F&S articles 2019

PRIVATISING NEW ZEALAND’S COASTLINE – BEACH BY BEACH

The third claim to be determined – that of the East Coast iwi Ngati Porou – is more complex.

The tribe claimed 200 km of coastline north of Gisborne – stretching out 12 nautical miles to the edge of the Territorial Sea – under the old 2004 Foreshore and Seabed Act. That required their evidence of exclusive use and occupation since 1840 to be verified in the High Court, and a deal to be negotiated with then Treaty Minister Michael Cullen. While an agreement was reached before the 2008 election, the iwi delayed having their evidence tested in court.

Following the introduction of the Marine and Coastal Area Act, National’s Treaty Minister Chris Finlayson resumed negotiations with Ngati Porou to bring their claim under the new law.

Special legislation was drafted, and a report was commissioned to assess their evidence. But the iwi delayed, and the assessment was never completed.

When the Government changed, Labour’s new Treaty Minister Andrew Little passed the Ngati Porou Bill in Parliament without the legitimacy of their evidence ever being officially verified.

The new law gave Ngati Porou a $15.3 million pay-out and control of a vast area of coastline that had also been used as a public road until the 1940s. They were also given a two year extension of time to lodge a new claim under the Marine and Coastal Area Act, should they wish to do so.

Clearly if the non-literal definition of exclusive use accepted by Ministers – that others may use a claimed area as long as the usage is not ‘intense’ – is applied to all Crown

Engagement cases and is adopted by the Courts, then control of substantial tracts of New Zealand’s coastline will pass to private Maori interests – beach by beach.

With that prospect ahead, the question arises of who is acting in the public interest to oppose opportunistic claims?

As the senior Law Officer of the Crown, it is the role of the Attorney General “to act in the public interest.” Crown Law is there to support the Attorney General in this crucial constitutional role.


However, alarmingly, Crown Law has recently advised, that with regards to coastal claims, “the Attorney-General does not consider it is his role to oppose applications in the public interest”. Instead, he intends to act as an interested party in each claim to ensure the statutory tests are met.

This means there is no guarantee that even fabricated claims will be officially opposed..........

Read Dr Muriel Newman’s full disturbing NZCPR newsletter here > https://www.nzcpr.com/privatising-new-zealands-coastline-beach-by-beach/#more-29648



SLOW PROGRESS ON MARINE AND COASTAL AREA CLAIMS

The High Court has recently completed a series of case management conferences throughout the country to hear from the 200 or so parties that have made claims to the High Court under the Marine and Coastal Area (Takutai Moana) Act 2011. Essentially the purpose of the hearings was to report progress to the High Court, or more specifically to Justice Churchman who has assumed responsibility for hearing the claims following the appointment of Justice Collins to the Court of Appeal.

The appointment of Justice Churchman was not without controversy. Following his disclosure of interest, in a Court Minute dated 11 April 2019, he advised:

“[2] By way of disclosure of potential conflict of interest, I advise that, when in practice as a barrister, and, prior to that, as a solicitor, I received instructions to act on behalf of, or provide advice to, a number of iwi. That advice and representation did not include any matters under the Act but spanned a number of issues including advice on Treaty of Waitangi claims, administrative law issues and employment related matters.

[3] The iwi involved were:
(a) Ngāti Toa Rangatira (principally in respect of the Northern South Island inquiry);
(b) Hokotehi Moriori Trust (Rekohu);
(c) Rangitane Ki Wairau;
(d) Ngai Tahu; and
(e) Ngāti Rangitihi.

[4] My daughter-in-law and mokopuna whakapapa to Ngāti Ruanui.”

He then added:
“[5] I do not believe that any of these matters raises a conflict of interest that would impact upon me managing these proceedings but if any party or lawyer has a different view, they should notify the Registry immediately.”

A number of parties to the appeals disagreed, and lodged notices for the Judge to recuse himself from hearing the cases. Justice Churchman considered those requests but remained of the view that there was no conflict of interest.

To a layman not expert in the nuances of High Court protocol, it seems bizarre that the person accused of bias should be the person who judges whether the concerns have substance. Logically, that should be someone who can take the role of “a fair-minded, fully informed observer” to assess whether there is “a reasonable apprehension that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The issue of bias is important for reasons that will become clear.....

Continue reading Frank Newman’s NZCPR guest commentary here > https://www.nzcpr.com/slow-progress-on-marine-and-coastal-area-claims/#more-29654