Need2Know: Marine and Coastal claims - will they af­fect coastal walk­ing tracks?

Walking New Zealand - - Contents - By Sarah Tay­lor Sarah Tay­lor is a mem­ber of Hob­son’s Pledge hob­son­ and for­mer mem­ber of the Here­taunga Tramp­ing Club

In 2011 the Na­tional - Maori Party coali­tion passed the Marine and Coastal Area (Taku­tai Moana) Act (the “MACA”), a rad­i­cal Act al­low­ing Maori groups to claim spe­cial rights over the fore­shore and se­abed. As a re­sult over six hun­dred claims have been lodged with the Crown, Courts, and Wai­tangi Tri­bunal. While these claims may take decades to re­solve, the pub­lic’s rights over the coast­line re­main in a state of un­cer­tainty: the ques­tion is, will the new law af­fect coastal walk­ing tracks and how?

The law up un­til now

In 1840 when the Treaty was signed, the Crown (that is, the gov­ern­ment) as­sumed own­er­ship of the fore­shore and se­abed out to three nau­ti­cal miles on be­half of all New Zealan­ders. While some ar­eas (such as ports) were ob­vi­ously off lim­its, the rest of the coast­line (the com­mon marine and coastal area) was for all of us to be en­joyed freely.

2003 Ngati Apa de­ci­sion and Fore­shore and Se­abed Act 2007

In a sur­prise de­ci­sion, the Court of Ap­peal de­clared that na­tive rights over the fore­shore and se­abed con­tinue un­til ex­tin­guished un­der the law. For prac­ti­cal pur­poses, this meant that some Maori com­mu­ni­ties might still have cus­tom­ary rights over small, re­mote pock­ets of the coast­line. Un­for­tu­nately Ngati Apa was widely mis­in­ter­preted as a dec­la­ra­tion that Maori (iwi) own the fore­shore and se­abed. The po­lit­i­cal tur­moil that re­sulted led to He­len Clark’s Labour gov­ern­ment pass­ing the Fore­shore and Se­abed Act. This reaf­firmed Crown own­er­ship on be­half of all New Zealan­ders but es­tab­lished a se­ries of rules al­low­ing Maori (and in the­ory non-Maori) to test cus­tom­ary rights claims be­fore the Courts.

Marine and Coastal Area (Taku­tai Moana) Act 2011

The MACA adopts the lu­di­crous po­si­tion that “no-one” owns the fore­shore and se­abed, but then al­lows the Crown to “recog­nise1” or grant rights over the area to Maori. Rights un­der the MACA aren’t com­mon law rights, but are new bun­dles of rights. These in­clude:

Cus­tom­ary Marine Ti­tle: is a ter­ri­to­rial or land based set of rights al­low­ing the tribal group to com­mer­cially ex­ploit (lease or mine) but not sell the fore­shore (the bit that gets wet) and se­abed.

Wahi tapu: The Min­is­ter or Courts can des­ig­nate wahi tapu over tra­di­tion­ally sa­cred sites, such as urupa (grave sites).

Kaiti­ak­i­tanga: CMT hold­ers have the right to pre­pare plan­ning doc­u­ments2 pro­mot­ing sus­tain­able man­age­ment of nat­u­ral and phys­i­cal re­sources, as well as “the pro­tec­tion of the group’s cul­tural iden­tity and his­toric her­itage”. Lo­cal au­thor­i­ties are legally obliged to take the plan­ning doc­u­ment into ac­count when mak­ing de­ci­sions in re­la­tion to the CMT area.

Pro­tected Cus­tom­ary Rights: al­low a group to con­tinue prac­tis­ing cus­tom­ary prac­tices, such as col­lect­ing fire­wood, sa­cred wa­ter, seaweed, flora or fauna ( ex­clud­ing fish) within the group’s cus­tom­ary marine area.

So what are the fu­ture im­pli­ca­tions of the MACA for coastal walk­ing tracks? What the Act says:

Pub­lic ac­cess rights: in­di­vid­u­als may en­joy the marine and coastal area with­out charge

Many coastal walk­ing tracks me­an­der in and out of the marine and coastal area3. On some tracks walk­ers may be forced onto banks by rocky out­crops and dan­ger­ous seas, on oth­ers walk­ers are forced onto the fore­shore by dan­ger­ous slips and steep cliff faces. How­ever, the Act is clear: ev­ery in­di­vid­ual, with­out charge, has the right to en­ter, stay in or on and en­gage in re­cre­ational ac­tiv­i­ties within the com­mon marine and coastal area4. This in­cludes any fore­shore held by Maori un­der Cus­tom­ary Marine Ti­tle.

Wahi Tapu ar­eas are re­stricted An ex­cep­tion to the ac­cess rule ap­plies to wahi tapu (sa­cred) ar­eas. CMT agree­ments must set out in ad­vance the lo­ca­tion and bound­aries of wahi tapu and any pro­hi­bi­tions or re­stric­tions that ap­ply5. The CMT holder can pre­vent pub­lic ac­cess over wahi tapu, en­force­able by fines of up to $5,000.

Cus­tom­ary Marine Ti­tle hold­ers can charge “non-in­di­vid­u­als”, busi­nesses, af­fil­i­ated clubs and so­ci­eties for com­mer­cial and re­cre­ational use of fore­shore and se­abed held in CMT

It is clear that the Act has been de­lib­er­ately worded to al­low CMT hold­ers to charge “non-in­di­vid­u­als” such as busi­nesses con­duct­ing com­mer­cial ac­tiv­i­ties over land held in CMT. For ex­am­ple, Taupo tribe Ngati Tuwhare­toa (which owns the Taupo lake bed but not the wa­ter col­umn6) levies a per capita levy on Taupo Iron­man com­peti­tors swim­ming across the lake.

The Act also ap­pears to al­low CMT hold­ers to charge af­fil­i­ated en­ti­ties such as clubs and so­ci­eties for re­cre­ational ac­tiv­i­ties on or over fore­shore and se­abed held in CMT. So while CMT hold­ers can­not phys­i­cally pre­vent a group, for ex­am­ple of tramp­ing club mem­bers, from ac­cess­ing walk­ing tracks along the fore­shore, it is ap­par­ent that they could in­voice the club or so­ci­ety for the priv­i­lege.

Plan­ning Doc­u­ments pro­tect­ing “cul­tural iden­tity and his­toric her­itage” leave uni­ver­sal ac­cess to the fore­shore in doubt

As dis­cussed be­low, the right of CMT hold­ers to in­clude mat­ters rel­e­vant to “the pro­tec­tion of cul­tural iden­tity and his­toric her­itage” leaves the is­sue of uni­ver­sal pub­lic ac­cess over fore­shore held in CMT in doubt. The story so far; As at 6th April 2017, the cut-off date for ap­pli­ca­tions, around 380 claims over the marine and coastal area had been lodged for di­rect en­gage­ment with the Min­is­ter8 (un­der the Act the Min­is­ter can “ne­go­ti­ate” claims with ap­pli­cants) and over two hun­dred claims have been lodged with the High Court. Around six­teen Treaty claims have also been lodged with the Wai­tangi Tri­bunal. The out­come of these ne­go­ti­a­tions, cases and hear­ings will de­ter­mine to what ex­tent the fore­shore and se­abed will be sub­jected to an over­lay of Maori rights (both un­der the MACA and Treaty rights). The other fac­tor to con­sider is how the rules are im­ple­mented – both by Maori rights hold­ers (present and fu­ture gen­er­a­tions) and lo­cal au­thor­i­ties, as well as the role of Maori in­di­vid­u­als who may in­ter­pret the laws as li­cence to make and en­force their own rules.

Ngati Pa­hauw­era granted 16 kilo­me­tres of Cus­tom­ary Marine Ti­tle:

The first Agree­ment to emerge from ne­go­ti­a­tions with the Min­is­ter (then At­tor­ney Gen­eral Chris Fin­layson) has re­sulted in a grant to the tribal ap­pli­cant Ngati Pa­hauw­era9 of around 16 kilo­me­tres of CMT along the Hawke’s Bay fore­shore10. While both the Crown and ap­pli­cants have rat­i­fied the deal11, the Agree­ment al­lows the ap­pli­cants to con­tinue press­ing for the bal­ance of their un­met claims through the Courts. As the claimants had ap­plied for a wahi tapu des­ig­na­tion over the en­tire

length of the fore­shore it is ap­par­ent that tribal mem­bers wish to limit pub­lic ac­cess. It is not dif­fi­cult to imag­ine that Ngati Pa­hauw­era might in­sert clauses in a Plan­ning Doc­u­ment at­tempt­ing to re­strict pub­lic ac­cess to the fore­shore un­der the pre­text of pro­tect­ing “cul­tural iden­tity and his­toric her­itage”. Tribal his­tory (for ex­am­ple, de­tail­ing where a ran­gatira spilled blood, or any num­ber of rea­sons) may be as­serted as to why a par­tic­u­lar lo­ca­tion is of his­toric her­itage and off-lim­its. And al­though the lo­cal au­thor­ity (Hawke’s Bay Re­gional Coun­cil) is only legally obliged to con­sider such a doc­u­ment, the Coun­cil would run the very real like­li­hood of be­ing ex­posed to ex­pen­sive lit­i­ga­tion if it failed to im­ple­ment the Agree­ment. In ad­di­tion, the com­mit­tee12 re­spon­si­ble for the man­age­ment of nat­u­ral re­sources is 50:50 co-man­aged by elected Coun­cil­lors and iwi ap­pointees, in­clud­ing one from Ngati Pa­hauw­era it­self. As the iwi ap­pointees en­joy vot­ing rights and tend to vote en­bloc, it is pos­si­ble that the Coun­cil would be forced to adopt mea­sures re­strict­ing pub­lic ac­cess to the fore­shore re­gard­less of the wishes of the wider pub­lic and elected rep­re­sen­ta­tives.

This sit­u­a­tion, where the laws pre­serv­ing pub­lic ac­cess to the fore­shore could be cir­cum­vented could be du­pli­cated across other ar­eas of coast­line: for ex­am­ple the Hau­raki Gulf, dot­ted by small is­lands, is sub­ject to an on­go­ing push for co­gov­er­nance.

Who is in charge? de facto rule by self­ap­pointed in­di­vid­u­als

Very of­ten, what the law pre­scribes and what hap­pens in fact are very dif­fer­ent mat­ters. Hob­son’s Pledge spokes­woman Casey Costello, of An­glo-Ir­ish and Nga Puhi her­itage puts it like this “While the ap­pli­cants may hold CMT, the law doesn’t spec­ify who can speak on be­half of the group. The le­gal rep­re­sen­ta­tives may not even live any­where near the coast. Over the years we end up with self-ap­pointed in­di­vid­u­als on the ground who bully their way into con­trol”. A re­cent ex­am­ple is where self­ap­pointed Maori tribal mem­bers, self­styled “kau­matua” and “hapu elder” bar­ri­caded the pub­lic from us­ing a wharf on Matakana Is­land” 13. Ms Costello con­tin­ues: “We can ex­pect an in­crease in this sort of be­hav­iour un­der the MACA. Any­one of Maori ap­pear­ance could claim to be the ti­tle­holder and make de­mands or de­clare rahui. Who is go­ing to chal­lenge them? What lies ahead? Be­fore the pass­ing of the MACA it was the birth-right of all New Zealan­ders to ex­plore and en­joy the fore­shore with­out fear of hin­drance – le­gal or other­wise. The MACA rep­re­sents a po­ten­tial mas­sive trans­fer of rights from cit­i­zens (in­clud­ing in­di­vid­ual Maori) to tribal groups. Only time will tell as to how much of our coast­line will be trans­ferred to Maori hands, or how tribal groups granted rights un­der the Act will ex­er­cise those rights, now and in the fu­ture. How­ever, it is very clear that the Act tilts the bal­ance of rights over the coast­line to­wards Maori en­ti­ties and risks jeop­ar­dis­ing walk­ing ac­cess over vast stretches of fore­shore. What you can do The Courts can only strike out claims over the fore­shore where they have re­ceived ev­i­dence that the tribal group’s rights have been ex­tin­guished. The test is whether the group has “ex­clu­sively used and oc­cu­pied the area from 1840 to the present day with­out sub­stan­tial in­ter­rup­tion14”. If you are con­cerned about the risk of los­ing ac­cess to the fore­shore, you can lodge a No­tice of Ap­pear­ance with the High Court out­lin­ing how you and your fam­ily or your walk­ing group use or have his­tor­i­cally used an area.

For fur­ther in­for­ma­tion on how to lodge a No­tice of Ap­pear­ance or reg­is­ter your in­ter­est in help­ing to op­pose claims, please visit­ter­ing-coastal­claims-cam­paign/. (End­notes) 1 Rights are “recog­nised” rather than granted be­cause in the­ory they have never been ex­tin­guished 2 MACA sec­tion 85 plan­ning doc­u­ment 3 MACA sec­tion 9 def­i­ni­tion of “marine and coastal area”: the land­ward side is bounded by the line of the mean high-wa­ters springs 4 MACA sec­tion 26 Rights of ac­cess 5 MACA sec­tion 79 Wahi tapu con­di­tions 6 MACA sec­tion 9 def­i­ni­tion of “marine and coastal area”: in­cludes the airspace above and the wa­terspace (but not the wa­ter) above 7 MACA sec­tion 85(3)(b) 8 Un­der the Act, ap­pli­cants for Cus­tom­ary Marine Ti­tle or Pro­tected Cus­tom­ary Rights can ei­ther ne­go­ti­ate a set­tle­ment with the Min­is­ter (sec­tion 95) or ap­ply for a Court Or­der un­der sec­tion 98 9 Ngati Pa­hauw­era, a north­ern Hawke’s Bay iwi, rep­re­sented by the Ngati Pa­hauw­era De­vel­op­ment Trust 10 In­cred­i­bly, the Agree­ment also grants the ap­pli­cants an ex­ten­sion of their treaty rights to man­age the ex­trac­tion of hangi-stones out to the lim­its of the ter­ri­to­rial wa­ters (over 20 kilo­me­tres out to sea) over an enor­mous ex­panse of coastal Hawke’s Bay. 11 The en­act­ing leg­is­la­tion amend­ing the tribe’s Treaty Set­tle­ment Act has not yet been passed by Par­lia­ment 12 The Hawke’s Bay Re­gional Coun­cil Plan­ning Com­mit­tee was es­tab­lished un­der the Hawke’s Bay Re­gional Plan­ning Com­mit­tee Act 2015 as cul­tural re­dress un­der treaty agree­ments with lo­cal iwi. 13 http://www.sun­­i­tors-blocked-from-matakana-is­land.html 14 MACA sec­tion 58(1) Cus­tom­ary marine ti­tle

Above: Map shows com­pet­ing tribal claims lodged with the Crown for ne­go­ti­ated agree­ment over the Auck­land re­gion, but does not dis­play claims lodged with the High Court.

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