Submissions on the Marine and Coastal Area (Customary Marine Title) Amendment Bill close October 15. Our 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.
NZCPR SUBMISSION: Marine and Coastal Area (Customary Marine Title) Amendment Bill
14 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.
Despite the time constraint that has been imposed on the passing of this Amendment Bill, we would like to remind the Committee that this is the single opportunity it has to correct what is a very important piece of legislation.
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 also like to remind Committee Members that in the 2003 Court of Appeal ruling that triggered the whole 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 in 2011, 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 approach was adopted in the design of the Crown’s Direct Negotiation process, which includes an opportunity for public submissions by locals to ensure that the Minister of Treaty of Waitangi Negotiations 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), in general, 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 claims process should have access to public submissions in the same way as the Minister in the Direct Negotiation process.
Since it is the Attorney General’s role to represent the public interest in the Court, we recommend the Attorney General should be tasked with managing a public submissions process for High Court claims. Only then can Judges be fully informed when making their determinations.
2. Delete all ‘tikanga’ requirements from the Marine and Coastal Area Act and Amendment Bill.
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…
In the Edwards case, the High Court treated s58(1) as a single legal test in which tikanga was relevant to both limbs. The upshot was to effectively negate the second limb of the test and any need for claimants to prove they had occupied the specified area exclusively and continuously from 1840 to the present day without substantial interruption.
Although the amendments in the Bill provide clarity, there remains a risk that the Courts will continue to use a ‘tikanga lens’ to determine the second limb of the test.
With only tribal groups able to apply for customary rights under the law, the “tikanga” requirement is essentially redundant, since the test for whether a Customary Marine Title exists rests on whether claimants can satisfy the requirements of s58(1)(b).
We therefore recommend section 58 (1)(a) and all other references to ‘tikanga’ be deleted from the Marine and Coastal Area Act and the Amendment Bill.
Deleting all references to ‘tikanga’ would not only largely remove the necessity for the involvement of Court-appointed tikanga experts, but it would also streamline the Court process by ensuring that the key focus of Judges making their determinations is on applicants 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.
The Marine and Coastal Area Act specifies that Customary Marine Title claimants can nominate areas to be designated as ‘wahi tapu’ by the Courts in order to prevent public access. Wardens can also be appointed to police the areas and issue fines of up to $5,000 to anyone found trespassing.
With many of the original applications for the coast specifying that claimants wanted to declare their entire claimed area as “wahi tapu” – right out to the 12 nautical mile edge of the Territorial Sea – this designation was clearly regarded by claimants as a mechanism to prevent public access of any kind and effectively privatise the coastline for their own benefit.
Since Parliament guaranteed that public access to the coast would not be interrupted by the Marine and Coastal Area Act, wahi tapu designations prohibiting public access are inconsistent with the public interest of all New Zealanders in our coastline and should therefore be removed from the law.
Furthermore, since the Courts have determined that the identification of wahi tapu areas should be undertaken once Customary Marine Tiles have been awarded, removing them from the law would free up a considerable amount of Court time – and reduce taxpayer costs.
We therefore recommend that all references to wahi tapu in sections 78, 79, 80, and 81 of the Marine and Coastal Area Act – along with all consequential references – be removed from the law and a clause to that effect be inserted in the Amendment Bill.
4. Prohibit ‘shared exclusivity’ and ‘jointly held’ Customary Marine Title for competing claimants.
While to most people exclusive means used by one particular person or group, the Attorney-General in the High Court Edwards case, explained that the ‘exclusive’ use of the coast could be shared between multiple applicants as “shared exclusivity” – if they had combined their applications to form one applicant group when they originally lodged their claim.
The presiding judge, Justice Churchman, however, took the concept further by deciding that “shared exclusivity” or “jointly held” Customary Marine Title should be available to all applicants who had submitted competing claims for an area of coastline. In doing so he negated the key test of ‘exclusivity’ in the law.
Since “shared exclusivity” by multiple applicants for the same area of coast is inconsistent with the “exclusivity” test in the law, it must be removed.
Accordingly, for the Amendment Bill 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 to competing claimants. To avoid any doubt, a clause to that effect should be included in the Bill to expressly negate shared exclusivity.
5. Eliminate the need for RMA applicants to consult with claimants – and remove the requirement for mining royalties paid to successful claimants being backdated to the application date.
While the claims process is going on, s62A of the Marine and Coastal Area Act requires those seeking a resource consent for activities in the marine and coastal area to consult with all applicant groups for the area involved. Given virtually the entire coastline is covered with multiple overlapping claims – some with as many as 20 competing applicant groups – the effect has been to add significant delays and costs, which have seriously discouraged coastal development.
Furthermore, s84(3)(b) of the Act requires all royalties from the mining of non-nationalised minerals in the foreshore and seabed that would normally be directed to the Crown for the benefit of all New Zealanders, to be withheld from the date that applications for the area were lodged and reserved for any claimants that succeed in securing a Customary Marine Title.
With almost six hundred coastal claim applications waiting to be resolved, in spite of the best efforts of the Coalition, the process will inevitably take decades.
In light of that reality, both of these requirements – to consult all applicants for consents and to withhold mining royalties from the Crown – are totally unreasonable and should be eliminated.
We therefore recommend that s62A and s84(3)(b) be repealed from the Marine and Coastal Area Act and a clause to that effect be included in the Bill.
Conclusion
The NZCPR believes these five changes we have recommended will significantly improve the Bill and the outcomes for New Zealand:
1. Introduce public submissions into the High Court process
2. Delete all ‘tikanga’ requirements from the Marine and Coastal Area Act and the Amendment Bill
3. Remove all references to ‘wahi tapu’ from the Marine and Coastal Area Act
4. Prohibit ‘shared exclusivity’ and ‘jointly held’ Customary Marine Title for competing claimants
5. Eliminate the need for RMA applicants to consult with claimants – and remove the requirement for mining royalties paid to successful claimants being backdated to the application date
We urge the Select Committee to adopt these recommendations and include them in their amended Bill.
Yours sincerely,
Dr Muriel Newman
New Zealand Centre for Political Research