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A House Divided
In 2011, the Fifth National Government set up a Constitutional Advisory Panel (CAP) as part of a confidence and supply agreement the National Party had with the Maori Party.
Although there was no pressing need to make any changes to New Zealand’s unwritten constitution, and despite the fact that there had been a constitutional review just six years before that date which found that there was no need to make any changes, the new panel set out on a two-year process of poorly-attended public meetings and seeking submissions.
The goal appeared to be to create a written constitution that was based on a particular interpretation of the Treaty of Waitangi.
The Government panel sparked the formation of the hard-left Independent Constitutional Working Group, which promoted the constitution of the “plurinational” socialist state of Bolivia as the way to go.
Another group called the Independent Constitutional Review Panel appeared and did its own consultation and this became the basis of a report titled A House Divided.
Constitutional law establishes the very basic framework of how our society is run, and short and simple changes there can have immense and irrevocable effects.
It seemed to the authors of A House Divided that the official constitutional advisory process was fundamentally flawed, being designed in its terms of reference, personnel and procedures to operate and produce predetermined results without any actual genuine public awareness or input.
They had little confidence that the official CAP would reflect the widespread public unease and discontent with the ongoing progression of the Treaty industry.
Worst of all, it seemed to them that the CAP, and the intellectual and political interests it was designed to serve, were unaware, or at least not concerned about, the immense dangers into which that continued progression was leading our country.
The Independent Constitutional Review Panel suspected that its own public meetings, advertisements and general agitation did at least as much as the official panel’s activities to bring the issues to public attention.
Their findings may be read here. See https://www.nzcpr.com/a-house-divided/
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Hobson’s Pledge is clear that awarding some New Zealanders customary title under the Marine and Coastal Area (Takutai Moana) Act 2011 to areas of the coast on the basis of race conflicts with a society in which all citizens have the same rights irrespective of where we came from.
Customary marine title gives the right of veto over development, the ability to charge fees for use of slipways, wharves, aquaculture areas, and marinas, and exclusive rights to mine iron-sand and minerals.
There are fines of up to $5000 for those who go without permission to areas covered by customary marine title.
The coastal and marine area, formerly known as the foreshore and seabed, extends from the spring tide high water mark on the beach out 12 nautical miles. This covers 10 million hectares, which is about 35 percent of New Zealand’s dry land area.
A deadline for coastal claims passed on April 3, 2017, and the publication of 150 claims reignited a dispute that had run since the 1990s.
That was when Marlborough Sounds tribes objected to the “wanton issuing of marine farm permits by the Marlborough District Council in areas within the Marlborough Sounds of special significance to local iwi”.
The Crown was presumed to own the seabed, as well as the beds of tidal rivers, regarded as an arm of the sea, since January 14, 1840, when English law was deemed to apply in New Zealand.
The Ninety Mile Beach case in 1957 reinforced this view. Essentially about toheroa shellfish beds, this case and the subsequent Appeal Court decision, held that Maori could not hold title to the foreshore because of the effect of section 147 of the Harbours Act 1878. This section said that legislation was required to grant title to foreshore or land under the sea.
The granting of aquaculture consents in the 1990s proceeded on the basis that the seabed belonged to the Crown.
In 1997, eight Marlborough tribes, spurred on by their failure to be awarded rights for mussel farming, applied to the Maori Land Court to determine whether the foreshore and seabed of their area was Maori customary land.
The Maori Land Court decided that it could consider the issue but sent it to the High Court. The High Court ruled that once the Crown bought the adjoining dry land, Maori lost customary interest in the foreshore while the Crown continued to own the seabed below the low water mark.
The matter was sent to the Court of Appeal which ruled in Ngati Apa v Attorney General , on June 19, 2003, among other matters, that:
- The definition of “land” in Te Ture Whenua Maori Act 1993 did not necessarily exclude foreshore and seabed;
- The title vested in the Crown was radical title which was not inconsistent with native title;
- Various Acts had influence over but did not extinguish property rights;
- The Maori Land Court had jurisdiction to determine an investigation of the title to the land ... under s 132 and an order determining the relative interests of the owners of the land.
The court noted that this decision did not actually constitute a ruling on the Ngati Apa claim.
This ruling created the perception that tribes could claim title to the entire coastline of New Zealand through the Maori Land Court. This created considerable hostility because a strong tradition of public access to beaches and waterways was perceived as being under threat.
After reading the polls, the Labour Government panicked and Prime Minister Helen Clark announced that legislation would be passed to ensure public ownership of the foreshore and seabed.
This was fertile ground for party politics. National Party leader Don Brash on January 27, 2004, delivered a speech at the Orewa Rotary Club which warned of a dangerous drift towards racial separatism in New Zealand, and the development of the now entrenched Treaty grievance industry.
The foreshore and seabed issue enabled the National Party to paint itself as on the side of Kiwis while asserting that Labour favoured iwi.
The issue split the Labour caucus along a Maori/non-Maori line. Junior Minister Tariana Turia announced her resignation on April 30, 2004, and went on to win a byelection for a new party, the Maori Party. Hauraki-Waikato MP Nania Mahuta was to vote against the bill.
On May 5, a 15,000-person hikoi, a long protest walk modelled on the 1975 land march, protested noisily in front of Parliament.
On November 18, 2004, with the help of New Zealand First, the Labour/Progressive Government passed the Foreshore and Seabed Act, which:
- Vested ownership of the public foreshore and seabed in the Crown.
- Extinguished any customary title, the extent of which was unknown at the time.
- Had no effect on customary use rights.
- Prevented the Maori Land Court from investigating foreshore and seabed applications.
- Removed the High court’s power to determine claims for customary title.
- Set up processes for recognizing two types of customary interest – territorial customary rights, which is a new form of customary title, and customary rights, for activities that do not require land ownership.
This Act enabled the new Maori Party to complain loudly that the Government had stolen “our foreshore and seabed” from “our people”.
The first foreshore and seabed agreement, between Ngati Porou on New Zealand's East Cape and the Crown, was ratified on October 31, 2008. The agreement protects customary rights of Ngati Porou while retaining wider public access to Ngati Porou coastal areas.
The National Party was elected on November 8, 2008, and entered into a confidence and supply agreement with ACT, United Future, and the Maori Party. The deal with the Maori Party included repeal of the Foreshore and Seabed Act 2004.
National had not campaigned on repealing the Foreshore and Seabed Act 2004. Prime Minister John Key and Attorney General Christopher Finlayson, a list MP, did an unexpected U-turn from National’s emotional iwi/Kiwi billboards of 2005, just three years earlier.
In March 2009, Attorney General Chris Finlayson set up a Maori rights panel (Sir Eddie Durie, Richard Boast, Hana O’Regan) to “review” the 2004 Act. This panel published a consultation document on March 31, 2010, with submissions to be in by April 30.
Separate consultation followed. Eleven marae meetings and eight public meetings were held between April 9 and April 23. Repeal of the 2004 Act was announced on June 14, 2010. Many of those who went to marae meetings also attended the public meetings.
The Marine and Coastal Area (Takutai Moana) Bill passed by 63-56 on March 24, 2011, supported by National, the Maori Party, and United Future, while Labour, the Greens, ACT, the Progressive Party, and Hone Harawira voted against it. The Act:
- Repealed the Foreshore and Seabed Act 2004.
- Affirms access to the marine and coastal area for all New Zealanders.
- Acknowledges the customary interests of iwi, hapu, and whanau in that area,
- Declares that the common marine and coastal area is incapable of ownership.
- Provides ways to recognise protected customary rights or customary marine title either through negotiation with the Minister or application to the High Court.
- Those applying for protected customary rights or customary marine title must prove that such a right has been exercised in the specified area, has continued to be exercised in an area, and that the applicant group has used or occupied the claimed area since 1840, or from the time of a customary transfer.
Nowhere in the debate was the exact nature of customary rights defined. The Ninety Mile Beach case in 1957 started off about toheroa beds. Customary marine rights in 1840 centred on gathering food from the sea and may have involved canoes paddling a few hundred metres offshore.
However, customary marine rights in 2011 had grown to encompass control of perhaps hundreds of kilometres of marine and coastal area with the ability to exclude people and generate an income, on top of the right to fish the area which had never stopped since 1840. Columnist Fran O’Sullivan wrote in the New Zealand Herald:
Park the charming stories about the customary connections that Maori enjoy with the foreshore and seabed, the New Zealand Herald wrote in 2010. What's really at stake are the big bucks that can be earned from commercial activities such as marine farming, mining iron sands or even clipping the ticket on revenues from offshore gas and petroleum deposits.
A group known as the Coastal Coalition, let by former ACT MP Dr Muriel Newman and Dr Hugh Barr, launched a campaign to repeal the Act. They collected 260,000 signatures for a citizens-initiated referendum with the question asking “Should the Marine and Coastal Area (Takutai Moana) Act 2011 be replaced by legislation that restores Crown ownership of the foreshore and seabed?” However, the petition didn’t reach the required 307,000-signature goal. Dr Newman advised Parliament and the petition lapsed.
Activity on the issue largely faded until the April 3, 2017, deadline, when the public could see the extent of claims for the coastal area.
Some fuss in the media about the 150 claims enabled Maori Council co-chair Maanu Paul to do a bit of grandstanding by announcing that he had lodged a claim for the entire coastal and marine area of New Zealand on behalf of all Maori.
Former Prime Minister Bill English said that few of these claims would succeed. This is because Section 106 of the Act says that applicants must prove that a customary right:
- has been exercised in the specified area,
- that it continues to be exercised by that group in the same area in accordance with tikanga,
- has been used and occupied by the applicant group either since 1840 or from the time of a customary transfer to the present day.
What has not been explained is how the right to paddle canoes upon and fish from the sea within a few hundred metres of the beach in 1840 has been transformed into a customary title over the sea and seabed that extends 12 nautical miles from the high-water mark.
But Mr English confirmed that some groups will be awarded such rights.
Since September 2017, the Government led by Prime Minister Jacinda Ardern has yet to explain why some New Zealanders will be awarded property rights far beyond those exercised in 1840, with the ability to exclude all other New Zealanders should they so wish.
 The foreshore and seabed – Maori customary rights and some legal issues, Background Note, Parliamentary Library, December 12, 2003.
 Harbours Act 1878. http://www.nzlii.org/nz/legis/hist_act/ha187842v1878n35235/
 Law of the foreshore and seabed, Te Ara, http://www.teara.govt.nz/en/law-of-the-foreshore-and-seabed/page-4
 Foreshore debate all bout big bucks. NZ Herald, February 6, 2010. http://www.nzherald.co.nz/opinion/news/article.cfm?c_id=466&objectid=10624402
 See Marine and coastal area applications
 Iwi leader makes foreshore claim on behalf of all Maori, Stuff, May 1, 2017. http://i.stuff.co.nz/national/92110692/iwi-leader-makes-foreshore-and-sea-bed-claim-on-behalf-of-all-maori