Foreshore and seabed: Lawyer says future Government will have to apologise for proposed amendments

The Bill would overturn a Court of Appeal judgement issued in October last year. Photo / Kenny Rodger

• An iwi lawyer warned proposed amendments to foreshore and seabed legislation will have lasting repercussions.
• Port companies face “costs in the millions” due to a Court of Appeal ruling on customary marine title.
• Justice Minister Paul Goldsmith said the amendment bill would restore the original test for Customary Marine Title.

An iwi lawyer has told a Parliamentary Select Committee proposed amendments to foreshore and seabed legislation will be “talked about on marae for generations” and a future Government will have to apologise for them.

Meanwhile, a group representing the country’s largest ports say they were facing “costs in the millions” due to a Court of Appeal ruling that eased the test for customary marine title for iwi and hapū.

Parliament’s Justice Select Committee is on day two of submissions on the Marine and Coastal Areas (Takutai Moana) (Customary Marine Title) Amendment Bill, which would make it harder for Māori to gain Customary Marine Title or CMT in the foreshore and seabed.

The Bill would overturn a Court of Appeal judgement issued in October last year which eased the test for CMT. Under the law, applicants had to meet two conditions – held it in accordance with tikanga and exclusively used and occupied it without substantial interruption since 1840.

The Court of Appeal judgment criticised the second condition, saying incursions into an area by third parties since 1840 would deprive a group of CMT and be inconsistent with the Treaty of Waitangi.

“Far from recognising and promoting customary interests, MACA (The Marine and Coastal Area Act) would in many cases extinguish those interests.”

Justice Minister Paul Goldsmith said the court decision had changed the nature of the test, materially reducing the threshold, and the amendment bill would ensure the tests were interpreted and applied as originally intended.

“All New Zealanders have an interest in the coastal waters of our country, so Parliament deliberately set a high test in 2011 before Customary Marine Title could be granted.”

Leading treaty lawyer and legal counsel for the Muaūpoko Tribal Authority Tom Bennion said he hoped the committee “understood the gravity of the historic error that you’re about to make”.

“Ever since New Zealand was first settled, the New Zealand Government always recognised Māori (land) title before it then purchased it. And we complain about those purchases.

“And there is only one time when it didn’t do that and that is in the confiscations of the 1860s. This is only the second time in the New Zealand history where the New Zealand Government is going to undermine its basic legitimacy by confiscating millions of hectares of Māori customary interests. It’s only the second time in history we are doing this.

“This will be taught in every law school, in every school, it will be looked on internationally as an appalling breach, it will be taught in every kōhanga, it will be talked about on marae for generations. I am absolutely confident a future Government will pay the necessary money and apologise for this.”

Port Company CEO Group’s Charles Finny said in 2011, the group had been given “absolute assurances that our rights and interests would be protected” by the exclusive use and occupation condition.

“This has been re-interpreted by the courts in a way that we had not anticipated, and which was inconsistent with the assurances we had received, we therefore support this bill as it will reinstate the test as we understood it.

“I note a number of submitters have been talking about costs and there have been questions around costs. Let me advise that the port companies are now facing costs in the millions of dollars as a result of the interpretations that have been made by the courts.”

Finny said the Court of Appeal decision had thrown the whole issue open and there were “huge complications around resource management applications and other such activities”.

“This is unfortunate because it is probably going to cost all sides lots of money and that was not anticipated.”

“There is no way that, under the interpretation we had explained to us by Minister (Christopher) Finlayson, that an iwi or hapū would be able to establish exclusive use and occupation from 1840 in those particular areas. There will be areas that they can, but not the areas occupied by ports.”

Julia Gabel is a Wellington-based political reporter. She joined the Herald in 2020 and has most recently focused on data journalism.