In 2011 the National - Maori Party coalition passed the Marine and Coastal Area (Takutai Moana) Act (the “MACA”), a radical Act allowing Maori groups to claim special rights over the foreshore and seabed. As a result over six hundred claims have been lodged with the Crown, Courts, and Waitangi Tribunal. While these claims may take decades to resolve, the public’s rights over the coastline remain in a state of uncertainty: the question is, will the new law affect coastal walking tracks and how?
The law up until now
In 1840 when the Treaty was signed, the Crown (that is, the government) assumed ownership of the foreshore and seabed out to three nautical miles on behalf of all New Zealanders. While some areas (such as ports) were obviously off limits, the rest of the coastline (the common marine and coastal area) was for all of us to be enjoyed freely.
2003 Ngati Apa decision and Foreshore and Seabed Act 2007
In a surprise decision, the Court of Appeal declared that native rights over the foreshore and seabed continue until extinguished under the law. For practical purposes, this meant that some Maori communities might still have customary rights over small, remote pockets of the coastline. Unfortunately Ngati Apa was widely misinterpreted as a declaration that Maori (iwi) own the foreshore and seabed. The political turmoil that resulted led to Helen Clark’s Labour government passing the Foreshore and Seabed Act. This reaffirmed Crown ownership on behalf of all New Zealanders but established a series of rules allowing Maori (and in theory non-Maori) to test customary rights claims before the Courts.
Marine and Coastal Area (Takutai Moana) Act 2011
The MACA adopts the ludicrous position that “no-one” owns the foreshore and seabed, but then allows the Crown to “recognise[i]” or grant rights over the area to Maori. Rights under the MACA aren’t common law rights, but are new bundles of rights. These include:
Customary Marine Title: is a territorial or land based set of rights allowing the tribal group to commercially exploit (lease or mine) but not sell the foreshore (the bit that gets wet) and seabed.
Wahi tapu: The Minister or Courts can designate wahi tapu over traditionally sacred sites, such as urupa (grave sites).
Kaitiakitanga: CMT holders have the right to prepare planning documents[ii] promoting sustainable management of natural and physical resources, as well as “the protection of the group’s cultural identity and historic heritage”. Local authorities are legally obliged to take the planning document into account when making decisions in relation to the CMT area.
Protected Customary Rights: allow a group to continue practising customary practices, such as collecting firewood, sacred water, seaweed, flora or fauna (excluding fish) within the group’s customary marine area.
So what are the future implications of the MACA for coastal walking tracks? What the Act says:
Public access rights: individuals may enjoy the marine and coastal area without charge
Many coastal walking tracks meander in and out of the marine and coastal area[iii]. On some tracks walkers may be forced onto banks by rocky outcrops and dangerous seas, on others walkers are forced onto the foreshore by dangerous slips and steep cliff faces. However, the Act is clear: every individual, without charge, has the right to enter, stay in or on and engage in recreational activities within the common marine and coastal area[iv]. This includes any foreshore held by Maori under Customary Marine Title.
Wahi Tapu areas are restricted
An exception to the access rule applies to wahi tapu (sacred) areas. CMT agreements must set out in advance the location and boundaries of wahi tapu and any prohibitions or restrictions that apply[v]. The CMT holder can prevent public access over wahi tapu, enforceable by fines of up to $5,000.
Customary Marine Title holders can charge “non-individuals”, businesses, affiliated clubs and societies for commercial and recreational use of foreshore and seabed held in CMT
It is clear that the Act has been deliberately worded to allow CMT holders to charge “non-individuals” such as businesses conducting commercial activities over land held in CMT. For example, Taupo tribe Ngati Tuwharetoa (which owns the Taupo lake bed but not the water column[vi]) levies a per capita fee on Taupo Ironman competitors swimming across the lake.
The Act also appears to allow CMT holders to charge affiliated entities such as clubs and societies for recreational activities on or over foreshore and seabed held in CMT. So while CMT holders cannot physically prevent a group, for example of tramping club members, from accessing walking tracks along the foreshore, it is apparent that they could invoice the club or society for the privilege.
Planning Documents protecting “cultural identity and historic heritage” leave universal access to the foreshore in doubt
As discussed below, the right of CMT holders to include matters relevant to “the protection of cultural identity and historic heritage”[vii] leaves the issue of universal public access over foreshore held in CMT in doubt.
The story so far;
As at 6th April 2017, the cut-off date for applications, around 380 claims over the marine and coastal area had been lodged for direct engagement with the Minister[viii] (under the Act the Minister can “negotiate” claims with applicants) and over two hundred claims have been lodged with the High Court. Around sixteen Treaty claims have also been lodged with the Waitangi Tribunal. The outcome of these negotiations, cases and hearings will determine to what extent the foreshore and seabed will be subjected to an overlay of Maori rights (both under the MACA and Treaty rights). The other factor to consider is how the rules are implemented – both by Maori rights holders (present and future generations) and local authorities, as well as the role of Maori individuals who may interpret the laws as licence to make and enforce their own rules.
Ngati Pahauwera granted 16 kilometres of Customary Marine Title:
The first Agreement to emerge from negotiations with the Minister (then Attorney General Chris Finlayson) has resulted in a grant to the tribal applicant Ngati Pahauwera[ix] of around 16 kilometres of CMT along the Hawke’s Bay foreshore[x]. While both the Crown and applicants have ratified the deal[xi], the Agreement allows the applicants to continue pressing for the balance of their unmet claims through the Courts. As the claimants had applied for a wahi tapu designation over the entire length of the foreshore it is apparent that tribal members wish to limit public access. It is not difficult to imagine that Ngati Pahauwera might insert clauses in a Planning Document attempting to restrict public access to the foreshore under the pretext of protecting “cultural identity and historic heritage”. Tribal history (for example, detailing where a rangatira spilled blood, or any number of reasons) may be asserted as to why a particular location is of historic heritage and off-limits. And although the local authority (Hawke’s Bay Regional Council) is only legally obliged to consider such a document, the Council would run the very real likelihood of being exposed to expensive litigation if it failed to implement the Agreement. In addition, the committee[xii] responsible for the management of natural resources is 50:50 co-managed by elected Councillors and iwi appointees, including one from Ngati Pahauwera itself. As the iwi appointees enjoy voting rights and tend to vote en-bloc, it is possible that the Council would be forced to adopt measures restricting public access to the foreshore regardless of the wishes of the wider public and elected representatives.
This situation, where the laws preserving public access to the foreshore could be circumvented could be duplicated across other areas of coastline: for example the Hauraki Gulf, dotted by small islands, is subject to an ongoing push for co-governance.
Who is in charge? de facto rule by self-appointed individuals
Very often, what the law prescribes and what happens in fact are very different matters. Hobson’s Pledge spokeswoman Casey Costello, of Anglo-Irish and Nga Puhi heritage puts it like this “While the applicants may hold CMT, the law doesn’t specify who can speak on behalf of the group. The legal representatives may not even live anywhere near the coast. Over the years we end up with self-appointed individuals on the ground who bully their way into control”. A recent example is where self-appointed Maori tribal members, self-styled “kaumatua” and “hapu elder” barricaded the public from using a wharf on Matakana Island”[xiii]. Ms Costello continues: “We can expect an increase in this sort of behaviour under the MACA. Anyone of Maori appearance could claim to be the title-holder and make demands or declare rahui. Who is going to challenge them?
What lies ahead?
Before the passing of the MACA it was the birth-right of all New Zealanders to explore and enjoy the foreshore without fear of hindrance – legal or otherwise. The MACA represents a potential massive transfer of rights from citizens (including individual Maori) to tribal groups. Only time will tell as to how much of our coastline will be transferred to Maori hands, or how tribal groups granted rights under the Act will exercise those rights, now and in the future. However, it is very clear that the Act tilts the balance of rights over the coastline towards Maori entities and risks jeopardising walking access over vast stretches of foreshore.
What you can do
The Courts can only strike out claims over the foreshore where they have received evidence that the tribal group’s rights have been extinguished. The test is whether the group has “exclusively used and occupied the area from 1840 to the present day without substantial interruption[xiv]”. If you are concerned about the risk of losing access to the foreshore, you can lodge a Notice of Appearance with the High Court outlining how you and your family or your walking group use or have historically used an area.
For further information on how to lodge a Notice of Appearance or register your interest in helping to oppose claims, please visit www.nzcpr.com/countering-coastal-claims-campaign/
Sarah Taylor is a member of Hobson’s Pledge hobsonspledge.nz and former member of the Heretaunga Tramping Club.
First published in "Walking New Zealand" issue no 242, 2018
[i] Rights are “recognised” rather than granted because in theory they have never been extinguished
[ii] MACA section 85 planning document
[iii] MACA section 9 definition of “marine and coastal area”: the landward side is bounded by the line of the mean high-waters springs
[iv] MACA section 26 Rights of access
[v] MACA section 79 Wahi tapu conditions
[vi] MACA section 9 definition of “marine and coastal area”: includes the airspace above and the waterspace (but not the water) above
[vii] MACA section 85(3)(b)
[viii] Under the Act, applicants for Customary Marine Title or Protected Customary Rights can either negotiate a settlement with the Minister (section 95) or apply for a Court Order under section 98
[ix] Ngati Pahauwera, a northern Hawke’s Bay iwi, represented by the Ngati Pahauwera Development Trust
[x] Incredibly, the Agreement also grants the applicants an extension of their treaty rights to manage the extraction of hangi-stones out to the limits of the territorial waters (over 20 kilometres out to sea) over an enormous expanse of coastal Hawke’s Bay.
[xi] The enacting legislation amending the tribe’s Treaty Settlement Act has not yet been passed by Parliament
[xii] The Hawke’s Bay Regional Council Planning Committee was established under the Hawke’s Bay Regional Planning Committee Act 2015 as cultural redress under treaty agreements with local iwi.
[xiv] MACA section 58(1) Customary marine title