Post by Kiwi Frontline on Jun 3, 2019 5:32:25 GMT 12
From the NZCPR archives by Dr Muriel Newman
RETURN THE COAST TO PUBLIC OWNERSHIP
David Round explained that because of its varied meaning ‘tikanga’ should never have been included in the law, and warned, “that ‘tikanga’ will actually say that Maori still own a part of the foreshore and seabed even if other people visit it!”
Indeed, that’s exactly what has happened. In the only Crown Engagement case to have been finalised under the new law, Ngati Pahauwera successfully claimed that they had held an area of Hawke’s Bay coastline between Napier and Gisborne – that had been used as a public road for over 100 years – exclusively and continuously since 1840 in accordance with tikanga.
Minister Chris Finlayson, in granting the Customary Marine Title, was clearly swayed by the reference to ‘tikanga’ – as he explained in a letter to the iwi: “The submissions received do not demonstrate intensive third party use of the application area, and Ngati Pahauwera evidence asserts that third parties are not excluded provided they abide by Ngati Pahauwera tikanga. Contemporary third party activities that take place in the CMCA (common marine and coastal area) in the Ngati Pahauwera application area include surfcasting, surfing and offshore fishing and recreational boating using boats launched outside of the application area. Historically, the CMCA has been used for commercial navigation including the landing of goods and people, travel along the foreshore between Napier and Wairoa and small scale gravel and shingle extraction.”
He continued, “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. These activities often take place in small, confined parts of the CMCA and do not, of themselves, interrupt use and occupation by the applicant group.”
What’s clear from the Minister’s decision is that by referring to tikanga the claimants were able to satisfy the statutory test of ‘exclusive’ use and occupation – even though the area had been continually used by many other people – because the claimants’ own use of the area had not been interrupted.
If the Judges hearing the High Court claims take a similar view then it is likely that virtually the whole coast will pass into tribal hands.
Looking back, New Zealanders were essentially duped by the National Government into believing that the statutory tests in the new law were so onerous that few claims would succeed.
It now appears they were badly misled.
But there is more bad news.
The Attorney General, who most people had thought would oppose the High Court claims in the public interest, recently clarified that this in not his role: “To be clear, the Attorney-General does not consider it is his role to oppose applications in the public interest”.
While he then went on to explain that he will act as an interested party in each claim to ensure that the statutory tests are met, it seems there is no guarantee that the claims will be opposed.
With tens of millions of dollars of taxpayers’ funding filling the legal war chests of claimants, and without a guarantee that our elected Government will defend the public interest in the coast, there is an increasing chance that even spurious claims will succeed.
Furthermore, while the public may have been reassured by the fact that since all of the claims overlap, they would fail the ‘exclusive’ use and occupation test, this too may have been premature. Claimants are being asked to resolve the boundary issues ‘according to tikanga’, so that by the time their claims progress to a hearing, they will no longer overlap.
As a result, claimants are now busy carving up the coast between themselves ahead of advancing their exclusive use arguments. Many tribal groups believe it is only a matter of time before the coast is theirs......
Read the full article here > www.nzcpr.com/return-the-coast-to-public-ownership/
November 4, 2018
RETURN THE COAST TO PUBLIC OWNERSHIP
David Round explained that because of its varied meaning ‘tikanga’ should never have been included in the law, and warned, “that ‘tikanga’ will actually say that Maori still own a part of the foreshore and seabed even if other people visit it!”
Indeed, that’s exactly what has happened. In the only Crown Engagement case to have been finalised under the new law, Ngati Pahauwera successfully claimed that they had held an area of Hawke’s Bay coastline between Napier and Gisborne – that had been used as a public road for over 100 years – exclusively and continuously since 1840 in accordance with tikanga.
Minister Chris Finlayson, in granting the Customary Marine Title, was clearly swayed by the reference to ‘tikanga’ – as he explained in a letter to the iwi: “The submissions received do not demonstrate intensive third party use of the application area, and Ngati Pahauwera evidence asserts that third parties are not excluded provided they abide by Ngati Pahauwera tikanga. Contemporary third party activities that take place in the CMCA (common marine and coastal area) in the Ngati Pahauwera application area include surfcasting, surfing and offshore fishing and recreational boating using boats launched outside of the application area. Historically, the CMCA has been used for commercial navigation including the landing of goods and people, travel along the foreshore between Napier and Wairoa and small scale gravel and shingle extraction.”
He continued, “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. These activities often take place in small, confined parts of the CMCA and do not, of themselves, interrupt use and occupation by the applicant group.”
What’s clear from the Minister’s decision is that by referring to tikanga the claimants were able to satisfy the statutory test of ‘exclusive’ use and occupation – even though the area had been continually used by many other people – because the claimants’ own use of the area had not been interrupted.
If the Judges hearing the High Court claims take a similar view then it is likely that virtually the whole coast will pass into tribal hands.
Looking back, New Zealanders were essentially duped by the National Government into believing that the statutory tests in the new law were so onerous that few claims would succeed.
It now appears they were badly misled.
But there is more bad news.
The Attorney General, who most people had thought would oppose the High Court claims in the public interest, recently clarified that this in not his role: “To be clear, the Attorney-General does not consider it is his role to oppose applications in the public interest”.
While he then went on to explain that he will act as an interested party in each claim to ensure that the statutory tests are met, it seems there is no guarantee that the claims will be opposed.
With tens of millions of dollars of taxpayers’ funding filling the legal war chests of claimants, and without a guarantee that our elected Government will defend the public interest in the coast, there is an increasing chance that even spurious claims will succeed.
Furthermore, while the public may have been reassured by the fact that since all of the claims overlap, they would fail the ‘exclusive’ use and occupation test, this too may have been premature. Claimants are being asked to resolve the boundary issues ‘according to tikanga’, so that by the time their claims progress to a hearing, they will no longer overlap.
As a result, claimants are now busy carving up the coast between themselves ahead of advancing their exclusive use arguments. Many tribal groups believe it is only a matter of time before the coast is theirs......
Read the full article here > www.nzcpr.com/return-the-coast-to-public-ownership/
November 4, 2018