Why We All Should Be Concerned About the Government Bringing in Retrospective Legislation Impacting Applications for Customary Marine Titles.

The Marine and Coastal Area (Takutai Moana) Act 2011 was introduced to replace the repealed Foreshore and Seabed Act 2004 to establish ‘a durable scheme to ensure the protection of legitimate interests of all New Zealanders in the marine and coastal area of New Zealand; and recognise the mana tuku iho (inherited status, mana through descent) exercised by iwi, hapu and whanau as tangata whenua and provide for the exercise of customary interests in the common marine and coastal areas’.

This is of course acknowledging that the areas are still for the benefit, use, and enjoyment of the public of New Zealand.

What that generally means is that whilst all New Zealanders still carry on enjoying these areas as per usual, those Māori with a legitimate claim to the area, those meeting the already hefty requirements of Section 58 of the same legislation, have what should have been theirs all along, customary title (recognition by state that the pre-existing rights of the indigenous population remain) or customary rights (that their rights to use according to custom are not legally extinguished).? The burden of proof put upon them to ‘acquire’ these rights, is that they need to prove that they have exclusively used and occupied an area from 1840 to present day without substantial interruption.? From this, they get to either gain a customary title or customary right allowing them to utilise the water in the same ways they have always done, and to have a seat at the table to decide (if they have customary title) what happens with those areas such as ensuring that environmental protections are in place.?

When I say already hefty requirements to prove this, I mean HEFTY.?

Let’s first disclose my interests.? I am not Māori. ?In fact, I wasn’t even born here.? We moved to New Zealand when I was a baby so my claim to being a New Zealander is by virtue of having citizenship and that this is country is all I know.? Through marriage, children, grandchildren, we’re very well integrated.? My husband’s family is Māori so my interest in this originally stems from observing how this side of my family through marriage entered into this process to make a claim for customary marine title through their hapu in regard to the Whangarei Harbour.?

I have observed significant work and expense going into this from having to provide substantial proof to the court through, employing historians, lawyers, family lineage experts, land mapping? ?ethnologists, as well as many meetings with family to get information of continued use, and gathering of prized treasures (taonga) from the land in the area.? This despite the fact that they have land that hasn’t moved from the family during this time.? The questions asked were invasive and took a phenomenal amount of work to put together to show proof.? It was an expensive and exhaustive exercise, even before it got to court.? At this stage, there was a budget for this preparation and court time provided by government so thank you also to taxpayers for this help.? More on what’s happened to this funding later…

The case was heard over 10 weeks and involved 16 groups and also interested parties such as Northport, Channell Infrastructure, the Attorney-General, and others.

I sat in the hearing for a couple of days, including the last one.? The patient, highly knowledgeable and considered Jude Harvey, said that he had hoped to have the decision out within 8-12 weeks from the end date of the hearing early in May of 2024.

15 July, it was confirmed that the Attorney-General and interested parties were having a conference on 17 July to put a stay of proceedings on both the Whangarei Harbour claim (1A) just heard, and the Outer Harbour Claim (1B) imminently due to be heard, that Cabinet had made decisions regarding the Government’s intention to clarify s58 of the Marine and Coastal Area (Takutai Moana) Act 2011 under which these claims were being made.? This was intended to make it much harder for applicants to make a claim.? This request was put forward by Northport Limited (Northport), Marsden Cove Canals Management Limited (Marsden Cove), Fletcher Concrete and Infrastructure Limited (Golden Bay), Channel Infrastructure NZ Limited (Channel Infrastructure), and Marine Park Limited and Port Road Limited trading as Port Nikau Joint Venture.??

Then, the Government, decided that they would overturn the High Court decision based on their new, ‘enlightened’ view on s58 that their questions weren’t difficult enough to provide evidence of exclusive use being demonstrated without substantial interruption, amending the ‘burden of proof to applicant groups further.? The Court of Appeal said the CMT (customary marine title) test was too high, producing an outcome ‘inconsistent with the Treaty, and inconsistent with the common law thus depriving and iwi or hapu of CMT.? This would mean that customary interests were not only NOT recognised, but interests would be extinguished.

The Government dug in further with the Bill not only changing the burden of proof as above making it harder for decisions based on current legislation to be recognised, but enforcing it retrospectively as from 24 July 2024.? This meant for example, that had Judge Harvey made his decision on Whangarei Harbour, it would be invalid based on future legislation being introduced to interfere with a legitimate decision being reached by him.? By the way the cost of this particular hearing – just for the Whangarei Harbour, not the outer Harbour claim, and not considering the years of work and time invested by all, was $12,000,000.? It means realistically with government interference; this will have to all be heard again under legislation not in place yet.?

This brings me back to how this can be funded second time around.?

So, the Government had set aside a budget of $17,300,000 for the year for all MACA (Marine and Coastal claims) around the country.? With a number of claims being held around the country and many other claims already set for next year, this means that the process was already horribly underfunded, bearing in mind how expensive it is to show the required proof required of iwi and hapu.? It is now nigh on impossible to afford to come up with the evidence from the experts that have to be engaged to provide ‘adequate’ evidence to the courts.? Now, with the change of legislation, a lot of these already horribly expensive and time and emotionally consuming cases will have to be heard again.? Again, I reiterate, to meet the standards of retrospective legislation which is still not in place!!

This is not the only evidence of Government interference and riding rough shod over the judiciary and Māori to get their way.? There’s the despicable display of cabinet minister Shane Jones calling Justice Gwyn a Communist because she had awarded Customary Marine Titles to Māori in an earlier decision!? If it doesn’t go your way, insult the Judge for providing a thought out, reasoned decision based on law.? Shocking behaviour for a cabinet minister.

Now I hate conspiracy theories, but I can put two and two together and make four.? Here is another concerning piece of interference from the government.? Marsden Maritime's CEO Rosie Mercer is also an adviser to Government Ministers.? So why is this important to note.? Marsden Maritimes hold half of Northport.? Northport has big expansion plans including a major container terminal under consideration for fast-track treatment.? So, whilst they do not have any decision-making power, their advice will help ministers to advise on what projects will receive fast-track treatment.? Northport are one of the major interested parties in the Whangarei MACA claims.? Seems like a conflict of interest to me.

Recently Northport’s resource consent for a 11.7 ha reclamation was turned down by independent commissioners whose decision was supported by local hapu.? Local hapu is not against commercialisation at all.?? This support was based on adverse environmental impact on the scale and extent of the reclamation plans which was proved would have been significant and irreversible. Northport leaders and supply chain insiders expressing it was a big hit on New Zealand's growth prospects. Very emotive language, but not providing the full picture. Remember, local hapu is not against commercialisation, but need assurance as should we all, that commercial growth doesn't adversely impact the environment so drastically.

The governments interest in this expansion of Northport are evident.? In a Herald Article on 9 September, we see that the infrastructure spending for the next 25 years will be dominated by the roadway connecting Auckland to Whangarei (10% now with the thought this may double).? In particular this article mentions Port Marsden. Why Port Marsden?? Because if there are plans to make this the hub on sea imports and exports, a major roadway and railway need to be in place.? So, 'interference' by local hapu backing a decision to refuse a resource consent because of environmental impact, directly interferes with this plan.? Government do not want to deal with local Māori in this plan.

The plot thickens.? Changes to make things harder by Government for Māori to have a say in the oceans is being implemented because it isn’t convenient for them to contend with Māori opinion and influence.? Think about this.? If the indigenous population have a stake in the outcome by having a seat at the table (not the whole table), then there is an additional safety net in place for decisions which adversely affect the environment for all New Zealanders.? I for one would prefer to have this check and balance in place.? The waterways are becoming increasingly polluted, and we only have one planet and one New Zealand.? Remember those changes that the Port had in mind were going to be both significant and irreversible.

The trick for many New Zealanders is to not assume that this is all about Māori getting ‘more than their fair share’.? It isn’t.? This is about recognising indigenous rights and allowing them to have a seat at the table in deciding how the oceans are treated.? That works in everyone’s best interests.

Allowing the Government to go unchecked in being able to overturn decisions by putting in place retrospective legislation to suit their purposes is a very dangerous precedent to let happen.? Governmental interference with the judiciary impacts all of us.? What other inconvenient (for the government) decisions will they overturn to suit their agenda?? Don’t let this one slide.