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Rex Beer

Rex Beer

Marine and Coastal Area Act 2011 – How will it be argued?


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I am an ‘interested party’ in the Marine and Coastal Area Act 2011 and am opposed, mainly on the general principal of equality of rights – but also because I am a keen fishermen and don’t want to see any restrictions on my right to fish.

I am not part of any organisation, and the views expressed following are my own.

I have been looking at MACA a lot since I first heard of it a year ago, and one thing strikes me – how vague it is. It is riddled with uncertainties and general matters that will require interpretation

At my last count there are 6 matters requiring clarification, and there will be more. I am sure that there are arguments that could strengthen opposition to claims – which need to be put to the High Court in a cogent and persuasive way.

Here are some of my thoughts on some of those arguments. concern

Hearsay

If historical evidence is given that is based on what claimant’s ancestors passed down orally, this is “hearsay” and cannot be relied on.

Further, hearsay over multiple generations is obviously even more unreliable, as it can reasonably be assumed that “facts” are more likely to be inaccurately recounted or remembered, if told multiple times, and many years apart. Some of the activities that are claimed to have happened 170 years ago, have been claimed to have been passed on orally through about 7 generations.

Even if evidence has been obtained from historically written information, if that was previously obtained from orally obtained evidence, it was hearsay and therefore is still unreliable. It is not credible that such information will be reliable today.

Another reason why hearsay should not be allowed, is that it is easier (and more likely) for witnesses to tell what is untrue or only partially true, if there is no reliable way of disproving it.

There is no reason to give “hearsay” any more credibility than in any other case under normal court rules. Therefore, if substantiating evidence – other than hearsay – is not obtained, the claims should not be granted.

A related matter, is the use of “expert witnesses” to give historical evidence. This might sound credible, but needs to be considered with caution, given that:

– witnesses are asked to support the claimants’ case. So it can be assumed that they are not going to say anything that will prejudice the case.

– if witnesses are paid to testify, there is even more motivation to not be entirely unbiased. 

– If an expert witness, gives evidence of “research”, that is based on historical hearsay – ie assumptions that have been told orally previously and then written down – it is still hearsay, and should be treated accordingly.

Exclusive Use

To prove a Customary Marine Title exists, under section 58, the Act requires that the applicant group:

(a) holds the specified area in accordance with tikanga; and
(b) has, in relation to the specified area,—
(i) exclusively used and occupied it from 1840 to the present day without substantial interruption…

Where there are multiple over-lapping claims to the same areas, this must cast considerable doubt on whether any one group has had exclusive use since 1840. The greater the number of over-lapping claims, the greater the doubt about any one claim being ‘exclusive’.

Even if one group is able to establish a greater claim than others, the fact that other groups have also claimed occupation and use, surely means that no one group can establish “exclusive” use. That is, there has been sharing of the area, which is not “exclusive” use, and therefore does not meet the requirement in the Act for valid customary title.

A second issue, is that there is nothing in the Act, to suggest that “exclusively used and occupied” can be precluded only by other Maori groups.

What activities will preclude exclusivity? Section 59(3) says, “The use at any time, by persons who are not members of an applicant group, of a specified area of the common marine and coastal area for fishing or navigation does not, of itself, preclude the applicant group from establishing the existence of customary marine title.”

So I assume that any other public activities will therefore preclude exclusivity. So far, I have a list of 19 activities that if proven, should be able to be presented as evidence to preclude exclusivity:

  1. Lying on the inter-tidal zone
  2. Walking on the inter-tidal zone
  3. Playing in the sea
  4. Swimming in the sea
  5. Surfing in the sea
  6. Towing things such as water skiers
  7. Launching and retrieving of boats (over the inter-tidal zone)
  8. Use of public and private wharves
  9. Use of marinas
  10. Boats on moorings
  11. Mining of materials from the sea floor
  12. Reclamation of new land from sea
  13. Building, maintaining and using of port facilities (wharves, cranes, sheds, breakwaters etc)
  14. Dredging
  15. Dumping of dredged (or other) materials
  16. Installation of navigation markers
  17. Building and maintaining and using bridges and causeways over sea
  18. Electric and communication cables
  19. Public travel (over shore inter-tidal zone)

Statutory Deadline

In dealing with the applications, in section 100, the Act outlines who can apply and when:

(1)An applicant may apply to the Court—
(a) for a recognition order; or
(b)to vary or cancel a recognition order.
(2)However, the application must be filed not later than 6 years after the commencement of this Act, and the Court must not accept for filing or otherwise consider any application that purports to be filed after that date.

In section101, the Act outlines exactly what details their application must contain:

An application for a recognition order must—

(a) state whether it is an application for recognition of a protected customary right, or of customary marine title, or both; and
(b) if it is an application for recognition of a protected customary right, describe that customary right; and
(c) describe the applicant group; and
(d) identify the particular area of the common marine and coastal area to which the application relates; and
(e) state the grounds on which the application is made; and
(f) name a person to be the holder of the order as the representative of the applicant group; and
(g) specify contact details for the group and for the person named to hold the order; and
(h) be supported by an affidavit or affidavits that set out in full the basis on which the applicant group claims to be entitled to the recognition order; and
(i) contain any other information required by regulations made under section 118(1)(i).

This means, that any variation of an application made after the 31 March 2017 deadline, cannot be lawfully accepted, including – the area claimed, the parties making the claim, the things claimed, and so on. In other words, the application must be considered as it was made before the statutory deadline.

In fact, any change to applications that are made to try and “rationalize” multiple claims to the same area, cannot be lawfully considered, as that represents a new application for a recognition order, that had to be made by the 31 March 2017 deadline. 

Further, for emphasis, I repeat, the Act requires an application to be  “supported by an affidavit or affidavits that set out in full the basis on which the applicant group claims to be entitled to the recognition order”.

Therefore, it must follow that any affidavit made after 31 March 2017, cannot be accepted.

That is the legal position. From a “common sense” point of view, it might be argued that some leeway should be allowed to enable claimants to add or change some of these things later. But, I submit this is not so, as claimants had 6 years to make their applications, and they were not forced to delay making their applications, nor forced to make incomplete or multiple applications and then seek to expand or change them later after the statutory deadline.

Wahi Tapu

With regards to the establishment of wahi tapu, the in section 78, the Act requires:

(3) If a customary marine title is recognised under subpart 1 or 2 of Part 4, the customary marine title order or agreement must set out the wāhi tapu conditions that apply, as provided for in section 79.

So, wahi tapu areas and conditions have  to be given in a Customary Marine Title Order.

However, it is not clear (a) how wahi tapu areas are to be applied for or (b), how they will be determined. This is important to interested parties, as wahi tapu is one of the major “threats” to public use.

The Act states in section 78, that:

(2) A wāhi tapu protection right may be recognised if there is evidence to establish—
(a) the connection of the group with the wāhi tapu or wāhi tapu area in accordance with tikanga; and
(b) that the group requires the proposed prohibitions or restrictions on access to protect the wāhi tapu or wāhi tapu area.

The Court will have to decide what wahi tapu areas to recognise. It is important that interested parties have a say in how this is determined – including what reasons will be accepted for justifying wahi tapu, what evidence will be needed to substantiate the area of a wahi tapu, how big wahi tapu areas will be allowed to be.

Another question that needs answering, is whether it will be possible that more and/or bigger wahi tapu areas can be obtained in future? If so, the adverse effect on others could increase in future in a way that is unknown now. Moreover, this would allow groups to not try and obtain wahi tapu at the outset, but to wait until later to try and obtain more.

The Act states in section 79:

(3) A customary marine title group may seek to vary or revoke a wāhi tapu condition by applying to—
(a) vary a recognition order under section 111; or
(b) vary an agreement.”

However, section 79 also states:

(1) The wāhi tapu conditions that must be set out in a customary marine title order or an agreement are—
(a) the location of the boundaries of the wāhi tapu or wāhi tapu area that is the subject of the order; and ….”

So it seems that while there is authority in the Act to change existing wahi tapu areas, there is no authority for any new areas to be obtained later. This important issue needs to be clarified.

Rahui and Intimidation

Rahui

In addition to wahi tapu restricting public access, holders of a Customary Marine Title will be able to declare rahuis, that attempt to prevent access and activity that is actually lawful. As there does not appear to be any legal basis (in this Act or any other), for a rahui, it is assumed that it will not be enforceable. Nevertheless, the public will be subject to coercion to prevent their legal activity.

Intimidation 

In recent years, there has been intimidation of the public, by some Maori; attempting to prevent others from lawfully accessing public areas and carrying out lawful activities. For example, I can cite four recent cases, reported in the Herald, as follows –

(i) An attempt to stop public access of the Waitakere range, for the reason of reducing the spread of disease affecting Kauri. Well intentioned no doubt, but it is not the right of Maori to exercise what is the responsibility of local government.

(ii) An attempt to stop the public fishing in Matai Bay (Northland), for reason of replenishment of fish stocks. Again, the responsibility of government, not local Maori.

(iii) An attempt to illegally intimidate the public to prevent lawful access to a beach in Doubtless Bay, Northland.

(iv) Reported in the Herald – off Albatross Point, south of Kawhia harbour …“surfers and boaties say they have been shot at, abused or had property vandalised”….

It would be naïve, to expect that, if Customary Title is granted, some Maori will not seek to gain greater control than they are legally entitled. Further, some tribal groups will no doubt seek to obtain legal powers beyond what this Act provides. In other words, customary rights to the coast will be treated as a “foot in the door” – for other New Zealanders, things could get worse later, as once this door is opened, it will be very hard (probably impossible) to close.

Conclusion

How general matters will be determined will be of vital interest to opposing parties. To achieve consistency, the Court will have to set precedents, and then presumably stick to them, and not allow any further arguments on those matters. If arguments are submitted to a claims hearing, it will be too late to argue anything not specific to that claim. It seems to me, that much of our ability to prevent or reduce the extent of claims granted, will be won or lost in arguing general matters.

Therefore, it is very important that the argument of general matters is carried out with a strong legal effort, led by a legal counsel of high quality and standing, to make the best argument and have maximum impact on the Court.

The form of hearing on general matters, has not been decided – at least not that I have heard about. Some claimants’ counsel are arguing for an “interlocutory hearing”. But there is an argument that general determinations should be made in initial claims hearing(s).

I am personally not sure which approach will be best for opposing parties, but we need to take part in this decision process and work towards obtaining the services of an appropriate legal counsel.