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 Maori 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 percent 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 Maori 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 percent 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 Maori 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 Maori Crown relations under the previous government. It is an exploration of Maori 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 percent 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 Maori 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.
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THIS WEEK’S POLL ASKS:
*Do you believe ‘tikanga’ has any place within our legal system?
*Poll comments are posted below.
*All NZCPR poll results can be seen in the Archive.
THIS WEEK’S POLL COMMENTS
| This so called ‘tikanga’ is nowhere defined other than in the minds of who attempts to use it . It does not constitute modern law and is far to vague to written into the laws of Modern NZ | William |
| Not under any bigoted circumstances, ever! | Graham |
| The treaty guaranteed orderly british law and order in NZ’ the same for everyone. Tikanga is Maori law that seems to be invented as and when convenient. Pity the grass roots Maori if this ever comes into being’ things will be back to slavery in no time. | Gay |
| Absolutely not. | Sue |
| Absolutely not. One legal system and sovereignty for ALL New Zealanders. This race-based interference is destryoing our country. | Joyce |
| Definitely not. Seems to be a very slippery term that can mean anything the activists want it to mean and that’s always to their advantage. Should never have been any part of our legal system. | Lee |
| Representation without Taxation!… Lets vote mon that! | Graham |
| The idea that tikanga (lore) can be law is preposterous. | John |
| NO NO NO …. NEVER….. NOT THEN NOT NOW | Phil |
| Absolutely not, one country, one people, one rule for all, stop the destructive seperatism that’s hellbent on ruining this beautiful land! | Jan |
| Maori activists have too much say already | David |
| Definitely not, one country, one people, one rule for all, stop the divisive insanity now! | Jan |
| OF COURSE NOT….The lovies and radicals have hijacked the country. I repeat the country is stuffed. Legal and educational institutions have fallen. GOD DEFEND NEW ZEALAND!!! I fear it is too late though. | Bruce |
| absolutely not | Paul |
| however I can’t see Luxon standing up to the Maori Party. He’s reneged on his pre election promises. | mike |
| One rule for all that is clear and fair. | Robert |
| No, as Tikanga is a concept that can’t be clearly defined. | Kylie |
| Its rubbish | David |
| Why do ‘special Maori’words have special meaning, for only Maori..? There should be one law for ALL RACES, WE ARE ALL EQUAL UNDER NZ LAW. | David |
| Most CERTAINLY NOT !! This is complete poppy cock and bears no place in Law. To try and use this as a basis of legality and law compares to using Nursery Rhymes and Fairytales. This is NOT what the Supreme Court ruled. Nor the CoalitionGovernment wanted . | Robyn |
| Absolutely NOT. What’s more the Coalition should immediately stop all funding of Maori claims whether for marine and foreshore claims or any to the corrupt Waitangi Tribunal. The Coalition has the majority it should stop fluffing about and use it. This period of government is really the last chance for democracy in this country and, if not taken, civil war will definitely ensue. | Alan |
| It’s a grift, pushed by a small group of radical extremists | Helen |
| Unless the useless Luxon starts to stand up for freedom and equality for all people regardless of race this country is doomed to become the South Africa of the South Pacific. | Grant |
| One people, one country. | Roger |
| Not at all | Susan |
| 100% NO. The treaty is obviously past its use by date and should be scrapped | Gareth |
| No no.no. | Beverley |
| above all the law must be certain,predictable and believable not subject to cultural norms to be interpreted to advance a racial preference. | Kerry |
| Absolutely not. I voted for National / Act to stop this-as I know many voters did. This spineless bunch have betrayed their supporters and won’t be receiving mine next time around. Removal of tikanga in our legal system is something I would literally fight for. | Stuat |
| Definitely not | Brenda |
| Definitely NOT | John |
| Tikanga is an unknowable, infinitely malleable load of indigenous nonsense that has absolutely no place in our 21st century legal system. Parliament and our Attorney General need to make this crystal clear. | Wendy |
| Belongs in the rubbish bin. | David |
| I dont understand the courts in NZ thedy seem to encourage all these Maori radicals and we are getting pushed to the background. Anything to do with the coastline and the sea is up to us all to enjoy and use. Where is the problem??? | Barbara |
| The Common person has no understand or interpretation so it is unsettled lore | Glenn |
| Absolutely not! It is not even a definitive thing and is an ideology of those who have failed to move out of the 19th century. | Hugh |
| Why does the Coalition not rule that Taxpayers funds are no longer available for claiments & claims.?? | Ray |
| The repercussions of :”tikanga” are far reaching should it be allowed to proceed. It will bring about chaos and division and the removal of democratic rights for New Zealand citizens. The Treaty was originally about equality for all citizens of New Zealand, and not any one class or race. | Dianne |
| Maori religion or Tikanga, has no place in NZ law. | Gavin |
| Keep all this cultural rubbish out of our legal and parliamentary system. The moment such mumbo-jumbo is given any status; it is opened up to reinterpretation at the will of those who have anything to gain from changing the rules. Keep to plain English, nothing else. We must move forward with all rules laid in in English – the language we all understand. | Colin |
| Parliament must rule. NOT the legal boffins | RICHard |
| I believe tikanga has no place in government The foreshore and seabed was given for all to enjoy.. The treaty was signed at the request of chiefs to end the blood shed between tribes. It has no place in modern society. | Elaine |
| No it destroys the concept of equality under the one flag of New Zealand. | Karen |
| Absolutely not, not ever. | Laura |
| No way | Kevin |
| No! We live in a democratic society and giving the foreshore to Maori would be the end of New Zealander as we know it. Maori are not ingenious to NZ so have no right to these claims. | Wayne |
| The courts are showing racial bias | Philip |
| Absolutely NOT | russell |
| Words and phrases such as this seem to mean whatever te Reo speakers want it to mean. If it doesn’t have a clear and concise definition it ha no place in legislation | Mike |
| Of course not. | Roy |
| Otherwise NZ is stuffed | Ian |
| It has no true, universal meaning. | Paul |
| I’m sick and tired of all these made up words and rights…..enough is enough this needs to be fixed | Cath |
| Absolutely not. Here we are again going down this path fighting battles to try and preserve our coastline for our families and our future use. Chris Findlayson has a lot to answer for when he changed Act to suit the Maori. | Lawrie |
| No room for debate on this one – an absolute NO | tony |
| Absolutely not. It can mean anything these greedy tribes want. Govt needs to put foreshore and seabed back under their control for all NZrs to enjoy. All these rebel maori loving judges need to be removed immediately. They are SCUMBAGS. | Allan |
| No bloody way | Laurie |
| It is undefined, and undemocratic. Everyone is equal under the law | John |
| No it shouldn’t have a place in our legal system, I’d also suggest the Activist judges on the Supreme Court that support this shouldn’t have a place in our legal system either. | John |
| We all own the waters and coastline of NZ.Maori have NO special rights, customary or otherwise. | Mike |
| Definately not | Rhys |
| Absolutely not | Peter |
| Absolutely not | Wiremu |
| None whatsoever. | Mike |
| Why the hell are some so determined to wreak racial war on our country. Was this decided by a maori judge ? | Chris |
| One country, people, laws, ownership throgh legal title as per the present system. | Colin |
| Tikanga is merely a Maori Cultural belief. If you read the NZ Law society article ” Protecting & enhancing Tikanga for future generations” you will see that Maori so called experts think Tikanga Law is superior to NZ law. Tikanga gives Maori huge power in our Law system & they will claim the seabed & foreshore & get different sentencing if it remains. For NZ to be democratic we ALL have to live under the SAME LAW! It is HUGELY important that TIKANGA is removed from NZ LAW NOW! | Sandra |
| The sea bed and foreshore belongs to everyone not just a privilege group. If can’t stop this in its tracks you might as well find another county to live in. I’ve seen how apartheid works and we can’t have this happening in NZ | Terry |
| NZ is owned by all NZers. There is no place for racial divisions. | John |
| Tikanga only benefits one “race” in NZ which is “racial” and undemocratic. NZ is a multicultural society and not a bi-cultural society. We need to be a fully democratic society. Why tax funded legal proceedings are entertained beats my understanding when only one side of the legal proceedings are funded by the tax payers yet the opposing proceedings need to be funded privately. | Keith |
| It’s just not possible ! | Nev |
| It does not have any place!! | Murray |
| No because it’s too bizarre to introduce an ill-defined notion that has no parallels into a system of common law that depends on stare decisis” ie. precedent. | boud |
| This Is infiltration of terrorists who craftily over the years have by stealth brainwashed the uninformed, the weak and given the money grabbing,back pocket immoral traitors of our sovereign and democracy the ability to ruin our country. We are already in peril and the silent ones too scared to move. It’s time to fight back! | Lynne |
| The original system will work if folk stop interfering and trying to improve it. Use as intended get on with it. Radicals to pay for improvement attempts. | mike |
| Govt.should control all coastline. | Michael |
| Definitely not | Graeme |
| No , not at all. | Michael |
| One New Zealand | Ray |
| My beliefs are that the only place for their customs rights are within their particular tribe, certainly not for other tribes, or the whole of NZ. | Ian |
| If so, what about all the other settling cultural groups expectations? | Sharron |
| The World at present has several wars raging, do we really want one here !! If certain PART MAORI ELITE keep pushing this Agenda then a physical War will be the Outcome AND there are a lot more of us then them !! | geoff |
| Tikanga, or societal lore within Maori culture, can best be described as behavioural guidelines for living and interacting with others. This has nothing to do with Common Law which is what Parliament and most NZers abide by. This continual abuse and activism by our courts is throwing away the democratic country which our ancestors fought for and built with all New Zealanders in mind. | John |
| None at all | Daphne |
| Absolutely not! | Brenda |
| Not at all | Graham |
| No, no, and bloody no. I am sick to my back teeth with all this Maori shit. And I am from Moari ancestry. This is being perpetuated by activist elite Maori for their own benefit. General Maori couldn’t care less about it, they just want to get on with their lives, and look after their families. | Peter |
| No way | Don |
| Was any less expected when NZ ditched the Privy Council? | chris W |
| Tikanga has no place within our legal system as applies to any other customs or traditions of other races. Our legal system in society is founded, governed & enacted through the Westminster model. To incorporate other cultures legal tenets would bastardise & dinish the proved Westminster system | Anthony |
| Foreshore and seabed access and ownership should be held by all New Zealanders – no tribal advantages – treaty settlements have catered for Maori discrepancies. | Peter |
| There should not be anything or any special rights for Maori in absolutely everything in New Zealand. They are no different from any other citizen in NZ. It is blatant racism to to indulge Maori with special rights and privileges over every other race. | Koreen |
| Tikanga represents a Maori belief and lifestyle. Maori can practice their Tikanga, but their beliefs should not be forced on others. | Marilyn |
| Lore and custom are not law. The danger of the Supreme Court to NZ;s democracy is now in plain sight An activist judiciary is challenging the elected Parliament,.The Coalition must move fast to assert the authority of the government. Luxon is being tested earlier than he expected. | Mary |
| Corruption in high places one of Mankind’s massive failures. | Chris |
| Maori can claim its tikanga, but don’t expect me to support this undemocratic nonsense | Bob |
| Our laws should be entirely in english and no other. The make it up as we go approach will result in war. | John |
| One country one people | DAVID |
| we are all equal before the law | john |
| It’s well passed time we were all treated the same and this so called treaty was torn up……. | Bill |
| Any change to the present legal system would lead to further division between Maori and non-Maori. One law for all New Zealanders. | Terry |
| Tikanga – customs and traditional values of Maori in NZ law. Would this include: *utu *slavery *cannibalism *property taken by force… | Henry |
| It is spiritual NOT factual. | Doug |
| One law for all | Raymond |
| No tribal anything has a place in our legal system. | John |
| 100% no – and in capitals for emphasis | Larry |
| Definitely not | John |
| The law must be clear, predictable and apply equally to everyone. Tikanga does not meet those criteria. The Supreme Court must be reined in. | Trevor |
| 100% no. | Stuart |
| How ridiculous that we are being almost held to ransom by Tribal laws and rules from a what was stone age primitive people and customs, shame on former NZ governments for putting New Zealanders in such a unbelievable circumstance in modern NZ year 2024.l am astounded at the weak, corrupt and foolish politicians who have left us in such a perilous situation. | Paul |
| Absolutely Not. More divisive than helpful. | caren |
| I’m sick to death of this race privileged crap. I’m a pensioner. If I could afford to live ANYWHERE else, I’d leave this country. I’m so over the Marxist agendas. | Grant |
| tikanga might well have been concieved by herr goebbells .nothing but mumbo jumbo made up propoganda.very disappointed with luxon! | chris |
| It seems crazy that our most senior court is trying to sabotage Parliamentary sovereignty. The Government needs to act quickly and decisively so this insurrection does not spread. | David |
| It is clear that Maori sovereignty activists are now in control of the Supreme Court, led no doubt by the former head of the Waitangi Tribunal Justice Joe Williams. He has been clear about his intention to introduce Maori law into New Zealand. The Government should by now have worked out a strategy to stop this happening. | Maureen |
| Tikanga cannot be defined so it has no place in a rule of law country. Our justice system depends on the law being certain and predictable. Tikanga is the opposite. It needs to be removed NOW, while that is still possible! | Paul |
| Absolutely not. No-one knows what tikanga means – it can be made up and no-one would know any different. Making it a key part of our law is utter madness. | Gordon |
| Bring back the Privy Council! | Simon |