Claims and Counter-Claims.

Whose Foreshore? Whose Seabed? When the Marine and Coastal Area Act was originally passed back in 2011, fears about the coastline becoming off-limits to Pakeha were routinely allayed by National Party politicians pointing out that the tests imposed were so stringent  that only a modest percentage of claims (the then treaty negotiations minister, Chris Finlayson, predicted 10 percent) would end up being granted.

A PRIVATE MEETING involving two Cabinet Ministers, sundry departmental officials and representatives of the seafood industry has achieved headline status. According to the 1News Māori Affairs Correspondent, Te Aniwa Hurihanganui, evidence exists of Minister for Treaty Settlements, Paul Goldsmith, and the Minister for Oceans & Fisheries, Shane Jones, offering industry representatives reassurance that proposed Government changes to the Marine & Coastal Areas Act would likely see the percentage of New Zealand’s coastline subject to customary marine title claims plummet from 100 to just 5 percent.

The 1News report has the ministers’ meeting occurring on 21 May 2024 – two months before the July announcement of the Coalition Government’s proposals regarding the Act. The inference being that favoured elements within the New Zealand fishing industry have been promised ongoing access to marine resources at the expense of mana whenua.

But is this inference justified? Is this really a case of “crony capitalism”, or, even worse, “racist crony capitalism”? The answer, thankfully, is: “No.”

For a start, the meeting between Goldsmith, Jones and seafood industry representatives took place in the context of a Coalition Agreement undertaking to roll back the highly controversial 2023 Court of Appeal decision which upheld customary ownership claims from Māori iwi and hapu, claims now affecting, collectively, 100 percent of the New Zealand coast.

The Court of Appeal’s judgement construed the Marine & Coastal Area Act in such a way that it effectively negated the onerous proofs of customary title demanded by Parliament. The justices argued that in an Act which also entrenched the undertakings of the Treaty of Waitangi, such proofs of ownership could not be taken literally.

The surge of claims to customary marine title which followed the passage of the 2011 Act was driven by the requirement that no further claims would be considered after 2017. The Court of Appeal’s 2023 decision greatly enhanced these pending claims’ chances of success. This, in turn, generated sufficient political pushback to secure the NZ First Party’s support for legislative rectification. Parliament would nullify the Court of Appeal’s interpretation of the Marine & Coastal Areas Act and secure the restoration of the status quo ante. In the post-election negotiations between National and NZ First, this rectification was agreed and included in the two parties’ Coalition Agreement.

It is not, therefore, a case of the seafood industry prevailing upon the Coalition Government to grant it special favours at the expense of Māori, but of the two government ministers most closely involved in the issue seeking industry input regarding the most likely consequences of the Coalition Government’s pledge to roll-back the Court of Appeal’s decision.

Consultations of this nature are not uncommon when a government is contemplating legislative measures likely to affect a major industry. In this respect, the meeting between Goldsmith, Jones, relevant officials and industry leaders is hardly newsworthy.

More interesting, from a journalistic perspective, is how the notes of a private ministerial meeting, held under the auspices of Te Arawhiti – The Office for Crown-Māori Relations – ended up in the hands of 1News’s Māori Affairs correspondent. Was it simply part of a “catch” netted by 1News’ own OIA “fishing expeditions”? Or, were these notes passed on to Hurihanganui as part of a concerted effort to embarrass the Government and impede its fulfilment of the Coalition Agreement pledge?

Certainly, some of the ministerial comments minuted during the meeting were highly embarrassing – most notably the comment relating to the percentage of the coastline likely to be affected by customary marine titles once the Coalition’s restorative legislation is passed. That said, the minister’s comment is only embarrassing because the public’s political memory is so short.

When the Marine and Coastal Area Act was originally passed back in 2011, fears about the coastline becoming off-limits to Pakeha were routinely allayed by National Party politicians pointing out that the tests imposed were so stringent – the coastal area under claim had to have been exclusively used by the claimants since 1840 without “substantial interruption” – that only a modest percentage of claims (the then treaty negotiations minister, Chris Finlayson, predicted 10 percent) would end up being granted.

The shock-value of Hurihanganui’s story lies in the misapprehension that established claims to customary marine title are to be pared back from 100 percent to just 5 percent of the coastal area, which, if true, would be a very grave injustice indeed. The reality is somewhat different.

The Court of Appeal’s 2023 decision to effectively reverse the legislative intent of Parliament made it much more likely that the plethora of claims lodged between 2011 and 2017 would be upheld in the High Court. The triggering figure of 100 percent thus refers only to the extent of the coastline currently affected by pending claims – not to the percentage actually awarded customary marine title by the High Court. Goldsmith’s figure of 5 percent represents his best guess at the coastal area likely to be impacted when the original tests have been reconfirmed and the undecided claims nullified. Proving exclusive use, without substantial interruption, for 184 years, is a daunting challenge for any New Zealander!

A journalist with a slightly broader brief than Ms Hurihanganui’s might have been moved to enquire as to why the Court of Appeal thought it appropriate to reverse the clear intent of New Zealand’s democratically-elected legislature. The constitutional convention of “comity” enjoins each of the three branches of government, the executive, the legislature and the judiciary, from encroaching upon the powers of the others. Why, then, did the judiciary (in the form of the Court of Appeal) whose role it is to interpret and apply the law, not re-write it, presume to correct the nation’s legislators in relation to the Marine & Coastal Areas Act?

It stretches credulity to suppose that the Court could have been entirely unaware of the impact its controversial decision would have upon the outcome of claims as yet unresolved by the High Court. Nor is it credible to suggest that the Court of Appeal is entirely innocent of courting precisely the political backlash that led to representatives of the seafood industry meeting with Ministers Goldsmith and Jones in May of 2024.

The responsibility for making the laws of New Zealand lies with the men and women elected to the House of Representatives, not with the men and women appointed to the Court of Appeal. The latter’s dramatic negation of the legislature’s intentions vis-à-vis the Marine & Coastal Areas Act 2011 left the Coalition Government with no honourable option but to reassert in the plainest language the original evidential requirements needing to be fulfilled before customary marine title can be granted.

To suggest otherwise is to posit a revolutionary constitutional revision which places unelected judges at the summit of the state. Judges with the power to not only interpret and apply the laws, but to re/write them. And if that is what lies at the heart of this controversy, then it is passing strange that such a naked bid for unaccountable power has yet to headline the 1News bulletins at Six O’clock.

This essay was originally posted on The Democracy Project substack page on Wednesday, 28 August 2024.

It Was Twenty Years Ago Today: More at Stake Than Sun and Sand.

In The Public Domain: The territory of New Zealand is the collective possession of all the people who inhabit it, and the question of how best to dispose of its resources the responsibility of their democratically elected representatives – or so argued Helen Clark’s Labour-led Government back in 2003.

“AN UNHAPPY SUMMER” is the prediction of at least one of the Maori leaders laying claim to the foreshore and seabed in response to the Government’s declaration that New Zealand’s beaches and coastal waters lie in the “public domain” - i.e. belong to all of us.

Maori nationalists have raised the prospect of fencing off public beaches and requiring non-Maori to apply for “visas” before being granted access. Titewhai Harawira has gone even further, denouncing the Government’s proposals as another “confiscation” of Maori property rights, and threatening to organise a nationwide march on Parliament in protest.

Cooler Maori heads have expressed their misgivings in less inflammatory language, but with an equal degree of concern at what they regard as the Government’s lack of respect for due process.

The Government’s parliamentary opponents are no less vociferous in their condemnation of its proposed resolution to the foreshore and seabed problem. The National Party, in particular, is highly critical of what it sees as the legally imprecise notion of a “public domain” and is urging the Government to legislate the foreshore and seabed back under Crown ownership immediately – and unequivocally.

“Crown ownership” is, however, a highly problematic expression in the context of Maori/Pakeha relations. Hard though it may be to believe, a great many Maori still construe “Crown ownership” to mean ownership by Queen Elizabeth II (who is deemed to have inherited the title to New Zealand from her Great-Great-Grandmother, Queen Victoria).

A recent example of this constitutional wrong-headedness occurred last month when a gathering of Taranaki Hapu calling themselves Te Puraranga met at Parihaka on 26 July to discuss the foreshore and seabed issue. The hui ended with a ringing declaration of “Maori sovereignty over land and sea”. Having effectively decided to tear up the Treaty of Waitangi, the group then thought it best to send a copy of their declaration to the Queen (along with other “state leaders” in the Pacific region) presumably to let her know that the Windsors’ antipodean real estate had come under new management.

It is precisely to reduce this sort of political naiveté that the Government has introduced the concept of “public domain”. Hopefully, by dispensing with the perennially misunderstood concept of Crown ownership, and replacing it with the new vocabulary of collective ownership, groups like Te Puraranga can be released from their peculiar constitutional delusions.

The territory of New Zealand is the collective possession of all the people who inhabit it, and the question of how best to dispose of its resources the responsibility of their democratically elected representatives.

In other words, sovereignty resides in the people – all the people – and is indivisible. It cannot be reposed anywhere other than in the House of Representatives - which is constructed out of the people’s electoral choices. Nor does it subsist in any ethnic group – no matter how elaborate its genealogy. And sovereignty certainly does not lie in the courts. The New Zealand judiciary exists to enforce the will of the people – as expressed in parliamentary legislation – and has absolutely no mandate to supplant it.

Those who reject these propositions must also repudiate the entire legacy of human civilisation since the Enlightenment. To invest the monarch with anything other than purely ceremonial significance; to elevate the Judiciary above the Legislature; to deny the Executive the right to govern in the people’s name; is to embrace a species of politics engendered by superstition, fed by prejudice, and disfigured by the vagaries of arbitrary power.

Regrettably, such people do exist. In a paper entitled “Some Core Values for Resolving the Foreshore and Seabed Issue” prepared by Te Hau Tikanga - the Maori Law Commission (some of whose members advise the Associate Minister of Maori Affairs, Tariana Turia) one may read the following: “The nature and extent of Iwi and Hapu title and rights to the foreshore are aspects of te tino rangatiratanga which only Iwi and Hapu have the right to define.”

In other words, 15 per cent of New Zealanders, by virtue of their bloodlines, arrogate unto themselves, exclusively, the power to define the “nature and extent’ of their legal rights vis-à-vis the remaining 85 per cent of the population. There is a name for this form of government; it is called Aristocracy: – rule according to genealogical or ethnic descent.

If that is the sort of society New Zealanders wish to live in, all they need to do is keep their heads down and their mouths shut. As an egalitarian democrat, however, I’m hoping that every Kiwi decides to spend this summer at the beach.

This essay was originally published in The Dominion Post of 22 August 2003.