Incoming NZ First MP Shane Jones says changing the Marine and Coastal Area (Takutai Moana) Act won’t be a priority for the new government, despite a landmark ruling by the Court of Appeal, effectively making it easier for iwi to confirm customary title over parts of coastal New Zealand.
In a majority decision, the Court said Section 58 of the act which required iwi or hapū groups to have had exclusive use of the area in question and to have ‘occupied it from 1840 to the present day without substantial interruption’, should instead be interpreted as requiring the applicants to have use “and occupation of the area was not substantially interrupted by ‘lawful’ activities carried on by others”.
Jones, who was a Labour MP at the time of the controversial foreshore and seabed legislation in 2004, says the 2011 act, which was created to repeal the previous law and restore access to the courts by Māori seeking customary title of the foreshore and seabed, was destined to be a messy affair.
“Ko te ture i whakaaengia ai e Helen Clark me Winitana [Winston Peters] he māma. Kīhai rawa te pakeke, kīhai rawa te whakapūngawerewere e rite ki tā Chris Finlayson i whakatau ai.”
(The law agreed between and passed by Helen Clark and Winston Peters was simple. There wasn’t any ambiguity, unlike the one by Chris Finlayson.)
The Court of Appeal says the 2011 act effectively allowed a very limited number of iwi and hapū groups to qualify for customary title, with few able to demonstrate exclusive and undisturbed use of coastal areas since 1840.
‘Would extinguish those interests’
“Far from recognising and promoting customary interests, Maca would in many cases extinguish those interests.
“That outcome would be inconsistent with the Treaty/Te Tiriti.
“Where the Treaty/Te Tiriti had been breached by Crown failures to protect customary rights and interests, Maca would entrench and perpetuate those breaches.”
That has led to calls for the incoming National-led government to revisit the law its predecessor passed 12 years ago.
Former Act MP Dr Muriel Newman, in an opinion piece published by NZME said the latest decision could “result in virtually the entire New Zealand coastline and territorial sea passing into Māori control,” and claimed it disproved Finlayson’s assertion in 2011 that “no more than 10 per cent” of the country’s coastline would fall under the control of Māori.
“Since we now know that National’s law change will deliver a disastrous outcome that is the exact opposite of what they promised to the New Zealand public, we believe the new National government has no option but to put it right by changing the law,” Newman wrote.
‘Not a priority’
However, Jones, whose NZ First party is having discussions with National about the formation of the next government, says calls for change, including from iwi and hapū wanting a lower threshold for customary title would probably fall on deaf ears with the new regime.
He cites a number of more pressing issues at hand for Prime Minister-elect Christopher Luxon and the National-led government that will need to be prioritised for the whole country.
“Ko tāku ki ngā rōia, kua tō te rā ki runga i ō rātou moemoea ka riro mā ngā hapū anakē te rangatiratanga, mā ngā hapū anakē te kaupapa mō te takutai. Inaiānei, e huri ana te motu me pēheā rānei ngā ohanga, ngā pakihi, ngā umanga e whakateitei, e whakatairanga ai ngā huatau kia whiwhi mahi ai, kia whiwhi pūtea ai a Aotearoa hei muru i wāna nama.
“Māku e kī atu ki a rātou, ko rātou e pekepeke nei e kore e whāia wawetia e te kāwanatanga hōu.”
(I will say to the lawyers, the ship has sailed on the dreams and aspirations that hapū will become the exclusive authorities over our foreshore and seabeds. In this current economic climate people are more concerned with how our economy and businesses can create jobs and generate the money Aotearoa needs to pay its way. I say again, to those jumping up and down, this is not going to be a priority for the new government.)
The Court of Appeals decision comes soon after a Waitangi Tribunal report also found the 2011 act breaches the Treaty of Waitangi.