Latest on the Foreshore and Seabed
15 February 2011
Keeping our Promise
Marine and Coastal Areas (Takutai Moana) Bill
Tena koe, nga mihi nui ki a koe
We made a promise during the 2008 elections to repeal the 2004 Act and restore access to the courts.
When we entered into a relationship with the National Party our promise became a milestone in that agreement. That milestone has been a key priority of our work in Parliament over the last 18 months.
The Bill delivers on our promise. The Bill is at a crucial stage and the public has been bombarded with negative messaging that has gained traction.
It is imperative that the Māori Party constituents get information directly from the Māori Party that is not skewed with misinformation but instead focuses on what the Bill is trying to achieve and what outcomes there will be for all New Zealanders.
* Abolishes Crown title and recognises customary interests (mana tuku iho) of all coastal iwi.
Customary interests include a right to protect wāhi tapu; and a right to be consulted on conservation and resource management.
* Allows iwi to claim customary title.
Customary title is a property right that includes customary interests plus all minerals except gold, silver, uranium and petroleum; all newly found taonga tūturu; development rights; and a right to develop a plan which regional councils must recognise and provide for insofar as it relates to resource management issues and is consistent with the purpose of the Resource Management Act 1991.
* Restores the right of access to court.
If negotiations with Ministers do not reach agreement, tangata whenua can take their title claims to court.
* Transfers the burden of proof.
The Crown has to prove customary rights were extinguished, rather than iwi having to prove they were not.
* Sets new threshold tests for customary title, unlike the FSSB Act:
- tests incorporate tikanga, allowing for variations among iwi, transfers of rights between hapū, and for tikanga to evolve
- tests do NOT require claimants to own adjoining land (so raupatu iwi can claim customary title)
- allowing others to fish, and overlapping rights of neighbouring hapū, do not disqualify claims (manaakitanga is part of tikanga)
- negotiated agreements do not require confirmation in High Court
* Addresses two fundamental rights violated by the 2004 Act
The right to access justice through the courts and property rights.
* To turn our back on this Bill, would be to break the promise we made to our people in 2005.
* If the Bill isn't passed, the law that deprived our people of their day in court, of their mana moana, will remain in force. Is this what the people want? Is this why we marched?
* The Bill does not give us everything we wanted, but it is a step forward. If others have a better plan for repealing the FSSB Act, let's see it.
* The Bill reopens the door that was slammed shut in 2004, and allows tangata whenua to have a longer discussion on customary rights.
* The Bill does not settle the issues, but it keeps them alive.
* The Māori Party can advocate for customary rights and tikanga in the Bill, but only tangata whenua can negotiate and settle matters of mana tuku iho.
* The decision to support or oppose the Bill is a matter of strategy: do we take a step forward, knowing we still have a long way to go? Or do we retire from the battlefield, and try to rejoin the fray some time in the future?
CHANGES FROM SELECT COMMITTEE
The Attorney-General will be recommending the House amends the Bill to require any recognition of customary title through negotiated agreement be given effect through legislation. This means that every such agreement will be subject to full Parliamentary and public scrutiny. This will dispel any concerns about future governments doing shoddy deals.
FREQUENTLY ASKED QUESTIONS
Can the Government decline customary title over lands that have been confiscated?
If an iwi is declined title, it will not be because their land was confiscated, so no the Government and Court can not decline title solely on the basis of confiscation. Iwi who have had their land confiscated are still eligible to claim customary title.
Is there funding available for claimants seeking customary title and if so, what funding is available, how can you apply for it and how much is available?
Yes. The Crown has said funding will be made available to iwi in a manner similar to how claimant funding is provided in the Treaty settlement negotiations process.
Can the current foreshore and seabed that is not privately owned be bought and sold?
Under the Bill the foreshore and seabed cannot be sold, unless it is "reclaimed land" in which case the Crown and iwi and hapū (who exercise customary authority in the area) have rights of refusal.
Why can't we just repeal the Seabed and Foreshore 2004 Act and create a Marine and Coastal Bill to replace the 2004 Act with conditions that are more acceptable to Māori?
Repealing the Act but not replacing it will cause uncertainty and the law cannot allow uncertainty. Therefore Parliament cannot repeal the Act without replacing it with alternative legislation. The Takutai Moana Bill is consistent with resource management legislation. To address many of the concerns that hapū and iwi have would require a complete overhaul of a significant collection of other Acts. Such an approach would be best considered in the process of the Constitutional Review.
Why was tupuna title not included in the Bill?
There was no legal precedent for tupuna title. Tupuna title was not universally agreed to by iwi or by Government.
March 2009: Ministerial review panel on the Foreshore and Seabed Act 2004 calls for and reviews public submissions.
March 2010 : Release of Discussion document on options to replace Foreshore and Seabed Act 2004.
April 2010 : Attorney-General and MPs attend public meetings and hui around New Zealand.
September 2010: Marine and Coastal Area (Takutai Moana) Bill introduced to Parliament; referred to select committee.
November-December 2010: The Māori Affairs Select Committee considered public submissions on the Bill and reported back to the House on Monday 14 February 2011.
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14 September 2010
NZ Marine Coastal Area Bill (Takutai Moana) Bill 2010
This Bill fulfils our election promise
The Maori Party promised to pursue repeal of the Foreshore and Seabed Act 2004, and we have succeeded in that. We have secured repeal of Crown ownership of takutai moana, which denied the mana of mana whenua. Our election manifesto (He Aha Te Mea Nui) promised: "To continue to present legislation that repeals the Foreshore and Seabed Act."
What does this Bill do?
- This Bill reopens a door that was slammed shut in 2004.
- The Bill is not a full and final settlement, but it opens up a pathway to allow mana whenua and Crown to negotiate a settlement.
- This Bill corrects a major injustice by repealing the Foreshore and Seabed Act 2004 and restoring mana whenua access to the High Court to seek formal recognition of their mana and tikanga (clause 53).
- As an alternative to the High Court, the Bill allows for iwi to negotiate directly with the Crown (Ngati Apa was trying to achieve this in 199 when they took their case to the Maori Land Court all those years ago).
- The Bill ensures that our country's beaches will not be sold to foreign investors.
- The Bill presumes iwi will still have their mana recognised even if their adjoining land has been confiscated.
- The Bill provides for the exercise of the right to delegate or transfer use rights in accordance with tikanga (clause 54).
- The Bill will be subject to public submissions through the select committee process.
- The Bill presumes that tangata whenua maintains customary interests unless the Crown proves they have been extinguished.
How will whanau, hapu and iwi benefit?
- The Bill recognises the mana tuku iho of iwi and hapu as mana whenua over the foreshore and seabed of Aotearoa and it contributes to the continuing exercise of that mana by providing for legal recognition, protection and expression to the tikanga of Maori in that area (clause 4).
- Allow for mana whenua to take part in the management of the foreshore and seabed and to protect their interests.
- The Bill takes account of the Te Tiriti o Waitangi and recognises and promotes the exercise of customary interests (clauses 3 and 5).
- While a grant of customary title does not permit iwi to sell it does confer other potentially valuable powers such as conservation (Part 3), the protection of wahi tapu and sacred areas (clauses 77 to 80), marine mammal watching permits (clause 75) and especially the ownership of minerals other than those belonging to the Crown (Part 3, clause 82), as well as earning royalties from the Crown.
Involvement with iwi
- A precedent has been set in regards to Government and iwi consultation on matters of nationwide importance.
- Iwi have actively contributed throughout this process through numerous meetings and the Iwi Leadership Group.
Ongoing involvement of iwi
- Iwi will now have real input into the management of the coastal areas in their tribal domain. For example, resource consents must not be granted for an activity to be carried out in a protected customary rights area if that activity would have more than a minor adverse effect on the exercise of the protected customary right (clause 57).
- The Bill also provides the right to create a planning document and for iwi to be consulted by regional councils (clauses 84 to 91).
How are the rights of all New Zealanders considered?
- None of the rights of mana whenua are in conflict with the rights of all other New Zealanders to use the beach or swim or take part in any other recreational activity.
- None of these rights are in conflict with existing port activities, fishing, navigation or aquaculture rights
- The Bill does not take away rights but recognizes and protects the rights of Maori and all other New Zealanders to the NZ marine coastal area.
What have we achieved?
- We have achieved more than we promised to get the issue of 'mana' and 'tikanga' in relation to takutai moana back onto the negotiating table.
- We sought recognition and restoration of the mana of mana whenua in the takutai moana and the bill sets out pathways for that to happen.
- The takutai moana does not belong to the Maori Party. Our role is to open up a way for mana whenua to deal with the Crown and to insist the Crown deal with honour, integrity and in good faith. It is for mana whenua to say how their mana and tikanga operate in the takutai moana not the Maori Party.