Post by Kiwi Frontline on Jan 23, 2018 6:42:40 GMT 12
TRIBAL CONTROL OF THE COAST
“A spokesman from the local marae said, ‘…We have to put these rahui in place for protection of our culture…’
“But my response is since when did conforming to other people’s culture become compulsory? Why should those who don’t believe in spiritualism be forced to abide by the spiritual beliefs of others? Why it is now compulsory for those who are not Maori, or even Maori for that matter, to live by Maori culture? The whole thing is an absurdity, yet it is becoming the norm.”
It is an absurdity but under the Marine and Coastal Area Act, the absurdity is going to become a whole lot more common as tribal owners of the coast use rahui to keep the public away – claiming environmental protection, of course, as the excuse.
So what are the chances that tribal groups will end up in control of large tracts of our coastline?
To answer that question we need to look at the number of claims and the statutory tests.
Prior to the 3rd of April 2017 six-year deadline for submitting claims, around 50 or so had been lodged across the two pathways specified in the Act – the High Court, and Crown Engagement with the Minister of Treaty Negotiations.
However, just before the deadline, another 580 claims were submitted – 200 to the High Court and 380 for Crown engagement. As could be expected, the large number of claims increases that chance that significant portions of the coast will go under tribal control.
But, the key factor is the statutory test: have claimants used the area exclusively and continuously from 1840 to the present day without substantial interruption.
Only one case has been resolved in the High Court. Judge Mallon stated in her Customary Marine Title finding, “The evidence that has been presented of exclusive use and occupation of the Tītī Islands by Rakiura Māori from 1840 without substantial interruption is overwhelming.”
She also explained, “This makes it unnecessary to consider in detail what may or may not constitute exclusive use and occupation without substantial interruption for the purposes of s 58 of the Act.”
In other words, there has been no judicial determination, as yet, regarding the meaning of “exclusive use”.
If a literal interpretation is made, that the applicant group can be the only group to use and occupy the specified area of coastline – apart from those involved in fishing and navigation, who are excluded under section 59 (3) of the Act – then only remote areas of the coastline would qualify for tribal control.
But on the other hand, if a lenient interpretation is made, then it is likely that large areas of the coast would end up under tribal control.
In the only case of Crown Engagement to be resolved by the former Minister, the leniency of his approach was so extreme that an urgent review of his decision should be undertaken by the new Government, lest it becomes the standard for the hundreds of new claims in the pipeline.
In that case, the Minister offered a Customary Marine Title to Ngati Pahauwera for an area of coastline that they claimed to have held “exclusively” since 1840, when for over 100 years, it was used as the main route of travel and trade between the Hawke’s Bay and Gisborne.
By taking a lenient approach and ignoring historical facts in favour of tribal “oral history”, the former Minister has set a dangerous precedent that could see most of the coastline go under tribal control.
If that was to occur, what would it mean?.......
Read Dr Muriel Newman’s full NZCPR newsletter here > www.nzcpr.com/tribal-control-of-the-coast/#more-25100
“A spokesman from the local marae said, ‘…We have to put these rahui in place for protection of our culture…’
“But my response is since when did conforming to other people’s culture become compulsory? Why should those who don’t believe in spiritualism be forced to abide by the spiritual beliefs of others? Why it is now compulsory for those who are not Maori, or even Maori for that matter, to live by Maori culture? The whole thing is an absurdity, yet it is becoming the norm.”
It is an absurdity but under the Marine and Coastal Area Act, the absurdity is going to become a whole lot more common as tribal owners of the coast use rahui to keep the public away – claiming environmental protection, of course, as the excuse.
So what are the chances that tribal groups will end up in control of large tracts of our coastline?
To answer that question we need to look at the number of claims and the statutory tests.
Prior to the 3rd of April 2017 six-year deadline for submitting claims, around 50 or so had been lodged across the two pathways specified in the Act – the High Court, and Crown Engagement with the Minister of Treaty Negotiations.
However, just before the deadline, another 580 claims were submitted – 200 to the High Court and 380 for Crown engagement. As could be expected, the large number of claims increases that chance that significant portions of the coast will go under tribal control.
But, the key factor is the statutory test: have claimants used the area exclusively and continuously from 1840 to the present day without substantial interruption.
Only one case has been resolved in the High Court. Judge Mallon stated in her Customary Marine Title finding, “The evidence that has been presented of exclusive use and occupation of the Tītī Islands by Rakiura Māori from 1840 without substantial interruption is overwhelming.”
She also explained, “This makes it unnecessary to consider in detail what may or may not constitute exclusive use and occupation without substantial interruption for the purposes of s 58 of the Act.”
In other words, there has been no judicial determination, as yet, regarding the meaning of “exclusive use”.
If a literal interpretation is made, that the applicant group can be the only group to use and occupy the specified area of coastline – apart from those involved in fishing and navigation, who are excluded under section 59 (3) of the Act – then only remote areas of the coastline would qualify for tribal control.
But on the other hand, if a lenient interpretation is made, then it is likely that large areas of the coast would end up under tribal control.
In the only case of Crown Engagement to be resolved by the former Minister, the leniency of his approach was so extreme that an urgent review of his decision should be undertaken by the new Government, lest it becomes the standard for the hundreds of new claims in the pipeline.
In that case, the Minister offered a Customary Marine Title to Ngati Pahauwera for an area of coastline that they claimed to have held “exclusively” since 1840, when for over 100 years, it was used as the main route of travel and trade between the Hawke’s Bay and Gisborne.
By taking a lenient approach and ignoring historical facts in favour of tribal “oral history”, the former Minister has set a dangerous precedent that could see most of the coastline go under tribal control.
If that was to occur, what would it mean?.......
Read Dr Muriel Newman’s full NZCPR newsletter here > www.nzcpr.com/tribal-control-of-the-coast/#more-25100