Foreshore and seabed dispute: A tide that hasn't ebbed

Wednesday, 9 September 2020

The “foreshore and seabed” is the coastal area between the high-tide mark and the seabed up to 12 nautical miles out.

The Foreshore and Seabed controversy – remember that?

Hard to believe, in some ways, that it’s been 17 years since the furore that touched the rawest of nerves; colonisation, dispossession, and the glaring and enduring disparity between tangata whenua and others.

It sparked the birth of the Māori Party, a huge hikoi on Parliament, countless hui and speeches, and years of debate, report-writing, law-making, and not a small amount of confusion.

Much has changed over those 17 years. But any notion that the issue had been put to bed should be dispelled.

**READ MORE:

The hikoi through Whangārei protesting against the proposed foreshore and seabed legislation in 2004.

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That much was made clear by a recent Waitangi Tribunal inquiry report, which found claimants were being treated in a manner that “fell well short of Treaty compliance”.

Helen Clark’s Labour Government released its policy on the foreshore and seabed issue in 2004. To Clark’s right are the late Parekura Horomia and Margaret Wilson.

Stage 2 of that same inquiry has started, with hearings to delve deeper and consider the larger question of whether current legislation and policies themselves are prejudicing Māori.

In short, things are far from settled. In fact, they are really just beginning.

Which makes this an opportune time for a quick recap.

It all came to a head in 2003 when a Court of Appeal decision (Ngāti Apa and others v Attorney-General) found that Māori customary rights to the foreshore and seabed had not been extinguished by statute.

(The “foreshore and seabed”, also known as the “marine and coastal area”, extends from the coastal area between the high-tide mark to the seabed up to 12 nautical miles out.)

A policeman stands guard outside Helen Clark's electorate office in November 2004. An axe was embedded in the window after the Government passed the foreshore and seabed bill.

“Customary rights” are harder to define, but if recognised, mean the holder of those rights does not need resource consent to carry out activities they have been doing from 1840 (the year the Treaty was signed) until today. They also mean resource consents cannot be granted for activities that would adversely affect those rights. They do not bestow title or ownership.

The result of the 2003 Court of Appeal decision was that the High Court had the ability to declare that Māori common law rights in the foreshore and seabed still existed.

The decision, it's fair to say, caused something of an uproar. Much of it was ill-informed, and politicised. Some, wrongly, said it would lead to Māori controlling access to the nation’s coastline.

As soon as the court made its decision, the Labour government of the day announced it would legislate to secure Crown ownership of the foreshore and seabed. The Foreshore and Seabed Act 2004 was enacted.

That, understandably, didn’t sit well with everyone. It led to the birth of the Māori Party, a two-month hikoi attended by thousands, and a Waitangi Tribunal claim that found the government had made serious breaches of the Treaty.

Former Labour MP Tariana Turia left the party over her opposition to the Foreshore and Seabed Act in 2004. The Māori Party, which formed around her, won four seats at the 2005 election. In 2008, in return for supporting National, the party gained several concessions, including an agreement to review the act.

A kind of phoney war ensued for several years. In 2008 National formed a minority government with the support of the Māori Party. Two years later, the Foreshore and Seabed Act was repealed.

It was replaced by the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA). This caused less of an uproar than its predecessor, but was far from universally popular.

The new act meant no-one would “own” the foreshore and seabed, but Māori could pursue their claims to “Protected Customary Rights”, and “Customary Marine Title”.

Customary Marine Title is an interest in land, but the land cannot be sold, and free public access is allowed to continue. Holders of a Customary Marine Title will have the right to say yes or no to activities that need resource consents or permits in the area.

There have been 415 applications filed for rights to the foreshore and seabed.

In order to establish Customary Marine Title, the applicant must show that the area is held in accordance with tikanga Māori, and has been exclusively used and occupied since 1840 without substantial interruption.

Applications for recognition of Protected Customary Rights, or Customary Marine Title, are made in two ways: by either engaging directly with the Crown, or by applying to the High Court for a recognition order. Or, they could do both.

Applications so far

The act required any applications to be lodged by April 3, 2017.

There have been 589 applications filed; 387 directly to the Crown (of which 175 were also made to the High Court), and 202 directly to the High Court.

The applications range from two that cover the entire coastline, to one for a rocky anchorage off an island near Stewart Island/Rakiura. Several overlap one another.

More than a third of the applications relate to Northland.

Some, like this group in Marlborough, opposed the National government’s repeal of the Foreshore and Seabed Act.

The applications are handled by Te Arawhiti, the Office for Māori Crown Relations. Since April 2017, the office has been contacting the parties and ensuring their applications are complete.

The dates that each applicant will be engaged is still being worked out, and the applications are at various stages. Those lodged early have begun formal engagement with the minister for Treaty of Waitangi Negotiations, currently Labour’s Andrew Little.

It’s likely to take 20-30 years to hear all applications.

Ngāti Kere's application covers a stretch of coast between Hawke’s Bay and Wairarapa.

In a few cases, the minister has declined to engage.

To date, there have been just two cases in which customary rights or title have been granted.

The first involved a very small and remote site off the southwest of Stewart Island/Rakiura, used for muttonbirding, and saw Customary Marine Title granted to Rakiura Māori in 2016, after an application to the High Court.

The other case involved East Coast iwi Ngāti Porou, which began negotiating with the Crown under the old act. Enacted last year, the Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019 provides “legal mechanisms that support the expression and protection of the mana of the hapū of Ngāti Porou, while recognising the Crown’s responsibility to maintain public access and continuing use of the common marine and coastal area”.

New act leads to Waitangi Tribunal inquiry

Unease with the MACA led to dozens of claims to the Waitangi Tribunal from parties claiming the act was not materially different to the Foreshore and Seabed Act, in that it eroded their customary rights and would mean no-one really owned the marine and coastal area. Several claimants pointed to flaws in the processes and funding available to applicants.

The section of Hawke's Bay coast subject to a Protected Customary Rights application by NgÄti Kere. The hapu has also applied for Customary Marine Title over a smaller section of coast, which falls within this section.

The tribunal undertook an inquiry in two stages. Its Stage 1 report, released in June, found the claimants have been (and remain) prejudiced by aspects of a procedural and resourcing regime that “fell well short of Treaty compliance”.

Among other things, it found the Crown failed to provide sufficient information about how the pathways worked, failed to adequately cover costs, and failed to manage perceived or real conflicts of interest in administration of funding.

The tribunal called on the Crown to urgently address the issues and said Māori would “continue to be prejudiced until the Crown takes steps to make the act’s supporting procedural and resourcing arrangements fairer, clearer, more cohesive, and consistent with the Crown’s obligations as a Treaty partner”.

The finance minister and the Treaty negotiations minister approved a review of the Takutai Moana financial assistance scheme that will take the report’s findings into careful consideration.

Hearings have started and will run into next year. They will inquire into whether the broader statutory and policy issues relating to the act itself breach Treaty principles and prejudice Māori.

Meanwhile, small groups formed by hapū, iwi and others around the nation are busy researching and compiling the histories of their people’s connection to this narrow sliver of land.

A case study: Ngāti Kere

Among these is David Tipene-Leach, of Ngāti Kere hapū, which has applied for Protected Customary Rights, or Customary Marine Title, for a small section of coast around Porangahau, between Hawke’s Bay and Wairarapa.

Formerly a doctor, now a professor of Māori and indigenous research, Tipene-Leach was made a Member of the New Zealand Order of Merit for services to Māori and health in 2018.

“The application is important because it recognises the mana of the hapū,” he says. “The rights conferred by this property right are reasonably small and don’t impinge terribly on public use. They’re a very tight and very small property right.

‘’The important thing is the recognition that Ngāti Kere has rights over this area of coast. For a group of people who have lived there for 800 years, that is quite important.

“What people need to know is that the rights we’re talking about are pretty pithy. With Coastal Marine Title you get a bit of a say about conservation, you get to write a planning document you can talk to the local council about, and they have to talk to you about their documents. But you certainly can’t ban people from doing anything on the beach. There’s not much in it.

“With the PCR [Protected Customary Rights] the best thing in it is the right to declare a wāhi tapu. If someone finds human bones on the beach, they become the property of the local people, rather than the police, the coroner and the local museum. That’s a reasonably valuable thing to do.”

With a few others in the hapū working group, Tipene-Leach is creating a document outlining the grounds for its application before getting it “officially blessed by a researcher somewhere and turned into an official document”.

“We are lucky in that we still own a lot of our land, probably because we’re out in the sticks and [Donald] McLean and his crooks back in the 1860s didn’t get time to clean up our land. But we certainly don’t own all of it. Some of our land was alienated.”

Ngāti Kere has been told it can expect engagement to occur between 2023 and 2027.

“We’re very confident in our ability to prove our claim,” he says. “The issue is how many of us are going to die before we get to the negotiations.

“Hopefully I’ll last till ours is heard – I’m only 64 – but what about those not scheduled to be heard until 2037 or 2040 … You do get worn down by the time it takes to get these things done.”

Should the hapū be successful, there will be subtle changes, but nothing drastic.

“I’m betting my bottom dollar – and people are doing this already – that the greatest change will be that we begin telling people the history of this place, of what happened here, sharing knowledge, bringing people aboard,” Tipene-Leach says.

“It’s that same old thing – mana. Letting people know who we are and why we’re here.”