Foreshore and seabed claims rolling in

I think it’s a non-story, but reaction will be strong in the usual quarters:

Inquiries by 3 News show Maori are now claiming customary title to more than 20 beaches, and three Maori groups are making claims on one small island - Motiti Island, in the Bay of Plenty.

The three different groups are competing against each other for effective ownership - customary title of the coast.

The Motiti claims are among 21 different areas of coastline now under 24 claims for title under the Marine and Coastal Area Bill.

Well, this isn’t surprising is it? The intention of the act is to “provide for” and “recognise” customary interests. In other words, the act invites applications. The bigger question is, I think, how many of these claims are going to be successful. Scanning the various claims I would argue very few.

There are claims lodged with the court and claims lodged with the government. A claimant can apply for, or negotiate which may be the more appropriate word, for a recognition agreement with the government or apply for a recognition order from the court. In my opinion, applying for a recognition agreement with the government offers the higher chance of success. The court must follow what is, and authorities agree, a rigid legal test. On the other hand the government avenue offers more flexibility. The government is not constrained by precedent, legal principles and so on. The government is, it should be noted, constrained by politics though. Politics may, you can argue, be more restrictive than the law. On balance, however, politics is more flexible than the law and, as a result, offers a greater chance of success.

There are 12 claims lodged with the Court and 12 lodged with the government. Most of the latter have transferred from applications under the Foreshore and Seabed Act 2004. Of those claims before the court, the only ones I can see succeeding are in the Eastern Bay of Plenty where Whakatohea and Te Whanau-a-Apanui exercise undisturbed rangatiratanga and wrapping around the coast where Ngati Porou are in a similar position. In other words their rangatiratanga has – arguably of course – never been extinguished. It can also be argued isolated parts of the Northland and Stewart Island remain under Maori control.

However, applications from the Taranaki and Hawkes Bay will face significant hurdles as will applications in the Bay of Plenty from Ohope tracking north through to the Coromandel. In these areas the non-Maori population is significant and, as a result, Maori rangatiratanga has probably been extinguished in the eyes of the court and the government. Having mentioned the Bay of Plenty I should note that, as mentioned, claims in the Eastern Bay of Plenty (east of Tirohanga) are strong as are the claims to Motiti Island. Motiti remains an almost exclusive Maori community.

It’s interesting to note that there are applications from whanau and hapu as well as iwi. In the case of Motiti Island there are three competing claims.

Interestingly Patrick Gower also notes that:

But it is not just more of the coast under claim, it is now the delicacy on your plate too - the great Kiwi pastime whitebaiting.

Under the claims lodged, three groups want customary rights to whitebaiting in southern Taranaki near Hawera.

But the Government says other law overrides the new foreshore law and they will not get it.

“If they wanted to claim for whitebait under the Marine and Coastal Area Bill they would literally be pushing whitebait up a river,” says Chris Finlayson.

Tariana Turia disagrees and thinks the claim may have some substance. She may be right. Although whitebaiting is a customary right, it occurs outside of the area considered part of the common marine and coastal area. However, it can be argued that whitebaiting falls within s62 – rights conferred by customary marine title. But - to point out the bleeding obvious - Chris Finlayson has already denied the claim (see the above quote). The chances of Finlayson going against the above statement and approving the claim are, I think it is fair to assume, minimal.

Essentially, these are questions for the court or the government to decide; whatever way they fall there will be political consequences, but that's not going to worry Maori and the more success we have the better.