Some Accuracy on the Marine and Coastal Area (Takutai Moana) Bill

Written By: - Date published: 11:00 am, March 25th, 2011 - 27 comments
Categories: foreshore and seabed - Tags:

Some are for this bill, some are against it, but I think what I am seeing is inaccuracy, xenophobia and hysteria around the bill in general by a few loud voices who are being listened to and believed as if they were Jesus Christ himself spelling out the Gospels.

For me, I don’t have a huge issue with this bill, I never have, and I don’t buy into the conspiracy theories that all of a sudden NZ coastlines will be under lock and key with local Iwi denying access.

But rather than an opinion piece today, let’s just start with some facts about the Marine and Coastal Area (Takutai Moana) Bill.

In 2004 the then Labour government blocked Maori the ability to have their day in court and challenge to see whether ownership of the foreshore and seabed was their right, this Marine and Coastal Area (Takutai Moana) Bill redresses this.

So what does the Marine and Coastal Area (Takutai Moana) Bill do now that it has passed?

The Marine and Coastal Area (Takutai Moana) Bill allows Maori to go to the courts to put their case for ownership (of sorts) to their ancestral foreshore and seabed. Maori can also negotiate with a Minister one on one, but if they do the negotiated agreement must then be put before parliament to be either approved or not. What the bill doesn’t do is hand the keys to our beaches over to Maori to the detriment of every other person living in NZ. There is due process to go through and Maori have 6 years to lodge a claim.

Maori need to prove exclusive use and occupation of the foreshore and seabed since 1840, which I think will actually be very difficult to do but if they do they will then be granted a new form of property right called ‘Customary Title’

What is Customary Title?

Customary Title is a new form of ‘ownership’ that has many provisions attached to it. If an Iwi get Customary Title they cannot sell the land and they cannot block access for any recreational use of the beach such as swimming or recreational fishing and boating. Under Customary Title Maori can say ‘Yes’ or ‘No’ to developments on that land including things like marinas and wharfs, they can make money out of minerals excluding gold, silver, petroleum or uranium as they are owned by the crown (which is another conversation altogether). Under Customary Title Maori can also charge developers for the right to build on the land and they will have a say in decisions around planning and conservation. Finally Maori will be able to protect sights deemed culturally significant.

All these provisions apply to the foreshore and seabed, which is the from high tide mark out to sea about 26m kilometres. It doesn’t include above the high tide mark, and it doesn’t include any land adjacent to the beach itself.

Let’s bring some context to this idea now.

The Marine and Coastal Area (Takutai Moana) Bill will affect about 2,000 kilometres of our coastline, or about 11%, and we have groups like the Coastal Coalition and ACT scaremongering that Kiwis will lose access to all beaches.

In 2003, prior to the whole Foreshore and Seabed Act debate starting, the then Labour Government was looking into the Queens Chain. The Labour Government released some figures showing that of the “18,000 kilometres of New Zealand coastline, around a third, is in private hands.” So right now, about one third of our coastline is owned privately, mostly by non-Maori. Those private owners can have say over what developments happen on their land, they can make money off developers and they have say over planning and conservation. But most importantly you can be denied access to those beaches because it’s private land.

ACT and the Coastal Coalition seem to not have mentioned to NZ that this is the case already, surely if they had the courage of their convictions if would be better for New Zealanders if they started the process to take back one third of our coastlines from those who already own it, and have a much more detrimental legal use of them than the Marine and Coastal Area (Takutai Moana) Bill will ever give Maori.

Here’s the thing, what you are hearing from those loud voices telling you that you will be denied access to the beaches is opinion, not fact. Now everyone is entitled to an opinion, no matter how ignorant it may be, but my desire is for people to make their own opinions based on the facts laid before them, which is hopefully what I have done in this post. My one concern is that New Zealanders are hearing opinion, taking it as fact, and spreading it as if it is Gospel.

If you read this article, and come to the same opinion as the ACT party, then bless you, at least you can’t claim ignorance. For me, as I said at the start, this Bill is not something I am worried about, and I think that if anyone is being divisive in this conversation it’s those spreading opinion and rumour as fact.

27 comments on “Some Accuracy on the Marine and Coastal Area (Takutai Moana) Bill ”

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  1. r0b 1
    25 March 2011 at 11:11 am

    But rather than an opinion piece today, let’s just start with some facts about the Marine and Coastal Area (Takutai Moana) Bill.

    OK, let’s.

    What is Customary Title? Customary Title is a new form of ‘ownership’ that has many provisions attached to it

    It isn’t new at all – it’s a concept that has been around for ages.

    In 2004 the then Labour government blocked Maori the ability to have their day in court and challenge to see whether ownership of the foreshore and seabed was their right, this Marine and Coastal Area (Takutai Moana) Bill redresses this.

    I am not a lawyer, but that claim appears to be almost pure semantics. The 2004 Act uses the language of “territorial customary rights”. The 2004 Act (here or here) says:

    33 High Court may find that a group held territorial customary rights

    The High Court may, on the application of a group, or on the application of a person authorised by the court to represent the group, make a finding that the group (or any members of that group) would, but for the vesting of the full legal and beneficial ownership of the public foreshore and seabed in the Crown by section 13(1), have held territorial customary rights to a particular area of the public foreshore and seabed at common law.

    Trace from Clause 33 through to 36, 40 – 44. The 2004 Act lays out a mechanism for Maori to establish territorial customary rights, set up a Board to act as “guardians” and administer a “Foreshore and Seabed Reserve” the purpose of which is: “to acknowledge the exercise of kaitiakitanga by the applicant group over the specified area of the public foreshore and seabed in respect of which a finding is made by the High Court under section 33” (40(1)(a)). Ngati Porou, for example, exercised their rights very successfully under the 2004 Act.

    So Maori have always been able to take a claim to court. What is the difference between the 2004 Act “territorial customary rights” and the new Act “customary title”? There doesn’t seem to be any practical difference at all – essentially the same thing – see National’s ex Treaty Negotiations minister Sir Douglas Graham here for “What are customary rights and a customary title?”. The mineral rights and so on included in the new Act are nothing revolutionary and could just as easily have been added as amendments to the old.

    I put it to you that this claim that the new Act “restores the right to go to court”, although very widespread, is pretty much pure semantics.

    • Lanthanide 1.1
      25 March 2011 at 12:25 pm

      “The mineral rights and so on included in the new Act are nothing revolutionary and could just as easily have been added as amendments to the old. ”

      Why did they need to repeal the old one and replace it with something that is essentially the same? Couldn’t they just have amended it in as many places as necessary? I guess the Maori Party wanted form over function.

      • felix 1.1.1
        25 March 2011 at 1:18 pm

        Yep.

        They were elected to repeal, so repeal they must.

        What happens after that (virtual reinstatement) doesn’t seem to be of particular interest to them.

    • mickysavage 1.2
      25 March 2011 at 2:49 pm

      On ya rOb.

      Iwi could always go to court.

      Before they could have certain rights recognised and seek compensation but not sell or make into freehold title.

      Under the new legislation they can … have certain rights recognised and seek compensation but not sell or make into freehold title.

      Another great con job brought to you by National Inc.

      The one good part about the legislation is that they have burned off the support of some of the red neck brigade.

      • Alexandra 1.2.1
        25 March 2011 at 5:08 pm

        Thats true MS and Rob, but what the 2004 law removed was the right to go to the Maori Land Court. Its specialist expertise would likely be more sympathic to Maori issues. That right resulted from the the Ngati Apa (I think) decision. I agree the new law doesnt improve on the previous law for Maori. Customary rights is an ancient principle steming from british law and was used to preserve the rights of British land holders for generations. No new at all.

  2. lprent 2
    25 March 2011 at 11:28 am

    I put the sections in bold to make it easier to read.

    Incidentally this is the type of guest post that should have an introduction at the top of the post. I came in sideways from another post and went up to the home page before I realized that this was a guest post.

    • Lanthanide 2.1
      25 March 2011 at 12:24 pm

      Yeah, definitely this one should have an intro. A pseudonym for authorship would be nice too.

  3. PeteG 3
    25 March 2011 at 11:28 am

    [deleted]

    [lprent: If you want to quote then you need to link or at the very least clearly say where to find it if you cannot link. Try again ]

  4. pollywog 4
    25 March 2011 at 12:35 pm

    Customary Title is a new form of ‘ownership’ that has many provisions attached to it. If an Iwi get Customary Title they cannot sell the land and they cannot block access for any recreational use of the beach such as swimming or recreational fishing and boating.

    Well thats just bullshit !!!

    of course they should be able to block access and charge a fee for it, if it’s proven they own it as is the case here in Wakapuaka/Delaware Bay, Nelson.

    no wonder non Maori Party supporting Maori are rightly pissed off at this.

    • weka 4.1
      25 March 2011 at 9:43 pm

      I thought the issues at Delaware Bay predate the Foreshore and Seabed act by a century or so, and revolve around freehold title (established in the 1800s) not customary title. If the (local Maori) owners want to restrict access that’s not different than any other owners of freehold title doing the same, so why the hooha specifically about Maori doing it? Isn’t there also private ownership of an island (beach included) in Delaware Bay, only it’s owned by a German woman?

      There are other places in NZ where freehold title of waterways was granted to Maori in the 1800s as they were forced to put their land into European ownership structures. This was to ensure that they had ‘ownership’ of the kai moana in those waterways and direct access.

  5. Rich 5
    25 March 2011 at 12:53 pm

    Why is it that Sir Rich Whiteguy gets to keep their non-customary title and right to exclude people from their beach, but an iwi will find it near impossible to assert their title?

    For instance, lets assume there was a beach in 1920. Half of it was Maori customary land, half belonged to a settler. The government built a port there and took the land under the Public Works Act.

    Today, the port’s closed. The settler’s descendants have the (possible) right to claim that land back under the PWA. The iwi do not, because they lost continuous occupation. How is that not racist?

    An equitable law would have given Maori back their full legal rights to claim title but mandated a right of access to all coastal and margin land, whoever owns it. (subject only to obvious and limited restrictions, like a working port).

    • Lanthanide 5.1
      25 March 2011 at 1:08 pm

      “Today, the port’s closed. The settler’s descendants have the (possible) right to claim that land back under the PWA. The iwi do not, because they lost continuous occupation.”

      If that is the case, the problem resides with the PWA, not the new foreshore act.

      Consider the same scenario but inland and not on the shore, where the foreshore act doesn’t come into it, and it’s clear that the PWA is at fault.

      • felix 5.1.1
        25 March 2011 at 1:23 pm

        Err, whut?

        Does the PWA actually address “continuous occupation”?

        • Lanthanide 5.1.1.1
          25 March 2011 at 2:19 pm

          If the PWA is racist in that it would treat maori customary lands different to private lands owned by someone in the 1920’s, then the problem lies in the PWA. It has nothing to do with the Marine and Coastal Area act.

  6. pollywog 6
    25 March 2011 at 1:01 pm

    In which case, i don’t recognize Sir Rich Whiteguys private ownership of a beach and if they tried to stop me from access for swimming, strolling, recreational boating or fishing then i guess it’d be all on…

  7. Pascal's bookie 7
    25 March 2011 at 1:05 pm

    . The settler’s descendants have the (possible) right to claim that land back under the PWA. The iwi do not, because they lost continuous occupation. How is that not racist?

    It’s not racist Rich, because ‘one law for all’, that’s why!!

    • marty mars 7.1
      25 March 2011 at 1:20 pm

      Why should maori have lessor rights than others just because they are maori – that is not equality or one law for all.

      • Pascal's bookie 7.1.1
        25 March 2011 at 2:37 pm

        Hi marty, just to be clear, I was being sarcastic.

        My basic muddleheaded view on the ToW is that it’s the only thing that could explain why I, as pakeha, could claim to be ‘of here’ rather than just ‘be here’. It ain’t honoured so my claim to be ‘of’ is pretty weak at the moment.

        The incredible good faith shown by iwi and hapu through all of this is a continuing source of amazement to me, for which I am incredibly grateful.

        The ‘one law for all’ argument* fails in so many ways, the racist line of the argument being one of the most important. Another is that if the parliament has the authority to make law, then that authority comes from the Treaty as far as I can tell. At least that’s the myth we like to tell ourselves. So to make that myth real, to give it power, we need to honour the treaty. So, ironically enough, ‘one law for all’ relies on honouring the Treaty in the first place.

        *sic

    • pollywog 7.2
      25 March 2011 at 1:22 pm

      not even racist owww…

      it’s cultural elitism. One culture for Sir Rich Whiteguy and one for Te Tama Pohara (the poor guy)

      same as it ever was…

      Maintain the eurocentric status quo by any means neccessary and payoff the indigenous trouble makers with a few trinkets and promises of inclusivity.

  8. ianmac 8
    25 March 2011 at 2:54 pm

    Or for that matter the strange way in which some bach owners in the Queen Charlotte Sounds, have Riparian Rights. This gives them ownership right down to high water. Some look like ordinary kiwi baches so how did they gain those rights? This no longer called the foreshore even though many in other places regard the mythical Queens Chain as foreshore but it is not the scope of the presently passed Bill.

  9. takutaimoana4sure 9
    26 March 2011 at 5:11 am

    We object to the Political Party named “The Maori Party” within the New Zealand Government, voting in support of the legislation named “The Marine and Coastal Area (Takutaimoana) Bill.

    This legislation violates and breaches Maori Rights embedded in the treaty named “Te Tiriti O Waitangi” and the Declaration named “He Whakaputanga o nga Rangatira o Niu Tireni”.

    We also object to the Maori Party,s continuation of support to this legislation.

    Therefore,we would like to state Maori Party’s vote of support for the Marine and Coastal Area Bill DOES NOT represent our support or tautoko.

    We request that the Political Party named the Maori Party cease immediately their continuation of support of the “Marine and Coastal Area(Takutaimoana) Bill, as it continues to violate and breach “Te Tiriti O Waitangi”.

    For the asaid reasons given above

    We request that Assent is NOT GIVEN to the Marine and Coastal Area (Takutaimoana) Bill by the Governor General of New Zealand.

    http://www.thepetitionsite.com/1/we-object-to-your-political-party-named-the-maori-party-within-the-new-zealand-voting-i/

  10. - 10
    26 March 2011 at 11:38 am

    can you explain the Labour Party’s positions on the foreshore in a simplified manner? from deciding the Court was the wrong place to determine customary title questions in 2003-2004, through Cullen’s submission (on behalf of the Labour Party) to the review panel – and all those points were included in the new legislation – to this week arguing (David Parker) that Parliament had to accept it could not solve this issue and it should be left to the Courts?

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