Claims under the Marine and Coastal Area (Takutai Moana) Act 2011
Will the new government fix the problems - or make them worse?
When Labour and New Zealand First were last in office, Helen Clark and Winston Peters acted to ensure the foreshore and seabed remained in public hands. Labour's Foreshore and Seabed Act 2004 vested ownership of the public foreshore and seabed in the Crown.
However, this was overturned by National's Marine and Coastal Area (Takutai Moana) Act in 2011. But is this new government prepared to stand up for all New Zealanders, and review the Act? Dr Muriel Newman explores this question in an article published on the New Zealand Centre for Political Research (NZCPR) website, here.
Hobson’s Pledge, (an organisation set up to promote a society in which all citizens have the same rights), sought a legal opinion on the Act. This legal opinion, prepared by Franks Ogilvie, is available on the Hobson’s Pledge website, please click here.
Countering the claims.
The law presumes that customary rights have not been extinguished. Therefore, it is up to the public to provide evidence to the court that the claimants do not meet the legal test, that is, that they have not exclusively used and occupied the specified area without substantial interruption from 1840 to the present day, or from the time of customary transfer until the present day.
Applicants for customary marine title and/or protected customary rights may choose to go to court to prove their case, or deal directly with the Crown.
Claims made to the High Court.
We have been informed by the Wellington High Court that there have been 202 applications made in the court. The court advises that there is still an opportunity to apply to register as an interested party in the claims, but do so as soon as possible. Notices to Appear will be accepted until the 26th February 2018. The court will then decide whether to uphold or reject the application to appear as an interested party. For information on how to go about registering as an interested party, visit the Justice Department website, available here. If you have any questions contact the Deputy Registrar of the Wellington High Court - telephone: (04) 914 3649 or email: [email protected]
How to find out who is claiming which areas.
To go about registering as an interested party in any of the claims, you will need to work out which claim/s affect which areas of the coast. You can do this by looking at the maps of application areas. NZCPR have made the maps available, please click here. To find out who is claiming a specific area of the coast, look at the relevant map, (can be found in Annexure A), which displays the area each claims cover, accompanied by a number which identifies the claim. The identifying numbers relate to the details of each claim, including the CIV number, found in Annexure B, which follows the maps. N.B. - not all claims are shown on the map, for instance the two claiming the entire coastline are missing. Their details can be found on a table at the end of the Annexure B.
NZCPR has provided a comprehensive resource for the claims process, with updates added as they come to hand, see here.
To assist interested parties in compiling evidence for affidavits we are grateful to have been given permission to use a template prepared by lawyers at Franks Ogilvie for a client who is willing to share it with members of Democracy Action. This document is available here.
Applications made directly to the Crown.
Another 380 applications have been lodged directly with the Crown. Under Crown engagement the public will be able to object to or support any application as part of a public enquiry process seeking submissions. There are no details yet about how we can become involved in these claims. The Justice Department website publicizing applications was recently updated on 1st December, with additional contact details and maps, see here.
We have been busy contacting interested parties.
Letters, via email, have been sent to an extensive list of boating and fishing clubs and marinas, (almost 250 in total), throughout New Zealand, suggesting they register as interested parties in the claims – before it is too late. For a copy of the letter click here. You are welcome to use this as a template for your own letter, (edited as necessary) to send to anyone with an interest in the foreshore and seabed, (which surely must be most New Zealanders!)
We can fight this - ways to become involved:
- Register as an interested party in the claims, either as an individual or an organisation, or add your details to the Countering the Claims register set up by the NZCPR, available here.
- Inform others who have an interest in the coast, including friends, families and colleagues, as well as commercial and recreational users, urging them to also take action.
- Contact your local authority to find out if they have registered as an interested party in all the claims affecting the coastline of their region. If they haven’t, ask why not.
- Write to the Prime Minister and the Minister for Treaty Negotiations, Andrew Little. Let them know that you are opposed to private interests controlling the coast, and ask them what they are doing to prevent it.
- Sign the NZCPR foreshore and seabed petition, click here.
Update on proposed video.
We have now obtained a legal opinion. The final script is underway.
Further reading on the issue:
Dr Hugh Barr, the secretary of the Council of Outdoor Recreation Associations of New Zealand (CORANZ), explains the issues on Breaking Views, see here.
Dr Barr urges the new government to review the Act, see here.