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Dr Hugh Barr

Our Foreshore & Seabed: precious enough to fight for

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Though our Citizens Initiated Referendum (CIR) has failed narrowly to get to its target, the Coastal Coalition will continue to campaign strongly against National’s Marine and Coastal Area Act (the 2011 Act). So I ask that all Coastal Coalition members stay in touch, and help us with this fight. 

Already the coastal tribes’ gold-rush has started. Twenty five claims for Customary Marine Title – and/or the lesser right of Protected Customary Rights – have been lodged for 22 stretches of coast, including some for whitebait rights, which should be illegal under the 2011 Marine and Coastal Area Act (2011 Act).

Claims so far are for areas around Motiti Island near Tauranga, Cavali Islands (Far North), Ninety Mile Beach, and the Herekino, Wangape and Hokianga Harbours, Kaipara Harbour, Eastern Bay of Plenty, East Cape, Mahia Peninsula, Hawke’s Bay, Queen Charlotte Sound, South Otago and Stewart Island. Further More details can be found in the Appendix.

There are two different legislative paths that claims can follow. One is via the High Court, called an application for a recognition order. The applicant is required to advertise, and any interested party can register under Sections 103 (3) and 104 of the 2011 Act, and become a party to proceedings. Interested parties appear to have 20 working days in which to register. Proceedings are public.

There are currently twelve claims on this path, of which only one has been advertised so far, for an area southwest of Stewart Island. I have registered as an interested party for this case.

The second path is the controversial “by agreement” path, where secret negotiations are held with the Treaty Minister Christopher Finlayson, the architect of the 2011 Act. Under this path all other interested parties are locked out of the discussions. To date there are thirteen known applications. Nine of these are listed on the Ministry of Justice website – see Appendix. Other claims may be proceeding in secret.

It is essential that independent groups are present as interested parties at any Court hearings.  Crown lawyers may not be instructed to adequately satisfy the 2011 Act’s requirements. In my appearances at Waitangi Tribunal hearings in the 1990s, also under a National government, Crown lawyers asked me questions that showed they were on the side of the claimants, and  not there to defend the public interest.

The Crown rarely questioned the claimants’ evidence at Waitangi Tribunal hearings. So only one side of the case was ever put and heard by the Tribunal – that of the claimants. So it is important that interested parties who want the foreshore and seabed to remain in public ownership,  be present, to adequately test the applicant’s case. We have a number of important points, based on analysis that we will put forward for the judge to consider. As well. taxpayer funds have been put aside to assist any applicants with their cases.

Minister Finlayson has already shown his contempt for public involvement, by having secret negotiations in his 2011 Act. He is not interested in open or transparent democracy or the rule of law. He will make his “by agreement” deals in secret, and have them rubber-stamped by Parliament, in the same way that Treaty Claim settlements are rubber-stamped without any changes being able to be made. This is even though 2011 Act applications are quite different from Treaty Claims, in that they need proof that the Act’s conditions are satisfied.

If there are any members of the Coastal Coalition that can help us on legal matters please contact me or Muriel. We would greatly appreciate help. Likewise anyone who sees any local advertisement of an application in the Public Notices, please let us know. And consider registering yourself.

This divisive decision about race-based ownership was started by a Court of Appeal decision in 2003. The Court overturned settled New Zealand law, to enable tribal groups living adjacent to the coast in 1840 to make claims.

Prior to the Court’s decision, the foreshore and seabed – the major part of New Zealand’s Territorial Sea – was owned by the Crown, and managed protectively by the Minister of Conservation. This was primarily because, with the signing of the Treaty of Waitangi, New Zealand became a British colony, and adopted British law.

Under British law, Maori customs such as slavery, cannibalism and inter-tribal warfare were prohibited. Many tribes strongly supported these prohibitions, given the deadly and socially destructive nature of these activities. In addition, under British law the foreshore and seabed was Crown owned, out to the then international limit of three nautical miles. It was part of the package of British protection.

The second decision required to enable coastal iwi to claim the foreshore and seabed was to argue that it was just like dry land. Then the Maori Land Court would have jurisdiction. Under British rule in 1840, which did not allow terra nullius (land owned by no one), all land in New Zealand prior to signing the Treaty, was considered owned by some tribe, according to who had conquered it last, before 1840. Under the Maori Land Act the land had to be of one of six types.

So all the foreshore and seabed was able to be considered Maori customary “land”- if the adjacent land remained as Maori customary land, as there is no other qualifying category. The decision was a simple deconstruction to achieve the decision the Court apparently wanted – that ALL the foreshore and seabed, not already specifically allocated, was henceforth able to be claimed as Maori customary land.

The decision that the foreshore and seabed was just like dry land is astounding. Maori customs of land ownership required that fires of occupation, ahi ka, be kept burning to signify tribal ownership. This is, of course, not possible in water. Maori traditions too, have a different god for the sea, Tangaroa, from the gods of the land. Different gods equal different spheres showing land and sea are different to Maori. Land and water ecosystems are obviously completely different too.

Tribes, being familiar with the Maori Land Act, knew that, with this Court decision, getting title was now a sure thing. So they flooded the Maori Land Court with claims. The then Labour Government, was forced to pass the 2004 Foreshore and Seabed Act (the 2004 Act) to overturn the Court of Appeal’s arbitrary political decision to enable the privatisation of the foreshore and seabed. The New Zealand First party strongly supported it. National, the Greens, ACT and Peter Dunne, all strongly opposed this 2004 Act.

The 2004 Act did not allow iwi customary ownership of the foreshore and seabed. But it did allow for recognition of tribal association. It also allowed the setting up of wahi tapu – forbidden areas, where the public generally would be prohibited – which are also allowed in the 2011 Act. No claims were finalised before the 2011 Act was introduced.

Labour was defeated in the 2008 Election, and New Zealand First dropped out of Parliament. This gave the National Party (58 votes) a majority, with the Maori party (4 votes). Christopher Finlayson, a former negotiator for Ngai Tahu against the Crown, became Minister of Treaty Settlements, and organised a deal with the Maori Party by promising them to repeal the 2004 Act.

Finlayson used pro-Iwi panels, and suppressed the results of the public consultation (75% were against a law change), to push the 2011 Act through Parliament, with the help of the Maori Party (4 votes) and Peter Dunne – 63 votes in total. Labour (39), Greens (9), ACT (5), Jim Anderton, Chris Carter and Hone Harawira could only muster 56 votes against, with two Labour abstentions.

John Key lulled the public by saying that, if there wasn’t widespread support, the 2011 Act would not proceed. There was 95% opposition, but the results were suppressed and the Bill was passed regardless. National MPs and Peter Dunne, who all opposed the 2004 Act on the basis that it would divide the country, all voted for the 2011 Act, demonstrating their hypocrisy.

The present numbers in Parliament don’t support repeal of the 2011 Act. National’s majority is similar to what it was in 2011. Though New Zealand First, which has always strongly backed Crown ownership, is back in Parliament, it has only eight MPs. The Greens opposed the 2011 and 2004 Acts, but because they didn’t give iwi enough, not because they supported the foreshore and seabed being owned by all New Zealanders. And Labour, apparently does not support public ownership either.

We, the Coastal Coalition and other opponents do not intend giving up this battle. Crown ownership of our foreshore and seabed was repealed for reasons of political expediency, not justice. It is an appalling piece of legislation and we remain totally opposed to it.