OPINION
Graham Adams
Graham Adams is a freelance editor, journalist and columnist. He lives on Auckland’s North Shore.
Former Attorney-General and Minister for Treaty of Waitangi Negotiations Chris Finlayson is known for his forthright and sometimes combative language. In 2022, in discussing opposition to co-governance, he referred to “the sour right” and “the KKK brigade”.
Last week, in “Te Ao with Moana” broadcast on Maori TV, the National Party stalwart, who was a Cabinet minister during the John Key administration, lambasted David Seymour’s proposed referendum on a Treaty Principles Bill:
“[While] good people can raise sensible questions about what the Treaty actually means and what the principles actually mean… you can’t have a referendum on this material because it will bring out of the woodwork the sort of people who used to write to me and say, ‘Why don’t you get cancer? How dare you give property rights to people above their station?’”
However, it is not only those Finlayson might dismiss as deplorables who are questioning his record in enabling the transfer of property rights to iwi, hapu and whanau. “Good people” are asking “sensible questions” about how a law he shepherded through Parliament in 2011 is being used to grant extensive coastal rights to possibly hundreds of Maori tribal groups when he had intimated at the time only a small number living in remote areas would qualify.
The Marine and Coastal Area (Takutai Moana) Act 2011 — known as MACA — was introduced as part of National’s coalition deal with the Maori Party to repeal and replace Helen Clark’s Foreshore and Seabed Act 2004. It restored the customary interests extinguished by that Act to allow rights over the foreshore and seabed to be granted to Maori — either through hearings in the High Court or direct negotiation with the Crown — but made the specific criteria for a successful application narrow.
Since then, to the horror of opponents, activist judges have expanded those criteria to open the floodgates to claims lodged by iwi, hapu and whanau that will likely cover much, if not most, of New Zealand’s coastline. More than 200 claims have been filed in court, with as many as 300 seeking direct ministerial grants of title.
Finlayson himself has acknowledged that the elastic way MACA is being interpreted is a concern. Last year he told the Listener that the law’s “tests are being routinely ignored by the courts, but that is an issue for another day”.
That day can’t come soon enough for critics like NZCPR’s Muriel Newman, who commented on a Court of Appeal judgment released last October which significantly lowered the bar for awarding customary title and rights and is now the leading case on how MACA is interpreted:
“Poor [legal] drafting and a radical application of ‘tikanga’ by the judiciary has delivered the exact opposite outcome from what the public was promised [by Finlayson]… The Court of Appeal decision will result in virtually the entire New Zealand coastline and Territorial Sea passing into Maori control.”
Before MACA became law, Finlayson reassured critics that only around 2000km of New Zealand’s 20,000km coastline — or roughly 10 per cent — would end up being under the control of iwi and hapu via customary title. That promise looks to be hollow.
The public has been very poorly informed about MACA’s practical ramifications. Anyone who imagines customary rights and marine title might be confined to gathering shellfish or gathering hangi stones is mistaken.
The law confers the right for iwi and hapu to be involved in coastal planning and policy development, including vetoing resource consents in an area from the high tide mark to 12 nautical miles out to sea. This could affect applications to set up fish farms, marinas, offshore wind turbines or to build new wharves in their designated areas.
Financial windfalls will also be available through charging commercial operators a fee. Some fear that could devastate business enterprises such as inshore fisheries as ticket-clipping renders coastal industries uneconomic.
And although the government will continue to own nationalised minerals and resources — gold, silver, uranium and petroleum — other valuable commodities such as rare earth elements will belong to tribal groups.
Not least, the right to public access may be infringed by their imposing rahui (bans), or declaring some or all of their area to be wahi tapu (sacred places), with a fine of up to $5000 for trespass.
How the Court of Appeal arrived at its expansive ruling on MACA seems to be a result of the legislation being poorly drafted and activist judges interpreting the law to accord with their views of the Treaty’s role and the importance of tikanga (Maori customs and practices).
Shane Jones has laid at least some of the responsibility at Finlayson’s door. Last November, NZ First’s deputy leader said that the Foreshore and Seabed Act “agreed between and passed by Helen Clark and Winston Peters was simple. There wasn’t any ambiguity — unlike the one by Chris Finlayson.”
The Court of Appeal itself found MACA “difficult and complex legislation”.
The court’s treatment of Section 58 of MACA is proving particularly contentious. It sets tests for customary marine title — including that the applicant group “holds the specified area in accordance with tikanga; and has, in relation to the specified area, exclusively used and occupied it from 1840 to the present day without substantial interruption”.
The majority judges decided that a literal reading of the second leg of the test — with its emphasis on exclusivity and continuity since 1840 — would be too onerous because it would mean virtually no claims could succeed. That outcome, it declared, would be “inconsistent with the Treaty/te Tiriti”.
Further, the majority judges effectively said they were choosing not to apply the plain words of Section 58 because they considered they were not consistent with the Act’s stated purposes.
In any event, the result of the attempts by judges in the High Court and Court of Appeal to square the circle between the actual words in the legislation in Section 58 and what they thought would make better and more consistent law is that we now have the novel concept of “shared exclusivity”. (This has prompted some observers to recall George Orwell’s quip: “There are some ideas so absurd that only an intellectual could believe them.”)
That strained notion is designed to solve the thorny problem arising from the overlaps among competing claims; in fact, six or more claimants per area is common. A reasonable person might quickly conclude that multiple credible claims over the same area would clearly breach the requirement in MACA for individual iwi and hapu to have used and occupied a territory exclusively for 184 years. However, our judges have somehow circumvented that obstacle.
That manoeuvre has been made possible in large part by the magic of tikanga. The courts have embraced the findings of pukenga (specialists in Maori lore) to reconcile how several competing tribal groups sharing an area can plausibly pass the test for exclusivity. The fact tikanga is fluid and includes cultural values, customs, oral history and ancient legends — and varies from one tribal group to another — has provided a dimly lit path through that particular conundrum. Apparently, sharing can be part of tikanga and that trumps Western notions of property rights, as well as the obvious meaning of Section 58.
Those opposed to the courts’ expansive interpretation of MACA are pinning their hopes on Winston Peters obliging the judiciary to respect what Parliament actually said. NZ First’s coalition agreement with National, under the heading “Equal Citizenship”, promises the government will, in light of the Court of Appeal judgment, “amend Section 58 of the Marine and Coastal Area Act to make clear Parliament’s original intent…”
Lobby group Democracy Action hoped the proposed amendment would have been included in Christopher Luxon’s plan for the government’s first 100 days. It didn’t, and it hasn’t appeared in the worksheet the Prime Minister announced this week for the next quarter either.
The group has encouraged its supporters to contact the coalition’s party leaders to ask that they treat the amendment “as a matter of urgency”. It wrote in a February newsletter:
“While the government is dragging its heels, the High Court continues to hear applications from Maori groups seeking orders to recognise Customary Marine Title and Protected Customary Rights in the marine and coastal area.”
It noted that applications were being heard in February from 15 Maori groups for the Whangarei Harbour and seven groups for the northern Wairarapa Coast. Hearings for claims to the Kapiti Coast and Aotea Harbour (between Raglan and Kawhia harbours) have been scheduled for May and June.
One legal analyst who wishes to remain anonymous told The Platform:
“The longer the government leaves it before restating what was clearly intended [in MACA] and making the courts apply it, the more ‘wins’ will have been banked by claimants, according to the lottery of whose cases are dealt with first. The political damage when the intention of Parliament is restored will intensify the longer this drags on.”
And the longer the court process is allowed to run, the higher the extravagant cost to the taxpayer. Applicants for customary title can get up to $458,000 of taxpayer money per claim to finance their case — with some estimates putting the bill for court action by iwi, hapu and whanau already as high as $30 million. By any reckoning, it has turned into a state-funded bonanza for lawyers, researchers and advisers acting for iwi.
Parties opposing the claims, however, have to fund registration, research and legal fees entirely by themselves — which means only organisations with deep pockets have the means to enter the court arena. Local communities and small organisations such as outdoors recreational groups which may be adversely affected by the grant of a claim can’t afford to participate.
The implications of the judicial decisions regarding MACA continue to fly mostly under the public’s radar. And no doubt the nation’s political, academic and media elites who are strongly opposed to Seymour’s Treaty Principles Bill and referendum will be fervently hoping the lack of awareness about MACA continues as the debate over race-based policy heats up — as it surely will once Act’s legislation is introduced to Parliament.
Certainly, after the furore surrounding her law change in 2004 Helen Clark could attest that if there’s a particular issue guaranteed to raise voters’ blood pressure to giddy heights it’s the government and courts dispensing private rights to the foreshore and seabed.