'Govt wants to remove Māori rights'

By Justin Tipa, Kaiwhakahaere

What’s remarkable about the sudden Government announcement and private advertising campaigns about the foreshore and seabed is not what has happened, but what hasn’t.

Thirteen years since the John Key-led National Government put the foreshore and seabed controversy to bed, and almost eight years since the first award of customary title to Māori in the common marine and coastal area (its legal name) was made by the High Court, none of the dire predictions of groups like Hobson’s Pledge have come to pass.

Kiwis haven’t been turned away from their favourite beaches. The comments section and letters to the editor pages haven't been jammed full of worried New Zealanders. No one is telling Christopher Luxon to stop focusing on the cost of living, unemployment and economic development, and asking him to reform the 2011 Marine and Coastal Area Act instead.

Nonetheless, the Government has announced it will change the law around Māori seeking recognition of their customary rights in the marine and coastal area. The Government plans to legislate to make the test for proving customary marine title harder to meet, including by overruling decisions made in the Court of Appeal in 2023 and the High Court in 2022.

History appears to be repeating itself. In 2004, the Labour Government legislated over the top of a Court of Appeal decision, which found that Māori could ask the courts to investigate their claims to customary interests in the foreshore and seabed (based on their association with particular areas prior to 1840 and the introduction of English common law).

Legislating over people’s rights in court is not the New Zealand way. It wasn’t in 2004, and it isn’t now. Worse, current ministers have rejected officials’ advice on good constitutional practice and intend to make the law change retrospective.

Again, the question is why? What is the threat of allowing Māori to go to court? Minister Paul Goldsmith has said it’s because all New Zealanders have interests in the marine and coastal area.

Ngāi Tahu agrees. The common marine and coastal area has been recognised since 2011 as not capable of being owned in freehold title. This means that continued public access, navigation and fishing in the common marine and coastal area is guaranteed by law.
This remains the case if a whānau, hapū or iwi holds customary marine title over an area. People still have the right of access in that area for recreation, sailing or non-commercial fishing as usual.

It's time to dispel the myths about public ownership. The whole of the foreshore and seabed has never been in public ownership. When the Labour Government passed the Foreshore and Seabed Act in 2004, it took away the right of Māori to go to Court to seek customary title, but didn’t touch the 12,499 privately owned land parcels, which include at least some part of the foreshore or seabed within their boundaries. These private titles, around a third of the length of New Zealand's coastline, remain outside the common marine and coastal area.

It is telling that lobby groups asking for “public ownership” have not demanded that these privatised parts of the coast be nationalised. Additionally, government or councils can essentially privatise more areas by allowing mining or heavy commercial operations, which restrict public access, recreation, boating and fishing. Hobson’s Pledge seems more concerned that this effective privatisation of the common marine and coastal area for the benefit of mining companies will be harder if Māori customary rights are acknowledged.

So, it is not private ownership Hobson's Pledge or this Government object to over the common marine and coastal area. It is only Māori customary title.

One of the chief values of Ngāi Tahu, and Māori across the country, is manaakitanga (hospitality). Ngāi Tahu are not seeking to exclude the public from the marine and coastal area. We recognise the importance of being near the sea to all New Zealanders.

What the Government is doing now is therefore strange. After the Crown defined customary title to include an obligation on Māori to welcome the presence of third parties, it now wants to go back and change the law to say that because third parties have a rightful presence, this might be evidence there is no customary title at all.

This does not make sense. Not legally, not morally, and not logically.

Let's be clear: this is not about "recognising the legitimate rights of all New Zealanders". This is about removing the legitimate rights of Māori. It is about pandering to the extremes and ignores the majority of New Zealanders who are proud of our unique national identity founded on the Treaty and who enjoy our beaches together.