Foreshore and seabed debacle continues

A Court of Appeal decision released back in October over cultural and legal interpretation of the Marine and Coastal Area Act will have a profound influence on our future, say two political commentators.

The Marine and Coastal Area Act (MACA) was brought in by John Key’s National Government back in 2011 as part of its coalition agreement with the Maori Party.

The new law repealed Crown ownership of the foreshore and seabed and opened up the coast for tribal claims.

“At the time, the public was assured by the architect of the law change, the Attorney-General Chris Finlayson, that no more than 10 percent of New Zealand’s 20,000 kilometre coastline would end up being controlled by Maori,” says Dr Muriel Newman from the NZ Centre for Political Research.

“Those promises have now been proven false,” she says, referring to a Court of Appeal decision over a case in the Bay of Plenty that could result in virtually our entire coastline and Territorial Sea passing into Maori control, Newman claims.

This situation began in 2003, explains Newman, when a dispute between Ngati Apa, a tribe in Rangitikei, and a local council over a marine farming application escalated to the Court of Appeal. The Court’s decision over-ruled Crown ownership of the foreshore and seabed by finding that pockets of customary interest still exist.

“A resulting flood of claims for the coast forced Helen Clark’s Labour Government to legislate to restore Crown ownership through the 2004 Foreshore and Seabed Act.

“While the new law provided for tribal groups to prove their customary interest in the High Court, there were on-going complaints that the bar was set too high for claims to succeed.”

The Maori Party campaigned for a law change and, once in coalition with National, the Government repealed Crown ownership with its Marine and Coastal Area Act and opened up the coast for tribal claims – either through hearings in the High Court or direct negotiation with the Crown, she explains.

“The prize was huge: 10 million hectares of the richest natural resources in the country covering the distance between the average spring high tide waterline and the 12 nautical mile Territorial Sea limit, along with the airspace above, the water space, and the subsoil, bedrock and mineral wealth below.”

Newman says the Maori Party was confident that tikanga (customs and traditional values, especially in a Maori view context) would be a central consideration in the new law and, as a result, neither historic land confiscations, nor overlapping claims would disqualify claimants.

“This was at odds with assurances being made to the public. We were told the tests to gain a Customary Marine Title (CMT) were high.

“In section 58(1)(a) of MACA, claimants had to firstly, ‘hold the specified area in accordance with tikanga‘. And second, under 58(1)(b), they had to have ‘exclusively used and occupied the area without substantial interruption from 1840 to the present day’.

“Overlapping claims, which were obviously inconsistent with the concept of ‘exclusive’ use, were expected to be ruled out, as were claims for areas of the coast where adjoining land had been confiscated, or where third-party use resulted in substantial interruptions.

“Furthermore, since tribal groups had limited ability to navigate far from shore in 1840, it was also expected that few, if any, Territorial Sea claims would succeed.”

Anyone successful in claiming Customary Marine Title would receive property rights akin to ownership; including a right of veto over all resource consents and conservation activities; involvement in coastal planning and policy development; the ability to charge commercial operators, impose rahui (bans), and restrict public access through wahi tapu (sacred areas); and ownership rights to all non-nationalised minerals – including royalties from existing mining operations, back-dated to when applications were first submitted.

“While the law protects commercial fishing, navigation, and public access – as well as existing marine reserves, aquaculture activities, and essential infrastructure operated by the Crown, port companies, and councils – it does not prevent CMT holders from regulating consent applications for expansion plans and other variations.”

On the eve of the six-year deadline for MACA claims in April 2017, almost 600 overlapping applications for the entire coastline and Territorial Sea flooded in – some 200 for the High Court and the balance for Crown Engagement, says Newman.

“While Maori claimants were offered up to $458,000 to fund their High Court cases, there was no financial assistance available for those wanting to oppose the claims. As a result, despite widespread public concern, opposition to the claims was limited.”

Newman says at this point the NZ Centre for political Research (NZCPR) stepped in to raise funds to assist a voluntary community group oppose the first “Edwards” claim in the public interest. Dr Newman had founded the NZCPR as a public policy think tank in 2005 after serving nine years as a Member of Parliament.

“Our understanding was that none of the multiple [Edwards Claim] applicants for a 44 kilometre stretch of the Bay of Plenty coastline around Opotiki would meet the high MACA threshold for a CMT, and our hope was that ensuring a sensible outcome for the Edwards case would have a precedent effect on all other claims.”

Instead, the High Court in 2021 awarded three ‘shared’ CMT orders and ruled that ‘tikanga’ outweighed any property-right requirements, and elevated ‘customary rights’ above any need to consider ‘property-rights’.

“As a result, instead of being ruled out, overlapping claims were accommodated through a new tikanga– based concept of ‘shared exclusivity‘.

And ‘substantial interruptions‘ were interpreted to mean that small parts of a claimed area might need to be excluded, rather than the claim itself.”

Newman says as this High Court ruling delivered the exact opposite of what was expected from the National Party’s assurances about their law change, it was filed to the Court of Appeal.

The Appeal Court decision was released in October this year with three judges delivering a split decision.

“Our argument was that the Edwards case needed to be sent back to the High Court so the s58(1)(b) property- rights test of whether claimed areas had been used and occupied exclusively and continuously since 1840 could be properly determined by fact and proof.

“While the Appeal Court agreed with us that two of the three CMT orders should be sent back to the High Court to be re-assessed, it was a hollow victory.

“The Court of Appeal decision affirms tikanga as the dominant consideration when assessing CMT applications. As a consequence, the hurdles to gaining title are now so low and self-serving that virtually all of the claims are likely to succeed.

“As a result, the entire marine and coastal area will end up under the control of competing Maori tribal groups, which is the exact opposite of what National promised when they introduced the new law in 2011.”

Newman says the Court of Appeal judgement highlights the “danger” of including tikanga in the law, since it can be interpreted to mean virtually anything. What Newman also found particularly concerning was that, while the Court of Appeal understood that the law should deliver what Parliament intended, they did not agree with Parliament’s intentions.

“Since the Judges reasoned that doing what Parliament intended would be perceived as unjust and contrary to MACA’s purpose, they interpreted the law in a way that will ensure virtually all of the tribal claims succeed.”

Newman adds that, as a result, she has no doubt that all Courts will apply the law to the bulk of claims yet to be considered – some 200 in the High Court and 385 awaiting Crown Engagement – in such a way that title to coastal marine area will pass to Maori interests.

A long and costly legal exercise ahead

Former Judge and law lecturer Anthony Willy says the Court of Appeal decision features the “oxymoronic notion” that there is such a concept as “shared exclusivity” when it comes to historic Maori land use surrounding the foreshore.

“Applying plain English, a use is either shared between one or more persons, or it is exclusive to a person or group. It cannot be both, but that is no longer the law in New Zealand relating to this Act of Parliament – according to the High Court and now the Court of Appeal.”

One may well ask, he adds, what is it that is so difficult about the 2011 legislation that requires such a massive and costly exercise in interpretation.

“On the face of it – the wording of the relevant parts of the Act seems straightforward customary rights can only arise from an order of a Court. “Merely asserting them is not sufficient. All rights of access and recreational use are preserved to all citizens. The area covered by the Act is that “made wet by the tide” but does not include the water itself.

“There is also a provision dealing with rivers one kilometre upstream from the river mouth. A protected customary right is a right that has been exercised since 1840, continues to be exercised, and is not prohibited by law.”

He argues that these provisions clearly intend to provide for the exceptional classes of case where an applicant can prove an unbroken family interest, dating back to 1840, in an area of coastline that they enjoyed to the exclusion of others, and accompanied by rights of use, which have not been lost or compromised by subsequent legislation or Court rulings.

“In each case, it would be a question of fact to prove those matters by reference to relevant tribal customs. Because of the integration of Maori people into New Zealand society and the increasing sophistication of that society – clearly such cases would be few and far between.”

Willy adds that it is, “No business of the courts to approach the matter by saying that to apply the plain wording of an Act of Parliament will result in consequences unfair (in the mind of the judge) to one or more of the parties.

“That is to usurp the function of the democratically elected legislature and infringes the crucial doctrine of separation of powers between the Judiciary and Parliament.”

An ongoing legal saga

This case has a way to travel through the Courts before the law is settled, Willy notes, and there are currently 200 other cases on the court lists.

He also notes that the ‘Edwards’ case concerned a tiny area of land along the coast opposite White Island and 17 parties (“most of who cannot agree among themselves as to who is entitled to what”), who were represented by 24 lawyers.

“All of this, mostly funded by the taxpayer, will be sent back to the High Court to hear further evidence and apply the court’s rulings with the almost certain prospect that the case will end up in the Supreme Court some years down the track.”

The costs of this litigation are, and will continue to be, enormous, Willy adds, given that it seems different Maori families will make competing claims to the same area of the foreshore. “Given that the legal costs are apparently being met by the taxpayer except for those opposing the claims (they must meet their own), costs to the applicants will not be a concern.

“If nothing else, this whole process will become a bonanza for the lawyers and the court lists will be cluttered by such claims for years to come.

“More importantly, the process will create division between competing Maori families and between Maoris generally, and other ethnicities.

“Given the uncertainty surrounding the judgments and their effect on society – the only course is to return the foreshore and seabed to Crown ownership where it has resided since 1840.”

Wellington lawyer and former ACT MP Stephen Franks agrees, and iterates that with more than 200 claimants the decision could mean most of New Zealand’s coastline is subject to claims.

“The court has now said, even though those words would knock out most claims, we don’t think that’s the right spirit, so we are not going to treat them as if they don’t say what they say.”

Franks wants the next Government to go back to the controversial Foreshore and Seabed Act. “There will be a whole lot of huffing and puffing but where we are now is on a path to really destructive relationships.”

Meantime, Prime Minister Christopher Luxon promised his Government will respond to the ‘Edwards’ Court of Appeal decision.

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