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David Round

Submission process a disgrace

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Public submissions on the government’s Marine and Coastal Area (Takutai Moana) Bill may now be made until the 19th of November. Then, after those who wish to speak to their submissions have done so, the select committee hearing the submissions will have to report back to parliament towards the end of February. Presumably this overrides the Prime Minister’s statement that the new bill would be passed into law by Christmas.

The select committee which is hearing submissions is not the Fisheries select committee, which heard submissions on Labour’s 2004 law, but the Maori Affairs select committee. This is disgraceful.

The ownership and administration of this enormous piece of public property is a matter of interest to everyone, not just Maori, yet the very nature of the select committee ~ like virtually all of the ‘consultation’ hitherto ~ announces that this is a matter primarily of interest to Maori. Moreover, all of the committee’s seven members are Maori. They or their tribes are therefore potential beneficiaries of the laws they are making. Perhaps some of them may attempt to serve the public good, but even if so, what happened to justice not only being done but being seen to be done?

In another context this would be described as being judge, jury and executioner. What faith can we have that some, anyway, of the committee’s members will not consider submissions with an open mind or with an eye to the greater good? As we well know, Hone Harawira, the committee’s deputy chair, has stated openly that his concern, even in Parliament, is always only the interests of his own people, nothing more. He has already said that the bill is not nearly generous enough to Maori. Can we seriously believe that he will consider submissions with an open mind?

Sending this bill to such a select committee as this is a travesty of the parliamentary process. Moreover, given previous episodes of behaviour and unparliamentary language, it is easy to imagine the reception which Harawira, for example, might well give to any submissions not to his liking. Decent concerned citizens who might want to make a submission on such an important matter may well be deterred by the thought of having to answer to such a bully-boy. We can ask ourselves already ~ what will be the point of labouring away at thoughtful submissions which are pretty certainly only going to be thrown into the dustbin? Is there actually any point in making submissions? I think we should say something, but perhaps the best thing to do might be to send in a two sentence submission saying that one would have liked to have made a submission in person but has little faith in the integrity of the select committee, which makes a mockery of democracy and the rule of law. If enough of us did that we might send a bit of a message.

Well, what does the bill actually say? It runs to 120 pages at present, being 124 sections and three schedules. This summary must be brutal; once I start going into any detail we shall be here all day. The bill uses new expressions, many of which are also a mouthful. Publicly-owned foreshore and seabed is now known as the ‘common marine and coastal area’, which even the bill’s introductory notes refers to as the ‘cmca’. There are also, as we shall see, ‘protected customary rights’ and ‘customary marine title’ ~ but I am getting ahead of myself.

After a preamble which unquestioningly repeats political complaints about the 2004 Act, section 4 of the Bill makes the doomed claim that its purpose is, among other things, ‘to establish a durable scheme…’ Dream on.

Another purpose is to recognise ‘mana tuku iho’ defined as ‘inherited right or authority derived in accordance with tikanga’, a definition which could lead one anywhere. Section 11 gives the ‘cmca’ a special status, by which neither the Crown nor any person may own it. The marine area, by the way, runs out to the limits of the territorial sea, and includes air space and water space (but not, mercifully, the water itself) and also includes subsoil and bedrock.

The bill would repeal the 2004 Act, and restore and give legal expression to any customary interests extinguished in 2004. By section 17 the Crown continues to own petroleum, gold, silver and uranium, and also continues to own the minerals in the cmca which it owned previously. Before we relax, however, note that section 82 says that any ‘customary marine title group’ (being a group which has obtained a customary marine title order) has ownership of all minerals other than petroleum gold silver and uranium, and section 17’s provisions cease. Ironsands, then, and who knows what else, are still up for grabs.

Section 27 gives all ‘individuals’ rights of access to the cmca. They may enter and leave it, pass and repass over it and engage in recreational activities. But this is subject to section 78, whereby public access to ‘wahi tapu’ may be limited, and these limitations (which may contain exemptions for specified individuals carrying out protected customary rights) may affect fishing rights, although ‘not…to the extent that the conditions substantially reduce the lawful entitlement of fishers under the fisheries legislation’. Fishing rights generally are preserved, as are rights of navigation. The Minister of Conservation is generally in charge of managing the cmca.

Now as to Part III, ‘Customary Interests’. All ‘affected iwi and hapu’ ~ an ‘affected hapu’ is essentially one defined by itself as affected, and so we can be sure that most will so define themselves ~ may ‘participate in conservation processes’ in the cmca. These are such things as declaring marine reserves and marine mammal sanctuaries and declaring protected areas, and also granting permits for whale watching or ~ rather wider in scope ~ the granting of concessions under the relevant legislation. Decision makers must, and surely will, ‘have particular regard’ to the iwi or hapu’s views. From now on, then, most applications for conservation concessions anywhere in the cmca will require iwi and hapu approval.

Then there are ‘protected customary rights’. These are ones which, by section 53, have been exercised since 1840, and continue to be exercised in accordance with tikanga by the applicant group, ‘whether it continues to be exercised in exactly the same or a similar way or evolves over time’. They do not include Maori fishing rights or interests under various statutes, or anything concerning wildlife or marine mammals. The applicant group does not need to own adjoining land. Where a customary rights order or agreement exists, no resource consent under the Resource Management Act is needful, as long as the right is exercised properly. Such rights may be delegated and transferred, ‘in accordance with tikanga’, and may be used for commercial benefit. Resource consent applications may not be granted to others if they will have an adverse effect on the exercise of those rights. The Minister of Conservation may impose restrictions on the exercise of such rights if he believes that such exercise has or is likely to have significant adverse effects on the environment; but whether he actually does is of course another matter.

And then there is customary marine title, the nub of the whole thing. This is defined in section 60 ~ the claimed area must be held ‘in accordance with tikanga’ and have been ‘exclusively used and occupied from 1840 to the present day without substantial interruption’. This might seem to be a stringent test, but bear in mind the government’s reluctance to declare that even popular Auckland beaches might not have title recognised over them, and bear in mind what we are coming to shortly about how such title is to be established. The ownership of adjoining land and the continuous exercise of non-commercial fishing rights in the area are of relevance in deciding as to title, however. Customary marine title (hereafter CMT) provides an interest in land, but no right to alienate that interest, and ‘provides only for the exercise of the rights listed in section 64’ and described more fully thereafter. Commercial benefit may be derived from such title, however. The rights listed in section 64 are:

(i) A Resource Management Act permission right. The group holding CMT may give or decline permission for any RMA resource consent application. The group need give no reasons, and there is no right of appeal.

(ii) A conservation permission right. The CMT group may give or decline permission, on any grounds, for the consideration of applications for conservation activities (decisions as to reserves and protection, and as to applications for concessions) in the CMT area. If protection is absolutely necessary, however, the Minister may proceed without CMT group permission. A special section covers marine mammal watching permits, and there must be consultation on the New Zealand Coastal Policy Statement. There seems to be a certain overlap between this right and the right of all affected iwi and hapu to ‘participate in conservation processes’, above.

(iii) A right to protect wahi tapu and wahi tapu areas (essentially, sacred places, as defined by iwi and hapu). Conditions may be imposed as to public access here, and wardens may be appointed.

(iv) The prima facie ownership of newly-found ‘protected objects’ ~ ancient artefacts, essentially ~ found in the CMT area.

(v) The ownership of minerals other than gold, silver, petroleum and uranium.

How are customary interests ~ protected customary rights and customary marine title ~ to be recognised? The bill provides two ways. Recognition may be done by a ‘recognition order’ made by the High Court. Application to the Court must be made within the next six years. Section 105, somewhat perplexingly, says both that ‘the applicant group must prove that it is entitled to the customary interest claimed’ and also that ‘it is presumed in the absence of proof to the contrary that a customary interest has not been extinguished’. I think we are going to have a bit of trouble here.

Or, there may be recognition of the customary interest by agreement between the applicant group and the responsible Minister. Again, application must be made to the Minister within six years. Agreement is at the Minister’s discretion, at least theoretically. The Crown must be satisfied that the requirements set out for protected customary rights and customary marine title are met. There is to be a register of interests established….

There we are. It may not be the last word, of course….