While the public are in general too busy to notice yet another “Agreement” between the Crown and tribal groups, Ngati Porou’s foreshore and seabed Agreement, which confers inalienable legal rights on Porou, sets a dangerous precedent for New Zealand’s future: Parliament has a choice – it can remain a member of the small group of prosperous liberal democracies that follow the Rule of Law (as opposed to rule by law) or it can enact the Ngati Porou Bill[i], setting a precedent for future “grace and favour” deals over the foreshore and seabed in which the Minister exercises powers of gift outside our constitutional framework, established over centuries, to define and curb Ministerial powers.
An outline of the Ngati Porou Agreements:
The Ngati Porou Agreement is the outcome of two separate negotiations. The first, negotiated by Michael Cullen under the Foreshore and Seabed Act 2004, resulted in the Ngati Porou Bill (no 1), introduced to the House in 2008, but allowed to lapse due to the passing of the Marine and Coastal Area (Takutai Moana) Act 2011 (the “MACA”).
The Amended Agreement, negotiated by Christopher Finlayson, was signed in August 2017 after the lapsing of the six year deadline for MACA applications. The Amended Agreement “aligned” the previous Agreement to the MACA resulting in the Ngati Porou Bill (No 2), currently before Parliament.
Key features of the Amended Agreement (as implemented by the Ngati Porou Bill No. 2)
- The Crown acknowledges Porou’s unbroken, inalienable and enduring mana moana (inherited rights over the foreshore and seabed). The Agreement states that the “parties acknowledge that resolution of their positions is best achieved through negotiation and agreement[ii]”.
- The Crown grants Porou a unique set of rights over an enormous area of seabed, including a Statutory Overlay, instruments governing an Environmental Covenant, Protected Customary Activities, Wahi Tapu, Relationship, Place Names and Powhenua as well as Fisheries and Conservation mechanisms.
- The Crown grants Porou a two year extension to apply for territorial rights (Customary Marine Title) over the foreshore and seabed under the MACA.
- The Crown awards Porou a $15.530 million cash payment “to exercise their rights and perform their obligations under the deed and the recognition legislation”.
Why Parliament should refuse to enact the Ngati Porou Bill No.2
1. There are no statutory grounds for the Agreement as Porou failed to meet the tests established under Foreshore and Seabed legal framework
The Ngati Apa case established that common law rights to the foreshore and seabed might still exist. These rights could be established either through: (i) a declaration by the Maori Land Court[iii] under the Te Ture Whenua Maori Land Act or (ii) the inherent Common Law jurisdiction of the High Court.
Subsequent to Ngati Apa, the Labour Government passed the Foreshore and Seabed Act 2004, vesting full legal and beneficial ownership of the foreshore and seabed in the Crown and removing the powers of the Maori Land Court to determine territorial claims over foreshore and seabed. Territorial claims had to be determined in the High Court. If and only if, the High Court verified that claims met the legal threshold of “exclusivity since 1840” could the Crown enter formal discussions with claimants for redress[iv].
Claim for Territorial Rights and Customary Rights Order through the Courts
While Porou had applied in 2003 to the Maori Land Court to have the foreshore and seabed within its rohe declared as Maori Customary Land, the new F&S rules[v] prevented the Maori Land Court from making a territorial declaration over the foreshore and seabed[vi]. Porou could, however, still apply to the High Court to investigate the full extent of its territorial rights at common law. Porou’s website states: “Schedule 6 of the original Deed set out a process for the territorial customary rights claims under the F&S Act, which included having the territorial customary rights confirmed by the High Court[vii]” but Porou never took this step. Porou could also have applied to the Maori Land Court for a Customary Rights Order relating to a specified area of the public foreshore and seabed[viii] but again failed to do so.
The key point is that while the F&S Act allowed the Crown and Applicants to enter formal discussions over redress, this was predicated on a successful application to the High Court. Porou never met the test for a negotiated Agreement under Section 4(c) Foreshore and Seabed Act as Porou’s rights were never verified by the High Court.
Cambridge Law Professor Paul McHugh, a Customary Rights expert invited by the Labour Government to submit legal advice on the Foreshore and Seabed Bill, wrote:
“Any rights under the [F&S] Act had no basis in the common law or even the Treaty of Waitangi, but existed solely to the extent of their statutory recognition[ix]”.
In other words, the legal tests establishing rights under the Foreshore and Seabed Act and, by implication, the MACA are purely statutory: while the MACA talks about Treaty rights, the Act doesn’t reinstate common law rights but “translates those rights into legal rights and interests”. As explained by constitutional lawyer Stephen Franks, the MACA “denies Maori the fundamental promise of Article 2 of the Treaty of Waitangi – classical property ownership rights where the common law would have found ownership”[x].
In summary, while the Crown’s position is that the 2008 Agreement was signed under the Foreshore and Seabed Act[xi], Porou failed to meet the statutory threshold (proof of extant common law territorial rights over the foreshore and seabed) that would have enabled Porou (i) to participate in the administration of a foreshore and seabed reserve, and (ii) enter formal discussions with the Minister on redress. Nor was Porou’s Amended Agreement the result of an application under the Marine and Coastal Area Act. As such, the Ngati Porou Bill (No.2) seeks to implement a backroom deal without statutory foundation.
2. The Bill sets a precedent for MACA deals, in which the Minister, exercising powers of gift, grants inalienable rights and cash under the guise of the MACA’s Ministerial Engagement Process.
While the official line is that the Porou Bill (No 2) is a Foreshore and Seabed Bill, the Amended Agreement, signed after the passage of the MACA, was “aligned with the MACA” and allows Porou to apply for territorial rights (Customary Marine Title) under the MACA. It sets a precedent for the hundreds of MACA claims awaiting the Minister’s attention allowing the Minister, under the guise of the MACA Ministerial Engagement Process, to make deals beyond the legal framework set out under the MACA.
This precedent is evident in the Ngati Pahauwera’s MACA Agreement in which then Attorney General Christopher Finlayson delivered a formal “Letter of Determination” that Pahauwera had failed to meet the tests for protected customary rights within any part of the seabed within their application area. That should have been the end of the matter. Astonishingly, the Minister then entered the Ministerial Engagement process with Pahauwera[xii], reopening the tribe’s full and final Treaty Settlement awarding Pahauwera quasi protected customary rights to manage hangi stones to the outer limits of the territorial seas, a cynical contrivance allowing Pahauwera control over 380 square kilometres of seabed. While the Ministerial Engagement process was touted by the Minister as a way to “save expensive and time consuming litigation[xiii]”, it now appears to be a back door method for the Crown to sign deals beyond the rules laid out in the Act.
In March Treaty Negotiations Minister Andrew Little agreed to “negotiate Eastern Bay of Plenty iwi Te Whanau a Apanui‘s marine and coastal area claim and its historical claim in the one package”[xiv]. This lends to the perception of a forthcoming “deal” between Apanui and the Minister. As the Apanui spokesman told Andrew Little, Apanui “want to be able to make their own laws”. Neither, does it appear, from the precedents set by the Porou and Pahauwera Agreements, that the new Minister should necessarily feel constrained by the wording of the MACA if, for political purposes, he needs to appease tribal claimants. Apanui will be missing a trick if it doesn’t request a generous cash payment for “exercising their rights and performing their obligations” under any MACA Agreement they sign.
3. Porou Bill (No 2) Section 111 (2) furtively extends the deadline for Porou to apply to the Minister for recognition of Customary Marine Title, setting a precedent for other groups to apply beyond the April 2017 deadline.
The Agreement / Ngati Porou Bill (No1) did not confer territorial marine rights on Ngati Porou (the Foreshore and Seabed Act did not allow territorial rights in the foreshore and seabed to be recognised). But for whatever reason, Porou failed to lodge an application with the Minister for Customary Marine Title before April 2017, the six year deadline imposed under the Act. Granting Porou a two year extension sets an unjustifiable precedent to other tribal groups which failed to lodge applications before the April 2017 deadline.
4. Parliament is being asked to confer inalienable legal rights over an area of foreshore and seabed on the basis of Porou’s untested assertions of mana moana.
Areas of mana moana (inherited ancestral rights over the seabed) are necessarily bounded by areas where a claimant group practised customary activities and or meets the exclusive occupation test for Customary Marine Title under the MACA. Part 2 of the Porou Bill confers legal privileges over the entire extent of Porou’s asserted geographical mana moana[xv] to the outer limits of the territorial seas, even though these have not been established through the Courts or Ministerial Inquiry.
Porou failed to lodge a claim to protect its customary rights (protecting the rights of applicants to carry out traditional customary activities within its mana moana) either through the Maori Land or High Courts. Nor has the Minister recognised Porou’s claim for territorial rights over its asserted mana moana. Yet the Bill provides that even if Porou fails to meet the legal threshold for Customary Marine Title, Porou retains the legal rights conferred under Part 2 of the Bill over its entire asserted mana moana. This represents a potential illegitimate misappropriation of public rights in contravention of MACA Section 4, which clearly states that the purpose of the scheme “is to ensure the protection of the legitimate interests of all New Zealanders in the marine and coastal area of New Zealand”.
5. Implementation Funding – sets a precedent for payments to tribal trusts for exercising their rights under future MACA deals
The Agreement furtively agrees to pay Porou $15,530,000 to assist “Porou to exercise their rights and perform their obligations under the deed and the recognition legislation”.
6. The Bill introduces an inherent unfairness between Applicants seeking redress through the MACA Ministerial Engagement provisions and the High Court provisions
The Porou Bill represents a deal conferring favours on Porou that it could not have attained had it sought redress through the Maori Land or High Courts. Those courts would have been restrained, as intended by Parliament, by the wording of the Te Ture Whenua Maori Land Act, the F&S and MACA Acts. The Courts could only have recognised or protected Customary Activities over the defined area in which they were customarily exercised, or granted Customary Marine Title where the applicants had met the stringent tests of exclusivity since 1840 (without substantial interruption). As such the Porou and Pahauwera Agreements, conferring rights and cash redress beyond the scope of the Courts, instantiate an inherent unfairness between Applicants seeking redress through the Courts and those granted leave for Ministerial Engagement. This inherent unfairness could trigger Waitangi Tribunal claims by MACA groups refused redress through the Ministerial Engagement process (to date sixteen MACA claims have already been lodged with the Tribunal).
7. Porou’s failure to meet the “exclusivity” test for territorial rights under the F&S Act.
A detailed analysis by CORANZ submitted to Ministry of Justice in 2013 showed that the Porou hapus comprehensively failed to meet the Foreshore and Seabed test of “exclusive occupation and use since 1840”. See also CORANZ's submission on Ngati Porou Bill (No.2).
8. Other hapu are claiming areas within Porou’s asserted mana moana.
The Agreement, based on Porou’s untested assertions of mana moana, blocks any Court from inquiring into conflicting claims raising the potential for disaffected groups lodging Waitangi Claims. The potential for the nursing of grievances was outlined by Jason Koia in a recent newspaper article[xvi].
9. The Bill introduces uncertainty by introducing novel rights over the rules governing the common marine and coastal area.
The introduction of novel legal rights will oblige consent applicants, government ministries, territorial authorities and agents (such as Fisheries Officers) to negotiate or interpret rules around the margins or be forced to litigate to develop a series of precedents paralleling rules set under the MACA and the other enactments touched upon by the Bill (governing Fisheries, Conservation, Environment, Arts, Culture & Heritage and Energy, Local Government and Transport).
10. The Minister has not evaluated the likely costs and effects of the Bill
The Ngati Porou Bill (No 2) General Policy Statement states:
- There are no publicly available inquiry, review or evaluation reports that have informed or are relevant to the policy to be given effect to the Bill
- There are no regulatory impact statements provided to inform the policy decisions that led to this Bill
- There is no available analysis on (a) the size of the potential costs and benefits and (b) the potential for any group of persons to suffer a substantial unavoidable loss of income or wealth
The Ministries of Fisheries, Conservation, Environment, Arts, Culture & Heritage and Energy will need to develop special Implementation Instruments. Gisborne District Council and NZTA will also be “encouraged” to enter Memoranda of Understandings with the hapu.
11. Effect of Permission Rights
No assessment has been made as to the downstream economic costs of Permission Rights conferred on Porou (over the coastal strip or seabed areas where it meets the threshold for Customary Marine Title). These rights allow Porou to give or refuse to give their permission for RMA resource consents.
Permission Rights represent a regulatory hurdle, introducing the potential for “legalised extortion” over the regulation of the marine and coastal area, as well as unseen economic costs where businesses simply walk away from development opportunities.
It is clear that the Ngati Porou Bill (No 2) is seriously flawed, ignores the legitimate interests of the New Zealand public and sets an ill-conceived precedent for Ministerial “grace and favour” deals over the hundreds of MACA cases currently lodged with the Minister. The best outcome in the public interest would be for Parliament to quietly shelve this Bill and allow Porou to pursue their claims under the auspices of the Marine and Coastal Area Act through the High Court.
22 August, 2018
[i] Re: Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Bill (No 2)
[ii] Deed of Agreement 31 October 2008 Appendix A between Nga Hapu O Ngati Porou and Her Majesty the Queen of New Zealand: Clause Z
[iii] Foreshore and Seabed Act section 12: Te Ture Whenua Maori Act 1993
[iv] Foreshore and Seabed Act 2004: Purposes:
Section 4 (c) enabling applications to be made to the High Court to investigate the full extent of the rights that may have been held at common law, and, if those rights are not able to be fully expressed as a result of this Act, enabling a successful applicant group
(i) to participate in the administration of a foreshore and seabed reserve; or
(ii) to enter into formal discussions on redress
[v] The Minister, Michael Cullen had been advised that this was necessary due to the Maori Land Court’s constitution outlined in Section 17(1)(a) of the Te Ture Whenua Maori Act 1993 “the primary objective of the Court shall be to promote and assist in the retention of Maori land and General land owned by Maori in the hands of the owners”
[vi] under the Te Ture Whenua Maori Land Act 1993
[vii] Amendments to Align with the 2011 Act: Te Runanganui o Ngati Porou:
[viii] Section 46 Foreshore and Seabed Act 2004: Jurisdiction of the Maori Land Court
[ix] Setting the Statutory Compass: The Foreshore and Seabed Act 2004: Paul McHugh; New Zealand Journal of Public and International Law, Volume 3 No. 2, November 2005, Pg. 257
[x] Stephen Franks, Franks Ogilvie: legal opinion re Customary Marine Title and Protected Customary Rights addressed to Hobson’s Pledge Trust, 26 September, 2017
[xi] The Ministry of Justice website states: “The Crown and Ngāti Porou signed a deed of agreement under the Foreshore and Seabed Act (now repealed) in 2008.”; https://www.justice.govt.nz/maori-land-treaty/marine-and-coastal-area/applications/agreements-and-orders/
[xii] MACA Section 95: Recognition Orders
[xiii] Chris Finlayson, “Marine bill offers durable solution”: Hawke’s Bay Today, Saturday. 29th January 2011.
[xv] Deed of Agreement 31 October 2008 Appendix A between Nga Hapu O Ngati Porou and Her Majesty the Queen of New Zealand: Clause Z
[xvi] 2. Labour Government a step closer to Treaty Breaches: Jason Koia, Gisborne Herald; May 24, 2018: http://gisborneherald.co.nz/localnews/3377443-135/labour-government-a-step-closer-to