About the Author

Avatar photo

Dr Hugh Barr

New Government must review the foreshore and seabed shambles

Print Friendly and PDF
Posted on

It is now over six years since the racist Marine and Coastal Area (MACA for short) Act came into force, under John Key’s National Government. The goal of the Act was give Maori tribal groups the right to claim control of New Zealand’s publicly owned foreshore and seabed. To date it has proved very difficult for tribal groups to obtain customary rights to the foreshore and seabed. Only one highly unusual case, in a very remote offshore area, has qualified so far.

In the MACA Act, the strongest type of privatised seabed title is called Customary Marine Title (CMT). To qualify, a tribal group must show that it has “exclusively used and occupied the coastal area from 1840 to the present day, without substantial interruption” (Section 58 of the MACA Act). It gives major private property rights to any tribal group that meets this very stringent condition.

There are two different processes that a tribal group can take to qualify. The first is secret negotiations with the Crown, (Section 95) which, being secret is much cheaper in legal expenses and so has been usually chosen. It also removes groups opposing the claim from actively participating, no doubt perceived as a big advantage by the tribal groups.

However the Crown does not have to accept an applicant, and, of course, must not accept them if they do not meet the required conditions. So far, the Crown has dismissed a significant number of claims, showing it had serious doubts about the cases it has investigated.

Alternatively the tribal group can go to the High Court (Section 100). They must notify their claim publicly in a local newspaper, giving other interested parties the ability to register and oppose the claim. My Council CORANZ, the Council of Outdoor Recreation Associations of NZ, has become a party to a number of claims in this way, something we cannot do with Crown Secret negotiations.

All claims, once accepted, have to be notified, to the Ministry of Justice. The Act requires any developer wanting a resource consent in a Claimed area, has to discuss it with the claimants, even before a Claim is proved – for example, lengthening a wharf or launching ramp, or extending a coastal boat shed, marina, etc.

If the claim is proven, then any Resource Consent applicant in the area has to gain the approval of the tribal group, just as if its marine and coastal area were private land. Thus they can veto any RMA consent, allowing the group to charge fees for allowing the consent to proceed.

A major danger of CMT to the public, is that so-called “sacred” areas, called wahi tapu areas, that under Section 78 can be declared, where the public is forbidden to go. They attract massive trespass penalties of up to $5,000 for every trespass – Section 81 Compliance.  Section 80 (Wardens and Fishery Officers) shows that, in spite of talking about wahi tapu as “sacred areas” a major use for them will be as private fishing areas for the tribal group – with Fisheries Officers giving up their time to help patrol them. Under Section 81, Local Authorities also have to discourage public use and weigh in against their own ratepayers – an unhelpful conflict of interest because the Act forces them to be policemen against the public.

Why gaining CMT is difficult:

When New Zealand became a British Colony in 1840, it adopted British common law, including Crown ownership of the foreshore and seabed. Hence, from 1840 the public has generally had a right to access and use our foreshore and seabed. In many areas, such as the Bay of Plenty, the East Coast, Mahia Peninsula and the Hawke’s Bay, the foreshore became the de facto road, as it was much easier to travel on than through the rugged inland forests. For example, livestock were driven along the foreshore between Hawke’s Bay and Gisborne, because it was by far the easiest way to move sheep and cattle.

 In the East Cape area the stagecoach route along the beaches and over headlands has almost disappeared. But is still shown on cadastral maps.*

Urban New Zealanders have flocked to our beaches whenever opportunity was provided. Train excursions from Wellington to Plimmerton in the 1880s, and the harbor ferry to Days Bay, Wellington were popular. In the early 20th century, baches appeared all over the coasts where fishing, boating, surfing, yachting, diving, swimming, or other relaxation activities were popular. Because New Zealand’s coasts are so attractive, having a bach at the beach became the norm. City dwellers greatly outnumber locals during the holidays in many coastal areas including Northland, Coromandel, the Bay of Plenty, East Coast, and the Hawke’s Bay.

This is why most of our mainland coast has never been “exclusively used and occupied” by tribal groups since 1840,and why it is so hard for them to meet the requirements for CMT.

 “Gold Rush” of last Minute Claims:

The MACA Act required all claims to be filed within six years of the start of the Act namely by 3rd April 2017.  During those six years only some 40 claims came forward for consideration. Crown Law turned down a number of these, because it was clear that they did not meet the conditions.

No Mainland claim had been put forward as meeting the requirements for CMT in that time. CORANZ has become a party in most claims that have come to the Wellington High Court. Most are stalled because they cannot prove the requirements for CMT.

Most tribal claims have been highly optimistic, almost invariably claiming out to 12 nautical miles (22 km), from the shore – the maximum that they can claim to. This is even though the territorial sea only went out 3 nautical miles in 1840, and only went out to 12 nautical miles from 1977.

No-one will go out to the edge of the territorial sea, when research shows that most of the fish species that iwi eat are much nearer to shore, or – in the case of shellfish – on the foreshore itself.

Gold Rush” tsunami of last-minute claims

So it was astounding that almost every tribal incorporation applied for their nearest piece of coast. Almost 400 of these late claims were for direct negotiation with the Crown, and some 200, as a backstop, to be heard by the Wellington High Court – in case the Crown refused to negotiate, as is its right.

This massive filing has clearly being orchestrated by the tribal elites. Many of these claims overlap with other claims, as has already happened with a number of claims lodged before 3rd April, 2017. It, of course, is not possible for two tribal groups to “exclusively use and occupy” the same area of coast. Almost all the coast of New Zealand has been claimed two or three times over – including remote offshore islands that no tribal group has ever occupied.

Massive subsidies for claimants lawyers:

While over $13 million was given by the previous Government to pay lawyers and others to argue their claims, non-tribal participants such as CORANZ have to pay their own way. Now that the new Labour-NZ First-Green Party Government has been sworn in, it needs to take a new look at the shambles created by John Key’s previous race-based regime, and clean it up.

A Ngati Pahauwera Claim to foreshore and seabed between Wairoa and Napier, should be withdrawn.  

The tsunami of late claims needs to be reviewed. Overlapping claims with no chance of success should be withdrawn. The Crown does not have the resources to open-endedly fund this enormous shambles.

The Justice Department website outlines the 380 claims received so far for the whole of New Zealand for direct Crown engagement and shows 161 of these are for Northland. Almost all of these will be in the tsunami of late claims – see HERE.  

*See also “Stealing our Beaches”, in Twisting the Treaty Tross Publishing, pages 186-237, 2013.