Submissions on the Marine and Coastal Area (Customary Marine Title) Amendment Bill close October 15. Our draft submission can be seen below.
If you would like to send in a submission and would like to recommend the suggestions we have identified below, please do so in your own words to ensure your submission is counted as a separate submission.
Submissions can be copied and pasted onto the form provided by the Select Committee, or they can be attached as a document.
Full details of the submission process can be found HERE.
DRAFT NZCPR SUBMISSION: Marine and Coastal Area (Customary Marine Title) Amendment Bill
7 October 2024
Committee Secretariat
Justice Committee
Parliament Buildings
Wellington
Dear Sir,
Thank you for providing the opportunity to make a submission on the Marine and Coastal Area (Customary Marine Title) Amendment Bill.
This submission is on behalf of the New Zealand Centre for Political Research, a public policy think tank established in 2005.
The NZCPR has not only followed the Marine and Coastal Area Act from its inception, but has also been closely involved in the claims process through the High Court, Court of Appeal and now the Supreme Court.
We would therefore like to remind Committee Members that in the 2003 Court of Appeal ruling that triggered the foreshore and seabed controversy, the Chief Justice suggested it was “pockets” of “discrete” customary title that might still exist – not whole swathes of the coastline out to the 12 nautical mile edge of the Territorial Sea: “It is generally accepted that few mainland pockets of customary land remain in New Zealand… Whether or not the appellants will succeed in establishing any customary property in the foreshore and seabed lands claimed and the extent of any interest remains conjectural. In the past, claims to property in areas of foreshore and seabed seem to have identified relatively discrete areas comprising shellfish sandbanks, reefs, closely-held harbours or estuaries, and tidal areas or fishing holes where particular fish species were gathered.”
While the NZCPR strongly supports the Bill and the attempts by the Coalition Government to strengthen the law so it to delivers what Parliament intended when the Marine and Coastal Area Act was originally introduced, we would like to make five recommendations that we believe would significantly improve outcomes.
1. Introduce Public Submissions into the High Court Process
In earlier times, when Courts dealt with historic claims for customary title to the foreshore and seabed, it was not only claimants that gave evidence to the Judges, but opponents as well.
This was adopted in the design of the Crown’s Direct Negotiation process, which includes a public submission process to ensure the Minister hears from both claimants and community opponents when making decisions.
The problem with the Marine and Coastal Area Act claims process is that while the High Court uses an adversarial approach (instead of inquisitorial one), there is no adversary. This means that at the most fundamental level, justice cannot be done, because the Judges are not hearing a full range of evidence when making their determinations.
Part of the reason for this problem is the design of the Act itself. By offering tribal groups up to $458,000 in taxpayer funding to prepare their cases but providing no assistance to those wanting to oppose the claims, the law encouraged large numbers of claimants but created significant obstacles for opponents.
Going forward, this situation is unacceptable and must be corrected if the Coalition’s law changes are to deliver justice for all New Zealanders.
Judges presiding in the High Court process should have access to public submissions, as does the Minister of Treaty Settlements in the Direct Negotiation process.
It is the Attorney General’s role to represent the public interest in the Court. Accordingly, it is they who should be tasked with orchestrating a public submission process for the High Court claims. Only then will Judges be fully informed when making their determinations.
2. Delete all Tikanga Requirements from the Marine and Coastal Area Act and Amendment Act
The Marine and Coastal Area Act specifies that to qualify for a Customary Marine Title, claimants must have held their claimed area according to “tikanga”:
58 (1) Customary marine title exists in a specified area of the common marine and coastal area if the applicant group—
(a) holds the specified area in accordance with tikanga; and
(b) has, in relation to the specified area, exclusively used and occupied it from 1840 to the present day without substantial interruption…
Since only tribal groups have been able to apply for customary rights under the law, the “tikanga” requirement is essentially redundant.
We recommend section 58 (1)(a) and all other references to ‘tikanga’ be deleted from the law. This would streamline the Court process and ensure the key focus of Judges making their determinations is on claimants proving they have exclusively used and occupied their claimed area from 1840 to the present day without substantial interruption.
3. Remove all references to wahi tapu from the Marine and Coastal Area Act
In conjunction with the removal of ‘tikanga’ from the law, “wahi tapu” rights should also be removed.
Many of the original applications for the coast specified that claimants wanted to declare their entire claimed area as “wahi tapu”. The effect would be to prevent public access of any kind.
The law specifies wardens can be appointed to police these areas and issue fines of up to $5,000 to anyone found trespassing. Wahi tapu are clearly seen as a mechanism that can be used by claimants to effectively privatise the coastline.
The Courts have determined that the identification of wahi tapu areas should be undertaken once Customary Marine Tiles have awarded. Removing them from the Act would free up a considerable amount of Court time – and taxpayers’ money.
Since banning the public from large areas of the foreshore and seabed would clearly be inconsistent with the public interest of all New Zealanders in our coastline, all wahi tapu references should be eliminated from the law.
We therefore recommend all references to wahi tapu in sections 78, 79, 80, 81 and all consequential references be removed from the Act and a clause to the effect be inserted in the Amendment Bill.
4. Remove Shared Exclusivity and all references to jointly held Customary Marine Title
To most people exclusive means exclusive – used by one particular person or group. Justice Churchman in the High Court saw it differently when he looked at it through a tikanga lens in the Edwards case. He ruled exclusive can mean more than one and issued “jointly held Customary Marine Title”.
In his judgement, he outlined how the Attorney-General had explained that “shared exclusivity to all or part of the application area” was possible if multiple claimants had combined their applications to form one “applicant group” when they originally lodged their claims.
He then decided the “concept of shared exclusivity” should be available to all claimants, even though it effectively over-ruled the key test of ‘exclusivity’ in the law: “I will follow a similar approach to that taken by the Canadian Courts… I have concluded that the structure of the Act is consistent with a jointly held Customary Marine Title…”
However, “shared exclusivity” or “jointly held Customary Marine Title” is inconsistent with the “exclusivity” test and must be removed.
Accordingly, for the Amendment Act to deliver exactly what Parliament intended, the courts must be specifically prohibited from issuing joint customary title in the form of “shared exclusivity” or “jointly held Customary Marine Title” rulings.
5. Eliminate the need for RMA applicants to consult with claimants
While the claims process is going on, those seeking a resource consent for an activity in the marine and coastal area have been required to consult with all applicant groups for the area involved.
With some six hundred applications likely to take decades to process, the burden is unreasonable and not in the public interest. The effect is adding further delays and costs to coastal development and should therefore be eliminated.
Conclusion
We believe these five recommended changes will significantly improve the Bill and the outcomes for all New Zealanders, and we urge the Select Committee to include them in their amended Bill.
Yours sincerely,
Dr Muriel Newman
New Zealand Centre for Political Research