The Marine and Coastal Area Act 2011 triggered almost 600 applications for the recognition of customary rights over specified area of the common marine and coastal area. Over 200 claims were lodged in the High Court, the start of a very complicated, long and expensive process.
Over the past couple of years, the courts have held two rounds of case management conferences, where all preliminary issues are discussed, and directions are timetabled. The second round of case management conferences is now complete. Lee Short, the chair of Democracy Action, attended the final one on 27 June, which was held in Auckland. He filed the following report:
“I attended the last of the High Court case management conferences relating to the 200 or so parties that have made claims to the High Court under the Marine and Coastal Area (Takutai Moana) Act 2011. These have been held throughout the country, this last one in Auckland.
The presiding judge, Churchman J, heard affidavits on behalf of several iwi claimants. What was made immediately clear was that little headway has been made by most of the claimants in progressing their applications, largely due to the overlapping claims. Justice Churchman stressed that with so many competing claims, the Court is not in the position to decide in favour of any applicant. He indicated the applicants’ situation would be greatly enhanced if they made joint applications. He encouraged claimants to work on forming joint bids, stressing that any such agreements would need to be recorded in formal legal documents, signed by all parties and registered with the Court.
Justice Churchman also said that they must provide to the Court accurate and detailed mapping of the areas claimed.
Most of the applicants requested a 12-month adjournment, until June 2020, to enable them to gather evidence and discuss joint bids. All wanted further money from the Crown to assist with possibility of joint bids. Justice Churchman suggested they have the ability to get together to discuss joint applications without extra funding.
Justice Churchman also stated that the Court was not sympathetic to the two claims for the entire coast, saying the claims applications were too broad. He suggested they focus on particular areas instead.
He also acknowledged the upcoming contested hearing regarding the role of the Attorney General in the claims’ process”.
The most recent minutes/directions issued by Churchman J are available on the Courts of New Zealand website - please click HERE. In his minute of July 25, re Case Management Conferences 2019, Justice Churchman commented on following issues:
- The overlapping claims.
- The lack of accurate mapping to which the applications relate.
- The disquiet expressed by several applicants upon learning of the type of information that was to be included in the National Dataset – the Geographic Information System Dataset that contains layers of information derived from publicly available data. The view was expressed by some claimants that the information being gathered could potentially be seen as information that might be utilised in opposition to the applicants’ claims.
- Although some applicants were satisfied with the position set out by the Attorney-General in the memorandum of 11 September 2018*, others were not and wished to have their applications argued. Justice Churchman: “At one extreme was the submission of Ms Mason at the Whangarei CMC on 25 June 2019, on behalf of Reti Whānau and Ngāti Kawau and Te Waiariki Kororā, where she submitted: The applicants’ view is that the Crown, the Attorney-General should not be a party to these proceedings at all, and not an interested party or in any other way”.
- Others did not go so far as to challenge the right of the Attorney-General to appear as an interested party but wanted clarity around the nature of the public interest that the Attorney-General was representing. The submission was made that the public interest could not just relate to “non-Māori” interests.
- The Court will hold an interlocutory hearing on 7 and 8 October 2019 in relation to the challenge to the role of the Attorney-General.
- At the Rotorua CMC of 19 June 2019, Mr Sinclair and Ms Sykes suggested that a preliminary hearing may need to be held as to the effect of the 1865 confiscation, and whether or not the confiscation was lawful. Justice Churchman: “Ultimately, the legal consequences of the confiscation of vast tracts of land by the Crown in 1865 will be one of the matters relevant to establishing the claims of those applicants whose lands were confiscated”.
*The Attorney-General filed a memorandum on 11 September 2018 clarifying that the Attorney-General understood his involvement in each application under s 100 of the Act was that of an interested party.
Serious issues have arisen during the court process. Arguably the main ones can be summarised as:
- the role of the Crown in the proceedings;
- there is no guarantee the Crown will oppose the claims;
- the extensive overlap of claimed territory, and interests;
- problems regarding the mapping of the areas being claimed;
- the claimants’ complaints of government funding not coming through quickly enough or the funding being insufficient;
- the effect on the claims of those applicants whose lands were confiscated;
- the interpretation of the term ‘exclusive’;
- the definition of the word ‘tikanga’.
As Frank Newman, secretary of the Landowners Coalition, writes in his opinion piece Slow progress on Marine and Coastal area claims:
“The difficulty is there is no agreement on the meaning of exclusive or tikanga (Maori customary values and practices). Some argue that tikanga is unique to a tribe, who have their own values and practices. It is therefore quite possible that the meaning of tikanga will vary depending on the case being argued.
Those engaged in the process therefore face the conundrum of arguing issues relating to exclusive use and tikanga without having a working definition and without being able to define its parameters. It will therefore be difficult to argue an area has not been used according to tikanga – when tikanga is whatever a claimant says it is”.
Frank goes on to say:
“What is clear from the court pleadings to date is that the historic evidence presented by claimants will be largely “oral and traditional”. In other words, the reflections of elders based on memories that will be either real or imagined. This evidence is being prepared with the assistance of historians specialising in cultural history. It is highly likely that the Courts will consider these experts credible.
In the absence of any other evidence, it is likely that these memories and recollections will be accepted as fact when it is essentially hearsay evidence that cannot be verified and may well be contrived. In the end, the court will assess the weight of evidence on the balance of probabilities and it will be accepted as fact unless challenged by other parties to the claims”.
The Waitangi Tribunal also involved
In the meantime, some claimants have taken their concerns about the Marine & Coastal Area Act to the Waitangi Tribunal. Ngāpuhi leader Rihari Dargaville said he and other Māori leaders went to the Tribunal to challenge the continuous occupation requirement. According to John Tamihere, Auckland mayoral candidate and Ngāti Porou ki Hauraki chief negotiator:
"The legislation does not take into account perverse acts done to Māori, robbing them of their ability to assert exclusivity."
The Waitangi Tribunal was due to host a second round of hearings at the end July.
The campaign to repeal the law
Dr Muriel Newman, in her article Privatising New Zealand’s Coastline – Beach by Beach, makes a plea to politicians to repeal the law and reaffirm Crown ownership on behalf of all New Zealanders. Dr Newman: “When National introduced their Marine and Coastal Area Act in 2011, they reassured the public and Parliament that there would only be a few claims for remote areas of the coast. But with the whole coastline under claim – many times over – the law is clearly not doing what Parliament intended. It should be replaced.”
To assist with this initiative, we can talk to our MPs and local body politicians about the issue – we have found many have very little knowledge about what is happening. Also, please consider signing the petition which has been launched to restore public ownership of the seabed and foreshore. And encourage friends and family to also do so. The petition is available on the New Zealand Centre for Political Research website - please click HERE for a link.