Contrary to assurances given by the government of the day, the avalanche of claims made under the Marine and Coastal Area Act include not only remote areas of the coast, but every inch of the marine and coastal area of New Zealand. More than 580 claims have been registered for recognition of Customary Rights and for Customary Marine Title over 10 million hectares of foreshore and seabed out to 12 nautical miles (22 kilometres), all harbours and estuaries, the airspace above and many of the minerals below.
Unless organisations and the public become involved as interested parties, a number of these claims may well succeed. But, time is rapidly running out to register as an interested party. The opportunity to do so runs until 26th February.
The Marine and Coastal Area (Takutai Moana) Act 2011 – a brief summary.
In 2011 the Government passed the Marine and Coastal Area (Takutai Moana) Act 2011 “to provide for the recognition of the customary rights of iwi, hapū and whānau in the common marine and coastal area”. The Act allows Māori to gain recognition of two kinds of rights:
- Customary Marine Title, which is basically about some of the elements of ownership and possession, and
- Protected Customary Rights, which is basically about use and activities.
Customary marine title, (ss 58-60), is roughly similar to some of the elements of ownership and exclusive possession (that is, the right to possess the area to the exclusion of all other people), but the rights it gives are restricted. The group can’t sell the area or exclude the New Zealand public from it. However, this right to recreational access and use is subject to any wāhi tapu conditions.
Examples of rights customary marine title holders possess:
- the right to give or refuse permission for activities by others that need resource consents from local councils or permits;
- the right to tell DOC yes or no to certain conservation activities;
- ownership rights over minerals other than petroleum, gold, silver and uranium; Section 83(2)
- the right to stop people accessing areas designated “wahi tapu”, with trespassers fined up to $5000 Section 81(2)
While the Act guarantees access to the coastline, without charge, for individuals, the Act does not prohibit Customary Marine Title holders from charging commercial users or groups for access Section 26(1)
To prove that it has customary marine title for a particular area that should be recognised, a Māori group must have had the exclusive use and occupation of the area since 1840 without any substantial interruption.
Protected customary rights, (ss 51, 52), basically means rights to activities and uses that are conducted according to tikanga. Once those customary rights have been legally recognised, then the group can do those things without needing to get any resource consent from local councils. Local councils also can’t give resource consents for any activities that would affect their protected activities in any significant way, unless the group agrees.
To show that it has customary rights that should be protected, a Māori group would need to show that the uses and activities have existed continuously since 1840.
Applying for recognition of customary interests
There are two different pathways that iwi, hapū and whānau could follow to get recognition of their customary rights: negotiating directly with the government, or applying for a High Court order.
HOW TO COUNTER THE CLAIMS
Under section 58 of the Marine and Coastal Area Act, claimants for customary title must furnish evidence that not only have they used and occupied the area from 1840 to the present day without any substantial interruption, but that their use has been exclusive.
Everyone who can testify that iwi applicants have not “exclusively used and occupied” a specified area from 1840 to present day without “substantial interruption” are urged to do so.
The High Court process
Our courts depend on an adversarial process – they are poorly equipped to test claims and evidence when there is no adversary – so it is important that members of the public provide historical and contemporary evidence to prove areas under claim have been used by others. This evidence can be as simple as offering statements showing where and when they, too, had swum, fished, boated and walked the beach etc. without restriction, thereby proving that the claimants have not had exclusive use and occupation, and therefore the do not meet the legal test.
To preserve a right to challenge or to test the claim anyone who may be affected by an application can file a Notice of Appearance until 26th February 2018. You can register as an individual, as a family group, as a group of like-minded people, as a club or organization. Or you can register with organizations such as the Council for Outdoor Recreational Associations of NZ (CORANZ), and the New Zealand Centre for Political Research (NZCPR). These organizations have joined forces to enable CORANZ to register as an interested party in every claim. To join the register, go to the website here, and scroll down the page. (Although it would be very helpful to the administrator at NZCPR if you could give the claim number of the area of interest, (CIV number), you can just supply the name of the area).
Your Notice of Appearance would need to include the High Court reference number (CIV number) of the application, or the name of the group or person who applied to the High Court to have their customary interests recognised. Therefore, you will need to work out which claims affect which areas of the coast. If you missed the notices of claims published in newspapers earlier this year, you can still identify them by looking at the Maps of High Court Application Areas produced by Crown Law, which indicates the location of the claims registered with the Court. The maps can be accessed here.
To find out who is claiming a specific area of the coast, look at the relevant map, found in Annexure A, which shows the areas each claim covers, accompanied by a number which identifies the individual claims. The identifying numbers relate to the details of each claim, including a unique CIV number, which can be found in Annexure B. (N.B. not all claims are shown on the map - for instance the two claiming the entire marine and coastal area - CIV-2017-485-512 and CIV-2017-404-538). Once you have found the CIV number related to the area of interest, you can then contact the Wellington High Court to find out more details about the claim, and to ask for a copy of the claimant’s application. The Wellington High Court email address is: WellingtonHC@justice.govt.nz
The phone number is (04) 914 3649.
NZCPR have compiled a list of the claims. They can be accessed here.
We have a list of the claims covering the East coast of the Auckland region, the Coromandel, and northern Bay of Plenty, of which there are 53 made in the High Court. For a copy of this list please email Susan at firstname.lastname@example.org
The High Court has provided advice for those wishing to support or oppose a High Court application, including an example of a notice of appearance, see here
If you need any help with registering, call Lee or Susan on 09 281 5173.
The filing fee is $110 per Notice to Appear. If submitters also complete a "Waiver of Fee" form the Court will decide whether or not to waive the fee. The application form is available here.
N.B. Only the 200 applications for recognition of customary interests via the High Court pathway are featured on the maps - the other 380 claims registered for direct engagement with the Crown are not included. Details of the applications made directly to the Crown are available here: https://www.justice.govt.nz/maori-land-treaty/marine-and-coastal-area/applications/#lists
Crown Engagement process. As yet there is no opportunity for the public to become involved in the Crown engagement pathway. We understand that the Crown is currently processing the applications received. No set timeframes for managing these applications and commencing engagement have been confirmed by the Crown.
Encourage others to become involved
Please encourage other people and organizations, such as boating clubs, fishing groups, bach owners, and anyone else with close associations with the coast, to also become involved as interested parties. (If you would like a copy of a template letter, which you can modify for your own use to send to any potential interested parties, please let us know).
In addition, please:
- contact your local council to see if they have lodged Notices to Appear on behalf of their citizens;
phone, write or email the government, demanding the Crown defend the rights and interests of all citizens by vigorously challenging and testing the claims:
- the Attorney General, David Parker, who is a party to all the claims, email email@example.com
- the Minister of Treaty Negotiations, Andrew Little, who is responsible for the process and for deciding the 380 claims registered for Crown engagement, email firstname.lastname@example.org
- the Prime Minister Jacinda Ardern, email email@example.com
- the Deputy Prime Minister Winston Peters, email firstname.lastname@example.org
- phone your local MP;
- write letters to local newspapers, post items on social media.
Q. When does the word ‘exclusive’ not actually mean exclusive?
A. When previous Attorney General, Chris Finlayson, decides it doesn’t.
The determination released in August 2016 by then Minister Finlayson to allow customary interests claimed by the Ngati Pahauwera Development Trust to be recognised is very concerning, not only in itself, but also for the precedent it sets. This involved the granting of Customary Marine Title for the area Poututu Stream to Ponui Stream, out to 12 nautical miles. (This area is situated in the Hawkes Bay, between Wairoa and Napier). This is despite the historical evidence which was presented to the Minister that the area has been used by others for over 150 years, thereby negating the “exclusive use” threshold for a successful claim. Mr. Finlayson’s determination included this passage:
“I am satisfied that the combined historical and contemporary third-party activities are not of sufficient intensity and scale to amount to a substantial interruption of any exclusive use and occupation that Ngati Pahauwera are able to establish. These activities often take place in small, confined parts of the CMCA and do not, of themselves, interrupt use and occupation by the applicant group”.
Finlayson chose to dismiss the six public submissions, including from the Council of Outdoor Recreation Associations of New Zealand, as well as historical evidence of the common marine and coastal area being used for the “landing of goods and people, travel along the foreshore between Napier and Wairoa and small-scale gravel and shingle extraction”
Dr Hugh Barr’s article, published on the NZCPR website (December 3, 2017), details evidence that the Ngati Pahauwera claim should not succeed since the claimant tribe has not had exclusive and continuing use and occupation of this section of the coast. It is available here.
Seeking Tino Rangatiratanga over the entire Common Marine Area
The intentions of at least one of the claimants are made clear in this Memorandum of Counsel filed on 11th January on behalf of the chairperson of the Mataatua District Maori Council. Not only is this group seeking Maori control of the common marine area (CMA), (s 30), but they also are suggesting that a literal interpretation of the legislation regarding the clause ‘exclusive use and occupation without substantial interruption’ was not intended by parliament, therefore the vast majority of the CMA would be capable of a Customary Marine Title recognition order.
What is the ‘common marine and coastal area’? The area between the mean high-water springs and the outer limits of the territorial sea, (12 nautical miles from shore), except for existing Māori freehold land and other areas privately owned by New Zealanders, and except for conservation areas, national parks and public reserves. The area also includes the beds of rivers, going upstream from the river mouth for a distance that is five times the width of the river mouth, but not more than 1 kilometre upstream.