The first Agreement negotiated under the Marine and Coastal Area (Tukutai Moana) Act 2011 not only confirms widely raised fears of the Crown’s failure to represent the public interest but sets a precedent for fresh rounds of Treaty style negotiations.
While the Courts are constrained by the rules (claims stand or fall on their ability to satisfy the tests laid out under the Act with two eventual outcomes: the making or otherwise of awards of Customary Marine Title or Protected Customary Marine Rights) the Pahauwera Agreement informs us that the Minister can settle terms in private outside the scope of the Act. The public has been duped: while ex Attorney General Chris Finlayson claimed that the intention of the Act was to avoid uncertainty by clearly setting out what interests would be recognised[i], the Pahauwera Agreement demonstrates that the Minister (with Parliamentary sanction) has free reign to patronise or appease claimants by conferring rights not contemplated under the Act. The claimants ratify the Agreement, the Minister enjoys the photo opportunities and Parliament passes the Bill conferring special privileges. Yet again the public interest is ignored. In all but name we are witnessing the launch of a fresh round of Treaty negotiations.
The Pahauwera Agreement
Map marking Ngati Pahauwera's rights to manage hangi stones 22 kilometres (12 nautical miles) out to sea, on the basis of their supposed transport down the Mohaka River out to the reaches of the territorial limits and back onto the beach. No scientific evidence was adduced to verify the supposed movement of the hangi stones [ii] or survey quantifying their existence and location on the seabed.
In August 2016, then Attorney General Chris Finlayson wrote to Tribal Trustees stating that Pahauwera had failed to establish their claim of Protected Customary Rights within any part of their application area. Subsequent to negotiations conducted in private, Mr Finlayson agreed to extend the tribe’s rights to manage the extraction of Mohaka riverbed hangi-stones to 380 million square metres of seabed (refer map above). These rights are neither Protected Customary Rights or Customary Marine Title under the Marine and Coastal Area Act but are an extension to the tribe’s “pre-existing rights" to manage river bed stones under the tribe’s 2012 Settlement Act. Under Pahauwera’s Recognition Agreement, the tribe’s Treaty Settlement Act is amended so that where a person (commercial entity) conducting an activity within the application area incidentally extracts hangi stones, these must be returned to their original seabed position (or as close as reasonably practicable to their original seabed position) or to another location, as directed by the trustees[iii]. In practice, these provisions establish quasi ownership (veto rights) over commercial activities which tribes can use to extract financial gain, bolstered by threats of legal action.
Although the Agreement does not stipulate that Pahauwera conduct a scientific study to ascertain the existence (or otherwise) and location of seabed hangi stones, Hawke’s Bay Regional Council, in order to minimise the risk of litigation, is unlikely to grant consent for commercial activities that may potentially disturb the seabed, without prior written consent of tribal officials.
In the Pahauwera case it is clear that the Minister, Chris Finlayson concluded that the tribe had failed to meet the tests to allow the recognition of Protected Customary Rights within the rules established by the MACA. In his 2016 “Letter of Determination”, a quasi legal discussion of legal principles and determination of fact, Mr Finlayson outlines his reasons why the tribe had “failed to establish their evidentiary burden for Protected Customary Rights over any activity within the marine area”. In fact, it would be difficult to recognise rights to manage seabed hangi stones on the flimsy testimony presented, eg:
“We do not know how far our hangi stones travel out into our moana before they wash onto the beach. This is another reason why this application goes right out to the 12 mile mark available in an application”[iv].
The only relevant scientific evidence presented with regards to hangi stones was from a 2007 NIWA report commissioned by Meridian Energy on the Mohaka river:
“Hangi stones are found occasionally along the lower Mohaka and on the cobble beach at the mouth. These are sourced from the Te Whaiti Ignimbrite in the Mohaka headwaters”[v].
Mr Finlayson’s Determination that the tribe failed to meet the criteria for Protected Customary Rights should have been the end of the matter. Astonishingly, Mr Finlayson felt able to circumvent the rules which he himself had been responsible for drafting. His decision to furtively re-open Pahauwera’s Treaty Settlement Act, extending the tribe’s “pre-existing” rights to manage the extraction of riverbed hangi stones to the seabed must be seen for what it is – a cynical contrivance to make a deal.
In the meanwhile, Ministry of Justice officials attempt to obfuscate the facts from the public:
Half truths: "Consideration of the application followed a rigorous and transparent process of evidence collection, including a public submissions process....The Minister was satisfied the statutory test for customary marine title was met in part of the application area. He was not satisfied, on the basis of the evidence, that the tests for protected customary rights or wāhi tapu protection were met.
...If the proposed agreement is ratified then legislation recognising Ngāti Pāhauwera's customary rights will be introduced to Parliament. If this legislation is enacted by Parliament, bringing the recognition agreement into effect, it will confer on Ngāti Pāhauwera the specific rights of customary marine title set out in the Marine and Coastal Area Act".
The whole situation is very curious, yet possible where an Act concentrates powers of State upon an individual with the power of gift to negotiate with claimants behind closed doors[vi]. In the Pahauwera case, the Minister's back room deal has the potential not only to stymie investment in Hawke's Bay's marine economy but is likely to exert a corrosive influence over region's social fabric. If new Attorney General David Parker wishes to avoid fresh rounds of Treaty style negotiations, apologies and appeasement, and maintain public confidence in the Marine and Coastal Area Act, he should not only refuse to enact Ngati Pahauwera’s ratifying Bill, but should transfer the nearly four hundred claims awaiting negotiated agreement to the Courts which, thankfully, are constrained by the rules.
A summary of legal developments over the foreshore and seabed
Pre-1840 aboriginal common law rights
- in the absence of written laws, tribes exercise common law rights over the foreshore and seabed: “ahi kā” occupation rights are constrained by the need to physically defend their claims; European settlers may also exercise common law rights over the foreshore and seabed
1840 Crown ownership
- the Crown asserts ownership of the foreshore and seabed on behalf of all New Zealanders
2003 Ngati Apa ruling upsets decades of settled law
- Court of Appeal rules that aboriginal common law rights over the foreshore and seabed still exist unless extinguished[vii]
- tribes have the right to test their claims through the Maori Land Court
2004 Foreshore and Seabed Act 2004 (Clark Labour government)
- re-affirms Crown ownership of the foreshore and seabed
- codifies the common law rules relating to customary rights
- tribes can test their claims through the Courts
2011 Marine and Coastal Area (Takutai Moana) Act 2011 (National-Maori Party coalition)
- extinguishes public ownership rights over foreshore and seabed (“no-one” owns the common marine and coastal area)
- establishes novel forms of tribal rights (Customary Marine Title, Protected Customary Rights and mana tuku iho)
(i) Customary Marine Title: territorial based rights over the foreshore and seabed including ownership of non-nationalised minerals (but not amounting to fee simple), and:
(ii) Protected Customary Rights: rights to conduct customary activities within the common marine and coastal area
(iii) Manu tuku iho: Customary Marine Title and Protected Customary Rights carry with them "manu tuku iho" or inherited ancestral rights, in essence rights to be consulted over their customary marine area
- orders for Customary Marine Title and Protected Customary Rights can be sought through either an agreement negotiated with the Minister, or the High Court
2017 Ngati Pahauwera Agreement, Ministerial fiat:
- circumventing the rules: in a negotiated Agreement context where applicants satisfy the test for either Protected Customary Rights or Customary Marine Title, the Minister can exercise powers of gift to settle claims
- furtive re-opening of "full and final" treaty settlement: Agreement “extends” “pre-existing rights” land based treaty rights over the common marine and coastal area
- Agreement contemplates an overlay of Non-MACA common law rights over the common marine and coastal area (i.e. neither Protected Customary Rights or Customary Marine Title)
- uncertainty for consent applicants and local authorities: as the rights accorded to Pahauwera are not Protected Customary Rights the MACA rules relating to Protected Customary Rights do not apply: Courts will need to create a parallel set of precedents determining the extent and application of non-MACA rights over the common coastal and marine area
[i] Circumventing the rules: Section 95(4): it appears that where applicants satisfy the tests under Sections 51 and 58 for Protected Customary Rights or Customary Marine Title, the Protected Customary Rights and Customary Marine Title framework is to an extent redundant: the Minister is only constrained by what is politically palatable
By way of contrast, Section 98(1) & (2) restrict the Courts to either make or decline to make orders of Customary Marine Title and/or Protected Customary Rights based on the evidence presented to the Court.
By way of example, if claimants are able to satisfy the Minister that the tests for Customary Marine Title have been met, the Act, as drafted would allow the Minister to enter an agreement with the claimants recognising Customary Marine Title over the seabed including petroleum rights. As Customary Marine Title excludes rights to petroleum, this would not be a grant of Customary Marine Title but would be something else, but there is nothing in the Act constraining the Minister from signing an Agreement on those terms. In the Pahauwera Agreement, satisfaction of the tests for Customary Marine Title enabled the Minister to sign an Agreement granting quasi Protected Customary Rights.
[iv] Ani Keefe: Ngati Pahauwera Affidavits 2 of 4, p33 & 34 paras 99 and 100
[v] “Sedimentation effects of a proposed hydro-dam on the Mohaka River near Kakariki: Hicks, Walsh & McKerchar”; p590 para 3.7.4
[vi] Although recognition of Customary Marine Title requires Parliamentary oversight, Treaty Settlement Acts are by virtue of Parliamentary convention passed without objection. Awards of Protected Customary Rights are made via Orders in Council which only require Cabinet Approval. Section 96
[vii] “Maori custom and usage recognising property in foreshore and seabed lands displaces any English Crown Prerogative and is effective as a matter of New Zealand law, unless such property interests have been lawfully extinguished. The existence and extent of any such customary property interest is determined in application of tikanga. That is a matter for the Maori Land Court to consider on application to it or on reference by the High Court. Whether any such interests have been extinguished is a matter of law”.
— Elias CJ, Ngati Apa v Attorney-Genera, Ngati Apa v Attorney-General  3 NZLR 643 at