Paul Goldsmith. Photo: RNZ / REECE BAKER
The Waitangi Tribunal has found government changes to the Marine and Coastal Area Act are characterised by a blind adherence to pre-existing political commitments at the expense of whānau, hapū, and iwi.
The tribunal's Takutai Moana Act 2011 Urgent Inquiry Stage 1 Report comes after the government announced plans to make getting customary marine title harder for iwi, after a court ruling last year made it easier.
The report considered how Treaty-compliant the policy development process the government followed in amending the Takutai Moana Act was, the proposed amendments, and whether they cause prejudice to Māori.
The tribunal found the government dismissed official advice, failed to consult with Māori and breached the principle of active protection and good government by failing to properly demonstrate "Parliament's original intent" and seeking to amend the act before the Supreme Court could hear the matter.
The report said the Crown's consultation with commercial fishing interests, while failing to consult with Māori, was a breach of the principle of good government.
The Crown exercised kāwanatanga over Māori rights and interests without providing any evidence for one of its key justifications - namely that the public's rights and interests require more protection beyond what is already in the act - the report said.
It also found applying the amendments retrospectively would force iwi to have their cases reheard and create a financial and emotional burden. Previously successful applicants could also fail the standards of the new test.
Recommendations
The tribunal made the following recommendations.
- the Crown halts its current efforts to amend the Takutai Moana Act
- the Crown makes a genuine effort for meaningful engagement with Māori
- that the focus of this engagement should be on the perceived issues of permissions for resource consents, rather than interrupting the process of awarding customary marine titles.
Customary marine title
In 2011, the then National government introduced the Takutai Moana Act to replace the controversial Foreshore and Seabed Act 2004.
Section 58 of the 2011 act set out the statutory test Māori groups must meet for recognition of their coastal rights, this is known as customary marine title (CMT).
If CMT was granted, Māori could give or refuse permission for certain activities that required resource consent. Those rights applied from the high-tide mark and up to 12 nautical miles out to sea.
On 18 October 2023, just four days after the general election, the Court of Appeal issued a judgment determining how the courts should interpret section 58. In response to that decision, Justice Minister Paul Goldsmith announced plans in July to amend section 58 in order "to make clear Parliament's original intent."
In a private meeting with fisheries industry representatives, Goldsmith speculated a law change would reduce the area subject to CMT from 100 percent to 5 percent. He later defended those comments, saying they were part of "free-flowing discussion" and not based on any analysis.
In his letter to ministers Judge Miharo Armstrong, the head of the tribunal panel, said the Crown had failed to demonstrate how it had arrived at its understanding of "Parliament's original intent".
Claimants also alleged funding for applications for CMT under the act had been mismanaged, which the tribunal said would be addressed in the next stage of the inquiry.
Lawyers representing the Crown at the urgent inquiry said the amendment bill was expected to be tabled next week on Monday.