Marine and Coastal Area (Takutai Moana) Bill
How did it come about? •Ngati Apa case where Māori won the right to test customary ownership of the Foreshore and Seabed in court. •Labour Government takes away the right •Government claims Foreshore and Seabed for the Crown
Maori Party and National Party agreement: •The Māori Party and National Party agreed in 2008, to have a review of the Foreshore and Seabed 2004 Act •Review completed and reported in July 2009 •Discussion document released for consultation in March 2010
The report stated the Foreshore and Seabed Act 2004: •Failed to balance the interests of all New Zealanders in the foreshore and seabed •Was discriminatory and unfair •Should be repealed •National and Maori Party determine that replacement regime needed to deal with matters of title, sale and public access
A starting position for negotiations: •Maori Party gets starting position from Moana Jackson, Judge Heta Hingston, Whaimutu Dewes and others. •This was taken to first meetings with Government •Iwi Leadership Group follows up on korero at Waitangi and Ngaruawahia and significantly involved throughout whole process.
A starting position for negotiations: •Maori Party conducts road show early 2010. •Maori party states starting position as •Tipuna title – (based on Moana Jacksons paper) •No sale of the Foreshore and Seabed and •Public access
Those involved in negotiations include: • • • • •
Maori Party Ministers Maori Party Advisors Maori Party M.Ps Iwi Leadership Group and advisers Government officials
Interactions • There were meetings between Maori Party and Iwi Leaders Group • Regular weekly meetings of Maori Party MPs with Minister of Treaty Settlements • Extra meetings as issues arose • Formal meetings between Maori Party Ministers, the Ministerial Committee on F&S, Prime Minister and Senior Ministers and Iwi Leaders Group • Discussions held up until 1st reading Debate
So what does the Bill do? • Repeals the Foreshore and Seabed Act 2004. • Applies to the area formerly known as the foreshore and seabed, which will be known in future as the marine and coastal area. • Includes all areas not in fee simple title. • The Bill explicitly restores the un-investigated property rights that were extinguished by the 2004 Act.
Customary marine title: • Customary marine title is a different form of title than fee simple title, so it co-exists within the common marine and coastal area. • Unlike private title, customary marine title will be subject to the right of public access and cannot be sold, two things iwi have consistently asked be protected in the replacement regime.
Contd…. • It guarantees and, in some cases, extends existing rights for navigation, ports, fishing and aquaculture. • Provides for the customary interests and rights of Māori in the common marine and coastal area to be recognised through three types of customary interest: mana tuku iho; customary rights and customary title.
Contd… • This recognition will include the right to go to the High Court (or negotiate an out-of-court settlement with the Crown) to seek customary marine title for areas with which groups such as iwi and hapū have a longstanding and exclusive history of use and occupation.
Customary marine title gives: • Rights similar to private (fee simple) title • Rights to permit activities requiring a resource consent, • Some conservation activities • Protection of wahi tapu • Ownership of taonga tuturu found in that space, and • Ownership of non-Crown minerals. • The right to create a planning document setting out objectives and policies for the area.
Key differences Access to justice: • The 2004 Act removed the long held common law right of Maori to seek customary title in the High Court.
• The Bill restores the ability of Maori to seek customary property rights in the High Court.
Key differences Ownership: • Crown ownership under the 2004 Act is explicitly removed.
• Customary interests extinguished by the 2004 Act are restored.
Key differences Ability to claim customary title: • The 2004 Act extinguished customary title – no whanau, hapu or iwi could seek customary title.
• The Bill restores the ability for customary title to be recognised.
Key differences Recognition of the relationship of Maori with the FSSB: • The 2004 Act did not recognise the relationship of Maori with the foreshore and seabed other than a statement that the Act protected the association of Maori with the foreshore and seabed.
• The Bill explicitly recognises the enduring mana-based relationship of iwi and hapu to the marine and coastal area in their rohe (mana tuku iho automatic award; Maori do not have to prove anything in order to achieve this recognition, it is ours by right as tangata whenua).
Key differences Test for Customary title: • The 2004 Act did not incorporate tikanga in its tests.
• The Bill incorporates tikanga as a key element in the test for customary title and allows for differences in tikanga from group to group.
Key differences • The Bill removes the requirement for ownership of abutting land (though it can be used as evidence by claimant groups that a customary title exists). • This requirement was included in the 2004 Act. This change means groups who have lost land as a result of historic actions of the Crown are not prohibited from seeking customary title (though they will still have to meet the other elements of the test).
Key differences • Under the 2004 Act no account could be taken of any spiritual or cultural association unless it was manifested in a physical activity or use related to a natural or physical resource.
• The Bill does not contain this restriction.
Key differences • The Bill recognises customary transfers of territorial interests between hapu and iwi post 1840.
• The 2004 Act does not.
Key differences • The Bill allows for shared exclusivity between coastal hapu/iwi as against other third party interruptions.
• The 2004 Act does not, with the result that two hapu sharing exclusive use and occupation of an area against all other parties would have the effect of defeating any application for customary title as neither hapu could show they had excluded the other hapu from using the area since 1840.
Key differences Burden of proof: The 2004 Act required Maori to prove extinguishment of customary title had not occurred.
• The Bill places that burden on the Crown. If the Crown cannot prove extinguishment then customary title will be recognised (provided the other elements of the test are met).
Key differences Protected customary rights: • The inclusion of tikanga in the Bill allows a protected customary rights holder to delegate or transfer the rights in accordance with traditional practices. • The Bill also explicitly allows for customary practices to evolve over time.
• The 2004 Act does not make provision for such traditional practices. • The 2004 Act does not recognise the evolving nature of customary rights.
Key differences Minerals: The 2004 Act placed all minerals in Crown ownership, prohibiting Maori from gaining any benefit from them.
The Bill gives customary title holders ownership of nonreserved minerals within their customary title area and the ability to exploit them (if they wish to do so).
Key differences Gaining commercial benefit The 2004 Act explicitly prohibited charging for the use and occupation of foreshore and seabed reserves.
The Bill explicitly allows for customary title holders to gain commercial benefits from holding their customary title.
Key differences Ownership of newly found taonga tuturu: Under the 2004 Act ownership of newly found taonga tuturu resided with the Crown.
The bill provides that prima facie ownership of newly found taonga tuturu rests with the customary title holder.
Key differences Negotiations process: Under the 2004 Act any negotiated agreements between the Crown and claimant groups had to be confirmed by the High Court.
• The Bill removes the requirement for High Court confirmation.
Does anyone not own the Takutai Moana? • In constitutional terms New Zealand is a sovereign nation (i.e. it is not a colony, dominion, or other form of territory belonging to another nation). • If the New Zealand Crown did not retain sovereign rights over New Zealand it would have the effect of removing that area from New Zealand’s territory.
Private Land title holders • Many private title holders are Maori, who have held their land in fee simple for well over one hundred years. The Crown will not take their land off them, thereby creating significant new grievances. • 12609 parcels are privately owned. A number of ‘general land parcels’ are owned by Maori but how many cannot be ascertained by looking at the name of the title holder listed on the titles. • Maori land parcels represent 23% of all privately owned titles. Maori owning ‘general land parcels’ would be on top of that.
Of the 12,609 privately owned land parcels: • 350 titles surveyed to the mean high water springs. These are therefore not part of the foreshore and seabed. • 12243 titles surveyed to the mean high water mark. • Only 16 private titles surveyed extend to below the mean high water mark.
Management of fisheries • Neither the current 2004 Act nor the Marine and Coastal Area Bill affect fishing rights, which are governed by other legislation. • The mana tuku iho award provides for iwi participation in statutory conservation processes within their rohe, including the establishment of marine reserves and conservation areas and the management of stranded marine mammals.
Historical Breaches of the Treaty • The Marine and Coastal Area Bill is about recognising ongoing or existing rights – it is not about providing redress for interests that have been lost because of historical breaches of the Treaty. The Treaty settlement process deals with historical breaches of the Treaty.
Raupatu • Iwi who have lost land next to the foreshore through raupatu or other breaches of the Treaty can go to Crown (or the courts) and enter into a dialogue. They may not meet the test for customary title, but they will not be precluded from even entering into a discussion as is the case under the 2004 Act.
• A historical breach of the Treaty by the Crown does not automatically break the chain of continuity necessary to prove exclusive use and occupation. It is possible that customary title could exist in an area where breaches of the Treaty have occurred. This would depend on the facts and circumstances of each case.
What happens now? • The Bill has had its first reading. • Maori Affairs committee gathers submissions and to hear submissions from late November into early December this year. • Maori Affairs Select Committee must report back to Parliament by 25 Feb 2011 • 2nd Reading March • Committee Stages where changes can be made by agreement • 3rd Reading before June 2011.
Where to from here? • Support Bill as it stands • Support the Bill with amendments • Not support Bill
1. Support Bill as it stands or with amendments
• Would repeal the Foreshore and Seabed Act 2004 • Would restore right to go to Court or negotiate with Crown • Would get gains as negotiated
2. Not support Bill • The current confiscation remains. • National will not revisit this Bill in the near future • Labour not likely to do anything • Claims have been put on hold while this new Bill is being considered. If these claims were to be progressed and settled under that 2004 Act, it would entrench that Act and make it even more difficult to repeal.