By Russell Palmer of RNZ
Treaty Negotiations Minister Paul Goldsmith says his claim that customary marine title will be reduced to 5% of the coastline was just part of a “free-flowing discussion” and not based on any analysis.
Goldsmith made the comments at a private meeting with seafood industry representatives in May, which was also attended by Oceans and Fisheries Minister Shane Jones.
Notes from the meeting – which was officially about the industry’s concerns about lack of a voice in debate about the customary titles – show Goldsmith spoke about the impact he expected the Government’s approach would have on the amount of coastline affected.
He said it “should reduce the 100% of coastline subject to Customary Marine Title to 5%”.
Prime Minister Christopher Luxon told RNZ’s Morning Report that the 5% comment was not right.
“I don’t think he’s right to say that there’s a certain number that can be applied, because that will be determined by the courts,” he said.
The ability for Māori to claim Customary Marine Title is set out in the Marine and Coastal Area Act 2011, the legislation brought in by National to resolve some of the concerns which arose after the Foreshore and Seabed debate of the early 2000s.
Goldsmith in late July confirmed the Government’s approach to legislating to overturn a Court of Appeal case, which set a precedent making it easier for Māori to prove they had exclusive use of the area dating back to 1840 without substantial interruption.
The Government’s plan – set out in the coalition agreement with NZ First – is to amend section 58 of the Act “to make clear Parliament’s original intent”. Goldsmith has maintained that intent was to set a high threshold, or test, for Māori to prove exclusive use and occupation.
Questioned by reporters on Tuesday, Goldsmith downplayed his earlier statement to the seafood industry that this would reduce the area of coastline subject to the titles to 5%.
“That was a figure that I came up with in the course of the conversation. Ultimately, we can’t predict exactly what percentage they’ll be, because that comes down to court judgments and negotiations. So it was just part of a free-flowing conversation,” he said.
“Look, it was an informal discussion. I just referred to a figure, and the reality is it’s consistent with what we’re trying to do, which is to restore the significant test.”
He later acknowledged putting a number on it was not the best approach to take.
“Well. Well if you really want me to as I made a mistake – the only point I’d make is that what we had said all along was that we were going to restore the threshold that Parliament set in 2011.”
He said it was “absolutely appropriate” for him to meet fishing industry representatives, and it had come about because they had asked to meet him, so he did.
It was a different situation from when former Labour Party minister Stuart Nash had given his donors a heads-up about Cabinet discussions, which led to Nash being sacked as a minister.
“I didn’t give them a particular heads up, I just referred to the coalition agreements that were public documents and have been for many months,” Goldsmith said.
Luxon also said the two cases were different.
“I disagree, it’s not of that nature,” he said.
He said he did not think it was the case those present at the meeting had been party donors.
Goldsmith later told reporters he was not aware of anyone in the room at the meeting having been a donor either to himself or the National Party but he could not speak for NZ First.
Labour leader Chris Hipkins was not jumping to conclusions either way.
“I’d have to see exactly what he said. I mean, generally ministers speaking about a forthcoming Cabinet decision can speak about that in broad terms, but speaking about what specific recommendations are on the table in a Cabinet conversation before Cabinet’s had that conversation would generally be a breach.”
When the comments were put to him, he said he “wouldn’t necessarily think” it breached Cabinet’s collective responsibility, but “if that was me and that was one of my ministers I’d certainly be wanting to know exactly what he had said”.
The 5% remark could be “starting to get into the advice that’s been presented”, he said, which would be of concern.
But Goldsmith said it was not based on analysis.
“Not particularly analysis, no. It was about an indication of what a high threshold might lead to.
“I wouldn’t read too much into it. I was just sort of dealing with the situation that we have where we had a Court of Appeal that materially reduced the threshold.”
Hipkins suggested it was not clear from the debates at the time the Marine and Coastal Area Act was passed about what the threshold should be, however.
“What the National Party, the Act Party and the Māori Party who passed that law were talking about at the time was allowing Māori their day in court. I certainly don’t recall them using rhetoric like very very narrow, very very limited.
“The National Party repealed the Foreshore and Seabed legislation put in place by the previous Labour government. I’m the first to say and have repeatedly – I don’t think we got that legislation right. But the basic premise of them doing so was that Māori deserve their day in court.
“Māori have now had their day in court and the Government don’t like the outcome of that, so they’re now legislating over the top of it which is how we got into this mess in the first place.”
Luxon had told Morning Report the Government was “just making sure it’s being interpreted and applied as how Parliament intended”.
“The way our system works is there was a piece of legislation passed in 2011, that actually I think got the balance right between recognising the recognition of Māori customary rights but also protecting the legitimate interests of all New Zealanders and I’m proud of that legislation.”
Goldsmith said Marine Customary Title was a valuable right, but it did not affect people’s ability to swim on beaches or to fish there.
“We’ve only had a very small number of instances where customary marine title have been granted, and only very recently. So we haven’t had time to see what the actual implications are but if you have the ability to grant or not grant a resource consent in an area then that obviously is a very significant right.
“It does grant the ability to grant or not grant resource consents in that particular area for things such as aquaculture ... it doesn’t affect people’s ability to swim on beaches or to fish.
“It’s very significant to move away from the underlying principle that we usually have, which is all New Zealanders have an equal say on what goes on in their environment.”
He said the test set in the 2011 legislation was about showing exclusive use without substantial interruption. However, the Court of Appeal ruling suggested situations where laws imposed by Parliament were what caused a substantial interruption could be ignored.
When that was put to Luxon, he said: “Sure, but the legislation in 2011 balanced those, balanced as I said the recognition of Māori customary rights but also in the interests of other New Zealanders as well, and had quite a high threshold, it’s been significantly reduced, materially reduced by the Court of Appeal ruling, and all we’re doing is making that what Parliament intended is what actually is the practice”.