How tribal control of coastal areas may operate

The Ngati Porou coastal area bill, which passed its third reading this week, gives a clear picture of how the entire marine and coastal area of New Zealand is likely to be governed after the 600 or so current claims are either rubber stamped by the Minister or wind their way through the High Court.

The bill, which gives the tribe $15.3 million to enable Ngati Porou to exercise their rights and obligations, provides a framework for customary rights recognition for Ngati Porou subgroups in relation to the coastal and marine areas defined in the above map. Time in jail or a massive fine is specified for anyone who does anything in a tribal area without permission.

In a nutshell, everything that currently takes place from the high tide mark to 22km out can continue but anything new requires the permission of the relevant tribal subgroup given customary marine title to an area in which protected customary rights may be exercised.

Protected customary rights, which Ngati Porou has yet to apply for, mean group members may carry out an activity such as launching a waka or collecting hangi stones without needing a resource consent.

Customary marine title, which the tribe also has yet to apply for, recognises the customary relationship of an iwi, hapu or whanau with the common marine and coastal area in their vicinity.

Customary marine title may be granted if the tribe can prove that they have exclusively used and occupied the areas pictured without substantial interruption since 1840, bearing in mind that fishing or navigation in the area did not stop them from meeting the test.

Subject to gaining customary marine title, any minerals other than petroleum, gold, silver, and uranium belong to that group with the exception of greenstone that has already been given to Ngai Tahu.

Sacred areas may be declared which makes them off limits to any other than the Ngati Porou group specific to that area.

These groups own any Maori artefacts that may be found there and have first dibs on any stranded whales.

There is no scope for anyone other than the Ngati Porou group concerned to object to anything, according to Clause 36. A Minister may curb activities by citing demonstrable environmental harm.

There are likely to be clashes between recreational fishers and the specific groups over no-go sacred areas and the amount of catch taken under protected customary rights.

It could bring patrols to keep out those who are not members of the group holding customary marine title and fines of up to $5000 for those who go there without permission.

For any non-tribe member who carries out an activity other than one that was already in progress in an area covered by customary marine title without permission of the title holder faces up to two years in jail or a fine up to $600,000, according to section 83.

Ownership of a marine area opens up a perpetual income stream for the title holder because anyone wanting to set up an industry like a mussel farm or wave farm would need to pay a percentage.

Councils get a substantial amount of extra work to review “key documents” to align them to the Ngati Porou Act and to any environmental covenants that the Ngati Porou may create.

The Environment Minister must consider each environmental covenant produced by each Ngati Porou group.

Although the bill presents a reasonable portrayal of the future under Marine and Coastal Area Act 2011 agreements it doesn't necessarily set a precedent as it was negotiated under the Foreshore and Seabed Act 2004.

Ngati Porou's claims for customary marine title haven't yet been tested. The bill just allows the tribe to proceed with a High Court claim beyond the six-year deadline set under the MACA.

This tribe-based governance model for the marine and coastal area is a far cry from Article 3 of the Treaty of Waitangi which conferred on all Maori the rights of “subjects” which was the same status as British subjects then living in New Zealand, no more, no less. In other words, giving ownership of bits of the coastal area to tribal groups is official confirmation that we are no longer all equal irrespective of race.

The Bill marks the beginning of the privatisation of our beaches, once shared by all New Zealanders.

The Nga Rohe Moana o Nga Hapu o Ngati Porou Bill (No 2) 2018, may be read here. See http://www.legislation.govt.nz/bill/government/2018/0031/latest/LMS16679.html