Post by Kiwi Frontline on Feb 20, 2018 7:12:05 GMT 12
LAST CHANCE TO OPPOSE COASTAL CLAIMS
Attention is also turning to others who may follow Mr English out of Parliament. High on that list is former Treaty Minister Chris Finlayson, who was responsible for the disastrous Marine and Coastal Area Act
If new National is to regain its spine, it needs to end its association with this ill-fated law and return to the racial equality principles it once advocated.
The Act is flawed in many respects, but especially in its failure to define a critical legal test. As it stands, unless the law is amended, it will be Judges rather than Parliament that determines whether Maori interests will own some of the coastal marine area or most of it.
Let me explain.
Section 58 of the Act contains the test for a customary title. Under (1)(a) an applicant group must have held their claimed area in accordance with “tikanga”, which is defined as “Maori customary values and practices”. In effect, this can mean anything the tribal group wants it to mean, so that’s an easy test for claimants to meet.
Clause (1)(b)(i) however, states that in relation to their claimed area, the applicant group must have “exclusively used and occupied it from 1840 to the present day without substantial interruption”.
Yet the exact meaning of exclusively is not defined in the Act.
According to the Oxford Dictionary, ‘exclusively’ means “to the exclusion of others”. If a Judge was to apply such a literal definition, then the only claims that would succeed are for areas that are used by the tribal group and no-one else – apart from those involved in fishing and navigation, which are permitted activities under Section 59(3).
Given that the foreshore and seabed was considered to be publicly owned under common law from 1840 until just recently, there would be very few coastal areas where tribal groups would have been able to continually chase the public away.
However, if a liberal determination was applied – such as that made by the former Minister Chris Finlayson in Ngati Pahauwera’s Crown Engagement case, then tribal groups could well end up controlling a majority of New Zealand’s coastline.
Ngati Pahauwera from the northern Hawke’s Bay lodged a claim in 2011 for an area of coastline around Mohaka, alleging they had held it exclusively and continuously from 1840 to the present day.
However, it turns out that the area had been used as a public road for over 100 years.
Research carried out by the Council of Outdoor Recreation Associations of New Zealand (CORANZ), which quotes newspaper reports on the challenges faced by travellers, drovers, and even the postman, states: “Because of the steep papa cliffs the only way by land for drovers and travellers to get from Napier to Wairoa and beyond was along the coast of the area that is now being claimed by Ngati Pahauwera. That is exactly what all people did – from the early days of settlement from 1840 and before, until the inland road was built between Napier and Gisborne via Wairoa in the 1930s.”
Yet, in his Letter of Determination offering a Customary Marine Title to Ngati Pahauwera, Minister Finlayson ignored 100 years of history, when he stated: “I am satisfied that the combined historical and contemporary third party activities are not of sufficient intensity and scale to amount to a substantial interruption of any exclusive use and occupation that Ngati Pahauwera are able to establish.”
He accepted Ngati Pahauwera’s assertion that because they did not exclude third parties who abided by their tikanga from their claimed area, in effect their occupation was ‘exclusive’: “Ngati Pahauwera evidence asserts that third parties are not excluded provided they abide by Ngati Pahauwera tikanga.”
If the High Court was to use a similar liberal interpretation of ‘exclusive’, as applied by the former Minister, it is entirely possible that most claims to the coast would succeed.
Is that what National really wanted, when they passed the law? Is that what new National wants?.....
Read Dr Muriel Newman’s foreboding NZCPR newsletter here > www.nzcpr.com/last-chance-to-oppose-coastal-claims/#more-25358
FUNDRAISER TO OPPOSE TRIBAL CLAIMS TO OUR BEACHES - Urgent donate now
As you may be aware the NZCPR has been fundraising to enable CORANZ to file Notices of Appearance for all 200 High Court claims. This has now been done.
But in the interest of having as many groups as possible opposing all of the claims, I (Muriel Newman) have just managed to convince a landowners’ advocacy group to expand their appeal from the 14 or so claims that cover their district, to the 200 claims that cover the whole country.
I have also made a commitment to them that the NZCPR will try to raise the $20,000 extra that they will need to cover the extra cost of filing.
So, I would now like to ask anyone who is concerned about the claims process, but is not in a position to lodge a Notice of Appearance themselves, to consider contributing to our new fundraiser to assist the landowners’ group in lodging Notices of Appearance on all 200 claims – you can help by clicking here > www.nzcpr.com/fundraiser-donation-page/
Attention is also turning to others who may follow Mr English out of Parliament. High on that list is former Treaty Minister Chris Finlayson, who was responsible for the disastrous Marine and Coastal Area Act
If new National is to regain its spine, it needs to end its association with this ill-fated law and return to the racial equality principles it once advocated.
The Act is flawed in many respects, but especially in its failure to define a critical legal test. As it stands, unless the law is amended, it will be Judges rather than Parliament that determines whether Maori interests will own some of the coastal marine area or most of it.
Let me explain.
Section 58 of the Act contains the test for a customary title. Under (1)(a) an applicant group must have held their claimed area in accordance with “tikanga”, which is defined as “Maori customary values and practices”. In effect, this can mean anything the tribal group wants it to mean, so that’s an easy test for claimants to meet.
Clause (1)(b)(i) however, states that in relation to their claimed area, the applicant group must have “exclusively used and occupied it from 1840 to the present day without substantial interruption”.
Yet the exact meaning of exclusively is not defined in the Act.
According to the Oxford Dictionary, ‘exclusively’ means “to the exclusion of others”. If a Judge was to apply such a literal definition, then the only claims that would succeed are for areas that are used by the tribal group and no-one else – apart from those involved in fishing and navigation, which are permitted activities under Section 59(3).
Given that the foreshore and seabed was considered to be publicly owned under common law from 1840 until just recently, there would be very few coastal areas where tribal groups would have been able to continually chase the public away.
However, if a liberal determination was applied – such as that made by the former Minister Chris Finlayson in Ngati Pahauwera’s Crown Engagement case, then tribal groups could well end up controlling a majority of New Zealand’s coastline.
Ngati Pahauwera from the northern Hawke’s Bay lodged a claim in 2011 for an area of coastline around Mohaka, alleging they had held it exclusively and continuously from 1840 to the present day.
However, it turns out that the area had been used as a public road for over 100 years.
Research carried out by the Council of Outdoor Recreation Associations of New Zealand (CORANZ), which quotes newspaper reports on the challenges faced by travellers, drovers, and even the postman, states: “Because of the steep papa cliffs the only way by land for drovers and travellers to get from Napier to Wairoa and beyond was along the coast of the area that is now being claimed by Ngati Pahauwera. That is exactly what all people did – from the early days of settlement from 1840 and before, until the inland road was built between Napier and Gisborne via Wairoa in the 1930s.”
Yet, in his Letter of Determination offering a Customary Marine Title to Ngati Pahauwera, Minister Finlayson ignored 100 years of history, when he stated: “I am satisfied that the combined historical and contemporary third party activities are not of sufficient intensity and scale to amount to a substantial interruption of any exclusive use and occupation that Ngati Pahauwera are able to establish.”
He accepted Ngati Pahauwera’s assertion that because they did not exclude third parties who abided by their tikanga from their claimed area, in effect their occupation was ‘exclusive’: “Ngati Pahauwera evidence asserts that third parties are not excluded provided they abide by Ngati Pahauwera tikanga.”
If the High Court was to use a similar liberal interpretation of ‘exclusive’, as applied by the former Minister, it is entirely possible that most claims to the coast would succeed.
Is that what National really wanted, when they passed the law? Is that what new National wants?.....
Read Dr Muriel Newman’s foreboding NZCPR newsletter here > www.nzcpr.com/last-chance-to-oppose-coastal-claims/#more-25358
FUNDRAISER TO OPPOSE TRIBAL CLAIMS TO OUR BEACHES - Urgent donate now
As you may be aware the NZCPR has been fundraising to enable CORANZ to file Notices of Appearance for all 200 High Court claims. This has now been done.
But in the interest of having as many groups as possible opposing all of the claims, I (Muriel Newman) have just managed to convince a landowners’ advocacy group to expand their appeal from the 14 or so claims that cover their district, to the 200 claims that cover the whole country.
I have also made a commitment to them that the NZCPR will try to raise the $20,000 extra that they will need to cover the extra cost of filing.
So, I would now like to ask anyone who is concerned about the claims process, but is not in a position to lodge a Notice of Appearance themselves, to consider contributing to our new fundraiser to assist the landowners’ group in lodging Notices of Appearance on all 200 claims – you can help by clicking here > www.nzcpr.com/fundraiser-donation-page/
