The Government announced on July 25 that it would overturn the Court of Appeal decision and restore the former test in the 2011 law. Photo / Alan Gibson
The Government announced on July 25 that it would overturn the Court of Appeal decision and restore the former test in the 2011 law. Photo / Alan Gibson
Hobson’s Pledge spokesman Don Brash says the courts are making “a total mockery” of Parliament’s intent with its foreshore and seabed law and have “clearly re-interpreted” the meaning of the word exclusive.
Parliament’s Justice Select Committee is hearing submissions on changes to the Marine and Coastal Area (TakutaiMoana) Act 2011.
Justice Minister Paul Goldsmith announced in July 25 the Government would overturn a Court of Appeal decision, that made it easier for iwi, hapū and whānau to have customary marine title recognised, and restore the former test in the 2011 law.
The customary marine title area falls between the wet part of the beach and the 12-nautical-mile limit. It cannot be sold and public access is guaranteed as are fishing rights and navigation rights – unless parts of the area are subject to a wāhi tapu order, which needs to be approved by a court.
Justice Minister Paul Goldsmith. Photo / Mark Mitchell
Under the law passed in 2011, two conditions had to be met before CMT was recognised — the applicant group must hold it in accordance with tikanga and applicants must have exclusively used and occupied it without substantial interruption since 1840.
The October Court of Appeal decision criticised the second condition — and based on that criteria, incursions into an area by third parties since 1840 would deprive a group of customary marine title and would be inconsistent with the Treaty of Waitangi.
Brash told the committee the courts had “clearly re-interpreted the meaning of exclusive”.
“They have added a concept called shared exclusivity, which makes a total mockery of what Parliament intended.
“We feel strongly supportive of this bill as it intends to amend the original Marine and Coastal Area Act. Having said that, if we had a choice we would go back to the Foreshore and Seabed Act in 2004 when the Crown owns the foreshore and seabed on behalf of all New Zealanders. But that isn’t on the table so we support this bill.”
In 2004, a massive hīkoi in protest to the then-Labour Government’s foreshore and seabed law led to the birth of Te Pāti Māori and intense debate over whether anyone should have special rights over the foreshore and seabed.
The foreshore and seabed hīkoi in 2004, an issue that led to a split in the Labour Party and formation of the Māori Party. Photo / Kenny Rodger
Committee member and Te Pāti Māori MP for Te Tai Tonga Tākuta Ferris asked Brash if he believed customary title equated to ownership. Brash said he believed it was a form of ownership.
Ferris said Māori had long utilised their own coasts in conjunction with neighbouring iwi and when early Europeans arrived, they continued to share the use of their coasts with those settlers.
In 2004, all the rights Māori possessed, relative to the coasts that they occupied, were confiscated and the exclusivity test was established, Ferris said.
“I would implore you to consider that Māori have the right to share their coasts with whoever they deem suitable while still maintaining their mana over that same coast.”
Hobson's Pledge spokesman Don Brash. Photo / George Novak
‘Highly prejudicial and highly unfair’
If enacted, the amendments would apply from the date of Goldsmith’s announcement – July 25 – and all undetermined applications would be decided under the clarified test.
A Mōtītī Island hapū said they have been waiting almost three years for the High Court to decide their customary marine title application.
They told the Parliamentary committee if that decision came back in their favour, it would have to be put aside and they would need to go back to court and re-litigate their case under the new test.
Ngā Hapū o te Moutere o Motiti’s Ihipera Peters said the group filed their application in 2016 and had spent years preparing their evidence and engaging with history experts.
“It will require us to return to the court, to re-litigate our case on the basis of a new test. Our kuia, our kaumatua are all in their 70s, 80s and 90s now ... for them to be told that doesn’t matter anymore, you have to go back to court, re-state your case, and this time the test is (higher), that is highly prejudicial and highly unfair.”
Tākuta Ferris performs a haka before Clerk of the House in Parliament. Photo / Mark Mitchell
Māori rights activist and lawyer Annette Sykes said such a move from Parliament — the move to overturn a Court of Appeal decision — was “constitutional violence”.
“The judiciary is grappling with what the world is grappling with and that is the intersection of indigenous rights with common law. It’s not an easy process but I find, particularly, that we need to overturn a Court of Appeal decision when we haven’t had the pronouncement of the highest court in our land really starting to blur the lines in the separation of powers between Parliament, the judiciary, the state and the constitutionality of it.”
Dr Muriel Newman, a former Act party MP and founder of the New Zealand Centre for Political Research, a public policy think tank, supported the law change and said it was clear “the law is not delivering on what Parliament intended”.
Newman suggested several amendments to the proposal, including allowing for public submissions during claims and removing references to tikanga and exclusivity and joint title in the bill.
“We believe that what has happened is the idea of shared exclusivity and joint title has been introduced by judges into the law to circumvent the actual fundamental right or issue that was presented in the law – which was that you could only gain a title if you had exclusively used it without anyone else being involved.”
New Zealand Law Society were against the bill proceeding. Member Debra Angus said it was a simple issue of the court doing its job around interpretation
“Not everything is always going to spelt out in legislation so the court has had to resolve something here. Really what we are looking at is this an appropriate way to go forward? If it is not, then surely the answer is to have a detailed consultation process and to have an .. enduring solution to it, rather than a very brief consultation and a truncated process.”
Hilda Halkyard-Harawira, of the Whangape Marae Committee, Ngati Haua ki Te Rarawa, said she was feeling “deep sadness at this Government’s attack on te tiriti rights.”
“I thought over the last 50 years we were probably getting somewhere so I can only say it is just pure greed.”
Justice Select Committee submissions on the Marine and Coastal Areas (Takutai Moana) (Customary Marine Title) Amendment Bill continue tomorrow.
Julia Gabel is a Wellington-based political reporter. She joined the Herald in 2020 and has most recently focused on data journalism.
