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The Waitangi Tribunal has pointed to a meeting between senior Government ministers and seafood representatives as one of the many instances of the Crown breaching the Treaty with its foreshore and seabed changes.
The tribunal has also criticised the Government’s move to make the changes retrospectively, saying thehighly contentious decision would burden claimants emotionally and financially through no fault of their own.
The Government has announced plans to overturn a Court of Appeal decision and amend the Marine and Coastal Area Act 2011 to make it harder for Māori to gain customary marine title (CMT) to foreshore and seabed areas.
The changes would apply from the date of the Government announcement in late July.
The move was a commitment under the National and NZ First coalition agreement. It has been met with a strong backlash – including by Ngāi Tahu who described it as a “direct attack” on their way of life.
The Waitangi Tribunal conducted an inquiry under urgency into the changes and has concluded that the policy is such a gross breach of the Treaty of Waitangi that, if it proceeds, it would “significantly endanger the Māori-Crown relationship”.
Treaty of Waitangi Negotiations Minister Paul Goldsmith. File photo / Mark Mitchel
A focal point of the tribunal’s report was a meeting Treaty Negotiations Minister Paul Goldsmith and Oceans and Fisheries Minister Shane Jones had with leading seafood industry representatives to discuss CMTs.
Customary Marine Title is a special status of the common marine and coastal area awarded to iwi, hāpu or whānau groupings. The area falls between the high-tide mark and the 12-nautical-mile limit.
When CMT is granted, public access is guaranteed, as are fishing rights and navigation rights. Māori can give or refuse permission for certain activities that require resource consent.
According to the Waitangi Tribunal report, Goldsmith told representatives a “solution is imminent” that would “reduce the territory”.
He described the notion of CMT extending to 12 nautical miles as “ridiculous” and said applicants would need “a navy to enforce that”.
Goldsmith said in the meeting that the law changes “should reduce the 100% of coastline subject to CMT to 5%”.
The seafood industry representatives said the current law had not prevented fishing but that engagement with applicants was “resource-intensive”.
Goldsmith said the proposed change – to section 58 of the Act – would “reassert parliamentary intention”.
The law the Government is drafting, and is set to release this month, would overturn the Court of Appeal judgment issued in October last year, which made it easier for Māori to claim CMT to the foreshore and seabed.
Goldsmith said in his announcement that Parliament had deliberately set a high test for CMT in 2011 and the Government did not agree with the Court of Appeal’s decision. The proposed changes would restore the former test in the 2011 law.
Goldsmith told the Herald last month it was an unusual move to completely overturn a court judgment “but we felt it was justified in this circumstance because it materially changed the hurdle or the test and that would have very significant ramifications”.
He said the policy was about “trying to balance rights and the fact that all New Zealanders have an interest in the coastal areas”.
In its report, the tribunal says the Crown’s consultation with commercial fishing interests, which already had statutory protection, before finalising the proposed amendments and while failing to consult Māori was a further breach of the Treaty.
Claimants told the tribunal the Crown appeared willing to share more details about the proposed amendments with seafood industry representatives than with affected Māori groups.
During the hearing, Ngāti Kauwhata ki te Tonga claimant Donald Tai called the Crown’s actions to change the test “deceitful and unfair”.
Heta Kaukau said Te Rauhina Marae trustees were now in “limbo” while Ngāti Te Wehi claimant Ronald Apiti said being forced to relitigate its case was “extremely prejudicial” and “absolutely abhorrent”.
Ngāti Tamarangi claimant William Taueki said they were “continually put into these positions where one minute the Crown has agreed to something and you get some hope and the next minute it’s all changed”.
He said the “constant battle has hurt our health ... and has a negative impact on all of us, but especially the rangatahi”.
The Government’s proposed changes would be applied retrospectively – from the date of Goldsmith’s announcement on July 25 – meaning existing CMT decisions would be recognised but undetermined applications at that date would be decided under the new test.
This includes applicants who are going through or had been through the hearing process but have not yet had their applications determined.
The tribunal says forcing applicants to have their cases reheard would burden them “emotionally and financially through no fault of their own and placing further strain on tribal relationships”.
Some applicants who would have been granted CMT under the old test may be unable to meet the standards of a new test, it says.
It goes on to say that, in developing the policy, the Government regularly dismissed officials’ advice and rushed the process, leading to important steps not being taken.
The policy development was “characterised by ideology and blind adherence to pre-existing political commitments at the expense of whānau, hapū and iwi”.
The tribunal urged the Government to pause and “step back” before presenting a bill to Parliament through a process based on “such a flawed approach”.
“At present, the Crown’s actions are such a gross breach of the Treaty that, if it proceeds, these amendments would be an illegitimate exercise of kāwanatanga [governance].
“We caution the Crown that, on the strength of the evidence we have received, to proceed now on its current course will significantly endanger the Māori-Crown relationship.”
Julia Gabel is a Wellington-based political reporter. She joined the Herald in 2020 and has most recently focused on data journalism.
