied the claimed area from 1840 to the present day without substantial interruption – will need to be met for their claim to succeed. If it does not succeed, according to the Bill as it stands, their Part 2 special privileges will continue to apply.
In addition to their Part 2 rights, Ngati Porou will also gain significant financial advantage.
Their original agreement with the Crown shows that Michael Cullen agreed to pay Ngati Porou “to exercise their rights and perform their obligations under the deed and the recognition legislation”. That meant they were not only being given control of the coastline, but they were also being paid for it – to the tune of $7.6 million for the first 5 years, followed by $700,000 a year.
Under Chris Finlayson’s re-negotiated agreement, Ngati Porou will receive $15.3 million tax-free as a full and final settlement. That appropriation has been carried forward into the current 2018 Budget.
As the new Treaty Negotiations Minister, Labour’s Andrew Little had the opportunity to investigate the validity of Ngati Porou’s customary rights claims to the coast. Instead, he rubber stamped the Bill to a Select Committee. Judging by the supportive First Reading speeches in Parliament – see HERE – unless the public get involved and send in submissions, this Bill is likely to receive very little scrutiny.
This week’s NZCPR Guest Commentator, Dr Hugh Barr, Secretary of the Council for Outdoor Recreation Associations, has been looking into the Ngati Porou Bill, and questions the legitimacy of their customary rights claims:
“Strong evidence exists that these hapu claims do not meet the exclusive occupation and use requirement. In fact, there are very good reasons why it is very hard for any tribal group to gain a Customary Marine Title, especially around the East Coast.
“Historic photos exist of Stage Coaches driving along the beaches, in the sea, and on tracks around promontories, showing that the coast was the main path for walkers and coaches from 1840 until the Second World War. When steamships provided supplies and loaded cargo from the 1880s on, they loaded and unloaded across the foreshore, often to settler farms behind.
“And from 1950s, better roads meant that people built baches along the coast, so ensuring that tribal groups did not generally have exclusive occupation and use from then on.
“There may be a few small areas of coast where the public is prohibited from going. But there are no areas of the sea where this is so, since the ownership of New Zealand’s foreshore and seabed was vested in the Crown under common law.”
Anyone who is concerned about the whole marine and coastal area claims process should consider opposing this Bill on the basis that everyone else had six years in which to lodge their claim – plenty of time for Ngati Porou to comply. A two-year extension is unacceptable, especially as it will delay all other claims that overlap the area.
In addition, under Parts 1 and 2, the group will gain significant rights and privileges across their whole application area, even if it is found in the end that their evidence does not stack up and they do not qualify for customary title.
The closing date for submissions on the Bill is June 22nd – full details can be seen HERE.
Meanwhile, the first case management conferences for some of the 200 claims lodged in the High Court are underway – but only for select claimants and their counsel.
The Attorney General has identified eight claims that were lodged in 2011 as priority cases. These are Taylor & others, CIV-2011-485-821 (Ngati Pahauwera); Reeder, CIV-2011-485-793 (Nga Potiki); Edwards, CIV-2011-485-817 (Whakatohea); Clarkson, CIV-2011-485-789; Tangiora CIV-2011-485-794 (Rongomaiwahine Iwi Trust); Noble CIV-2011-485-814; Brooks and Hooker CIV-2011-485-803; and Robinson CIV-2011-485-797. The details of each of these applications can be accessed from our website HERE.
These claimants and those with overlapping claims attended case management conferences at the High Court in Wellington on May 28, Dunedin May 30, Nelson May 31, and Gisborne June 5, with Tauranga scheduled for June 6, Rotorua June 7, Hamilton June 8, New Plymouth June 20, Whangarei June 25, and Auckland June 27.
The Attorney General says the objective of the case management conferences is “to identify as clearly as possible what issues will need to be addressed before the court puts in place timetables to have the substantive applications heard and determined”.
He is of the view that many of the claimants are seeking rights that are not available under the Act, that many claims are not supported by evidence, and that many of the applications are incomplete.
However, without a doubt, the High Court cases are edging closer, so, if you would like to help, please remember that there are two main avenues.
Firstly, we have established a register for people who would like to research claims to help prove that coastal areas could not have been held exclusively by tribal groups since 1840. If you are interested in registering and helping – please click HERE.
And secondly, we are now fundraising for the cost of legal fees and other expenses that the two volunteer groups that are fighting against all of the claims will incur. If you would like to help, please click HERE.
With regards to the 385 claims that have been lodged for Crown Engagement, they too have been prioritised according to commitments made before the 2017 election. The priority claims are Te Whanau a Apanui, Ngati Koata, Te uri o Hau, Te Korowai o Ngaruahine, Rongomaiwahine, Ngati Porou, Ngati Pahauwera, Taumata B, and Ngati Porou ki Hauraki. Applicant groups that overlap these nine claims will also be involved.
Further progress on Crown Engagement claims is expected to lead to extensive delays in High Court hearings, while claimants with claims lodged in both tracts wait see what is being offered.
The Minister has also verified that public submissions on Crown Engagement claims will be invited, but details about the process have not yet been released.
On top of all of these developments, the Waitangi Tribunal has announced it is holding a priority inquiry into the Marine and Coastal Area Act. Its focus will be on whether the legislative framework adequately protects tribal customary rights and is consistent with the Treaty. It will also inquire into widespread claims that the funding for claimants (up to $317,000 for High Court claims and $412,000 for Crown Engagement) is inadequate. Customary rights claimants are also saying they want compensation if they miss out on securing a deal.
Given the entrenched bias in the Waitangi Tribunal, it is not difficult to foretell the recommendations of their report: that the regulatory framework does not adequately protect tribal rights, that a lot more money should be given to tribal groups to pay for their fancy lawyers to perpetuate the claims process for as long as they are able, and that compensation should be paid to any tribal groups that miss out.
The claims process is a shambles. It has created a legal mess that benefits no one other than a select group of lawyers. The simple fact is that know-it-all Ministers should not have become entangled in the process. There should be only one path to have a coastal area claim ratified, and that should be via the High Court.
THIS WEEK’S POLL ASKS:
Do you believe the High Court should be the only avenue for tribal groups to pursue marine and coastal area claims?
*Poll comments are posted below.
*All NZCPR poll results can be seen in the Archive.
THIS WEEK’S POLL COMMENTS
|This political madness has to stop. Is there any political representative in this country who is prepared to say no, to these ridiculous claim. The greed of maori has no limits||Dene|
|The coast should be reserved as the common birthright of all New Zealanders forever! They’ve closed the mountains next it will be the beaches!||Paul|
|In reality there should be no claims.Helen Clark made our Coasts free for everyone.That smile and wave PM John Key then gave Maori free rein to claim.We should all be one people with equal rights but racism is alive and well being constantly fuelled by Maori.Their claims can usually be settled with a cheque payable to them that’s how genuine their claims are.||Don|
|good articles. No faith in the politicians or the current system to protect New Zealanders from future internal social unrest. They seem hell bent on destroying society to appease a very small group that cannot believe their luck; repetitive lies, bully tactics and you will get what you want.||Sam|
|Yes— provided the High Court is not in Maori pockets yet. As far as the Nats Labour and NZ First are concerned ( I do not include the Greens because they are the Maori Party in drag!!) they have betrayed their voters and it appears that they are all involved in this sinister game in one way or another. Who will be there to save us if not an entirely new party which has no political ballast and is prepared to be politically incorrect to the hilt.One thing is for sure — we cannot expect anything positive from the old parties anymore.||Michael|
|They can’t look after what they have now and anyway what are they going to do with it? Is there any other country in the world that would put up with this nonsense The Maori should stand back and take a good look at where they are going this whole thing is just a bad joke||Peter|
|We see in Europe, UK and now in the USA the result of politicians making decisions without too much thought or legal input. Violent pack rape of women whose culture and greed is now destroying a civilized way of life. If this country continues on this path of weak leadership and legal decisions which support the majority and not the tribal just the tribal elite then New Zealand will become a country of anarchy and dictatorship. God Save Us All||John|
|What is Judith Collins position on all this Maori apartheid business? We need a strong leader like Donald J.Trump to wipe NZ clean of all this Maori bias and claptrap. Why are NZers not rebelling against political correctness; there has to be a backlash?||Monica|
|We passionately believe that all coastal & marine areas be shared by ALL NZ’ers even Maori, with out restriction or discrimination!||Joh & Hanneke|
|Legal process should be the only path to settling and MACA claims. All other avenues are open to abuse.||Maureen|
|Absolutely plus Iwi pay for their own court costs. At the moment it appears that NZ taxpayers are paying the costs of both parties – what a joke||Fiona|
|All of these claims are a farce||Roy|
|Yes so the law is interpreted in a non political way||Robert|
|As long as they remain impartial, and apply strictly the laws given.||Hugh|
|Where’s this country going !!!,sad sad sad.||Mark|
|Marine and coastal area claims are a total rort||Barbara|
|This should be the only avenue but the claimants will go to any lengths to make sure they get the outcome they are seeking. The usual gravy train nothing less.||Audrey|
|And the bunch of half caste’s should pay for there lawyers, court cost’s and NOT the TAXPAYER, and while the high court is involved get them to abolish the waitangi tribunal who are nothing but a bunch of leaches who want to destroy NZ and are very close to doing it.||Richard|
|Waitangi Tribunal is clearly biased.||Anon|
|Atop Maori’s claiming the beaches which belong to all New Zealanders||Gerard|
|Because Govt.ministers are easily swayed in their quest for more votes….from vocal minorities.||Ann/Peter|
|I think there should be a national referendum||Maurice|
|The Waitangi tribunal is a rort and very one sided.||IAN|
|This is not a high court jurisdiction.||Brent|
|There should be no avenues whatsoever !!! This is more Treaty bullshit — why we live here I don’t know. We are becoming a nation of low lifes and bludgers.||Alan|
|Yes because politicians are no longer trust worthy – BUT THEN it is difficult to accept that our High Court are 100% trust worthy and apolitical – and not Political appointees. Without authentic New Zealand High Court Judges New Zealand is on a slippery down hill slide – just look at the current Te Mata Peak debacle.||Stuart|
|Wasn’t the ‘Treaty’ supposed to be over and done with, or are we always going to have this millstone round our neck. Talk about the minority ruling the majority, sounds like apartheid to me.||Graeme|
|Bur it’s all an ugly racial mess which not only effects races other than Maori, even the non-radical Maori have had enough, for they all cop a serve from the actions of the stirrers||Don|
|yes, High Court with a unanimous decision||Alan|
|Better still, when the current coalition government is thrown out of office, its National-led replacement should legislate to take off the table, once and for all, the whole issue of claims to the seabed and foreshore. Sadly, however, that particular horse has probably bolted. John Key funked it, and I can’t see any current politician having the mettle to take on the predictable huis, hikois and hakas of disaffected, self-interested Maori.||Graham|
|This taking over of land and crown property, invlves transfer of ownership, which is a legal process. The High Court should be the only avenue to settle these claims .||Pierre|
|The trouble with either method is that the High Court as with the politicians are not bias-free (Sian Elias) so can either be trusted to produce a result which will be blood free? Remember that it was politicians and unelected judges who got us to where we are today.||Rex|
|I believe that all such claims are no longer valid as the Treaty of Waitangi was concluded by the Crown with 100% Maori which no longer exist.||John|
|I have no faith in the Waitangi Tribunal giving an unbiased decision regarding these claims.||Janet|
|The High Court is the only unbiased institution to judge claims. It would do so on the basis of law and to a lessor extent on evidence which is unfactural, without foundation.||Ian|
|We need to be able to see that the claims are considered by (hopefully) unbiased people who are not corrupt as I suspect some are||Arthur|
|Why don’t Maori just sit down and leave things as they are with the marine and coastal areas. There are only 260,000 white Maori in this country. Why do they get the rights over the marine and coastal areas. Just leave things as they are and every body has the right of being owners over our coastal areas. Not just one lot of people.||Robert|
|Yes, we need an unbiased court to hear and decide on claims. However I still believe the marine and coastal area should remain in the hands of all.||Dennis|
|This mess needs to be sorted out. Too many thinking they know all about it and able to chop and change it at their will. Needs sorting once and for all, surely it is obvious it is unworkable and nothing complies so the whole thing needs to be abandoned||Peter|
|Crucial national issues such as this must not be in essence decided on by parties that are not impartial or politicians playing fast and loose for votes. Otherwise we might as well dispense with the Court system which as I understand it is there to dispense justice fairly. Maybe I am naive but the alternative doesn’t bear thinking about.||Gary|
|What a farcical mess NZ is in with the continued system of APARTHEID and racial classification, usually at the whim of any individual, regardless of actual genealogy.||Geoff|
|This is one of the biggest shambles in New Zealand history.||Wayne|
|I suppose we can have faith in those adjudicating at the High Court.||Barbara|
|As long there are no Maori sympathizers on the bench who will consider things impartially and not be swayed by all the crap that the Maori radicals throw at them||Colin|
|Otherwise the the shambolic mess will continue which certain parties would be delighted about||Barry|
|Keep weak politicians out of the process. Even liberal judges are a concern. Hopefully “exclusive ” occupation and use will prove impossible for tribes to prove for the majority of claims.||Tony|
|NZ is rapidly becoming like south Africa was years ago we will have whites only beaches and maori only beaches||Richard|
|It is apparent that “WE” New Zealanders (NOT those “greedy ones”) will be paying dearly once again for what has been rightfully given under full approval to ALL New Zealanders over many years and our future||Marylin|
|….where else can one turn..?? the ‘ Legal Tribal group ‘ judging another tribal group……!||CHowes|
|We are living in the present 2018.. The coastline of NZ belongs o all NZ citizens providing they obey curent local district by-laws etc.||Jo|
|Stop the gravy train.||Mark|
|Scrap the Waitangi Tribunal – it has powers of referral only and thus a waste of time – any dispute in any other question of legal “rights” has to be tested before a court to establish validity, and the court will rule accordingly. Such ruling thus establishes settlement based on the facts presented to the court – not myths and legends – which becomes binding on both parties and available to appeal. The High Court is appropriate in this case.||Andrew|
|Independent and unbiased. I’m sick to death of the whole stinking process of this PC madness||Howard|
|With the proviso that the judges be vetted, to prove that they are not liberal imbeciles.||John|
|On this issue Waitangi tribunal is a joke Politicians are a joke. I do feel uneasy bout the High Court nevertheless||Anthony|
|Evidence needs to be judged by unbiased experts.||Mark|
|Most claims appear to be fictitious||Monty|
|a no brainer !||Bryan|
|Firstly, I strongly disagree with the whole racist process. I do not believe that the “maori” people of New Zealand have any special right over other New Zealanders. The fact is that the Maori people, are like us white people, and are all only recent Colonisers of this land. The habitation “history according to Maori” of New Zealand, only began with the arrival of the Maoris. There were many others living in New Zealand way prior to them. So they are not even “Indigenous” to New Zealand. Just Colonisers like us. Problem with the handling of this Marine and Costal Area Act, is that no-one in Government has the balls (metaphorical) to stand up against the Maoris. These same Maoris are also threatening war if they don’t get their way! What? Lets turn back the clock eh? I see NO GOOD REASON why the Maori should have any special privileges as “equal” citizens in our country. This carry on is killing New Zealand.||Neil|
|The “parts” have had enough money and kind given to them.||Tom|
|Taxpayers must not be forced to fund Maori costs to lodge bogus claims. At least if Maori have to fund their own claims they will only pursue valid claims.||James|
|Politicians have shown they vote to retain their own positions||Bruce|
|For years the important questions over Tribal claims have been fobbed off by Elected Parliamentarians on account of a fear of an electoral backlash to a Tribunal of known bias and dubious moral authority and more latterly to the Law Court which is severely hampered by a binding limitation on what the Court can hear in respect of a case. Parliament needs to Stand up, cease shirking their eklected duty and debate and vote the issues in Accordance with the mandate of the people and that includes calling for a binding referendum as to the validity of the Tribunal> Time this farce over indigenous claims, grievance claims, and compensation claims were terminated. Time also for the equality of English law to be afforded equally to all citizens and institutional apartheid abolished. Time for all political parties, politicians and activists that support Apartheid policies to be called out for the ethnic racist apartheid apologists they are. If Parliamentarians cannot deliver citizen mandated non racist policy, then the Governor General should be looking to disband the Parliament and force the matter back to the people for a solution at the polls. Clearly marxism is pandering to the ignorant and creating cultural discord in order to further their NWO agenda and the dupes little realize that once in power the claims reached will be completely discarded by the NWO elites and all their gains confiscated by those in power as history has proved since 1917||Richard|
|More racial nonsense..||Ian|
|what areas will be next if this passes||David|
|Without taxpayer money supporting ANY claim.||Martin|
|Absolutely. The deal-making track was always going to be a disaster, especially as National claimed they were changing the law to give claimants their day in Court. Yeah right!||Paul|
|Yes – all deals should be dealt with by the High Court.||Walter|
|The claims process is complete and utter BS. No-one owned the foreshore and seabed. It is all manufactured.||Frank|
|The claims process is being driven by opportunism and greed. National should never have changed the law.||Roger|
|What a mess the whole thing has become – and now Bills are being passed by Parliament to put the lies into law. It is atrocious.||Sally|