The BFD | A Bombshell Ruling

Dr Muriel Newman
nzcpr.com

Dr Muriel Newman established the New Zealand Centre for Political Research as a public policy think tank in 2005 after nine years as a Member of Parliament. A former Chamber of Commerce President, her background is in business and education.

A bombshell ruling from the High Court opens the door to tribal control of New Zealand’s foreshore and seabed. It represents a major setback for those who believe the country’s coastline and Territorial Sea should be owned by no-one and protected by the Crown for the benefit of all.

The Edwards case is the first of some 200 Marine and Coastal Area Act applications for customary interest currently before the High Court. Collectively these overlapping claims by Maori tribal groups cover all New Zealand beaches, the sea out to 12 nautical miles, estuaries, and harbours. In his precedent-setting decision, Justice Churchman found in favour of Bay of Plenty tribal claimants, giving them pretty much everything they wanted.

It’s a radical decision that essentially ignores the intention of Parliament by elevating the status of ‘tikanga’ – Maori customary values and practices – above the common law requirements that were meant to ensure claimants met stringent tests that would restrict title to minor pockets of the coast. The Churchman decision is anything but restrictive and if not overturned on appeal is likely to result in New Zealand’s entire coastline being handed over to Maori tribal interests.

Before we examine the details of the judgement, let’s remind ourselves of how we got to this point where private tribal groups may soon control New Zealand’s coast.

Under British common law – and affirmed by a 1963 Court of Appeal ruling – the ownership of New Zealand’s foreshore and seabed was vested in the Crown.

But as the result of a protracted dispute between tribal groups and a council over a marine farming application that ended up in the Court of Appeal, that 1963 ruling was overturned by a highly controversial 2003 judgement. In her Ngati Apa decision, Chief Justice Sian Elias determined that pockets of customary interest in the foreshore and seabed might still exist, and that such claims should be heard in the Maori Land Court.

With hundreds of claims for title to the coast flooding in, Helen Clark’s Labour Government legislated to restore Crown ownership through the 2004 Foreshore and Seabed Act. While the new law provided special rights to tribal groups that could prove their customary interest in the High Court, there were on-going complaints that the bar was set too high for claims to succeed.

The Maori Party campaigned for a law change, and once in coalition with John Key’s National Government, the Marine and Coastal Area Act was introduced to repeal Crown ownership and open the area for tribal claims.

New Zealand’s coastal marine area consists of 10 million hectares of the richest natural resource in the country. It is defined as the area covering the distance between the average spring high tide waterline and the 12 nautical mile territorial limit, along with the airspace above, the water, and the subsoil, bedrock and mineral wealth below.

The tests were high – to gain a Customary Marine Title (CMT), applicants had to satisfy section 58 of the Act: “hold the specified area in accordance with tikanga” and “have exclusively used and occupied the area without substantial interruption from 1840 to the present day.”

Overlapping claims, which are inherently inconsistent with the concept of ‘exclusive’ use, were expected to be ruled out, as were claims for areas of the coast where adjoining land had been confiscated, or where third-party use resulted in substantial interruptions. Since tribal groups had limited ability to navigate far from shore in 1840, it was also expected that few Territorial Sea claims would succeed.

Claimants gaining customary title to the coast would secure an invaluable property right akin to ownership. This includes veto rights over all resource consents and conservation activities; involvement in coastal planning and policy development; the ability to charge commercial operators, impose rahui, and restrict public access through wahi tapu; and ownership rights to all non-nationalised minerals – including royalties from existing mining operations, back-dated to when applications were first submitted.

While the law protects the rights of commercial fishing, navigation, and public access, as well as preventing customary title holders from regulating consent applications for existing marine reserves, aquaculture activities, or essential infrastructure operated by the Crown, port companies, and councils, expansion plans can be vetoed.

The Act specified two pathways for claimants – a hearing in the High Court or direct negotiation with the Minister of Treaty Settlements. On the eve of the seven-year deadline for lodging claims in April 2017, more 500 overlapping claims for the entire New Zealand coastline flooded in – some 200 for the High Court and over 300 for Crown Engagement.

To fund High Court claims, applicants had access to Crown funding of up to $316,750. No financial assistance was available for those wanting to oppose the claims, and as a result opposition was limited, despite widespread public concern.

That’s when the NZCPR stepped in to raise funds to enable a voluntary community group, the Landowners Coalition, to oppose the claims in the public interest. Working with the law firm of former MP Stephen Franks, their focus was on the first two claims – Edwards and Clarkson – in the hope that ensuring sensible outcomes would have a precedent effect on all other claims.

With that in mind, let’s look into the 215-page Edwards decision.

Altogether fifteen applicants with overlapping claims participated in the nine-week hearing in the Rotorua High Court to determine whether they were entitled to CMTs or the lesser Protected Customary Rights (PCRs) for a 44 km stretch of the Bay of Plenty coastline around Opotiki from Maraetotara in the west to Te Rangi in the east, and out to the edge of the Territorial Sea.

Justice Churchman awarded three CMT orders: a joint CMT between six applicants for the coast from Maraetotara to Tarakeha and out 12 nautical miles; a single CMT between Tarakeha and Te Rangi and out 12 nautical miles; and a joint CMT between seven applicants for the western part of Ohiwa Harbour.

In addition, six applicants received PCR orders for a wide range of activities including collecting whitebait, practicing baptism, launching boats, monitoring users of the area, and gathering sand, shells, and driftwood.

Justice Churchman acknowledged the importance of his ruling: “Many of the issues that arise have not previously been addressed by the Courts. Therefore, this decision has implications for some 200 other such claims currently before this Court.”

In the prelude he states:

“Prior to the end of the 18th century, Maori were the sole occupants of New Zealand. They held, and exercised, sovereignty over the whole country…

“Up until the assertion of sovereignty by Great Britain in 1840, the sole system of law in New Zealand was tikanga Maori. Unsurprisingly, to the extent that it related to the foreshore and seabed, tikanga bore little resemblance to the legal system of Great Britain which had its origins in Greek and Roman law as developed by the common law. Tikanga reflected the belief systems, values and life experience of the tangata whenua.

“In the Maori view of creation, the central figures are Papatuanuku (the earth mother) and Ranginui (the sky father) with the earth being created when these two were thrust apart by their children. Ancestors are the source of whakapapa and whakapapa is a tikanga that dictates Maori societal norms and relationships. In tikanga rather than there being an emphasis on exclusive individual or collective title to any part of land, the focus was on the use of and relationship with resources of the land and sea including manaakitanga. Perhaps most importantly for this litigation the concept of exclusion was fundamentally inconsistent with the tikanga values of manaakitanga and whakapapa.”

With these views it is unsurprising that in the Judge’s decision, ‘tikanga’ over-rules the common law section 58 requirements of the Act.

In terms of ‘holding’ a claimed area in accordance with tikanga, Justice Churchman ruled:

“The task for the Court in considering whether the requirements of s 58(1)(a) of the Act have been met is therefore not to attempt to measure the factual situation against western property concepts or even the tests at common law for the establishment of customary land rights. The critical focus must be on tikanga and the question of whether or not the specified area was held in accordance with the tikanga that has been established.”

The Judge explained the decision on whether applicants indeed held their claimed area in accordance with tikanga was determined by Maori advisors appointed by the Court:

“The proper authorities on tikanga are those living persons who retain the matauranga, which is the knowledge or wisdom passed down to them by their ancestors… The two pukenga appointed were Dr Hiria Hape and Mr Doug Hauraki… The aspects which the pukenga suggested should influence the assessment of whether or not the specified area was held in accordance with tikanga, were identified as being ‘mana, tino rangatiratanga, kaitiakitanga, utu, tapu and take-utu-ea’.”

When it came to the question of what constituted the “exclusive use and occupation” of a claimed area, Justice Churchman again rejected the Western concepts of property rights argued by the Attorney General and Landowners Coalition – that to succeed applicants must provide evidence of acts of exclusion and physical control of the area – as being inconsistent with tikanga.

He ignored concerns over ‘overlapping’ claims to adopt the Canadian concept of “shared exclusivity”: “I have concluded that the structure of the Act is consistent with a jointly held CMT rather than overlapping CMTs… If there were multiple CMTs for the same area there would be practical problems with the exercise of the rights which flow from the grant of CMT. CMT confers on an applicant group the right to use, benefit from or develop a CMT area including deriving a commercial benefit. CMT rights can also be delegated and transferred. There would also be practical problems if two groups held CMT and wanted to exercise the various rights…”

With regards to the “substantial interruption” test, while the Attorney General and the Landowners Coalition submitted that land confiscations, coastal infrastructure, and third-party use and occupation constituted substantial interruptions, Justice Churchman ruled the matter should “be determined by an examination of the facts in each case, not by applying a presumption”.

To that end, he has scheduled a further hearing in the Edwards case for 14 February 2022 to consider whether parts of the awarded CMTs need to be excluded to accommodate such ‘interruptions’ as marine farms or sewerage outfall pipes.

Justice Churchman maintains that others using a claimed area would not prevent a CMT being awarded because tikanga renders such matters irrelevant: “One of the consequences of holding an area in accordance with tikanga is the obligation of manaakitanga. That obligation can extend as far as sharing the resources of the takutai moana with non-Maori”.

In other words, contrary to what the Act demands, it appears CMT will be granted over an application area even if there is evidence of substantial interruptions – in that case, the source of the interruptions, would simply be excluded from the CMT.

This week’s Guest Commentator, former Judge and Law Lecturer Anthony Willy, has read the judgement and is deeply concerned:

“It is simply not tenable to import spiritual beliefs and ancient codes of conduct into the fabric of the contemporary common law of New Zealand. The reason is obvious beyond debate. The law must be certain, readily available to all, and obeyed by all.”

He believes the decision must be appealed:

“The implications of this judgment are deeply disturbing. It is to be hoped that the appellate courts will restore some sanity and certainty to the common law and at least confine the notion of Tikanga to the historical relationships and understandings of those seeking a right to the foreshore of New Zealand greater than that enjoyed by the public at large.”

We too believe this decision must be appealed, otherwise the whole coast is in danger of falling under tribal control.

The Office of the Attorney General may be considering an appeal, but in this political climate, even if an appeal did go ahead, there is no knowing how vigorous it would be.

The only other potential appellant is the Landowners Coalition but that would be contingent on significant fundraising. There are twenty working days to lodge an appeal – if you would like to support this cause, please click HERE.