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Dr Muriel Newman

Submissions to the Marine and Coastal Area Bill

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The following are extracts from Submissions to the Marine and Coastal Area Bill. All submissions can be found on Parliament’s website here >>>

1. STEPHEN FRANKS– see here >>>

…I submit because what this Bill proposes is worse. It is unprincipled, dishonest and damaging. It is the translation to law of misleading political slogans. It flouts values that are critical to maintaining respect for the rule of law, and property rights. It is bad for Maori, and worse for the rest of us.

Specific recommendation:

8(d) Omit clauses 93 to 95 allowing the Minister to create customary marine title and protected customary rights. Those powers will generate continual perceptions (or the reality) of political corruption, especially if the Maori Party hold the balance of power. In light of that likelihood it is constitutional recklessness to leave the temptation of the creation of valuable mineral rights in the hands of politicians, when they should instead be dealt with only by the courts under clauses 96 to 112, applying clear legal tests.

What does the Bill do?

10 Breach of the Treaty – The Bill does the exact opposite of what its promoters no doubt set out to do. It is a fresh breach of the Treaty. The Treaty in Article 2 promises classical property rights – “the full and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession but [with the right to sell at an agreed price, subject to Crown pre-emption]”. The Bill does not offer to anyone the exclusive use possession and enjoyment and right to sell promised by that affirmation of property rights.

11 Replaces one inequality before the law with a fresh and bigger one – Nor does the Bill respect the Third Article’s promise, in Sir Hugh Kawharu’s translation of the Maori version to “…protect all the ordinary people of New Zealand and … give them the same rights and duties of citizenship as the people of England”.

12 Democracy as elite ethnic negotiation – The Bill sets out on a new constitutional course for New Zealand, departing from the promise of equality before the law (Hobson’s “He iwi tahi tatou” (now we are one people). It expressly says that some genes will in perpetuity confer on some New Zealanders political rights to rule their neighbours’ use of land until now held for all in common.

13 Though claiming to respect the Treaty of Waitangi it in fact negates its express promise of equality before the law. Instead it establishes a poorly defined inherited privilege to give trumping power over resource management decisions of democratically elected local government.

14 Fresh derogation from the power of courts to apply the law – Though claiming to reverse a deprival of access to the courts determine property rights it takes the determination of these matters further out of reach of the courts and the application of known law.

15 Damaging to understanding of property rights – Though claiming to respect property rights it abolishes the simplicity and honesty of ownership in the marine area. It creates instead rights that have purposes which are the opposite of the purposes of property rights. For most of the areas concerned they will tend to prevent improvement. They remove clarity about who has the rights to control uses and to benefit from development. Political processes of negotiation and pay-off or trade-off are to replace the normal property right powers that assume most owners have incentives to protect values and to turn to assets to good account as the best way to maximise the long term value of the asset.

16 The new protected customary rights bear no comparison with the positive property rights assured by the Treaty. They will condemn hapu and iwi holding them to continually blocking the proposals of others as the only way to extract tangible returns.

17 Deliberate uncertainty – Though claiming to give certainty where there is presently uncertainty it deliberately introduces vague and undefined terms, and leaves irresistible incentives for hapu, iwi and citizens to spend years litigating to determine the boundaries of new and undefined privileges, and who may claim entitlement to them.

18 Distorts and abandons longstanding legal understanding – Though claiming to recognise or restore customary rights and privileges, it does not apply the well developed common law tests for customary title or customary rights. Instead it omits vital elements of continuity and adverse possession shared by both common law and Maori custom (ahi kaa)….

2. TALLEYS GROUP LTD– see here >>>

The Bill is of critical importance to all New Zealanders, who place great significance in freedom of access, at no cost, to the coastal and marine areas. Because the Bill affects everyone; it, perhaps more than any other previous legislation, should be in plain English; it should be capable of being understood by all, without consulting a lawyer before going fishing or picnicking on the beach. It should not contain important provisions or phrases which lack precise definition, whether they be expressed in English or Maori. Such legislation must be accessible to all.

The legislation goes far beyond remedying the wrongs perpetrated by the Foreshore and Seabed Act 2004.

marine and coastal area

(c) This definition, which includes airspace and water space, excludes water. For the sake of consistency, it should also exclude air. It, and other provisions in the Bill, will enable title holders to charge royalties on any wind generating structures which might be erected in their title areas. Wind-powered electricity generation could hardly be described as a foreseeable development of Maori customary use of the marine and coastal area in 1840. Yet it will be caught in the mechanisms proposed in the Bill.

Clause 49 Participation in conservation processes
A further problem arises in that most iwi and hapu organisations are modern corporations and, as such, cannot properly be the holders of customary rights. Such rights, in accordance with tikanga, reside in individuals and their whanau collectives.

Clause 65 Scope of Resource Management Act 1991 permission right
A customary marine title group can block an RMA application “on any grounds“. Such a draconian power could, for instance, impact severely on a proposal to construct offshore wind or wave powered electrical generation plant. It is easy to imagine how such an extraordinary provision could be exercised in an unprincipled manner, in combination with “economic coercion”.

It is submitted that no government would contemplate such a provision in a non-Maori-related public act. It would be considered contrary to public policy at the very least. Surely government is not of the view that different standards of dealing can be applied, depending upon which racial group is involved. Surely government is not comfortable with the concept of enabling “legalised coercion”.

This clause would also enable Maori aquaculture interests to be unfairly advantaged, by providing a blocking mechanism which could be used to obstruct non-Maori interests applying for consent on new aquaculture permits or the re-consenting of existing permits. Given the significant existing Maori interests in the aquaculture sector and the prospective increase under the Maori Commercial Aquaculture Claims Settlement Act 2004, such activity, were it to occur, would be anti-competitive in nature and contrary to public policy. This clause should be amended to prevent any such occurrence.

Clause 82 Status of minerals in customary marine title area
…Although Maori collected minerals from the foreshore, there is no history of undersea mining which could justify such an extension of title rights, rights which are not available to others. Inherent in applying such differing standards to Maori and non-Maori rights is the risk of New Zealand engaging in “separate development”. Such an approach was found grossly offensive when applied in South Africa….

– see here >>>

The seabed within the area around New Zealand that would be affected by the Bill has potential for world class mineral resources of a range of minerals. Preliminary assessments suggest they could have a potential gross value of several hundred billion dollars. It also contains significant resources of sand used for building infrastructure, and for other purposes

The Bill makes the most far-reaching changes to the mineral ownership and access regime since the mid-20th century, yet the discussion document that preceded it made no mention of minerals at all. Industry interests are making detailed submissions on the potential effects of these major changes, the uncertainties and inconsistencies between different provisions, and concerns about the protection of existing rights. While protecting existing rights is important, the long run effects of the Bill will be determined by the regime that remains when the existing rights expire. Most are prospecting permits that will have expired within 3 years.

Our submission
1. That existing Crown ownership of all minerals within the marine and coastal area is retained by the Crown, with the Crown retaining the right to agree access arrangements for all minerals….

4. ROGER BEATTIE – Sea-Right Investments Ltd– see here >>>

9 The Bill is based on worthless assurances. Assurances from the Prime Minister and the Attorney General about what the Bill will and won’t do are utterly worthless. The looseness of terminology and the sloppiness of procedures will determine actual outcomes. Take the case of customary fishing reserves known as mataitai. When mataitai were being debated in Parliament the politicians of the day, including Sir Douglas Graham, assured the House that mataitai would be small discrete areas of special importance to Maori like reefs or shell beds. Applications for mataitai now routinely cover hundreds of hectares and tens of kilometers of coastline. What politicians intend for the foreshore and seabed, and what will actually happen, will be two completely different things.

10 The Bill is bad for commerce. This Bill over-rides existing arrangements for the use and management of the foreshore and seabed − and associated activities like fisheries and aquaculture. Government is keen for the productive sector to contribute to New Zealand’s economic growth. The investment necessary to improve the sustainable utilization of foreshore and seabed resources will dry up as the rights to use those resources becomes increasingly uncertain.

11 The Bill is a horse’s ass. All New Zealanders own the foreshore and seabed. This Bill diminishes those ownership rights by substituting them with a privilege of access. Ownership is apparently to be reserved for select few. The Bill is a horse’s ass because it:

  • is un-necessary
  • is bad for the environment
  • creates huge expectations
  • is separatist
  • is playing God
  • is an abuse of parliamentary power
  • is for the grievance industry money grubbers
  • is undemocratic
  • is based on worthless assurances
  • is bad for commerce
  • treats New Zealanders as second−class citizens in their own country.

12 The kindest thing to do with the Marine and Coastal Area Bill is to drown it.

– see here >>>

1.7 It is recommended that Parliament: Retain the Foreshore and Seabed Act 2004 or repeal that Act and revert to the situation that existed before that Act was in place, with the qualification of allowing claims to be heard by the High Court and subsequent rights of appeal.


Specific submission 2:
Recognition of customary interests (clause 92(b) & 93-95)

30. As noted above, within Fonterra’s general submission, the company acknowledges the importance of coastal areas to Maori. Fonterra has not sought to question the tests for protected customary rights or customary marine title. However, Fonterra does have some concerns about the process by which customary interests may be recognised under the Bill. In particular, Fonterra is concerned about clauses 92(a) and 93 of the Bill that allow for the recognition of customary interests to occur through an agreement with the Crown, without any input from other potentially affected parties. Fonterra is concerned that this provision, as currently drafted, will cut it, and any other directly affected parties, out of any process whereby customary rights or title may be granted.

31. Fonterra anticipates that in many parts of the CMCA, a number of Maori groups or iwi may have different and potentially competing interests. While the procedure for recognition of a customary right or customary title by order of the High Court provides for a detailed process with scope for public involvement (the Court is required, among other parties, to serve the application on any person who the Court considers is likely to be directly affected by the application), there is no such process where a right is granted by agreement with the Crown.

32. Without some procedure requiring public notice and input, there is a real risk that the Crown may negotiate with an iwi group, with good faith on both sides, only to subsequently discover that another group asserts an equal or superior claim which can no longer be fully provided for.

33. Furthermore there is no requirement for the Minister to provide reasons for the decision to grant (or refuse) a customary right (other than the requirement in clause 93(4) that the Crown must not enter into an agreement unless the applicant group has satisfied the Crown that the requirements in clause 53 or clause 60 have been met). There may be other parties that are directly affected by the proposal and have evidence that is relevant to determining whether the tests for the recognition of such rights have been met.

7. GREYPOWER – see here >>>

Grey Power opposes the repeal of the 2004 Act and has strong concerns with respect to Clause 93 Part 4 of the new Bill which provides for Customary Marine Title to be negotiated with the Crown (Minister) and be formalised by Order-In-Council. Grey Power opposes the inclusion of this clause but supports Clause 96 Part 4 which empowers the High Court to rule on these matters.

– see here >>>

8. In particular, we are concerned that the Bill:

  • Does not provide a long-term settlement to concerns New Zealanders have in the marine and coastal area;
  • Lacks explicitness in key areas, leaves many unanswered questions and creates significant uncertainty; for example,
  • There is a major difference between the definition of customary right in the explanatory notes and the Bill itself;
  • Potentially undermines the existing regime under the Resource Management Act (RMA) from applying to an entire area – i.e. those parts of the marine and coastal area where customary rights have been established;
  • Creates the possibility that a range of property rights can be transacted and changed by secret negotiation;
  • May not, as it stands, contribute positively and fairly to enable business interests to engage and invest efficiently in the development of marine and coastal area resources and other commercial opportunities.

9. Our overall conclusion from assessing the Bill is that a major re-write will be required if our concerns are to be addressed. Failing that, we suggest that a more pragmatic strategy would be for the Select Committee to recommend that the Bill be withdrawn and replaced by an approach based on making a fresh start guided by over-arching principles which the overwhelming majority of New Zealanders would likely agree with.

70. Our considered suggestion is that the Select Committee seriously look at developing a simplified, principle-based alternative proposal enabling iwi and hapu to take their claims for customary title direct to the High Court possibly with input provided by the Maori Land Court. Doing this would achieve the objective of restoring access to justice, uncluttered by the controversial and unprincipled measures


CORANZ also advocates generally for the more than a million New Zealanders who recreate outdoors, and for their right to continue to do so. CORANZ members, and the recreational public, are extensive users of public lands and waters throughout New Zealand, including the coasts and marine areas. They will be significantly adversely influenced by this Bill.

The Bill is one of the most controversial to be considered by Parliament in many years, dealing as it does with allowing privatisation only to Maori tribal groups of what has been Crown (publicly) owned foreshore and seabed since 1840. The foreshore and seabed, called the Common Marine and Coastal area (cmca) in this Bill, makes up at least 100,000 square kilometres. It is a very large area, more than 35% of New Zealand’s dry land area of 270,000 sq km. To propose allocating private property rights to all of this formerly publicly owned “land”, on a racist basis only to Maori tribal groups, is opening a Pandora’s Box of many unseen adverse outcomes. It is already being very divisive on many communities, and this will get much worse if the Bill is passed.

The Bill’s goal is to also impose very strong tribal private property rights to as yet undecided areas of the cmca only to Maori tribal groups. This is a race-based privatisation, masquerading as a private property rights issue. These groups are those who will be able to meet some very unclear criteria, to be verified in secret, without public scrutiny or involvement, relating to their involvement with the claimed areas, back to 1840.

CORANZ Recommendations:

(1) Withdraw the Bill: Rather than embark on this very divisive and destructive exercise, CORANZ urges your Select Committee, for the sake of New Zealand’s future as a multicultural nation, to recommend the Bill be withdrawn. There are so many things wrong with this Bill, and it so favours one small segment of the community, Maori tribal groups,that withdrawal seems the only sane decision.

(2) Retain the 2004 Act: The 2004 Foreshore and Seabed Act is satisfactory in allowing recognition of tribal customary rights, allowing tribes to go to court over their claims. CORANZ strongly supports retention of this Act.

The Bill has many divisive and racist matters that are inadequately dealt with:

  1. The National and Maori parties are introducing this race-based bill for party political reasons
  2. National has no election mandate for this Bill
  3. What would Customary Marine Title (CMT) have been prior to 1840?
  4. No guarantee of continuing free public access
  5. Defining and prohibiting access in wahi tapu areas
  6. Award of Customary rights should be via a non-secret mediation and a participatory High Court process
  7. Bill lowers the bar and increases the rights on awarding customary title
  8. Mana tuku iho is not a customary right and should be dropped
  9. Coastal Recreation downgraded in this Bill compared to the 2004 Act
  10. Money is now the major driver, not mana
  11. Most New Zealanders oppose this new Bill, and want to keep the 2004 Act
  12. National’s deceptions and undemocratic tactics over this Bill
  13. Race based exemption from the Resource Management Act, Conservation Act and RMA Planning documents
  14. Race-based nature of the Bill


6. The Federation considers that the Foreshore and Seabed Act 2004 should remain. We absolutely oppose proposed laws that give any group within society the ability to be exempt, on a racial preference basis, from existing laws such as the RMA or Conservation Act.

11. FEDERATED FARMERS – see here >>>


Federated Farmers opposes the Marine and Coastal Area (Takutai Moana) Bill. While the present Foreshore and Seabed Act is unsatisfactory in that it does not balance competing

rights in the marine and coastal are correctly, the Bill will result in the creation of an even greater imbalance between those rights and will therefore put in place legislation that is more unsatisfactory. Federated Farmers supports the marine and coastal area generally being publicly owned.
12. PETER SANDER – see here >>>

I strongly OPPOSE the bill and want it withdrawn.

We have just come out of a 107 day Occupation Action by a group of Maori calling themselves Ngati Rongo-u. This was as claimed by them action in favour of Foreshore and seabed, customary titles, unextinguished titles, etc.

This action clearly showed to us a type of NZ that we (Papa Aroha Community) certainly do not want, with:

  • Constant intimidation, harassment and threats, this even continues today.
  • Blocking of public access to council road.
  • Blocking public access to foreshore via council road and stream.
  • Indiscriminate use of Wahi Tapu.

Huge financial damage to ourselves and the local community at large by such a small group of misinformed people, attempting to gain for themselves by force something proved by a Court of law that wasn’t theirs to claim. With the changes proposed these types of actions will be even more costly to defend for the innocent party with the claimers getting away scot free.

Threatening to charge for access to the foreshore and sea for not only the public but also ourselves, even tho our property boundary finishes at the high tide mark now, it used to extend 30 odd meters further out to sea, this went when the last change to policy came about.

The abuse of our rights as NZers to a peaceful and enjoyable life. The slow action of the NZ Police, Government and Local Government to act in this type of situation where there is a fear of racial conflict. This at the end of the day of no benefit to either party.

I am not proud to state that I am Maori. Race relations in New Zealand have been set back decades by left wing liberal policies pouring taxpayer funding into the bottomless trough of Maori radical greed.  Large amounts of valuable effort is being added by media and corporate Iwi to build and foster a culture of entitlement that encourages maori to hold their collective hands out for free stuff as opposed to working alongside all of New Zealand to earn our success.

This bill you are proposing hides behind some seriously flowery spin the fact that you are changing something that isn’t broken and opening a vast new flood gate of make believe claims. Rather than seeing an end to the claims gravy train promised in your pre election lies, your government with this bill is on track to open up the next 2 or 3 generations to claims that will make all before them pale into insignificance. National has already betrayed its voters with the ETS that for the rest of the world has gone the way of Y2K bug. I will not vote National again.