Treaty Negotiations Minister Andrew Little and the High Court are poised to grant new property over vast swathes of New Zealand's coastline to private private trusts. The Marine and Coastal Area (Takutai Moana) Act 2011 enables one of the biggest race-based claims in living memory.
- National's Marine and Coastal Area (Takutai Moana) Act (the MACA) opened the way for New Zealanders with Maori ancestors to claim title to the foreshore and seabed
- Hundreds of private tribal trusts have applied for recognition of Customary Rights and for Customary Marine Title over 10 million hectares of beaches and seabed out to 12 nautical miles (22 kilometres), all harbours and estuaries, the airspace above and many of the minerals below
- The area claimed is equivalent to over one third of New Zealand's total land area.
Customary Marine Title gives major property rights to any tribal group that has "exclusively used and occupied the coastal area from 1840 to the present day, without substantial interruption" Section 58
A Protected Customary Right is a tribal right,such as collecting hangi stones from the beach, selling gravel etc. (without being subject to RMA requirements), which the applicant group has practised according to tikanga since 1840 Section 51
Labour's Foreshore and Seabed Act 2004 vested ownership of the public foreshore and seabed in the Crown to hold in perpetuity on behalf of all New Zealanders. This was overturned by National's Marine and Coastal Area Act in 2011
- The Marine and Coastal Area Act presumes that customary marine interests still exist unless the Crown can prove otherwise
- Applicants may choose to go to court to prove their case or negotiate directly with the Minister Section 95
- Private negotiations with the Minister circumvent the public scrutiny of a court process and could open the way for conflicts of interest.
- While the Act guarantees access to the coastline, without charge, for individuals, the Act does not prohibit Customary Marine Title holders from charging commercial users or groups for access Section 26(1)
- Examples of extortionate behaviour already exist, such as the clamping of surfers' cars at Matauri Bay
- Title holders will be able to declare "wahi tapu" (sacred) areas under nebulous spiritual grounds creating public no-go zones, enforceable against boaties, swimmers, surfers, dog walkers with trespass fines of up to $5,000 Section 81(2)
- Nothing in the Act prohibits tribes from declaring their entire customary marine title area "wahi tapu"
- A customary marine title group has, and may exercise, ownership of minerals (other than petroleum, gold, silver and uranium existing in their natural condition) that are within the customary marine title area of that group. Section 83(2)
- According to Crown Minerals, New Zealand's iron sands reserves alone are estimated to be worth a trillion dollars (1), (2) other minerals are of a similar value. This wealth should be retained in public ownership for the benefit of all New Zealanders
- Those granted customary marine title will have wide ranging powers under the Resource Management Act, including the right to issue Coastal Policy Statements: Section 62
- Coastal policy statements have no public input and can not be appealed against, even though they may introduce and legitimise serious conflicts of interest
- There will be no way to challenge tribes obstructing or delaying potential business developments within their Customary Marine Area, causing serious financial loss to individual businesses and damage to the wider economy
- Anyone building a structure in a customary marine area without permission from the customary marine title holder can be imprisoned for up to two years or fined up to $300,000, in addition to penalties equaling any revenues reaped by the offender, or losses accruing to the customary marine title holder Section 69
- 90% of any fine goes to the customary marine title holder, incentivising vigorous, if not vindictive, policing Section 69(4)
- the Maori Party has stated that they want title to the seabed extending out to the 200-mile exclusive economic zone
- the legislation has cleared the way for grandstanding by tribal entities. For instance, a letter dated April 3, 2017, and posted on the Ngati Kahu website requires the Crown to apply for the recognition of any interests in the Ngati Kahu area, either land or sea.
Applicant groups engaging with the Crown can apply for taxpayer funding of between $162,000 and $412,000 depending on the complexity of the case. This will cost taxpayers hundreds of millions of dollars in legal fees and advice.
Treaty Style Deals
The MACA allows claimants to enter into Treaty style "negotiations" with the Minister. As almost all of the claims are spurious (it is virtually impossible for tribal group to have maintained exclusive use and occupation of an area since 1840) the reality is that deals will be "negotiated" by the Minister, with the public excluded from the process.
The first Negotiated Agreement confirms our worst fears.
The first Agreement, negotiated by the previous Minister Christopher Finlayson (but not yet ratified by Parliament) confirms our worst fears. This backroom deal awards the Trust 15km of beach (evern though this had been used by settlers as a public road, and continues to be used today for fishing, swimming, hiking and the like. Even worse, the Minister made an official Determination of fact that the tribe had not met its burden of proof for Protected Customary Rights over any part of its claimed territory. That should have been the end of the matter. Instead, the Minister did a deal to extend the tribe's Treaty rights to manage the extraction of riverbed stones 22 kilometers offshore. While this sounds absurd, it will allow tribal elders to control a massive area of Hawke's Bay seabed.
The best way to prevent the Minister from "negotiating away" our coastline to Maori tribes is to make the Labour, New Zealand First and Green party coalition realise that there is a political cost to such a move.
We can achieve this by:
- Signing our petition
- Writing and emailing MPs to object vociferously.
- Writing letters to local newspapers
- Phoning your local MPs and telling them that you are angry at the thought of a private tribal trust controlling your local beach and seabed and ask them what they are doing to prevent it
The deadline for tribal trusts (iwi and hapu) to lay claims expired on April 3, 2017.
Click here for further details of Court Applications
What can you do?
1. For applications to the High Court
The law presumes that customary rights have not been extinguished. Therefore it is up to the public to provide evidence to the court that the claimants do not meet the legal test, that is, that they have not exclusively used and occupied the specified area without substantial interruption from 1840 to the present day, or from the time of customary transfer until the present day.
Members of the public can file objections against the claims with the High Court. Historical and contemporary evidence from the public proving that the foreshore and coastline has been used by others is required to refute the applicants' claims.
2. For direct negotiation with the Minister
Many claims have been lodged with the Minister. Click here to see the list of claims lodged with the Minister: https://www.justice.govt.nz/maori-land-treaty/marine-and-coastal-area/applications/
Mana Ahuriri is claiming customary marine title over a huge portion of Hawke Bay.
1. Will the 2011 MACA Act now start stealing our beaches? Dr Hugh Barr, 30th April, 2017
2. Ngati Whatua's Auckland claim among hundreds to test coastal rights, Audrey Young NZ Herald, 2nd May, 2017
1. Ironsand could produce trillion-dollar profit - Elder; NZPA February 18, 2011 https://www.nbr.co.nz/article/ironsand-could-produce-trillion-dollar-profit-elder-nn-86366
2. Taharoa C Block shareholders have earned over $50 million in royalties from their ironsand leases since 1972; Maori and mining, p3: Ruckstuhl, Carter, Easterbrook, Gorman, Rae, Ruru, Ruwhiu, Stephenson, Suszko, Thompson-Fawcett, Turner, 2013;