Te Tau Ihu iwi seek customary rights over Marlborough Sounds

Te Tau Ihu iwi such as Te Ati Awa o Te Waka-a-Maui are seeking customary marine titles over the Marlborough Sounds.
TOM HACKETT

Te Tau Ihu iwi such as Te Ati Awa o Te Waka-a-Maui are seeking customary marine titles over the Marlborough Sounds.

It started in Marlborough, the national debate over the ownership of the foreshore and seabed that triggered widespread protests, a hikoi to Parliament and the formation of the Maori Party.

Now more than a decade on from the contentious Foreshore and Seabed Act, Te Tau Ihu iwi are in the process of trying to secure long-denied customary rights over the Marlborough Sounds.

Iwi, hapu and whanau groups had until April 3 to submit their applications for customary marine titles under the Marine and Coastal Area (Takutai Moana) Act which was introduced in 2011.

The legislation replaced the Foreshore and Seabed Act, a law that effectively extinguished customary rights over the foreshore and seabed and vested the area in Crown ownership.

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The much maligned bill was a reaction to a Court of Appeal case involving Marlborough iwi Ngati Apa ki te Ra To, which took place in 2003 following claims by Te Tau Ihu iwi over the Sounds.

The area covered by a customary marine title extends from the average high tide mark, 12 nautical miles out to sea.
DEREK FLYNN/FAIRFAX NZ

The area covered by a customary marine title extends from the average high tide mark, 12 nautical miles out to sea.

In its decision, the Court ruled the Maori Land Court had jurisdiction to determine whether areas of the foreshore and seabed were Maori customary land - a move swiftly overturned by the Government.

But with the passage of the new law in 2011, iwi were again able to apply for some forms of customary ownership, recognised through customary marine titles that grant holders certain rights over the coastal area. These include: ownership of minerals excluding petroleum, gold, silver and uranium; the right to permit or decline resource consents; and the right to produce planning documents about how an area is managed.

Applicants could also apply for protected customary rights under the act. The examples given on the Ministry of Justice website included collecting hangi stones or launching waka from the common marine area.

If protected customary rights were granted, successful applicants did not require resource consent for the activities.

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Importantly the law guarantees public access to the common and marine coastal area, which is defined as stretching from the high water mark during mean spring tides to 12 nautical miles out to sea.

In Marlborough, the Ministry of Justice website lists only one iwi, Ngati Koata, as having applied for a customary marine title - which covers the area around d'Urville Island or Rangitoto ki te Tonga.

However, the website only includes those that were engaging directly with the Crown, as opposed to iwi seeking customary marine titles through the High Court which some Te Tau Ihu are doing.

A Ministry of Justice spokesman said nationwide they received 381 applications for Crown engagement, for both customary marine titles and protected customary rights.

Some of these were from the Top of the South, but not all of these had been published on the website, the spokesman said.

Applicants that went through the High Court had to publicly notify their submission within 20 days. Te Ati Awa o Te Waka-a-Maui, for instance, published their application in the Marlborough Express.

The iwi was seeking customary marine title over five common marine and coastal areas that collectively covered an area stretching from Westport on the West Coast to the Clarence River on the East Coast.

As well as individual claims, New Zealand Maori Council co-chairman Maanu Pau had also submitted on behalf of all Maori for customary rights over New Zealand's entire coast, foreshore and waters.

Speaking to Radio New Zealand last week, Pau said the claim was not about monetary gain, but setting rules and regulations to protect the environment and the the way the foreshore and seabed was utilised.

"Will we stop everybody's right to go fishing? No. Will we stop oil fracking? Yes," he said. "Will we stop salmon farms that pollute the waters in South Island? Yes."

Despite the change in position from the Foreshore and Seabed Act, the Marine and Coastal Area (Takutai Moana) Act has been criticised for setting too high a bar for applicants to get customary marine title.

University of Otago law professor Jacinta Ruru, who specialises in Maori land law, said applicants had to prove they had exclusively used and occupied the area from 1840 without substantial interruption.

"This is a very high threshold and places an impossibly high burden of proof on iwi. It will depend on how the courts move to define this test," she said.

Ruru said a similar test in Australia led the High Court to read substantial interruption had occurred even if it happened as a result of the Crown forcibly removing indigenous peoples from their lands near the coast.

"The test in this Act is back to front. The common law we inherited from England and the Treaty of Waitangi signed in 1840 both recognised Maori ownership of lands and waters," she said.

"Iwi should not be forced into the courts to battle for recognition of property interests that have never been relinquished to the New Zealand Crown.

"It would be far better for us as a nation to learn the histories of the foreshore and seabed in our own communities, the hopes and aspirations for that land by the local tangata whena.

"And how we as a nation might move forward in respectfully looking after lands permanently or temporarily under salt water."

 - The Marlborough Express

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