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Frank Newman

The beaches are becoming a battleground

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Rahui. It’s becoming an important word. It’s also been in the news a lot lately. To place a rāhui on something is to restrict or prohibit access, normally temporary to allow replenishment.

According to a Professor of matters Maori, rahui can take on a number of forms. There can be a conservation (replenishment) rahui, they can be placed where there has been a drowning, or where some form of political action is involved (in 1979 the Professor suggested placing a rahui on Maori rugby players to stop them joining a tour to South Africa).

This is quite different from a Wahi Tapu, which is a reserve empowered by the Historic Places Act 1993 and is defined as a place sacred to Maori in the traditional, spiritual, religious, ritual or mythological sense. These tend to be site specific but may also be an area.

A rahui has been placed over the Waitakere Ranges by the mana whenua in a bid to stop the spread of kauri dieback disease. Auckland City councillors have voted to support the rahui in principle. Councillor Penny Hulse described the rahui as an emotional experience. Mana whenua described themselves as “the guardians of the forest and so they have an obligation to preserve the environment for all Aucklanders”. They are seeking to enforce the rahui via the Biosecurity Act, which gives power to the Minister of Biosecurity.

A rahui is in place in an area of Maunganui Bay/Deep Water Cove near Rawhiti in the Bay of Islands, and this has been adopted by the Minister of Fisheries under Section 186A of the Fisheries Act. The effect has been to close the area to all fishing, except for gathering kina. Fines of up to $100,000 apply to anybody caught breaching the rahui/fishing ban. The rahui is reviewed by the Ministry of Primary Industries every two years.

And a rahui was recently placed on a refurbished classroom at the Kaikohe Intermediate School because an elder of a local hapu said the name of the building was “entirely inappropriate” and entry into the building was forbidden. All ended well: the building was given a new more acceptable name. It was later acknowledged that the rahui was to make a political point, presumably about the need to consult with hapu when a refurbished building is given a Maori name.

The essential issue here is that a rahui in itself has no legislative powers. It needs to be backed up by an Act of Parliament to confer the power of enforcement. Normally the relevant Minister has the discretion to give effect to the intention of the rahui – to restrict access – via an Order in Council.

So its importance is largely one of influence – being able to influence a Minister (or local council if the land is owned by a local authority). Or such is the theory.

On 10 January the Northern Advocate reported on a rahui placed in Cable Bay (Northland),after a drowning.  It is reported that a man and his family playing touch rugby on the beach were told by a local to ”Clear off…You can’t swim here, you can’t fish here, you can’t play on the beach, so get out of here”.

Two days later the man’s wife took their young kids to play in the stream at the Bay, but were ordered by another man to leave. When the wife said they were only playing on the beach and not going into the sea, the man reportedly threatened to bring some more people to the beach to remove them. It was a bit of a scene – upset wife, upset kids, not nice.

A spokesman from the local marae said a lack of education about rahui and other Maori cultural practices was an issue around the country. According to the Advocate, he said, “If our partners who have been here for 170-odd years can’t understand that, there’s not much we can do…We have to put these rahui in place for protection of our culture, it’s really protection for all people.”

In this case the problem appears to be about a lack of clarity rather than disrespect. But my response is since when did conforming to other people’s culture become compulsory? Why should those who don’t believe in spiritualism be forced to abide by the spiritual beliefs of others? Why it is now compulsory for those who are not Maori, or even Maori for that matter, to live by Maori culture?  The whole thing is an absurdity, yet it is becoming the norm.

While a rahui in itself has no legislative powers – it needs to be backed up by an Act of Parliament to confer the power of enforcement – it seems there are some who are assuming their own powers of enforcement by might.

The use of rahui becomes more of an issue in the context of the 580 claims by iwi/hapu  regarding the ownership of the marine and coastal area. Of these, 380 claims have been referred to the Minister of Treaty Negotiations who will decide whether customary rights exist. The Minister is likely to ask for public submissions on each of the claims that are accepted for consideration, although the Minister alone will decide and there is no appeal process. The other 200 claims have been referred to the High Court. In those cases, those who file a Notice of Appearance as an interested party (and pay $110 per claim) can be involved in the court process and have the right of appeal.

The claims cover the entire New Zealand coastline and the seabed extending out 12 nautical miles from the coast to the edge of the Territorial Sea. In most cases there are multiple competing claims for the same area. In essence, the claims are for ownership and absolute and uninterrupted rights to extract the resources (shellfish, fish, minerals, etc), impose levies, restrict access, and so on.

The applicants appear to be claiming ownership on the grounds that they have occupied the area in accordance with tikanga since before 1840, and they have used and occupied the area from 1840 to the present day without substantial interruption. The statutory test of “exclusive” use and occupation is likely to be a critical point of legal debate in this current round of claims.  

Unfortunately court rulings on the matter of aboriginal title have been contradictory and political interference has added to the confusion. The end result is the current legal gravy train where a multitude of lawyers are extracting eye-watering fees, funded by taxpayers.

All of this works against those who wish to have a say in the process. It is very difficult to find the detail of the claims, and a layperson would find it impossible. To find the claims one must first obtain the case (CIV) reference number from your local council (and in our case our local council was not able to provide all of the CIVs) and then contact the High Court and ask for the claim details.

Something that could be very easily posted on a website by the local council or the High Court, isn’t.  

This issue is important. If you think access to beaches and harbours will remain freely available as they are now, then think again. It will be at the whim of the Maori owners whether there is a rahui in place and you too will be confronted by an individual saying, “Clear off…You can’t swim here, you can’t fish here, you can’t play on the beach, so get out of here”.