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Marine & Foreshore Act 

Hugh Barr, Lawyer, Secretary of the Council of Outdoor Recreations Associations of NZ , and formerly President of the Federated Mountain Clubs Inc. has raised the ‘sleeper’ issue that will soon come to the fore as we approach the election – the Marine & Foreshore (MACA) Act. This remains a ‘sleeper because there is no way that Winnie Peters will join any coalition that will allow its projected effects to become a reality.

The issue is raised in a column that Hugh wrote for Dominion Post last week that provides for the granting of major and exclusive property rights where any group can prove (S. 58) that it has:

“Exclusively used and occupied an area of coast from 1840 to the present day. Only tribal groups can apply.

This is a difficult condition to meet, because many tribal groups lived near the coast, where they could collect fish. Tribal areas often overlapped. From the signing of the Treaty of Waitangi, in 1840, when New Zealand became a British colony and adopted British law, the territorial sea, out to 3 nautical miles from the coast, was Crown (i.e. publicly) owned, with the public having free access to most of it, just as it was in Britain.

This alone makes exclusive occupation difficult. As well, the coast was often easier to travel along than New Zealand's rugged bush-clad road-less interior, of the 19th century. Iin the six years from 2011 to the close-off date for claims on April 3, 2017, only about 50 claims were lodged, and only one, a special case of mutton-bird islands, on a very remote coast, met the conditions. A significant number of claims were turned down by the Crown as not qualifying."

The stumbling block lies with the 500 late applications that were filed after closing date on 3 April 2017, by which time only 50 claims had been filed. The latest batch covers the entire coastline two or three times over. Hugh goes on:

"The MACA Act is a major threat to non-Maori and Maori users of the coast, because it gives major ownership rights to any tribal group that is awarded Customary Marine Title (CMT). These rights include the ability to declare wahi tapu (S 78 of the act), so-called "sacred" areas, where trespass by anyone not part of the tribal group will be fined up to $5000 for each trespass.

“The local district or regional council is required to act as policeman, stopping this trespass. As well as fisheries inspectors (S 80 Wardens and fishery officers), and tribal vigilante groups. wahi tapu areas are more accurately called private tribal fishing and surfing areas. None exist at present, but there is a massive incentive for tribal groups to create them should they gain CMT.

As well, each tribal group gaining CMT gets veto rights over all new Resource Management Act resource consents in its claimed area, allowing it to clip the ticket. Consents can include mooring buoys, marinas, building or extending a boatshed on piles, eg at Paremata and Evans Bay in Wellington.

Furthermore, should you build without the tribal group's permission then you can be imprisoned for up to two years, or fined up to $300,000, of which only 10 per cent of the fine goes to the Crown, while the other 90 per cent goes to the tribe. This gives the tribal group a huge financial incentive for vigorous, if not vindictive, policing.

As well there are at least eight additional rights with money-making potential for any tribal group that can prove that it qualifies for CMT. Another spur to the May avalanche of claims is that each tribal group registering a claim has a guarantee from the Office of Treaty Settlements (OTS) that it will be reimbursed by OTS with taxpayer funds for legal and historic research fees.

This taxpayer subsidy is very large, being up to $156,000 for small claims, to over $300,000 for complicated claims. It is another massive inducement for tribal groups to make this tsunami of last-minute claims.

In contrast, any non-tribal group has to pay all its expenses itself, to become a party, to protect its interests..

Again, the ease of getting reimbursed by the taxpayer is also a very large incentive for tribal groups, and their lawyers and historians, to lodge this avalanche of late claims.”

The old maxim "Trust us - we will ensure fair play" does not jell - it is highly unlikely that the majority of voters are yet aware of the ramifications of this staggering and wide-ranging boondoggle, and concession to the Maori Party in order to retain their loyalty, but one thing is for sure, there is no way that Winnie will accept this departure into race-based rights, and the Finlayson led meltdown of the norms that have underscored race relations in the country for 170 years is about to be sorely tested  

We may not like his politics, but it is my suspicion that on this issue he is rock-solid with the vast majority of voters while other parties fluff around with confusing and contradictory policies.   

Just why the Crown has agreed to accept the late claims, regardless of their merit, beggars belief, and does not auger well for the future of race relations.  




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