The Crown has been accused of yet again ignoring Māori rights to the foreshore and seabed in response to its submissions on a ironsand mining civil appeal before the Supreme Court.
Offshore mining company Trans-Tasman Resources has been appealing decisions by the High Court and the Court of Appeal, which both rejected its plan to dig up 50 million tonnes of sand off the coast of Taranaki.
The Attorney-General has intervened to make submissions in relation to Te Tiriti o Waitangi, Māori customary interests and applicability of tikanga to marine and marine consent discharge applications.
A Court of Appeal decision in April found tangata whenua's relationship with the marine environment was an "existing interest".
The interpretation of this wording in the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZ) - which lays out the requirements for granting a consent for mining activity off the coast of New Zealand - has been subject to much debate at the Supreme Court.
Lawyer for Trans-Tasman Resources Paul Majurey argued yesterday the Court of Appeal's ruling was a stretch and "existing interests" did not include "unsettled (or yet to be heard)" MACA (Marine and Coastal Area Takutai Moana) Act 2011 claims.
Legal counsel for the attorney-general Damen Ward told the Supreme Court today that Māori customary claims to the foreshore and seabed were still before the High Court, so the Environmental Protection Agency (EPA) could not consider customary claims when making decisions on consents.
"The EPA can't be expected to simply presume that an undetermined application is correct.
"It places considerable burdens on a decision-maker to be faced with a series of contested claims which may overlap, which is not its job to determine the validity of."
Taranaki iwi Ngāti Ruanui and Te Kāhui o Rauru, alongside the Māori fisheries trust Te Ohu Kai Moana, are among those fighting the appeal.
Te Rūnanga o Ngāti Ruanui kaiarataki and Māori party co-leader Debbie Ngarewa-Packer said the iwi settled in good faith with the Crown, but it was not respecting that agreement by intervening in this case.
"To now have the Crown law fundamentally say 'no we don't recognise your rights even though we apologised to you for our historic breaches to the Treaty, even though we now give you all sorts of rights with local government, with regional government, we don't want you to have it for the marine space' ... where they keep defaulting to justify that MACA's not here, therefore their rights are not confirmed... you just couldn't be more wrong.
"The reality is, the way the foreshore and seabed [legislation] went it didn't actually go out into the EEZ anyway so there's fundamentally a flawed argument."
In response to Ward's argument, Justice Williams said there was no ambiguity in this case.
"Ngā Rauru, Ngāti Ruanui are the ones who have a claim, if it's anybody, there's no doubt about that, no one's arguing otherwise... so why are we having this debate?"
Ward said the Crown's concern was that this judgment would become a concern when applied to other areas, where there were overlapping claims.
Justice Williams said this could be dealt with in time.
"We can deal with that when we get to a punch up of Whakatōhea proportions, perhaps that does get hard, but that's not hard here."
Justice Glazebrook said customary rights extinguished by the Foreshore and Seabed Act in 2004 were restored by the Marine and Coastal Area Act 2011.
"It certainly restores the customary interests, so you cannot argue that they don't exist until recognised."
The civil appeal will wrap up today.
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