It is a landmark decision that will likely serve as a precedent and a blueprint for more than 200 other applications for marine and coastal title currently before the court. –Kennedy Warne, E-Tangata 23 May 2021

Maori get control of part of the Bay of Plenty Coast

By Ian Bradford

A few weeks ago there was a bombshell decision in a Rotorua Court.  Justice Churchman found in favour of Bay of Plenty tribal claimants giving them control of a large portion of the Bay of Plenty coast.  According to Dr Muriel Newman, claimants gaining customary title to the coast would secure an invaluable property right close to ownership. 

This would include —

• veto rights over all resource consents and conservation activities
• involvement in coastal planning and policy development 
• the ability to charge commercial operators 
• being able to impose rahui and restrict public access  
• having ownership rights to non-nationalised minerals and royalties from existing mining operations.  

The judge thought that tikanga (Maori customary practices and behaviour), over-ruled the common law section 58 requirements of the act (The Marine and Coastal Area Act 2011). 

Challenging Crown control 

From 1840 to 1997 the foreshore and seabed, (out to 12 nautical miles), was considered as vested in the Crown.  The argument over ownership of the foreshore and seabed began in the Marlborough Sounds in the 1990’s. Seven tribes, whose area covered the Sounds, made an application to the Maori Land Court for the whole of the Marlborough Sounds as to whether the foreshore and seabed was Maori customary land. 

The Maori Land Court said it could consider the issue, but this was overruled by the High Court, then it went to the Appeal Court. The Appeal Court ruled that the Maori Land Court, a minor court that usually dealt with inheritance disputes had jurisdiction to determine an investigation of the title to the foreshore and seabed under section 132 of Te Ture Maori Act 1993. 

The Court of appeal decision overturned a line of precedent dating back to the Wi Parata v Bishop of Wellington in 1877 and the Ninety Mile Beach 1963 decision. The prospect of a successful claim created much hostility because New Zealand had a strong tradition of public access to beaches and waterways and this was perceived as being under threat. 

However, there was a controversial judgment in 2003 by Sian Elias in the Court of Appeal. In her Ngati Apa decision she determined that pockets of customary interest in the foreshore and seabed might still exist and that these claims should be heard in the Maori Land Court. 

Clark’s Labour government’s Foreshore and Seabed Act in 2004. 

The Labour Government led by PM Helen Clark under attack from Don Brash who led National announced that Labour would legislate to ensure public ownership of the foreshore and seabed. We then had Don Brash’s famous Orewa speech which had much approval, and an opinion poll put National ahead of Labour.

The Labour Government passed the Foreshore and Seabed Act in 2004. The Act stated that the Crown owned the foreshore and seabed but that Maori could apply for guardianship of certain areas.  The decision caused Tariana Turia to quit the Labour party and form the Maori party. 

The first foreshore and seabed agreement was signed in late 2008 between Ngati Porou of the East Coast and the Crown. This protected customary rights of local iwi but retains wider public access to Ngati Porou coastal areas. 

Maori Party put pressure on John Key

A National Party–Maori Party coalition won the 2008 election. The Maori party which received just 2.4% of the party vote in 2008 was able to enter into a confidence and supply agreement with the National Party and demand repeal of the 2004 Foreshore and Seabed Act. The National Party’s Chris Finlayson set up a panel of three to review the 2004 Act. There were supposed to be consultations with the general public, but these were poorly advertised. 

Several Marae meetings were held, but the public were not invited. On the other hand, public meetings of half the duration of Marae meetings were attended by iwi representatives. A request under the Official Information Act found in 2010 that 77% of the public wanted to retain the 2004 Foreshore and Seabed Act. Finlayson’s approach to the issue was opposed by 91% of the public. Finlayson was for 12 years a legal advocate for South Island tribe Ngai Tahu. He seemed to be heavily pro-Maori and had a clear conflict of interest. 

National’s Act without public support 

Key and Finlayson announced the repeal of the 2004 Foreshore and Seabed Act in June 2010, and they introduced a new bill so that all tribes could claim ownership rights to the foreshore and seabed.  The Coastal Coalition put out slogans such as : Visit your beach before  I ( John Key), give it away.  

The Maori Affairs select committee heard submissions. A huge 95% were opposed to the Bill. However, the new Marine and Coastal Area Act 2011 repealed the 2004 Foreshore and Seabed Act.  

This Act basically takes the foreshore and seabed out of public ownership and gives tribes the right to claim it while making a big show of continuing public access. 

By December 2012 there were 27 claims to the foreshore and seabed. 

The Waitangi Tribunal weighs in

By 2020 there were 405 claims to the foreshore and seabed. In 2020 the end to the drama was not in sight. The Waitangi Tribunal found that the Act failed to provide adequate and timely information about the Crown engagement pathway for applicants. It also found that the Act breached the Treaty of Waitangi by not funding all reasonable costs incurred by the applicant. The Tribunal recommends that the Acts procedural and resourcing arrangements be amended to give effect to Treaty principles – what principles? 

On 1^st May 2021 a massive claim for customary rights to the foreshore and seabed was lodged in the High Court in Rotorua by NZ Maori Council co-chairman Maanu Paul. This is a claim for the customary marine title and protected customary rights over the NZ coast and the entire foreshore and territorial waters of NZ.  

Paul says that with the water, the foreshore, the seabed and the marine act, we will protect the environment.  

Some writers state that what is really at stake are the big bucks that can be earned from commercial activities such as marine farming, mining, iron sands, and revenue from offshore gas and petroleum deposits. 

The public needs to  be worried

What will a successful claim entail?  The Marine and Coastal Area Act 2011 recognises and promotes the exercise of the customary interests of iwi, hapu, and whanau in the common marine and coastal area and provides for the responsible Minister, on behalf of the Crown to enter into agreements with applicant groups for recognition of protected customary rights. To establish customary title Maori applicant groups have to demonstrate exclusive use and occupation since 1840 without substantial interruption.    

The public should be very concerned. Next will be the rivers and the lakes. 

At present Maori have overlapping claims for the whole NZ coast line. If this Rotorua case is not appealed [it likely will be —Eds] then it will open the way for all of the coastline including harbours, to go under Maori control.