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Dr Hugh Barr

A Citizens Initiated Referendum to repeal the Marine & Coastal Area Act 2011 is now essential

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There are so many untruths and uncertainties about National’s highly controversial Marine and Coastal Area Act that the public has been vindicated for massively opposing it. The Act claims to address the uncertain issue of Maori customary rights in 1840, something that nobody alive today has any direct knowledge of.

National’s new Act replaces the much less controversial 2004 Foreshore and Seabed Act, that recognised iwi mana, but kept the Foreshore and Seabed in Crown (public) ownership, for the benefit of all New Zealanders, as it has been since 1840, .

Internationally, foreshores and seabeds are considered as public commons, owned by adjacent nations. Their extent and management has been the subject of United Nations conferences on the law of the sea (UNCLOS) in 1958, 1960, and 1982.

These UN Conventions have given signatory nations ownership rights to territorial seas stretching out 12 nautical miles (22.6 km) from their coastlines, and additional management and use rights to associated Exclusive Economic Zones (EEZs) out 200 nautical miles (370 km) or more, at least to the limits of a nation’s continental shelf.

New Zealand’s 12 nautical mile territorial sea depended on the 1958 UN Convention on the Law of the Sea, justifying the subsequent New Zealand Territorial Sea Act of 1977.

In 2003, in the Ngati Apa appeal, the Court of Appeal made the astounding decision that the foreshore and seabed were just like dry land. It also said that Maori customary title to the foreshore and seabed might exist.

The most important Maori customary marine right are over customary food-gathering places. These are already recognised in legislation – Stewart Island mutton-bird harvesting rights, the 1993 Sealord’s commercial fishing agreement, (which gave iwi 20 per cent of the commercial quota), and the 2004 Maori Commercial Aquaculture Claims Act that set aside 20 per cent of aquaculture sites for Maori.

There are also provisions in the Fisheries Act for exclusive customary fishing areas (mataitai).

The National Government is now asking non-iwi Kiwis to pay again for supposed customary rights to fisheries and forgo other rights that are not customary, in this Act

Were there any other marine customary rights in 1840? Probably not. Certainly not mining, building marinas, aquaculture, etc. that National proposes to include for the benefit of corporate iwi.

Before 1840, anarchy reigned over much of the country. In 1836 a war raged in the Bay of Plenty between Ngati Haua (Matamata) and Te Arawa (Bay of Plenty). Ngati Haua sought revenge for the killing of one of their chiefs.

Missionary records show many hundreds were killed and eaten in these battles. There was no Maori nation and no Maori police force to stop these incessant wars. Only after 1840 was law and order established by the British Crown.

National’s new Act evades questions of proof of customary activity by setting up an artificial

framework and rules for privatising part or all of the 100,000sq km of the foreshore and seabed (equivalent to 35 per cent of New Zealand’s dry-land area) on a race basis solely to part-Maori groups, many of whom have gene pools that are very white.

Since 1840 the foreshore and seabed have been Crown-owned – owned by all New Zealanders. So this Act will initiate iwi seabed privatisations on a potentially massive scale.

The only marine areas which pre-1840 tribes would have visited regularly were good fishing spots including shellfish beds. Hence it is not surprising that it will be difficult for descendants to prove exclusive occupation of the foreshore and seabed. It was not technically possible for warring stone-age tribes to do this.

Iwi fishing areas can already be protected for customary use as mataitai under the Fisheries Act. They do not need this marine Act.

Deciding in the High Court whether the Act’s conditions have been met will be difficult because of lack of verifiable evidence of which areas were actually used, especially before 1840.

Evidence will be even more uncertain with wahi tapu areas, from which the public will be prohibited and can be fined up to $5000. These will be defined solely by the applicants and custom (tikanga). This highlights the unverifiable, and so unacceptable, nature of this Act.

National’s Act will allow iwi to bypass the High Court and have agreements decided in secret to be passed in Parliament. The Maori Affairs select committee made no significant changes to the legislation in spite of overwhelming public opposition, highlighting that these agreements will not need to be rigorously proved. Any questionable claims can be put through this process, just as National’s former Bill was, regardless of needing to prove the claims.

Guaranteeing free public access is a major issue. The 2004 Act provides this. Attorney-General Chris Finlayson reluctantly added the words “without charge”. This will do nothing to allow public access over wahi tapu areas, nor stop part-Maori demanding “koha”, or threatening the public going into disputed areas, as happens regularly now.

The controversial part of the 2003 Ngati Apa decision was that foreshore and seabed (wet land) was legally the same as dry land, out to the deepest part of the ocean.

Yet Maori land ownership customs show they are quite different. Dry land required fires of occupation, ahi kaa, to be kept burning – not possible on the foreshore and seabed. So Maori ownership of it cannot exist in the traditional way it does for land.

National’s Act sets up major exploitation privileges for part-Maori tribes who qualify, and waives significant laws applying to the rest of us such as parts of the Resource Management Act. This is an apartheid system masquerading as customary property rights.

Labour’s 2004 Foreshore and Seabed Act re-asserted Crown ownership, nullifying the Court of Appeal’s 2003 decision. By doing this, Labour averted Maori apartheid on the foreshore and seabed. Now National wants to introduce it.

National’s Act was initiated to obtain Maori Party support in Parliament. National employed obfuscation, dirty tricks and straight lies about the dangers of the legislation to successfully hoodwink the public. But even this was largely unsuccessful in gaining public support. Public consultation in April last year, was rushed through so as to minimise opposing submissions. Yet 77 per cent opposed repealing the 2004 Act and 92 per cent opposed privatising the coast to part-Maori. Submissions against the legislation to Parliament in November 2010, were even more emphatic, with over 95% opposed.

John Key promised he would drop the legislation if there was not widespread support. But he happily broke his promise and allowed the legislation to pass.

This Act is a massive fraud against the public, as customary fishing rights have already been compensated for, and occupation of the foreshore and seabed was not Maori protocol, or technically feasible. Yet he Maori Party greedily insists the whole of the previously Crown-owned foreshore and seabed should immediately become iwi owned, without further proof.

Because of the many flaws in National’s Act, the lack of

any evidence that iwi were able to occupy the foreshore and seabed before 1840, and because the Crown property rights were not created until the 1977 Territorial Sea Act, National’s new Act should not exist, and should be rescinded. This would return the “common” marine and coastal area to Crown i.e. public ownership.

The Coastal Coalition is taking the first step of rescinding National’s racist Marine Act by initiating a Citizens Initiated Referendum to remove the legislation, The first step is gathering signatures from registered voters to gain a public groundswell. We expect to start collecting signatures in the very near future. If you would like to assist us, please visit www.CoastalCoalition.co.nz for details.