The first agreement under the Marine and Coastal (Tukutai Moana) Act 2011 to emerge into the public realm confirms widely raised fears of the Crown’s failure to represent the public interest. In particular the Agreement raises the spectre that New Zealand’s entire common marine and coastal area could be subject to Protected Customary Rights, in effect instituting tribal dominance over future development and activities within the common coastal and marine environment.

Under the Agreement between the Crown and East Coast tribe Ngati Pahauwera (represented by Trustees of the Ngati Pahauwera Development Trust) the Crown “recognises[i]” the Trust’s claim to Customary Marine Title[ii] over a 15km strip of Hawke’s Bay coastline and grants quasi Protected Customary Rights and mana tuku iho (ancestral rights of consultation)[iii] extending the length of the coastal strip out to the edge of the territorial limits 22 kilometres offshore.

The Agreement[iv]  negotiated between the Office of the Attorney General and the Trustees without court or public scrutiny[v] is of special interest as it indicates how the Crown is likely to treat the hundreds of other claims in the pipeline:

Map marking Ngati Pahauwera's quasi Protected Customary Rights over the management of hangi stone extraction, based on their supposed transport down the Mohaka River to the outer reaches of territorial limits and back onto the beach. Protecting these rights means that the Hawke's Bay Regional Council must not grant consent over an activity that will adversely affect Ngati Pahauwera's ability to gather hangi stones within the marked area without  Ngati Pahauwera's written approval.

The Agreement

Ngati Pahauwera Development Trust Trustees, representing approximately 7,000 registered members, sought:[vi]

• recognition of Customary Marine Title over a coastal  strip of Hawke’s Bay (wet sand) on either sides of the Mohaka River between the Poututu and Ponui streams
• a wahi tapu (sacred) designation over the entire coastal strip; and
• Protected Customary Rights and mana tuku iho  (inherited rights or authority)[vii] covering the seaward side of the coastal strip stretching to the territorial limit 22 kilometres out to sea

Under the deal, requiring ratification by tribal beneficiaries, the Crown recognises Ngati Pahauwera’s rights to:

• Customary Marine Title over a 15.5 kilometre coastal strip between the Waihua river mouth and Ponui streams, excluding the Mohaka river mouth[viii]
• Protected Customary Rights (over hangi stones) within its Customary Marine Area extending over 22 kilometres out to sea
• recognition of Ngati Pahauwera’s “mana tuku iho” over its Customary Marine Area
• a Bill, the Ngati Pahauwera Marine and Coastal Area (Takutai Moana) (Recognition of Customary Marine Title) Bill 2017, securing the Agreement to be placed before Parliament within 12 months of the deal’s ratification
• Crown payment of survey fees of the Customary Marine Area
• Crown funding of claimant’s costs, in the vicinity of $340,000 or more[ix]
• formal recognition of the tribe’s right to pursue the unrecognised balance of its claim in the High Court.

The Agreement is disturbing beyond the fact that it serves to create an ethnically based aristocracy with legal rights and powers beyond other citizens. While the grant of Customary Title over the coastal strip grates, the public is left bemused by the statutory protection of customary rights to gather seabed hangi stones. But the downstream economic effects of Protected Customary Rights are potentially far reaching and damaging as innovation in the marine environment, wave generators, marine farming et c, can be blocked or stymied by the soft corruption that already permeates land based activities under the RMA. Under Ngati Pahauwera’s Agreement the Hawke’s Bay Regional Council[x] is prohibited from granting resource consent for activities that would have an adverse effect on the tribe’s right to gather hangi stones over its entire Protected Customary Rights area, while recognition of Ngati Pahauwera’s mana tuku iho inserts an additional layer of costly “tikanga” bureaucracy. Mineral prospecting, aqua farming and tourism ventures must all negotiate, compensate or head to court before they can even get off the ground.

So what does Ngati Pahauwera’s Agreement indicate for negotiations with the Crown?

1. that the entire common marine and coastal area, i.e. the length and breadth of the entire coastline could eventually be subject to Protected Customary Rights and mana tuku iho:

Although Ngati Pahauwera’s claim to seabed hangi stones rests on their supposed transport into deep waters before washing back onto the beach^[xi], protection of the tribe’s customary right to seabed stones^[xii] could never seriously be an issue as Ngati Pahauwera’s Treaty Settlement Act specifically confers ownership of Mohaka river bed stones, an obviously more convenient and less dangerous location. So while the Attorney General’s decision to protect the tribe’s right to seabed hangi stones at first hand appears bizarre, this is obviously a cynical contrivance, negotiated between the parties to secure Ngati Pahauwera rights and powers over an area delineated by the extent of its Protected Customary Rights. Ngati Pahauwera’s Agreement sets the bar: it is unlikely that other tribal claimants will settle for less.

2. that we can expect “back room” deals during the negotiations phase:

This is evident through an apparent reversal of a significant finding of fact during the negotiations, as Mr Finlayson’s “Letter of Determination” addressed to Tribal Trustees dated 23^rd August 2016 states[xiii]:

3. based on the flimsy evidence required to establish the continuance of native title and the high threshold set for extinguishment of native title, that a far higher proportion of coastline is likely to be transferred into Customary Marine Title than touted by National when the Bill was proposed:

In 2010 National rebuffed claims that their Marine and Coastal bill would radically lower the qualifying bar opening floodgates:

“Untrue. Claimants have to prove exclusive use and occupation of an area since 1840 without substantial interruption. This is a difficult test to meet. Think about the areas you or your family frequent – could any one group prove they have exclusively used and occupied those areas since 1840?”[xiv]

Yet the unchallenged self-serving affidavits that Mr Finlayson has relied upon to grant Ngati Pahauwera’s Customary Title appear almost risible: evidence of “intention and capacity to control the application area” cited include the cutting of fishing lines of people not acting in accordance with tikanga and instances where tribal members challenged non-Ngati Pahauwera use of fishing resources where the use was “not in accordance with tikanga”[xv].

On the other hand, Mr Finlayson was able to dismiss the six public submissions, including from the Council of Outdoor Recreation Associations of New Zealand[xvi] 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”[xvii].And despite the fact that all the land to the south of the Mohaka is exclusively owned by Third Parties[xviii], on the crucial question: “What is the intensity and frequency of third party access / activities / occupation?  What inferences might be drawn about the intention behind such activities?[xix], the Crown relies on self-serving affidavits:

“Insufficient information was located to answer this question with any authority. Generally it appears that there is not significant use of the foreshore in the application area beyond those affiliated to the area.  Pāhauwera have adduced affidavit evidence in this engagement which suggests that it was an almost exclusively Pāhauwera area of influence in the twentieth century”.

Map marking Nhati Pahauwera's coastal strip boundaries, road access and public walkways. All of the land abutting the coastal strip to the south of the river is owned by third (non-Pahauwera) parties.

4. that the public should not expect all tribal claims to be in good faith, demonstrated by Ngati Pahauwera’s claim for “wahi tapu” status banning public access over its entire claimed coastal strip.

5. that, despite assertions by Mr Finlayson, the engagement process will not “save expensive and time consuming litigation:[xx]”

As the terms of the Agreement were bitterly disputed with Ngati Pahauwera “not conceding any rights in respect of the remainder of the application”[xxi] the Agreement expressly concedes the tribe’s right to continue to pursue their claims through the courts. In reality there is no real agreement, no certainty and the taxpayer has to foot the Crown’s legal costs, possibly for decades as Ngati Pahauwera, flush with Treaty Settlement monies[xxii] and other tribes advance claims through the Courts and possibly even the Waitangi Tribunal. In truth not only has Mr Finlayson created a green-field treaty industry but has raised tribal expectations to unrealistic levels, creating fresh grievances that will linger for generations.

So what can we take away from this first Agreement to emerge through Crown engagement? According to Mr Finlayson the intention of allowing claimants to negotiate for rights under the Act was to allow “parties to settle out of court where the facts are clear. Where the outcome is not really in doubt this will save expensive and time consuming litigation”[xxiii]. Apparently in Ngati Pahauwera’s case the outcome was not really in doubt. But in reality, we have unchallenged self-serving testimony, sketchy facts, no prior understanding of what "holding the common marine and coastal area in accordance with tikanga" means and the Attorney General making de facto judicial rulings. Mr Finlayson, the architect of the legislation, is not only acting as a one-man court but shamelessly making it up as he goes. Yet unless a member of the public with deep pockets applies to the High Court for a judicial review[xxiv] this Agreement is a done deal. Once again our politicians have let us down.

Sarah Taylor