New threat to coast access
Our foreshore and seabed is at risk from a last-minute rush of tribal claims, says
The National Party’s desire to pander to the minor Maori Party led, in March 2011, to the Marine and Coastal Area (MACA) Act. It gives major property and other valuable rights to any Maori tribal group that can prove that it has ‘‘exclusively used and occupied an area of coast from 1840 to the present day’’ (S 58 of the act). Only tribal groups can apply.
This is a difficult condition to meet, because many tribal groups lived near the coast, where they could collect fish. Tribal areas often overlapped. From the signing of the Treaty of Waitangi, in 1840, when New Zealand became a British colony and adopted British law, the territorial sea, out to 3 nautical miles from the coast, was Crown (i.e. publicly) owned, with the public having free access to most of it, just as it was in Britain.
This alone makes exclusive occupation difficult. As well, the coast was often easier to travel along than New Zealand’s rugged bush-clad road-less interior, of the 19th century. This was especially the case in the Bay of Plenty and Hawke’s Bay, where the coast was often a public thoroughfare.
Under the MACA Act, in the six years from 2011 to the close-off date for claims on April 3, 2017, only about 50 claims were lodged, and only one, a special case of mutton-bird islands, on a very remote coast, met the conditions. A significant number of claims were turned down by the Crown as not qualifying.
However, after the close-off date, more than 500 last-minute claims were filed. Some 10 of these are in the lower North Island, whereas no earlier claim was in this area. Maori tribal groups were obviously colluding to put pressure on the National Government, before the coming election.
The MACA Act is a major threat to non-Maori and Maori users of the coast, because it gives major ownership rights to any tribal group that is awarded Customary Marine Title (CMT). These rights include the ability to declare wahi tapu (S 78 of the act), so-called ‘‘sacred’’ areas, where trespass by anyone not part of the tribal group will be fined up to $5000 for each trespass.
Yes, that’s right. A fine of up to $5000 against anglers, boaties, dog walkers, surfers, etc., on what were formerly publicly owned areas, that they have had a right to use since 1840. The local district or regional council is required to act as policeman, stopping this trespass. As well as fisheries inspectors (S 80 Wardens and fishery officers), and tribal vigilante groups. wahi tapu areas are more accurately called private tribal fishing and surfing areas. None exist at present, but there is a massive incentive for tribal groups to create them should they gain CMT.
As well, each tribal group gaining CMT gets veto rights over all new Resource Management Act resource consents in its claimed area, allowing it to clip the ticket. Consents can include mooring buoys, marinas, building or extending a boatshed on piles, eg at Paremata and Evans Bay in Wellington.
Furthermore, should you build without the tribal group’s permission then you can be imprisoned for up to two years, or fined up to $300,000, of which only 10 per cent of the fine goes to the Crown, while the other 90 per cent goes to the tribe. This gives the tribal group a huge financial incentive for vigorous, if not vindictive, policing.
As well there are at least eight additional rights with money-making potential for any tribal group that can prove that it qualifies for CMT. Another spur to the May avalanche of claims is that each tribal group registering a claim has a guarantee from the Office of Treaty Settlements (OTS) that it will be reimbursed by OTS with taxpayer funds for legal and historic research fees.
This taxpayer subsidy is very large, being up to $156,000 for small claims, to over $300,000 for complicated claims. It is another massive inducement for tribal groups to make this tsunami of lastminute claims.
In contrast, any non-tribal group has to pay all its expenses itself, to become a party, to protect its interests..
Again, the ease of getting reimbursed by the taxpayer is also a very large incentive for tribal groups, and their lawyers and historians, to lodge this avalanche of late claims.
This sorry state of affairs over the Marine and Coastal Area highlights just how far New Zealand has degenerated in the nearly nine years of National Government rule, from being a democracy, to being a place where people claiming to be of Maori descent from a tribe living on the coast, can have racebased rights that other citizens do not have.
Hugh Barr is secretary of the Council of Outdoor Recreation Associations of New Zealand, and has been involved with MACA claims since 2010.