If something isn’t really broken, no wonder people feel suspicious when government promises to “fix” it to the potential benefit of corporate interests. In 2011, Parliament passed legislation that struck a delicate balance between (a) access/navigation/development of our coastline and marine resources and(b) the “customary” use of foreshore and seabed resources by iwi, hapu and whanau. The statute provided Māori with customary rights of use, provided they could meet quite a high test that with respect to the area in question, they had “exclusively used and occupied it from 1840 to the present day without substantial interruption.”
Plainly, if Māori have been displaced from exclusive access/use of their coastal resources as a result of European settlement, it would be somewhat perverse for the Crown to be setting overly strict rules on whether Māori have had a legitimate “continuous” and “exclusive” connection to those resources.
In 2023 the Court of Appeal revisited this issue, and loosened the criteria for customary use. The Court declared that for compelling customary use rights to exist, groups merely had to show they exerted sufficient control over the area in question such that that they could prevent others from using it, and -crucially – that in situations where the actions of the Crown and workings of the common law had stopped them from doing so, then those obstacles could be ignored. Last year however, the Supreme Court overturned that ruling.
The government has now passed legislative amendments that swing the pendulum back beyond the middle ground staked out by the Supreme Court, and to the opposite end of the spectrum from the Court of Appeal. PM Christoper Luxon and Justice Minister Paul Goldsmith are being deliberately misleading when they repeatedly claim that the new Marine and Coastal Area Amendment Act merely restores the “original intent” of the 2011 legislation.
The new law is a by-product of National’s coalition agreement with NZ First. In effect, the changes significantly reduce the scope of customary rights and the ability of iwi, hapu and whanau to veto or impede the activities of drilling/mining companies seeking to exploit our coastline and reserves and their marine resources.
Chris Finlayson, the former National Party Cabinet Minister who was instrumental in framing the 2011 law has eloquently denounced the government’s amendments :
Why don’t they just come out and be honest and say ‘we’re not clarifying the law; we’re tightening it up – the Māoris have had too many wins’,” [Finlayson] told the NZ Herald. “That would at least be transparent. But to say they are clarifying the intention of Parliament is simply not true…
As Finlayson explained in the same brilliant (paywalled) NZ Herald article by Audrey Young, there are three major changes to the current customary rights test:
1.Physical evidence: Currently, the area in question has had to be held in accordance with tikanga, and exclusively used and occupied since 1840 without substantial interruption. However, that use and occupation since 1840 will now need to be validated by physical evidence. A spiritual or cultural association will no longer suffice, unless or until such links can be demonstrated via physical evidence.
2. Extinguishment: Under the 2011 legislation, customary marine title no longer exists if it has been extinguished by legal proceedings. However, as the Court of Appeal confirmed, if a resource consent has been granted, that consent doesn’t amount to a legally significant interruption to “continuous use. ”
As Finlayson points out, the new amendments not only remove that provision; they add further, explicit triggers for extinguishment. “Crown grants, common law, statutory vesting, administrative action, or that an interest has been established that is legally inconsistent with exclusive use and occupation of the area by the [Māori] applicant group.”
In other words, such changes will now count as nullifying claims to “continuous” and “exclusive” use, thus making it significantly harder for Māori to claim customary marine rights.
3.The burden of proof has been shifted onto Māori
Lest we forget, Māori are the indigenous people of this country, and as such, enjoy access to customary marine rights. That being the case, the 2011 law presumed, in the absence of proof to the contrary, that a customary interest has not been extinguished. As Finlayson explains:
“However, under the amendment, the presumption of non-extinguishment is removed. The [Māori] applicant group has to prove both exclusive use and occupation and that there has been no substantial interruption or extinguishment. That means it has to prove a negative, or prove that something has not happened.”
Needless to say, this is not the first concerted effort by the current government to narrow the rights held by Māori under the Treaty of Waitangi, and to reduce the role of the Treaty in the socio-economic life of this country. We are being carried backwards into the 19th century by the Luxon government, which gives every sign of embracing the neo-colonial notion that Māori pose an obstacle to development that needs to be removed.
Albanese meets Trump
Reportedly, the Oval Office meeting between Anthony Albanese and Donald Trump went well and surprise, surprise, it seems to be because Albanese caved in and gave Trump what he wanted i.e. significant US access to the point of virtual control of Australia’s rich deposits of rare earth minerals.
Inexplicably, Albanese agreed to this multi-billion commitment, in exchange for a meaningless commitment by Trump to go “full steam ahead” with the AUKUs defence pact. Yet a US review of the AUKUS pact will not be completed until December. Moreover, US shipyards cannot currently build enough nuclear submarines to meet the needs of the US Navy, let alone having the spare capacity to build nuclear subs for the Australians.
For New Zealanders, the truly significant comment by Trump came in at the end of the press conference. Keep in mind that New Zealand is spending $9 billion of new money – and $12 billion overall – to gain an entry ticket to pillar two of an AUKUS pact that has been packaged and sold as a necessary counter to the threat posed by China.
According to Trump though, we really, really don’t need to do that. At 11.18 in the question time after meeting Albanese this exchange occurred:
Q. Mr President, your Secretary of War Peter Hegseth..warned about the potential likelihood or threat of President Xi ordering an invasion of Taiwan.. Do you see AUKUS as a deterrent to China in the Indo-Pacific?
President Trump: “Yeah I do, I think it is, but I don’t think we’re going to need it. I think we’ll be just fine with China. China doesn’t want to do that. First of all, the United States is the strongest military power in the world by far, its not even close, not even close. We have the best equipment, we have the best of everything, and nobody’s going to mess with that. And I don’t see that at all with President Xi, I think we’re going to get along very well as it pertains to Taiwan and others. Now that doesn’t mean its not the apple of his eye, because probably it is, but I don’t see anything happening.”
Right. So you heard it there straight from the horse’s mouth. We don’t need to join a costly irrelevancy like AUKUS, or worry about any military threat from China because – as this column has long argued – the US is a far, far stronger military power (“its not even close” )and it would not be in China’s economic interests to “mess with that.”
So tell me again, why are we wasting $9 billion of scarce taxpayer dollars in order to combat a military threat from China that Donald Trump says isn’t real, when we could be spending that kind of money here at home on public health, education, housing and infrastructure?
Les Filles de Illaghadad
I first became aware of this trio of women from Niger thanks to a mention by Lillie West, an American musician better known as Lala Lala (BTW, her “What’s In My Bag” selection is one of the best examples of what later became the template for the Criterion Closet film series).
The album by Les Filles called Eghass Malan can’t be recommended too highly. Here’s a live version of “Tendu”:
And from last week, here’s the most recent Lala Lala single: