‘Dark ages’: Backlash from Ngāi Tahu after Govt marine customary title move

Te Rūnanga o Ngāi Tahu kaiwhakahaere Justin Tipa says the Government's moves risk reopening the foreshore and seabed controversy.

Ngāi Tahu says Government moves to make it harder for Māori to gain customary titles over coastal and marine areas will take New Zealand “back to the dark ages”.

“This is not the National Party that Ngāi Tahu knows and has had an intergenerational relationship with,” Te Rūnanga o Ngāi Tahu kaiwhakahaere Justin Tipa said.

“We need to be clear, this is not Government just undoing another policy they don’t like. This is them crashing down on the rights of iwi, hapū and whānau.”

Hapū and iwi can apply to the courts for customary titles to coastal areas under the Marine and Coastal Area (Takutai Moana) Act, known as Maca.

Last year the Court of Appeal made a ruling that changed the nature of the test and materially reduced the threshold, saying it was inconsistent with the Treaty of Waitangi and entrenched the Crown’s breaches of the Treaty.

Treaty of Waitangi Negotiations Minister Paul Goldsmith said the coalition Government would overturn that court decision to restore the original test. The move is not unexpected as it was part of the National-New Zealand First coalition agreement.

“What we are trying to do is balance the fact that all New Zealanders have an interest in what goes on in the coast,” Goldsmith said.

“The customary marine title gives valuable rights to the holders of it. It was always set as a high test. It’s not an impossible test. It’s a high test. We believe the Court of Appeal decision materially reduced that, and that’s why we’re going to overturn it.”

‘Incredibly disappointed’

When Ngāi Tahu settled with the Crown in 1998, one of the nine sections – or “trees” – of its claim was specifically focused on “mahinga kai” – traditional food resources such as forests, rivers and coastal areas. Access to mahinga kai was cut off when the land was obtained by the Crown, the Waitangi Tribunal’s 1991 Ngāi Tahu Report said.

“This law is targeting the ninth tall tree of the Ngāi Tahu claim, [the] settlement of mahinga kai,” Tipa said.

“This is affecting our birders, our fishers, our whitebaiters, our traditional way of life. This is a direct attack on Ngāi Tahu and our way of life.

“It’s just really disappointing. Twenty-five years ago we entered into a new age of co-operation with a National-led Government and we’ve now got a National coalition Government that is undoing the commitment and those hard-fought battles of their predecessors.”

Tipa said the move would reopen the foreshore and seabed controversy – which sparked mass protests and led to the birth of Te Pāti Māori.

“The foreshore and seabed issue exploded 20 years ago because the Labour-led Government stopped Māori from having their day in court.

An estimated 10,000 people gathered at Parliament after a hīkoi two decades ago to protest proposed seabed and foreshore legislation. Photo / AFP / RNZ

“In 2011, under Prime Minister John Key and Attorney-General Christopher Finlayson, the National-led Government passed the Marine and Coastal Area (Takutai Moana) Act 2011. Now another National-led Government are undoing the work of their own predecessors.

“Worse, Mr Goldsmith has announced the law will be retrospective. They’re telling iwi and hapū whose cases are before the courts, and who may get a judgment before the law is changed, ‘don’t bother, we will just alter those decisions and take your rights away anyway’.

“We settled in good faith and this is taking us back to the dark ages. Kiwis support the rule of law and access to justice and are proud of the country we’ve built on the foundations of the Treaty. An increasing number of actions by this Government are simply inconsistent with New Zealand values.”

Ngāti Ruanui: ‘A new era of confiscation’

Taranaki iwi Ngāti Ruanui said the Court of Appeal decision made for a “a much more reasonable approach” but the new legislation would make it almost impossible to be awarded a marine title.

“The notion the Court of Appeal decision gave iwi and hapū too much power is egregious,” Te Rūnanga o Ngāti Ruanui Trust kaiwhakahaere Rachel Arnott said.

“Make no mistake, this is not about balancing natural expectations, this is about launching a new era of theft. We are standing at the precipice of a fresh wave of Crown confiscations.”

Ngāti Ruanui Taiao officer Graham Young said the iwi was “beyond frustrated”.

“Cutting across a Court of Appeal decision with no substantive iwi engagement is beyond farcical.

“Once again, like a record as broken as the Government, I must stress our extreme disappointment that more robust discussions haven’t occurred when it matters the most.”

The court decision

An iwi or hapū applicantion needs to meet two main criteria before customary marine title (CMT) is awarded: the group has to hold the area in accordance with tikanga (Māori customs and practices), and it has to have exclusively used and occupied it from 1840 to the present day without substantial interruption.

Last year the Court of Appeal, in the case Re Edwards, made a ruling that changed the nature of the test and materially reduced the threshold, saying it was inconsistent with the Treaty of Waitangi and entrenched the Crown’s breaches of the Treaty.

Goldsmith said last year’s Court of Appeal decision in the Re Edwards case effectively meant exclusive use no longer had to be demonstrated, opening up much more of the country’s coastline to CMT than was intended when Maca was passed.

Treaty Negotiations Minister Paul Goldsmith. Photo / Mark Mitchell

Public access, navigation and fishing rights are not affected by CMT, which falls short of an ownership right.

The Government continues to own nationalised resources – gold, silver, petroleum and uranium – but a CMT holder has a veto on any consents required for activity by others or for the development of the area in question, which can range from the wet sand to 12 nautical miles (22km) out to sea.

“One particular group would be able to stop anybody else from having a resource consent to start aquaculture, which is a very significant thing,” Goldsmith said.

The Government will restore the CMT test to the high threshold originally intended by:

• Inserting a declaratory statement that overturns the reasoning of the Court of Appeal and High Court in Re Edwards, and the reasoning of all High Court decisions since the High Court in Re Edwards, where they relate to the test for CMT; the nine existing CMT decisions will continue to be recognised.
• Adding text to section 58 of the Maca to define and clarify the terms “exclusive use and occupation” and “substantial interruption”.
• Amending the “burden of proof” section of the act (section 106) to clarify that applicant groups are required to prove exclusive use and occupation from 1840 to the present day.
• Making clearer the relationship between the framing sections of the act (the preamble, purpose, and Treaty of Waitangi sections) and section 58 in a way that allows section 58 to operate more in line with its literal wording.

The Court of Appeal decision said the CMT test was too high, producing an outcome “inconsistent with the Treaty/Te Tiriti” and inconsistent with the common law.

“Where the Treaty/Te Tiriti had been breached by Crown failures to protect customary rights and interests, Maca would entrench and perpetuate those breaches.”

Incursions into an area by third parties since 1840 would wrongfully deprive an iwi or hapū of CMT, the court said.

“Far from recognising and promoting customary interests, Maca would in many cases extinguish those interests.

“The courts should be slow to attribute to Parliament an intention to prescribe a test for CMT that would operate in this manner.”

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