Divisive 2011 Marine and Coastal Area Act undermining democracy

It is now over six years since the highly controversial Marine and Coastal Area (MACA for short) Act came into force. The Bill English National Government’s intention is still to privatise New Zealand’s foreshore and seabed to Maori tribal groups.

New Zealand adopted British law in 1840. So the New Zealand territorial sea, the area that the New Zealand Colony controlled, went out only three nautical miles from the coast, at that time, as it did in Britain, and Australia.

Returning to the MACA Act, the main type of privatised title defined in the Act is called Customary Marine Title (CMT). To qualify, a tribal group must show that it has “exclusively used and occupied the coastal area from 1840 to the present day, without substantial interruption” (S 58 of the MACA Act). It gives major property rights to any tribal group that meets this very stringent condition.

There is also a second type of tribal right, a Protected Customary Right (PCR). This also has to have been exercised since 1840, and continue to be exercised in accordance with tikanga (Maori customary practices), and has not been extinguished as a matter of law, e.g. killing protected marine mammals or native birds.

Nor does it include any activity regulated by the Fisheries Act, or is commercial aquaculture, etc. An applicant group does not need to have an interest in land, as is normally required for CMT. An example of a PCR, is collecting hangi stones from the beach, exporting gravel, etc. and not being subject to RMA requirements or payments. (See S 51).

There are two different processes that a tribal group can take to qualify. The first is secret negotiations with the Crown, (S 95) which, being secret is much cheaper in legal expenses and so is usually chosen by the tribal group. However the Crown does not have to accept an applicant, and, of course, must not accept them if they do not meet the required conditions.

Alternatively the tribal group can go to the Wellington High Court (S 100). But they have to notify their claim publicly in a local newspaper, giving other interested parties the ability to register and oppose the Claim. The Council CORANZ, the Council of Outdoor Recreation Associations of NZ has become a party to a number of Claims through this process, something they cannot do with Crown Secret negotiations.

All claims, once accepted for consideration, have to be notified, to the Ministry of Justice, as any developer wanting a resource consent in a Claim area, has to discuss it with the claimants. If the claim is proven, then the Resource Consent applicant has to gain the approval of the tribe, just as if the marine and coastal area was private land. Thus the tribe can veto any RMA consent, opening the way for the tribal group to gain payments for allowing the consent.

Besides the tribal group clipping the ticket, as above, the major danger of CMT to the public, is that “sacred” areas, called wahi tapu areas, (S 78) can be declared, where the public is forbidden to go, with trespass penalties of up to $5,000 for every trespass. (S 81 Compliance). S 80 (Wardens and Fishery Officers) shows that, in spite of talking about wahi tapu as “sacred areas” it is significant that S 80 (Wardens and Fishery areas) implies that a major use for wahi tapu will be as private fishing areas for the tribal group, with Fisheries Officers giving up their time to help patrol them. Local Authorities also have a responsibility to discourage public use (S 81 (1).) and weigh in against their own ratepayers, and other friends – an unhelpful conflict of interest for them having to be forced to be policemen by the Act.

The S 58 requirement, for exclusive occupation and use since 1840 to the present day, has proved very difficult to meet. There are many significant reasons for this. Maori have intermarried with settlers, and even wanted settlers in their area, so that they could learn from them, and for trading purposes. As well, in many cases the roads went along the beaches, as this was far easier than building roads through unbridged rivers, and perpendicular gorges, and thickly forested hinterlands.

And, prior to the end of the Second World War, most transport was by coastal steamer. However, with the end of the war, bulldozers made inland roads much easier to build and maintain.

This also made it much easier for city people to go to the beach, and baches appeared all over the coasts where fishing. boating, surfing, yachting, diving, swimming, or other relaxation was available. Because New Zealand’s coasts are so attractive, having a bach at the beach has become the norm. City dwellers greatly outnumber locals during the holidays in Northland, Coromandel, the Bay of Plenty, East Coast, Hawke’s Bay, Wairarapa Coast, Marlborough Sounds, Nelson, Golden Bay, Canterbury, etc.

So, not surprisingly, when you think about it, gaining exclusive occupation and use is unlikely. And, so it has proved. Only one case of CMT has been granted, in the six years that the Act has been in force. It was via the Wellington High Court process. The area is for two of the most remote islands to the South-west of Stewart Island, owned by mutton birders, dating back to before 1840.

I have done a lot of historic and mapping research on many claims, and believe that there are very few if any places on New Zealand’s main islands that would qualify. Certainly none of the uninhabited islands. The Sub-Antarctic Islands, the Three Kings and the Kermadecs, don’t qualify, even though there are claims filed for some of them, as no-tribal groups have lived on them.

Most tribal group claims are highly optimistic, claiming out to 12 nautical miles (22 km), from the shore, i.e the limits of the territorial sea. This, even though the territorial sea only went out 3 nautical miles in 1840,and only went out to 12 nautical miles in 1977, as a result of New Zealand playing an important role in the United Nations Convention on the law of the Sea.

No-one will go out to the edge of the territorial sea, when most of the fish species people are looking for to eat are much nearer the coast. In the two Stewart Island titi islands case, although the tribal group claimed out to 12 nm, they were only granted the area within casting distance from the shore.

Crown Law has turned down a number of claims, as it must, if they don’t meet the requirements. Of the twenty remaining, none have been taken forward to Parliament for ratification, showing presumably, that Crown Law had serious doubts about those that it has investigated.

“Gold Rush” on for last-minute claims
An expiry date of Monday 3 April 2017 was set in the Act, for lodging all claims. That is, six years after the Act came into force. Both the Crown Secret negotiations process and the High Court process have that expiry date. However, since 3rd April, it has led to a flood of claims being registered with the Wellington High Court, based on claims registered with the Court by 3rd April.

Justice Department staff reckon the number of last-minute claims is over 150. These are what have been advertised in vast numbers in the public notices in regional and local papers. On Saturday 29th April for instance, there were about 30 different ads in the NZ Herald, and 10 in other papers, including four in the Dominion-Post. These last-minute claims are flooding the resources of the Wellington High Court.

Many of these claims overlap with other claims, as has already happened with a number of claims lodged before 3rd April. This of course is not possible for each tribal group to “exclusively occupy and use” an area of coast. The claims also make expansive and sometimes laughable claims for PCRs.

It seems that those tribal groups with claims under the Secret Negotiation process, believe their claims won’t succeed, and instead are betting on having more chance of persuading a judge. Today Maanu Paul claimed the whole of the North Island coast out to 12 nm.

The High Court process, at least allows members of the public to join these proceedings, and help argue that almost all of them have little or no merit. However, there is no limit to the amount that tribal groups are given by the National Government – several millions – to pay lawyers and others to argue their claims, while non-tribal participants such as CORANZ have to pay their own way.

Why iwi/hapu are so determined to take over the public’s beaches for themselves is very disturbing. It highlights just how wedded to Maori supremacism iwi/hapu have become, under Bill English’s National Government. And it bodes poorly for future race relations in New Zealand.

Please Note: This link to the Justice Department website lists the 20 or more claims being secretly negotiated with the Crown.