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Dr Hugh Barr

Our foreshore and seabed now massively at risk from tribal claims

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The National Party’s desire to pander to the minor Maori Party led in March 2011, to the Marine and Coastal Area (MACA) Act. It gives major property and other rights to any Maori tribal group that can prove that it has “exclusively used and occupied an area of coast from 1840 to the present day”.

This is a very difficult condition to meet, because many tribal groups lived partly on fish, and so lived near the coast, where they could collect shellfish and catch fish. Tribal areas often overlapped.

From the signing of the Treaty of Waitangi, in 1840, when New Zealand became a British colony and adopted British law, the territorial sea, out to 3 nautical miles from the coast, was Crown i.e. publicly, owned, with the public having free access to most of it, just as it was in Britain. This alone made exclusive occupation difficult. As well, the coast was often easier to travel along than New Zealand’s rugged bush-clad road-less interior, of the nineteenth century. This was especially the case in the Bay of Plenty and Hawke’s Bay areas, where the coast was often a public thoroughfare, sometimes  designated as a road.

Under the MACA Act, in the six years from 2011 to the close-off date for claims on April 3rd 2017, only about 50 claims were lodged, and only one, a special case of mutton-bird islands, on a very remote place was granted. A significant number of claims were turned down by the Crown as not qualifying.

However, after the close-off date of 3rd April, an avalanche of claims were registered, said to be as high as 500. Readers may have seen the claims in the public notices of various daily papers during May, as was required by the Act. Maori tribal groups were obviously colluding to put pressure on the National Government, before the coming election.

Why the MACA Act is such a threat to non-Maori and Maori users of the coast, is that the Act, gives major ownership rights to any tribal group that gets awarded Customary Marine Title (CMT). These rights include the ability to declare wahi tapu, (Section 78 of the Act), so called “sacred” areas, where trespass by anyone not part of the tribal group, will be fined up to $5,000 for each trespass.

Yes, that’s right, a fine of up to $5,000 against anglers, boaties, dog walkers, surfers, and other beach and coastal users, on what were formerly publicly owned areas, that they previously had a right to use  since 1840, and were being locked out of. The local district or regional council would be required to act as policemen, stopping this trespass. As well as Fisheries Inspectors (S 80 Wardens and fishery officers), and tribal vigilante groups. Wahi tapu areas would be more accurately called private tribal fishing and surfing areas. None exist at present, but there is a massive incentive for tribal groups to try to create them.

As well each tribal group gets veto rights in its claimed CMT area, from when it lodges its claim, for all Resource Management Act resource consents in its claimed area, including mooring buoys, marinas, building or extending a boatshed on piles, eg at Paremata and Evans Bay in Wellington, and the Orakei Basin in Auckland.

Should you build without the tribal group’s permission then you can be imprisoned for up to two years, or fined up to $300,000, of which only 10% of the fine goes to the Crown, while the other 90% goes to the tribe. This gives the tribal group a huge financial incentive for vigorous, if not vindictive, policing. Astoundingly, this is even before the tribal group proves that it meets the conditions for gaining a CMT. This is a gross miscarriage of justice. It could be one reason why so many tribal claims have been lodged. It should not be permitted.

As well there are at least eight additional rights with money-making potential for any tribal group that can prove that it qualifies for CMT. Another spur to the May avalanche of claims is that each tribal group registering a claim has a guarantee from the Office of Treaty Settlements that it will be reimbursed by OTS with taxpayer funds for legal and historic research fees. These can be significant for all claims from up to $156,000 for small claims, to over $300,000 for complicated claims. This is another massive inducement for tribal groups to make all these late claims.*

In contrast, any non-tribal group has to pay all its expenses itself. Again the ease of getting reimbursed by the taxpayer is also a very large incentive for tribal groups, and their lawyers and historians, to lodge this avalanche of late claims. It’s money for jam. They have nothing to lose. Most of New Zealand’s coast is covered two or three times over, with these late claims.

This sorry state of affairs over the Marine and Coastal Area, highlights just how far New Zealand has degenerated in the nearly nine years of National Government rule from being a democracy, to being a place where people claiming to be of Maori descent from a tribe living on the coast, have race-based rights that other citizens do not have.

Hugh Barr is the secretary of the Council of Outdoor Recreation Associations of New Zealand, and has been involved in challenging MACA Claims since 2010.