Slow flow to Ma¯ori claims
A judge has urged the Crown to step up with resources for resolving Ma¯ ori coastal and marine claims.
Funding for court claimants, and delays in the Crown deciding which groups they wanted to negotiate with privately, are already threatening to slow the process.
In the High Court at Wellington Justice David Collins is overseeing the 202 pending court claims, many of which are also among the 385 who have taken the other route of trying to negotiate a recognition agreement with the Crown.
Under the Marine and Coastal Area (Takutai Moana) Act 2011 claims had to be filed by April 1, 2017, for protected customary rights orders or marine title orders over areas not already privately owned or part of a conservation or other protected area.
In a recent minute setting out how the court claims should proceed, the judge said the Crown had committed, through the Office of Treaty Settlements, to help fund the claimants. Some claimants were frustrated with the funding process but during a recent round of case management conferences signs of improvement emerged, the judge said. Concerns were raised about limits on funding, and it appeared interested parties, who were not claimants, would not get help with funding. The judge recorded his concern that funding policies might delay hearing the applications.
A few claimants had already started trying to negotiate recognition agreements with the Crown,
Eight claims have been given priority and the first is expected to be heard in July 2019.
the judge said. But even that process could be lengthy because the lawyer for Attorney-general David Parker, who is the Crown’s representative in the cases, says it could take up to 18 months for the Office of Treaty Settlements to decide who it would be willing to negotiate with.
The judge signalled his concern about the time involved. It could force many applicants to choose litigation when they may otherwise have been prepared to negotiate, he said. He encouraged the Office of Treaty settlements to speed its process. Negotiated agreements were likely to be preferable to court decisions, particularly where Ma¯ ori interests in marine and coastal areas were involved.
The law contains guarantees of public access despite any rights recognised in the law that replaced the controversial Foreshore and Seabed Act. The Crown says that in its negotiation process the general public can object to, or support, any application as part of a public inquiry process that hasn’t started yet. The first court order was made in December 2016, which recognised customary marine title for an area around two small islands in the remote Tı¯tı¯ Islands (Muttonbird Islands), off Stewart Island.
Justice Jill Mallon found Rakiura Ma¯ ori with customary interests in the islands of Pohowaitai and Tamaitemioka, held the area in accordance with tikanga and had exclusively used and occupied it from 1840 to the present day without substantial interruption.
In pending claims, one of the big issues was likely to be resolving overlapping claims, Justice Collins said. Nearly every application had an overlapping claim, and in northern New Zealand some areas were the subject of ‘‘significant numbers’’ of overlapping claims. He raised the possibility of competing claimants agreeing boundaries, or recognition orders being made for more than one party in the same area.
Some disputes were deep seated and perhaps only the court could decide the competing claims, but the judge said he hoped most could be settled by negotiating in good faith.
The role of the attorney-general has been questioned by some claimants, and it could lead to the court having to decide whether he can oppose applications ‘‘in the public interest’’.
Eight claims have been given priority, because they had also lodged claims under a previous law, and the first of those is expected to be heard in July 2019.
Case management conferences so far have only involved the claimants and the Crown, but interested parties are expected to be involved in the next round of conferences.