Back in 2003 the Judges in the Court of Appeal case that triggered the foreshore and seabed controversy indicated that there would probably be no more than a few pockets of customary title still in existence. But fifteen years later, following the introduction of the Marine and Coastal Area Act, (MACA Act), we are faced with every square inch of the coastline being claimed, in some places many times over. By the deadline 3 April 2017, 587 claims had been lodged, 202 to be heard in the High Court, the other 385 to be dealt with by Crown engagement, i.e. directly with the Government.
Each claimant group has been given the right to apply to the government for funding, up to $412,000 if engaging with the Crown, and if applying to the High Court, up to $316,750. Even so, during the case management conferences, some of the claimants raised concerns about limits on funding.
Initially, the focus has been on engaging with groups where the Crown had an existing commitment before 2017. The sequence and timing for determination of Crown engagement applications is being developed and information about this will be published on the Justice Department website in due course, see HERE. Under direct Crown engagement the general public will be able to object to or support any application as part of a public enquiry process seeking submissions. According to the latest update, (24 August 2018), this process has not started.
Regarding the applications made to the High Court, the first case management conferences were held in May and June for the eight priority High Court claims, and those overlapping. At these conferences several contentious issues arose, but two in particular stand out. The first relates to the role and status of the Attorney-General in proceedings under the Act. Questions have been raised by several claimants about whether the Attorney-General should be able to oppose the claims “in the public interest”.
It would be a disaster if the position of the Attorney General in the claims process was compromised, as he plays a key role in challenging the veracity of the claims, and advocating for public rights.
The second issue concerns the meaning of sub part 3, clause 58 (1) (b) (i)
“exclusively used and occupied it from 1840 to the present day without substantial interruption.”
Terms such as “exclusively used and occupied”, and “substantial interruption” are not defined by the Act, giving the claimants the opportunity for to argue in favour of a liberal rather than a literal interpretation of the law. If a liberal interpretation of the law is adopted, it is likely that the claimants will argue that ‘exclusive’ customary use and occupation is not extinguished by other people using the area, and since tribal group have still retained their use of the area, they should be awarded title.
The judicial determination of both these matters will affect all the claims. Those of us opposing the claims need to mount the strongest opposition possible. To this end it may become necessary to engage the best legal counsel available, preferably a QC. If you have any recommendations, please let us know.
The Clarkson claim, CIV-2011-485-000789 is the first of the priority claims. This is for an area of coastline near Dannevirke – from Porangahau to Cape Turnagain. A link to a copy of the application is available on the NZCPR site, see HERE. If you have not registered with the High Court as an interested party, you can still become involved by registering with the NZCPR’s ‘Countering the Coastal Claims Campaign’, see HERE.