After speaking with a number of your MP colleagues in the last week I was surprised at the
"dichotomy" of views that existed as to what the above bill actually said. Accordingly I
undertook to read it myself and reply with my point of view.
My conclusions are as follows:
It is a hideous Bill and should be scrapped.
If the Bill passes it will be a major blot on New Zealand's social and cultural landscape
for many generations (unless it is repealed).
I believe there is merit and fairness in considering the repeal of the Coastal and
Foreshore Bill.
There should be one law for all and every New Zealander, who should be entitled to
their day in court. This was the very essence of the Treaty.
Why do I call this a hideous Bill?
The following commentary is my simple reading of the draft Bill, I have not taken legal advice
and is largely how the Bill appears on the face of it ʹ ( just how a Judge will read it, I suspect).
I have broken my commentary essentially into two parts.
Part 1 ʹ Customary Interests
On the face of the draft Bill it is hard to see how virtually the entire New Zealand
coastline and an area 12 miles out to sea, will not become claimed under "customary
interests". In fact I say it is virtually inevitable.
Why do I say this?
Reference; meaning of protected customary rights ( 53. 3) "an applicant group does not
need to have an interest in land in or abutting the specified part of the common marine
and coastal area to establish protected customary rights"
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Reference; (53.a,) "a protected customary right is a right that (a) has been in existance
since 1840." One can be absolutely certain there would not be a 1 metre of coastline in
New Zealand or 1 m² of marine area in the 12 mile territorial zone that has not been
subject to customary use (rights?) since 1840. This is essentially exactly what the Treaty
guaranteed for all New Zealanders. Some MPs have suggested to me this implied
continuous and unique customary fishing/harvesting methods and the like. This
assumption again is quite wrong and is not what the draft Bill says.
Reference; (53.b.) "A protected customary right is a right that....... continues to be
exercised in a particular part of the common marine and coastal area in accordance with
Tikanga by the applicant group, whether it continues to be exercised in exactly the same
or a similar way, or evolves over time." In short ʹ anything goes ʹ if one fished for
Kawahai in 1840 with a flax rope and bone hook from a canoe, in 1960 from a
speedboat with cotton braid and a steel hook, in 1980 with monofilament line or
gillnets, or 2010 with a pair trawler, ʹ a Judge, I believe, would be excluded from any
suggestion that "traditional or customary methods" were not utilised. In fact they are
completely irrelevant. All that would need to be established is that the claimant fished
from time to time ʹ by any method whatsoever ʹ over the region ʹ for example North
Cape to Bream Head, or the Hauraki Gulf, Cape Palliser to Cape Kidnappers etc etc.
There is no requirement for this activity to have been practised continuously ʹ it simply
has to have been exercise since 1840 ʹ which indeed any action at any time since that
date would suffice. In fact there is nothing in the proposed Bill that would lead to the
declining of a " customary interest" ʹ unless of course the claimant stated the customary
interest had never been exercise since 1840!. A highly unlikely prospect!
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So to this point rest 100% assured that the total marine and coastal area (other than a few
minor exclusions) will be successfully claimed under customary interests/protected
customary rights.
So what does this mean?
Reference (54. 1) "scope and effect of protected customary rights. (1) A protected
customary right may be exercised under a protected customary right order or an
agreement without a resource consent, despite any prohibitions, restrictions, or
impositions that would otherwise apply in or under section 8 to 17 of the resource
Management act 1991"
Reference ( 54. 4.b,c,d) "a protected customary rights group may do any of the
following (b) transfer a protected customary right over or an agreement in accordance
with Tikanga, (c) derive a commercial benefit from exercising its protected customary
rights, (d) determine who may carry out any particular activity, use, or practice, in
reliance on a protected customary rights order or agreement"
I think the wording is abundantly clear and needs little explanation ʹ but let me assure
you it is totally contrary to the understanding of many members who are planning on
voting for this Bill. Some members again mistakenly believed that some protection
would be afforded by the Resource Management Act ʹ despite the specific exclusion
above ʹ read on!
Reference ( 57. 2.) "Effects of protected customary rights on resource consent
applications.... (2) a consent authority must not grant a resource consent for an activity
(including a controlled activity) to be carried out in a protected customary right area, if
the activity will, or is likely to, have adverse effects that are more than minor on the
exercise of a protected customary right.....". In short the State/regulatory authorities
that we have entrusted, will essentially lose virtually total control or have little if any
ability to make decisions for the total coastline and marine area of New Zealand (other
than a few minor exceptions). We elect central and local Government representatives to
do their best to represent all New Zealanders ʹ not a unique or special class of New
Zealander.
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Reference (105. 1. 2.) "Burden of proof (1) the applicant group must prove that it is
entitled to the customary interest that is the subject of this application (. 2) it is
presumed, in the absence of proof to the contrary, that a customary interest has not
been extinguished.͟dŚŝƐƌĞŝŶĨŽƌĐĞƐƚŚĞƉƌŽƉŽƐŝƚŝŽŶƚŚĂƚǀŝƌƚƵĂůůLJƚŚĞƚŽƚĂůĐŽĂƐƚĂůĂŶĚ
marine area, will effectively be removed from our elected Governments control ʹ both
local and National Government
I call this a "hideous proposition"
Part 2ʹ Customary Marine Title
This is established under 3/sub part 3 of the proposed bill ʹ 60 ʹ 1 (B) "as exclusively
used and occupied the specified area from 1840 to the present day without substantial
interruption".
Comment. There is no definition as to what these statements in fact mean, and the
direction for consideration are contained in the following. ʹ 61 ʹ 1 ʹ "factors that may
be taken into account in determining whether customary title exists".......... 61 ʹ 1 ʹ (a)
"whether the applicant group or any of its members (1) own land abutting all or part of
the specified area and have done so without substantial interruption from 1840 to the
present day." Then the Bill goes on to state; 61 ʹ 1 ʹii "exercise non-‐commercial
customary fishing rights in the specified area, and have done so from 1840 to the
ƉƌĞƐĞŶƚĚĂLJ͘͟
This simply means that one could own one house adjacent to a bay or region "own land
abutting ʹ or part of the specified area", and " have fished non-‐commercially in the
region since 1840 would give valid claim for a title to the region".
I call this a hideous notion
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Many of the definitions are vague and ambiguous ʹ a disastrous situation for law
making. There is an assumption that all lands are subject to customary marine title ʹ the
onus of proof is on the Minister/Courts to prove otherwise. If the Courts are involved,
reference 106 ʹ (3) "the Court may strike out all or part of an application for a
recognition order if it;
ΗĚŝƐĐůŽƐĞƐŶŽƌĞĂƐŽŶĂďůLJĂƌŐƵĂďůĞĐĂƐĞ͘͟
This is an extraordinary low threshold which would mean vast numbers of "marine
titles" will issue, even through the Courts because of the low threshold of direction
given to the Judges. We have seen countless "reasonably arguable cases" from such
extraordinary things as "cellphone spectrums, television spectrums, to relatively
recently discovered deep sea species such as Orange Roughy etc etc. Undoubtedly they
all had their roots of claim in "reasonably arguable cases".
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General Commentary
The draft Bill proposes that all common and marine areas be moved into "no man's
land". There is a mistaken belief this affords everyone protection. This is a nonsense.
The protection comes from whom and under what law is the area managed. As can
clearly be seen above management control is largely removed from our elected bodies.
For a long time now every subdivision we have undertaken on the foreshore has
required the "handing to Council" of a reserve strip of land, including in some cases
where we have owned title below mean high water spring. One can make the
judgement call that this is the law of the land, and perhaps ultimately benefit all New
Zealanders. What is proposed runs "roughshod" over these "former agreements", and
hands the management and control to an exclusive group of people who previously had
no interest in the property. This is simply not fair or just. The creating of two classes of
citizenship I consider a foolish idea.
The preamble makes references to (refer 2.):.... the principles of fairness and
nondiscrimination against a particular group of people. The proposed bill is
extraordinarily discriminatory and indeed in breach of the principles as outlined by the
United Nations Committee on the Elimination of Racial Discrimination. Let me give you a
few examples;
As a New Zealander I cannot claim or be granted a "marine title" ʹ what we are
proposing is a unique and different class of citizenship that has unique and exclusive
rights.
As a New Zealand citizen and substantial land owner, I have no rights to mineral below
my property ʹ these are reserved to the Crown. What we are proposing is a unique form
of title which grants all mineral rights to the holder of that title for their exclusive
exploration without benefit to the Crown (other than a small range of elements
reserved to the Crown). Again we are proposing a law that establishes a different class
of citizenship that has unique and exclusive rights. This must be considered blatantly
discriminatory.
We have on many occasions witnessed serious ĂďƵƐĞŽĨ͚ŝǁŝ͛ĐŽŶƐƵůƚĂƚŝŽŶƵŶĚĞƌƚŚĞ
Resource Management Act. The prospect of vaƌŝŽƵƐ͚ŝǁŝ͛ŝŵƉůĞŵĞŶƚŝŶŐa will/without
validation/justification whi tapu or ownership of newly formed taonga tuturities is an
abuse of good process.
As a New Zealander I am bound by the Resource Management Act and many other
enactments. The law you are proposing again creates two classes of citizenship, where
one is bound by RMA and one is largely freed from the control of the direction of the
RMA ʹ and further will largely have the "power of veto" over the total coastline
extending 12 miles out to sea of New Zealand. It seems wrong that one class of citizen is
bound by Parliament and Local Government and we are creating another class of citizen
that is largely freed from these controls.
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Whilst we do not have a Constitution as such the Treaty of Waitangi has evolved into
something that "looks a little like a Constitution". This ensured and promised all New
Zealander͛s a "sovereignty". It assured all people Maori and Pakeha alike, would be
bound by a common law. The draft Bill is a clear breach of the spirit and intent of the
Treaty of Waitangi. Specifically the proposed Bill breaches in my view the third article of
the Treaty "in consideration thereof her Majesty the Queen of England extends to the
Natives of New Zealand, her Royal protection and inparts to them all the rights and
privileges of British subjects."
The proposed Bill does not "impose the same rights" as was agreed, but creates new,
innovative and unique rights to a certain class of people, which is a clear breach of the
intent and spirit of the Treaty.
Article 1 recites "cede to her Majesty the Queen of England absolutely and without
reservation all the rights and powers of sovereignty...͟. We all agreed to be bound under
one law, British Law, not two classes of Law or an unequal law.
The proposed Bill is in breach of article 1 of the Treaty.
Unless you can prove me substantially wrong in my "simple reading of the document"
then I believe you owe it to the people of New Zealand to make one of the following
decisions:
1. If you agree with me, then I believe you must vote against the Bill.
2. If you are uncertain ʹ or do not know ʹ then I believe you should
abstain from voting.
3. If you can establish I am wrong ʹ then vote for the bill.
I believe we all want to live in a world that is "free of discrimination" provides the opportunity
for "equality" and has the prospect of delivering more harmonious communities that are
forward looking for our children.
Having now read the draft Bill, I would most welcome your debate.
My best contact number is 0212299001
Best Regards
John Sax
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