I cannot contemplate without uneasiness the evil consequences which might ensue from judicially declaring that the soil of the foreshore of the Colony will be vested absolutely in the natives if they can prove certain acts of ownership.
Chief Judge Fenton, 1870.
As Kiwis head to the beaches this summer, they should give a thought to the battle that’s raging behind the scenes for the ownership and control of their favourite patch of coastline.
Hundreds of tribal groups across the country are spending millions of dollars of taxpayers’ money on high-powered legal teams arguing before compliant judges that they should be awarded Customary Marine Title so they can ‘own’ the foreshore and seabed extending out 12 nautical miles.
Customary title is a significant prize. It comes with all the benefits of ownership, except the right of resale. In other words, tribal ‘owners’ would control the coast. They would have the right to deny public access to areas they claim are culturally sensitive – appointing wardens to police ‘wahi tapu’ areas and issue trespass fines of up to $5,000.
They could charge commercial users of the coast, such as the local surf school, fishing charters, or even the organisers of sporting events. Nor is there anything to stop them leasing out the coast to third parties such as overseas mining interests to monetarise the mineral deposits in their foreshore and seabed into a lucrative income stream.
Yet more money-spinning opportunities will come from the right to veto resource consents in the area, and control coastal planning.
The law allowing all of this was passed by the National government – in coalition with the Māori Party – back in 2011. They assured the public at the time that only claims for remote areas of the coast would succeed – which they estimated to be no more than 10 per cent of the coastline.
This was consistent with the view of the Court of Appeal, that sparked the whole foreshore and seabed controversy back in 2003, that “discrete” “pockets” of customary title might still exist.
With over 600 overlapping claims covering every inch of the coastline waiting to be resolved, the courts, however, have been bending over backwards to appease Māori applicants.
We saw this in the first case to come before the High Court. Rather than disappoint unsuccessful applicants by awarding single Customary Marine Titles to those judged to have “exclusively” used and occupied their specified area continuously since 1840, the Orwellian award of “shared exclusivity” was invented so no one missed out.
That High Court ruling set a precedent that would have resulted in virtually the entire coast being owned by competing tribal groups – a far cry from the 10 per cent in remote areas promised by National.
As a result, the case was appealed to the Court of Appeal, but since their ruling made the situation worse, that was appealed to the Supreme Court.
While some claim the Supreme Court’s judgement, which was released last week, was a major victory that would somehow make all the problems with the claims process go away, nothing could be further from the truth. Its decision has made a bad situation even worse.
While the appeals were working their way through the courts, the coalition government introduced legislation to overrule court judgments and reaffirm parliament’s original intention when the Marine and Coastal Area Act was introduced.
Essentially the Supreme Court has pronounced that tikanga should be at the heart of all decision making over the claims process. This ruling is clearly designed to progress their activist agenda to embed tikanga (or Māori custom) – which differs from family to family and can mean virtually whatever anyone wants it to mean – into our legal system. Their actions raise serious constitutional concerns which must be addressed if our highest court is to be prevented from undermining the coalition’s attempt to ensure the law delivers what parliament intended.
We asked former Judge Anthony Willy for his opinion on the Supreme Court’s ruling, and in this week’s NZCPR guest commentary he describes it as ‘political interference’:
It is a lengthy essay which reads like a cross between a sociological disquisition and a consultant’s report that might have been commissioned by the Office of Māori Crown relations under the previous government. It is an exploration of Māori spiritual values, as far as they can be ascertained such as taking a ‘holistic view,’ whatever that means on the facts, and exploring notions of Tikanga and Mana. The result is that the judgment is a blatant exercise in political interference in the legislative process.
At the centre of the controversy is the Section 58 test in Marine and Coastal Area Act that claimants must satisfy to be granted a Customary Marine Title. It has two limbs. Section 58(1)(a), the tikanga limb, requires claimants to have held their specified area according to tikanga. And Section 58(1)(b), the property rights limb, requires claimants to have exclusively used and occupied their specified area since 1840 without substantial interruption.
In our submission to the Supreme Court, we referred to a Regulatory Impact Statement prepared by the Ministry of Justice in 2010, which showed that while tikanga was to be applied to the first limb of the test, it was deemed to be too “uncertain” and was specifically ruled out of the second limb in favour of a common law test. In other words, parliament intended the second limb to stand alone and mean what it says: “exclusive” means not shared by others.
The Supreme Court disagreed and ruled that tikanga can influence the second limb of the test. And that’s the nub of the problem.
If tikanga applies to the second limb of the Section 58 test, “exclusive” can signify “shared”. That means instead of multiple competing Customary Marine Title claims for a specified area being ruled out under a property-rights interpretation of “exclusive”, they could all be ruled in as “shared exclusivity” under a tikanga interpretation.
The Supreme Court justified their ruling by claiming the Marine and Coastal Area Act was a “reconciliatory” piece of legislation designed to correct past wrongs. But that’s incorrect. The well-established Treaty settlement process is for reconciliation. The Marine and Coastal Area Act is a property right test.
We expect the Supreme Court’s judgment will significantly influence the outcome of the hundreds of cases yet to be heard. There is no question that unless the situation is corrected, it remains likely that a vast proportion of the foreshore and seabed – out to the 12-nautical mile Territorial Sea limit – will pass into Customary Title.
Let’s be very clear about what is happening here. The Supreme Court is taking an activist approach that is over-ruling the intention of parliament. That’s why some are describing the situation as a constitutional crisis.
Unless the coalition specifically rules out tikanga from being used to assess that second limb of the Section 58 test in their Marine and Coastal Area (Customary Marine Title) Amendment Bill, the end result may not be much different from the circumstances that created public alarm in the first place.
This situation is very serious. The courts have not provided the solution the coalition had sought. There is now only one way that Customary Title can be limited to what National had promised in 2011, and that is for the coalition government to exercise its sovereignty over the courts through the bill that is currently before parliament.
There’s only a short window of opportunity available for action*. A Supplementary Order Paper needs to be introduced by the coalition during the committee stages of the bill to specifically rule out tikanga from being considered as a factor in that second limb of the Customary Title test.
If this is not done, significantly more of the coastal area will likely pass into customary title than the ‘no more than 10 per cent of remote areas’ promised by National in 2011 and reinforced by the coalition.
In other words, to prevent the activist Supreme Court from sabotaging the coalition’s law change, tikanga needs to be excluded from being used to interpret the second limb of the Customary Marine Title test.
*With the Committee Stages of the Amendment Bill expected this week, if you feel strongly about this issue, why not share your concerns with the Coalition. All MP email addresses can be found on the ‘Have Your Say’ page of our website HERE.
The Supreme Court ruling is not the end of the legal process for us. As an associate of an interested party in more than 200 applications before the High Court, we are monitoring the cases as they come onto the court schedule and challenging the process where we believe it is being abused.
For example, we are currently opposing a proposal in the High Court that would enable two customary title applicants, each of which has claimed they have used their specified area exclusively, to withdraw their competing claims and submit a new joint application – some seven years after the cut-off date for lodging new claims! The effect would be to side-step the exclusivity test in S58(1)(b) and open up a clear pathway to gaining a Customary Marine Title – with the financial benefits divvied up afterwards.
We are challenging this development as we see it as an abuse of process.
We are also now seeing claimants wanting their hearings delayed – and for two reasons. The first is that all applicants, regardless of the merit of their claim, must be consulted on any new resource consent applications in their area, which gives them status and financial privileges they would not enjoy if they were unsuccessful in their claim. But the second reason is that they are playing a political long-game by delaying in the hope of a change of government to one with Māori Party influence. This is also an issue that must be addressed by the coalition – indefinite delays should not be allowed.
Looking ahead, we believe the only way to ensure the law delivers on what the coalition has promised is not only for tikanga to be removed from consideration in that second limb of the Customary Marine Title test, but for all new claims – including the consolidation of existing claims into a single claim – to be ruled out of time, and for indefinite hearing delays to be refused.
Finally, in outlining the process by which claims for customary title are progressed, the Supreme Court suggests that “contradictors” will help to ensure that opportunistic claims don’t succeed. What they didn’t acknowledge was the fact that in most cases there are no contradictors because of the exorbitant costs involved in participating in the legal process. In contrast, those seeking Customary Title may receive up to $458,000 in funding per claim – paid for by taxpayers!
The only reason we are in a position to understand what’s really going on and take action is because of the generous support we have received over the years from people who really care about the future of this country.
That allowed us, back in 2017, to lodge Notices of Appearance on all of the High Court claims. Theoretically, that means we could be involved in each and every case that crops up, but since even minimal involvement is eye-wateringly expensive, we have mostly restricted ourselves to the first claims under new laws to ensure those laws operate as parliament intended.
As mentioned above, we are presently active in those two new cases that appear to be attempting to circumvent the law, that have hearings scheduled for early next year. That’s why, of course, we are now seeking funding support – details can be found HERE – so we can continue to engage in this new phase of this dreadful saga to try to ensure the coalition’s law change delivers what parliament originally intended.
So, in spite of claims that the Supreme Court’s judgment means the foreshore and seabed battle has been won, that is simply not the case.
The Supreme Court has escalated the battle, not only by failing in its duty to interpret the law as parliament intended, but also by deliberately undermining the coalition government’s attempt to legislate to fix the law.
The undermining of parliamentary sovereignty is a serious constitutional matter that must be addressed. The judicial activism that is now clearly evident within our court system has become a serious threat to the Rule of Law and democracy itself.
This article was originally published by the New Zealand Centre for Political Research.
