More than 70 per cent of mussels come from the Marlborough Sounds. Photo / Herald on Sunday
The ownership of New Zealand's coastline and the issue of customary title are shaping up as major political issues as the Government prepares to repeal the Foreshore and Seabed Act.
This week, we investigate coastal ownership and examine the implications of scrapping this contentious law. Land Information New Zealand has exclusively released detailed maps and statistics to the Herald about coastal ownership.
Today, in the fifth of a five-part series, we examine the coastline of the South Island
John Mitchell is one of the men who came up with the strategy to finally get Te Tau Ihu Maori into aquaculture at the top of the South Island.
Little did the 69-year-old Ngati Tama historian know that he would help unleash a tide of unease, anger and vitriol on
both sides of the foreshore and seabed debate.
It is an issue that had its beginnings in the desire of eight iwi - Ngati Apa, Ngati Kuia, Ngati Koata, Ngati Rarawa, Rangitane, Ngati Toa, Ngati Tama and Te Atiawa - to access space for marine farms in Tory Channel, Port Underwood and Pelorus Sound.
But tribes could not get a look in between 1991 and 1994 when they applied to the Marlborough District Council for consent. Mr Mitchell estimates between 40 and 50 applications from iwi to farm mussels were turned down.
Iwi felt they were being treated unfairly, Mr Mitchell said.
"Our experience there was often discriminatory. We were never allocated water space and on at least one occasion the very same report we commissioned from Niwa failed to get us across the line, but non-Maori who used it did.
"The cumulative effect was that we probably paid well over $2 million in application fees and never came away with anything to show for it."
Frustrated, the tribes decided on a two-pronged attack. One approach would be to go to the Environment Court taking five selected applications which had been turned down by the council. The court overturned each decision and the tribes were eventually able to get into farming.
However, at the same time tribes went to the Maori Land Court to ask it to look at "underlying" Treaty issues - especially with regard to article two, which guaranteed chiefs exclusive possession of their lands. What tribes wanted the Crown to show was how it had acquired the rights over water spaces, Mr Mitchell said.
After being ping-ponged through various courts, the 2003 Court of Appeal Ngati Apa decision, so named because of the tribe's first place in the alphabetical line, came out.
"It was that judgment which set the whole world alight. It came out purely by coincidence at a Waitangi Tribunal hearing in Porirua where all the tribes were together. Lo and behold, right in the middle of that hearing, we heard the court had found in favour of Maori. Too right it was a celebration."
What the decision said was that Maori could go to court to prove whether the foreshore and seabed was Maori customary land. The force and immediacy of the political reaction took iwi by surprise.
"Within hours [Labour Prime Minister] Helen Clark and [deputy] Michael Cullen had shouted from the rooftops that this wasn't going to happen at all."
The rest - the hikoi, the 2004 Foreshore and Seabed Act, the birth of the Maori Party - is history.
Today, Te Ohu Kaimoana estimates Maori have ownership interests which amount to between a third and a half of the industry. At the top of the South Island, where 71 per cent of mussels are produced, the industry is worth $256.91 million.
One of the spinoffs of the debate has been that non-Maori have gained more certainty in the industry.
"I think at the beginning there was a rather jaundiced view about us getting Treaty rights in their industry. But some of them were looking for rather more secure rights themselves - rights of renewal to leases, for example.
"The funny thing is we were able by expression of Treaty rights to deliver some of those things to the industry as a whole. Attitudes have changed and now a huge amount of collaborations and joint ventures are going on. Maori and non-Maori now stand shoulder to shoulder, we've got an industry rather than Maori and non-Maori industries."
He is pleased a repeal of the act is on its way but has an issue with Maori being told they have to go to court to confirm customary title.
The onus should be on the Crown to prove how it came by rights - Maori have already spent far too much time, money and effort in the judicial process, he believes.
THE 2004 ACT
* Put the foreshore and seabed into Crown ownership.
* Denied Maori the right to go to court to prove ownership.
BY END OF THIS YEAR:
* No one will own the foreshore and seabed.
* Instead, it will be considered "public domain" until Maori can prove they own it.
* If they can prove ownership, they will gain customary title.
* They can do that in two ways - apply to the courts to confirm, or negotiate directly with the Government.
* But to prove customary title, Maori must be able to show they have had continuous and exclusive use of an area since 1840.
