Foreshore and Seabed Debate Replay

The Poor Knights

The Ngātiwai Trust Board welcomed the Waitangi Tribunal’s Stage 1 Report on the WAI 2660 Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry released on 30 June 2020.

The Tribunal found that the Crown had breached the principles of the Treaty of Waitangi in terms of partnership and active protection. As a result the Tribunal recommended that 100% of the reasonable costs of applicants should be met by the Crown and that Legal Aid be looked at further as a means of administering the costs.

This inquiry has been of huge importance to Ngātiwai as the takutai moana is central to the Ngātiwai identity as a people. The 2011 MACA Act established two paths for Māori including Ngātiwai to establish customary title in the takutai moana – either by applying to the High Court or by direct engagement with the Crown.

Stage 1 of this inquiry looked into the procedural and resourcing (i.e. funding) regime for Māori applicants seeking to establish customary rights under the MACA Act. In the hearings held in Wellington in March and August 2019 Ngātiwai claimants gave evidence relating to confusion of the MACA processes, the lack of consultation, the significant financial burden they had experienced with the Crown’s inadequate funding
regime for applicants, the Crown’s lack of clear policies and procedures for funding, and the MACA regime itself which was viewed as creating dissension amongst applicants.

The Tribunal concluded that that many aspects of the Crown’s procedural and resourcing regime fell well short of Treaty compliance. The Tribunal went on to say: “this is particularly regrettable given the context in which the Marine and Coastal Area (Takutai Moana) Act was developed– as a replacement for the controversial Foreshore and Seabed Act 2004, which left such a damaging imprint on Māori– Crown relations and the social fabric of Aotearoa New Zealand.”

The Tribunal’s specific recommendations included the Crown considering the current Legal Aid scheme as a suitable model for funding applicants and amending the Legal Aid scheme to accommodate marine and coastal area applications.

The Tribunal also requested that the Crown work with applicants to urgently address the policy vacuum that continues to impede the Crown engagement pathway – a necessary first step in achieving greater cohesion between the High Court application and direct
engagement pathways which the Tribunal considered fundamental.

In referencing its recent Hauraki Settlement Overlapping Claims Inquiry Report (2019) recommendations, the Tribunal also recommended that the Crown improve its support for groups seeking to resolve overlapping interests in MACA, so that applicant groups could reach resolution in a timely and tikanga-consistent manner.

In Stage 2 the Waitangi Tribunal will examine to what extent, if at all, are the MACA Act and Crown policy and practice inconsistent with the Treaty in protecting the ability of Māori holders of customary marine and coastal area rights to assert and exercise those rights.

The Board and other claimants filed their evidence for stage 2 of this inquiry in August 2020 with Northland hearings scheduled to be held at Whitiora Marae, Te Tii, Kerikeri between 28 September and 2 October 2020. Nau mai, haere mai e te iwi.

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