This article was first published by RNZ.
Te Pāti Māori is warning the government its move to overturn a court decision on marine customary rights risks a return of the big foreshore and seabed protests of 20 years ago.
The justice minister wants to tighten the threshold for claims to coastal waters after the Court of Appeal last year made that easier.
Te Pati Māori’s Rawiri Waititi called it an all-out assault on Māori whakapapa.
“It’s a shameful stain on this government. It just creates more distrust between Māori and this government,” Waititi told Morning Report.
But the government insists it is just resetting the bar back to where it has been since a law change in 2011 - made by the then National-led government - which required Māori claimants to prove they had exclusively used and occupied an area from 1840 to the present day without substantial interruption.
The Court of Appeal last year made things easier for claimants by ruling they no longer had to prove there’d been no substantial disruption.
“The effect of the Court of Appeal decision was to not really require the exclusive use,” Minister for Treaty of Waitangi Negotiations Paul Goldsmith told Morning Report.
“That materially lowered the threshold, and look, the broader sort of philosophical point is that all New Zealanders have an interest in the coastal areas and in the part of a modern democracy. Everybody should have an equal say on what goes on in their environment and neighbourhood.”
He said it was “a high test... not an impossible test”.
“Parliament passed the legislation, and the legislation we believe was clear and the courts went a different direction, and that’s why we’ve taken a very unusual step to overturn that decision.
“And we’re also going to amend the legislation to define and clarify those terms, exclusive use and occupation and substantial interruption.”
A law change was part of National’s coalition agreement with New Zealand First.
But it could risk a repeat of what was seen in 2004, when thousands marched on Parliament against the Labour government’s Foreshore and Seabed Act, which vested ownership in the Crown and removed the High Court’s power to determine claims for customary title.
The nine cases ruled on since the court’s decision will stand, but any existing or future claims will not, Goldsmith said.
Waititi said that would disadvantage Māori.
“Why are you making legislative changes that absolutely restricts many other iwi to be able to claim their foreshore or seabed or coastal areas I think, is an indictment on this government.”
Ben Thomas - who worked in the treaty minister’s office when the 2011 Marine and Coastal Area Act was passed and now works with iwi pursuing claims under the legislation - said the government was moving too fast.
The original case that triggered the Court of Appeal decision is still under appeal at the Supreme Court.
“The foreshore and seabed issues... exploded exactly because the government was legislating over a court decision, you know? It is very uncomfortable to see the government again legislating over the top of court decisions before they’ve exhausted all of their appeals,” Thomas said.
“There is a danger in trying to sort of go back to the original intent of the law that the government sort of throws out the baby with the bath water and goes too far in terms of removing rights.”
He said there were also still cases before the court which would have to be reheard or begin again depending on their outcome, causing uncertainty for many iwi.
“They’re essentially saying to people whose cases are currently before the courts and who might get a decision before Parliament’s legislated that they might as well not bother, and that’s not normal constitutional practise.”
Goldsmith said the Court of Appeal ruling stood for now, but the new legislation - aimed to be passed in the “next few months” - would be backdated to Thursday, 25 July.
“If a decision is made in the next month or so before the law is passed, it will be overturned... because we’ve made it clear... when it takes effect.”
Goldsmith said there had “been a lot of concern”, and he hoped there would not be a repeat of the 2004 hikoi “because what we’re doing is restating what the legislation was quite clearly in 2011”.
“We think the balance was right in the original legislation, the courts materially changed that and that’s why we’re.. going to restore that original intent.”
Labour was not on board with the changes, saying court decisions should be respected, not overruled.
ACT supports it, saying the Court of Appeal ruling could lead to restrictions on New Zealanders using the foreshore and seabed.
Thomas says that was incorrect.
“Even if customary marine title does pass to an iwi or hapū, all rights of access are protected. People will still be able to go to the beach, so, you know, there shouldn’t be any alarm about this either way.”
The coalition intends to pass the legislation within the next few months.
- RNZ