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Dr Hugh Barr

Tribal Privatisation Threat to Our Coast

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The Marine and Coastal Area (MACA) Act should be closed down, but instead it remains a privatisation threat to our coast. My Association, the Council of Outdoor Recreation Associations of New Zealand (CORANZ), has been concerned about attempts to privatise New Zealand’s foreshore and seabed since 2004. CORANZ has been a party to MACA claims since 2012, so we have built up extensive knowledge of the process.

The New Zealand Court of Appeal, in its controversial 2003 decision, said that Maori customary rights may still exist, in spite of New Zealand adopting British law, where the state owned the foreshore and seabed out to 3 nautical miles (nm) in 1840, and since 1977, out to 12 nm (22 km). That is, until the MACA Act was passed in 2011.

Crown ownership is essential for outdoor recreation, as it allows public access at will. In New Zealand, there is no charge to the public for access to the coast. In 2004, Helen Clark and her Labour Government, supported by Winston Peters and New Zealand First, decided against the race-based privatisation of our foreshore and seabed to iwi, after significant public consultation, reaffirming Crown ownership through their 2004 Foreshore and Seabed Act.

However, Chris Finlayson and John Key enabled iwi privation of our foreshore and seabed to tribal groups through the Marine and Coastal Area Act in 2011. Labour and the Green Party voted against National’s law change. New Zealand First was not in Parliament between 2008 and 2011 and so could not vote.

The MACA Act sensibly contained a termination clause for new claims after 6 years. This was ample time for cases to be registered and assessed. This deadline – 3 April, 2017 – has now passed. Up until then, around 30 claims were registered by tribal groups, but a number were refused because they obviously did not meet the requirements of the Act. These were for the strongest property right, called Customary Marine Title (CMT), which requires the tribal group to have exclusively used and occupied the claimed coastal and sea area from 1840 to the present day.

One claim that has met this condition, involves two small titi (muttonbird) islands off the coast of Stewart Island. So it is possible to meet the test.

Under a CMT, the tribal group gets veto the rights on any structures such as launching ramps, wharves, and marinas, and so can gain payment from current or new developments in its claimed area – charging for public access in that way.

But an even bigger risk to coastal recreation – and other activities – is the creation of wahi tapu or so-called sacred areas, where the public is excluded, both on the beach and out to sea. In areas where the public is excluded, they are subject to fines of up to $5,000 for every trespass. The law also allows the areas to be patrolled by the tribal group, and fisheries rangers.

No wahi tapu have been granted so far. But most of the claimants appear to want them. This is the sort of power that some tribal groups dream about – locking the public, including other tribes, out of their formerly publicly owned beaches and coastal areas.

Wahi Tapu areas are of great concern to CORANZ because, they are an extreme way of keeping the public out of coastal areas, that will severely disadvantage all recreational users, including those engaged in surfing , sailing, boating, underwater diving, swimming, fishing, beach picnicking, jogging, walking, and so on.

There is a dual process for a tribal group to progress their claims. They can either engage in secret negotiations with the Crown (Crown Law), or go through a hearing in the High Court.

The Crown has the right under Section 95 (3) to refuse to negotiate directly with a tribal group, and so can force the claim to the High Court, where other parties who also have an interest – such as recreational users, the fishing industry, the mining industry and so on – can be represented.

This is a much fairer process.

It is also clear that rights under the MACA Act are not Treaty Claims (S 98 (3)), as they depend on the claimants showing that they meet the requirements of the Act. In contrast, Treaty claim rights are gifts from the Crown for often imagined wrongs, determined, until the 2017 election, by Chris Finlayson, the former National Party Treaty Negotiations Minister.

Because of New Zealand’s history, it is very hard for tribal groups claiming the coast to satisfy Section 58 of the Act and prove “exclusive use and occupation” since 1840. There are a number of good reasons for this[1]:

  • The coast and beaches were the highways prior to 1940. Transport was often by coastal steamer, or by stagecoach along the beach and over promontories.
  • Settlers and tribal groups often lived adjacent to one another, so shared the coast.
  • From 1950 on, roads rapidly improved, and many people built baches at their beaches.
  • Before 1840, maraes were built well back from the coast on high ground, to allow protection against marauding war parties.
  • People now retire to their favourite beach.

To most people’s surprise, almost 600 tribal MACA claims were lodged in April 2017, just before the close-off date for claims. Some 200 of those were claims to the High Court, as many tribal groups expect the Crown to refuse to negotiate directly – as is its right.

Why there was this tsunami of claims is unclear. Nothing had changed that would make MACA claims more likely to succeed now. In fact the reverse is true – because so many claims have been made, they all overlap with other claims and having two or more claimants to the same beach or coast means that they most certainly do not meet the central condition for “excusive occupation and use” (Section 58). So whether, when the cases are addressed, some claimants withdraw their claims will be of interest.

CORANZ’s major concerns include:

1 The Crown should let all parties have their day in court:

At present the top ten priority claims in front of the Wellington High Court are all down for “Crown Engagement” as well. This means the matter will be debated between the claimants, Crown Law and the Office of Treaty Settlements (OTS), in secret. Having it discussed in Court, is far more transparent, and will also take the tribal advocacy group, OTS, out of the mix. The Crown is permitted to do this under Section 95 (3) of the Act. Since most of these claims have already been active in the High Court, it would be sensible for this to continue, so that not only iwi, but other parties to the Claims can also have their day in Court.

2 Massive payments to iwi lawyers by the Crown:

The previous Attorney General, Chris Finlayson, agreed to pay the lawyers of a tribal group making a claim some $150,000 for “small” claims, and over $300,000 for “large” claims in the High Court and over $400,000 for “large” claims under Crown Engagement. With almost 600 claims pending, this is a multi-million dollar transfer of wealth from the taxpayer to the lawyers of tribal groups, almost solely for the highly questionable claims that arrived in the Tsunami of Claims.

In contrast, the public have to pay at least the $110 filing fee to be involved in a claim, along with their own legal fees. This is a miscarriage of justice.

The Labour coalition government should turn over a new page, and withdraw from these Finlayson obligations.

3 CORANZ is registered as a party in all High Court claims:

In the public interest, CORANZ, as a council of national and regional outdoor recreation associations, and associates, has become a party to each tribal claim registered with the High Court. There are significant costs involved in defending the rights of all recreational users of the coast against being adversely affected if CMTs are awarded. But retaining public rights is crucial. This is why we and our related parties are exercising our right to go to Court.


[1] See Ch 12, (pages 192-218) “One Treaty, One Nation” Tross Publishing, 2015