A new illustrated book on rivers by Bill Benfield.
Published by Tross Publishing, Wellington.
The state of our rivers has become a political hot topic, so much so, that even politicians’ are getting involved. Everyone has a different idea about what we should do about it. Urban based and often conservation groups blame agriculture, particularly “dirty dairy”. Rural communities blame “townies”. Both are right and both are wrong.
On what was dryland farming land, irrigation has changed the game
The problem of our rivers is as much a problem of both central and local government, farming, urban discharge and a national “out of sight out of mind” attitude.
Out of sight and out of mind in rivers treated as open sewers. The big blobs are plastic bags of rubbish and the small ones are lumps of rancid fat.
Privatising what were river margins means council flood control by bulldozer now happens in the river bed. Even if the water is clean, there will still be no swimming here.
Because river margins are privatised, we have lost access to rivers, and often we don’t see what is going on.
0What was once public access beside a road bridge is now private. A gated cattle race and beyond, a river bed overgrown with broom and blackberry.
Even the so-called “mitigations” like fencing rivers to exclude animals in reality only adds to the rivers woes. As well, people are also excluded and the river is now lost.
The fenced off river – it is over there somewhere!
Where does it all end up? In the oceans, habitat to many rare and endanged species including Maui’s dolphin.
Out of sight and out of mind. This example is in the Northern Hemisphere, but in the south, we have Henderson Island which is pretty bad.
This book looks at all these factors, plus issues of free water to foreign exporters and impending problems concerning a major push by the Iwi Leaders Group for ownership and potential commercialisation of water rights.
It looks at the possible cures, such as rivers of a swimmable standard and asks what is needed for this to be achieved.
The book is available from Tross Publishers,
P.O. Box 22143,
Or Email firstname.lastname@example.org
Price $20 (including postage in New Zealand)
A longer version can be found here Poisoning Paradise - Ecocide New Zealand
A must-watch video from the Graf Boys on the appropriateness of the use of 1080 in Godzone
A national game hunting advocacy, the Sporting Hunters Outdoor Trust, wants anglers and hunters to carefully examine political party policies and then vote wisely at the general election on September 20.
Laurie Collins, West Coast conservationist and convenor of the Sporting Hunters Outdoor Trust (SHOT) said it was vital to first and foremost vote.
"Too many New Zealanders - about 800,000 - did not vote last election. Apathy reigned," he said.
But on September 20, it was vital everyone voted as under the current coalition government, New Zealand's outdoors heritage and way of life was under three.
Frankly this election was very crucial to both environment and outdoor sports like hunting and fishing said Laurie Collins.
It was important New Zealanders had a full understanding of MMP and that there were two separate votes, one for the party, the other the electorate candidate.
"SHOT is apolitical, i.e. no political allegiance," said Laurie Collins. "But members are so alarmed at government policies that are threatening to ruin the environment and wilderness bird life and impact on the public's hunting and fishing."
Many hunters also fished for trout and saltwater species so he made no apology for voicing concerns over the outdoor recreational sports generally.
"Recreational sea fishers have had snapper and blue cod bag limits cut with no corresponding reduction in commercial quota and pressure. Corporate commercial fishing companies have easy access to ministers whereas the recreational public are often snubbed by government and ministries," he said.
The cutting of bag limits on Auckland snapper was not matched by a reduction in commercial quota while Marlborough Sounds mismanagement was characterised by discrimination against recreational fishers".
Laurie Collins gave examples of 61 percent of the public's rivers were unfit for bathing in, the taking of public rivers for large scale corporate dairying irrigation, nitrate contamination of rivers and the ecosystem, government letting foreign oil exploration rights in public forest parks, selling of high country to foreigners and mass poisoning of public lands under the guise of "pest" control, with 1080 poisons from government's SOE 1080 centre .
"Frankly government is ignoring the fishing and hunting public in favour of corporate interests and commercial exploitation," he said.
The outdoor public had a chance this election to send a strong message to politicians.
He reiterated the importance of strategic voting by using the party and candidate vote separately.
Whatever way individuals decided to vote, it was very important the public and hunters and fishermen realised there were two distinct and independent votes in the party and candidate vote on September 20.
"If you vote National for candidate for example you don't have to vote National for party. Similarly if voting for a Labour candidate and you can tick any other party for the party vote."
Laurie Collins had a last piece of advice and that was to consider all parties but particularly minor parties.
"The strength of a voice in Parliament may come down after September 20 to the strength of minor parties in Parliament. Make close and careful examination of all party policies."
He said currently it seemed "one or two"minor parties were far more attuned to outdoor recreation than the main ones.
"Think. Weigh up your options and vote as best you think for fishing and hunting," he said.
The Council of Outdoor Recreation Associations (CORANZ) of which SHOT was a member had prepared an election charter, sent it to parties and would be analysing responses and then publicly rating party policies said Laurie Collins.
Government needs to give far greater priority to outdoor recreation in order to counter New Zealand’s bulging rise in obesity says the Council of Outdoor Recreation Associations of NZ (CORANZ).
“Arguably government policies directly or indirectly have reduced encouragement for New Zealanders to actively participate in outdoor recreation such as tramping, fishing, hunting and other forms of outdoor recreation,” said Bill Benfield co-chairman CORANZ.
Mr Benfield said he was startled in googling OECD obesity rates to find New Zealand was third ranked in the “fattest nations.”
“That’s a national disgrace and particularly a reflection of the low ranking outdoor recreation has in the Department of Conservation policies and priorities and various government policies that erode outdoor resources and opportunities for the public.”
Mr Benfield cited government policies such as widespread blanket spreading of poisons like 1080, over-fishing of and mismanagement of inshore fisheries, failure by DOC to maintain huts and tracks in mountains, allowing foreign purchasers of back country to erect locked gates and commercial exploitation of public fishing and hunting values as examples of adverse impact on outdoor recreation.
Besides obesity was a major public health issue in New Zealand, putting an avoidable burden on health services and costing more of the public’s money. Economically the swelling obesity rate was a costly disaster.
“Diet is a major part of the problem but so too is the lack of exercise,” he said.
Government poured money into elite sports for a few champions but ignored the needs of the 4.5 million Kiwis.
“Government even willingly donates tens of millions of dollars to an ultra-rich boys‘ yacht race. A glaring example of hopelessly wrong priorities,” said Mr Benfield.
CORANZ had recently sent an election charter to political parties to assess outdoor recreation and environmental policies. One of the key priority areas is to review the Department of Conservation and to insert recreation into the name making it the Department of Conservation and Outdoor Recreation (DOCOR).
“In this way DOC would be tangibly reminded of its statutory obligations to outdoor recreation which since it’s formation in 1988 it has increasingly shoved further into the back shelf,” said Mr Benfield.
The reduction in the recreational snapper bag limits by the Government is discriminatory and unjust says the Council of Outdoor Recreational Associations of NZ (CORANZ).
The Government has cut the bag limit in the Snapper 1 fishery, which extends between North Cape and Cape Runaway, from nine fish to seven and raised the minimum size of fish to 30 centimetres, up from 27 centimetres.
Andi Cockroft CORANZ co-chairman said the government had cut recreational bag limits by approximately 20 percent and left the commercial catch quota untouched.
"That is unjust and arguably discrimination against the recreational fishing public," he said. "That the change took place on April Fools Day seems significant and insulting to the one million strong recreational public."
Andi Cockroft said any damage to the fishery was caused by bulk catching methods of commercial fishing and not the "rod and reel" recreational anglers.
The Fisheries Act called on the government to manage the fishery for "social, cultural and economic" reasons and to share any measures responsibly between sectors.
"CORANZ has no argument with reductions if justified but it does have when the Minister favours one sector - in this case commercial - above the recreational public," he said. “Everyone recognises the need for a wise use of the resource and to sustainably fish but to discriminate against the Kiwi fishing public by leaving the multi-tonnage commercial catch as it is, is unfair."
The recreational public should not be the sacrificial lamb while company corporates are the cause of any pressure on the snapper stocks said Andi Cockroft.
Marlborough recreational fishing groups are annoyed at government meddling with the process surrounding discussions on the future management of Marlborough’s scallop fisheries.
The scallop fishery has been the focus for intense debate between commercial and recreational sectors as with the depletion of the Tasman and Golden Bay scallop stocks, commercial boats, backed by big companies, are wanting increased access to fish the Marlborough Sounds scallop beds. But what is infuriating the recreational public is that without warning and as submissions were due to close, government suddenly changed the rules.
Two options were initially up for consideration with submissions due to close on 21 February. Then on the eve of submission closure the ministry introduced a third option of a large increase in commercial tonnage and extended submission closure to 3 March.
“Quite clearly the third option was introduced under pressure from the big companies,” said Laurie Stevenson Marlborough Recreational Fishers’ spokesman. “It’s simply outrageous, flies in the face of normal protocol and is shifting the goal posts at the 11th hour. Undemocratic and totally unfair.”
The two original options were: first, for the status quo to remain and second, a proposal to allow 46 tonnes for commercial. The third, later, option proposes raising the commercial quota to 416 tonnes.
Meanwhile Nelson based recreational fishers group TASFISH has told government it’s dismayed at the ministry’s “tight consultation period” of only 18 working days to respond to the first two options. Then on 21 February the Ministry of Primary Industries advised of the third option and extension to 3 March.
“The Minister has undoubtedly been lobbied so hard and so extensively that the commercial quota holders now have their interests put ahead of the long term sustainability of the scallop fishery,” said TASFISH in submissions labelling the controversial third option “the Talleys’ option.”.
“Talley’s” option placed greater weight on the economic consequences of reducing the TACC (commercial catch) than option 2,” said TASFISH.
Economic interests should not override the short and long term sustainability of the scallop fishery.
MRFA spokesman Laurie Stevenson said Minister Nathan Guy needed to stand firm and give full priority to his legal obligations, to manage the fishery in the interest of ensuring the future well being of the scallop fishery.
Also wading into the debate was the NZ Sport Fishing Council which in its submission warned Fisheries Minister Nathan Guy that he must not knowingly risk the productivity and fragile nature of the Marlborough Sounds scallop beds.
“Years of commercial dredging has contributed to the massive collapse of scallop stocks in Golden and Tasman Bays, the lack of regrowth and the acknowledged poor survival of spat and lack of adequate habitat in these areas.”
And on the Marlborough Sounds the council said “Scallop 7 is a public fishery and neither the fishery nor the locals ought to be held to ransom merely to appease quota owners’ interests .”
Finally, the Ministry lethargically proposes to review the fishery at the end of the 2014 season, by which time it is likely that the few remaining scallop beds will have been destroyed said Laurie Stevenson.
“There will be no scallops for anyone. The MRFA and the wider recreational fishing public is incensed by this tragedy,” he said.
Much current discussion in the politics of fishing revolves around the future administration for the public’s recreational sea fishing and the concept of setting up a statutory body. People have spoken and written passionately about the idea of a statutory body and how it would solve the current woes of the recreational fishing sector in being relegated to lowly consideration in management.
In advocating a statutory body, speakers and writers have from time to time referred to Fish and Game as a model to follow. Therein may lie a flaw. Today there are 12 regional fish and game councils and a national New Zealand council.
Strong critics of Fish and Game have been Federated Farmers NZ and government with former and now disgraced cabinet minister Nick Smith reportedly having delivered stern, expletive-laden messages to one or two fish and game councils for their opposition to dirty dairying. Reportedly Nick Smith’s threat was in one tirade to “close down” fish and game councils.
Was it an idle boast? Was it a reckless rant?
Not really for the government has strong powers over Fish and Game.
I have been critical of Fish and Game for not being strong enough advocates on some issues whether it be a dam on a river or some commercialisation or development. When I taxed Fish and Game about it, the response was that they could not speak out because of their statutory responsibility to the Minister of Conservation.
There’s another example that should send a strong warning on the need for caution over a statutory body for recreational sea fishing.
It involves deer and big game hunters
Under the Wild Animal Control Act of 1977, the Minister was given the power to set up a National Recreational Hunting Advisory Committee.
So the minister back about 1980 set up a National Recreational Hunting Advisory Committee “composed of such persons as the Minister thinks fit --- and any advisory committee so established shall hold office during the pleasure of the Minister, and shall have such functions and powers as the Minister may decide.”
The domination by the Minister was so evident. The minister selects who will be on the committee and then decides what it can discuss but at the end of the day it is only “advisory,” and the minister can opt to take no notice.
But the reality was the Minister did not have a clue as to who the best persons might be for council or of decisions made. He went by the advice of the bureaucrats in the then NZ Forest Service. So in essence the bureaucrats pulled the strings of not only the minister but the hunting committee too.
At the time committee members were forbidden to talk publicly. The gags were in place, the hog ties tight.
Another parallel case is conservation boards. Again the departmental bureaucrats “tell” the minister who should be on. Anyone nominee who might be forthright is unlikely to make it. Even if an outspoken individual makes it, the bureaucrats will ensure he or she is well in the minority.
Recalling the Recreational Hunting Advisory Committee of the 1980s is timely for currently a Game Council is being set up and nominations called for. It is a statutory body. The Minister of Conservation Nick Smith will decide who will be appointed to the council, from nominations received.
In other words it will - again - be tantamount to “government appointees” And just as back in 1980 the minister will not know Harry Hunter from Danny Deerstalker so will go on the advice from bureaucrats in the Department of Conservation.
Currently it looks like the recreational hunting public will be a minority voice, heavily outvoted by commercial hunting interests from helicopter operators to game park interests plus perhaps a bureaucrat or two, deer farmers and Federated Farmers. Hardly accidental!
Like the TV comedy, “Yes Minister” will be alive and well - and pulling the strings.
Will a statutory body intent on looking after the interests of the one million New Zealanders who go fishing, be just another puppet pantomime?
Well that’s the challenge in opting for a statutory body. By history bureaucrats will be seeking to hold the power.
The problem is a statutory body would have responsibility to the Minister of Fisheries and any such group would be legally tied by that. It would not allow meaningful freedom of expression or political independence. It could shout loud and long but the Ministry would remain deaf. And judging by a succession of ministers such as the Luxtons, Benson-Popes, Andertons, Heatley, Carter and now Guy the Minister would obediently follow the ministry’s bidding.
If the line of a statutory body was naively pursued and set up, then it’s a one-way-street. There would be no going back unless a government agreed. Recreational fishers - and hunters - would be locked into the administration by the letter of the law.
And if the government administration succeeded in shackling a public recreational sector by a law of Parliament, the bureaucrats in the back rooms would not want to relinquish their hold and control.
Of special significance is an informed source within the commercial fishing industry told me the commercial sector looked at becoming a statutory body but after examination and a realisation of the perils, backed off the idea.
“We (commercial) saw it as a real minefield,” he told me.
Fisheries ministers have been quick to criticise the recreational sector for division and fragmentation. Yes it has been true but is that not human nature? I get annoyed when the Heatleys and Andertons criticise the recreational sector for division or fragmentation. After all, politicians are no better. Political parties have divisions, they have inner cliques, fragmentation and groups even plot and carry out coups. Sometimes political parties implode and end up exploding to smithereens!
So what is the solution? That’s the dilemma. But really the best solution lies with us, each one individually and most importantly, collectively. Collectively the recreational sector has powerful, potent political potential. Eight hundred thousand voters is an incredible weapon at election time.
But inertia and apathy are the mortal enemies.
Were you one of the million Kiwis who couldn’t be bothered voting last election? Did you vote for the party options that showed support for recreational fishing?
That political factor could be termed“ people power.”
Undoubtedly more maturity, less spiteful jealousy and personal self serving agendas with more positive vision and motivation are needed. Idealistically - at the risk of being a cock-eyed optimist - I would like to think sensible people can organise themselves into a cohesive and competent administration that would not be hog-tied by the bureaucrats via an act of Parliament.
It’s over to us, each one of us individually - and together.
In the meantime be aware of the temptation of statutory bodies. Seductive at first glance but past experience says it could be a path to permanent bondage.
I've just got my copy of CAFCA's bulletin - as a member of Campaign Against Foreign Control of Aotearoa (CAFCA) - in which they list land purchases by foreigners.
It's a very worthwhile bulletin (100 pages) (about three a year) with latest issue having articles on the the TPPA, GCSB etc-but back to the list of foreign purchases. In the latest I note the Chinese in a "confidential" decision have bought 1100 hectares on North Auckland's Karikari Peninsula, Hollywood mogul James Cameron continues to add to his “Wairarapa Empire” and of particular interest to outdoor recreationalists is "Americans buy 4,000 hectare Lilydale Station at Fairlie" "Americans buy 27,000ha Mt Pember Station in Lees Valley Canterbury and part of Ben Avon Station -- 2,737 ha sold to a British businessman to develop "a luxury wilderness lodge" as well as offer guided hunting, trout fishing etc---.
Mt Potts Station is another in “foreign” ownership. About a dozen years ago, Mt Potts underwent Land Tenure Review relinquishing most of the property to the Department of Conservation and retaining 1200 hectares of freehold land which is the Mt Potts Station of today. In 2011 Mt Potts was purchased by Alexandre Germanovich.
Back in the 1970s the late John Henderson and a few of us successfully fought the sale of Takaro in the Upukerora Valley at Te Anau where Stockton Rush a rich US businessman wanted to exploit the fishing and hunting values for personal gain. At the time John and I went to battle against Duncan McIntyre (Minister of Lands) who authorised the sale. It along with trout farming became a major issue at the election. McIntyre was defeated at the 1972 election.
Now to me these latest foreign purchases of high country stations are little different to Takaro Lodge.
In the case of the high country stations foreigners invariably lock the gate to Kiwis wanting to access fishing, hunting, 4 wheel driving, tramping or whatever recreation. To understand their view they come from a culture of private estates, locked gates and have little appreciation of the old Kiwi egalitarian culture.
I personally are witnessing - and feeling it - in Marlborough where Malaysians, Chinese and Koreans have bought high country stations and locked the gates! I've lost recreational access to three stations.
You can't blame the vendors- i.e. sellers. Wool prices are pathetic thanks to inept ministers of agriculture and governments - but that's another subject. To give you an idea possum fur is 30 times the value of crossbred wool!
Meat returns are poor. It's all due to the corporate culture encouraged by this government where companies indulge in cut throat export competition and drive prices and thus returns to farmers, down. So feel sorry for farmers. A farmer facing "pensioner" age can't be blamed for selling for the healthy sums foreigners pay. Ben Avon sold for $6.5 million, Lilydale for $3.5 million and Mt Pember for around $20 million!!
NZ is losing out badly. The prices foreigners pay drive up the market price so young Kiwi farmers can't afford the inflated prices. And the Kiwi outdoor public finds traditional access vanishing.
The outdoor recreation public should be standing up on this issue.
Related to this is tenure review where public lands are freeholded and once that happens a high country farmer can sell - it's his or her land, no longer public very likely to foreigners. That is my one big reservation about the long term wisdom of tenure review.
And what do you think? Do you care?
(1) To join CAFCA google their website.
(2) Opinions expressed on CORANZ's website do not necessarily reflect the council's view.
We have been alerted to the advertising of a claim for Customary Marine Title to about 100 km of the Coast, out to 12 nautical miles, that re-activates a claim parked in the Wellington High Court. We can register as a party if we do so before next Monday.
This case came to our attention because the Gisborne District Council is likely to also register as a party, and may even oppose the claim, to safeguard the iterests of the people living in the Gisborne District.
The Hawke's Bay Regional Council is also likely to be similarly involved.
The two papers presented to the Gisborne DC at today's meeting are below.
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Recognition of a Protected Customary Right and Customary Marine Title by Rongomaiwahine under the Marine and Coastal (Takutai Moana) Act 2011
Keriana Wilcox-Taylor (Senior Planner, Policy)
25 September 2013
Report to ENVIRONMENT & POLICY COMMITTEE for decision
Rongomaiwahine iwi have applied to the High Court for recognition of a protected customary right and customary marine title under the Marine and Coastal (Takutai Moana) Act 2011 (“MACA”). The application is attached with a copy of the affidavit and public notice as appendix 1.
The Rongomaiwahine takutai moana area to which the application relates is:
a. On the landward side, by the line of mean high water springs; and
b. On the seaward side, by the outer limits of the territorial sea.
This includes the beds of rivers, the airspace and the water space above, and the subsoil, bedrock and other matter including natural resources within the Rongomaiwahine takutai moana area as follows:
To the north, at Whareongaonga/Paritu;
To the south, the mouth of the Nuhaka River;
And including Te Mahia Peninsula (including but not limited to Mahanga, Oraka, Te Mahia, Whangawehi, Horokaka, Nukutaurua, Tawapata, Ahuriri, Te Houra (Waikawa or Fortland Island), Kinikini, Te Hoe, Moata, Mokotahi, Opoutama, Waikokopu, Aureti).
The area depicted in appendix 3 shows the Rongomaiwahine takutai moana area within the boundary of Gisborne District Council (GDC). The northern point is at Whareongaonga through to the boundary with Hawke’s Bay Regional Council (HBRC), north of Takararoa in the south.
The Council represents the interests of all members of the Gisborne community.
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Council can take the view that areas that have legal or practical public access to the seabed and foreshore should probably not be given customary marine title status, as these areas do not meet the statutory test of the Marine and Coastal Area (Takutai Moana) Act 2011. Staff understand that at least some of the areas covered in this application would fall into this category.
There are also potential cross boundary cross boundary issues with neighbouring iwi, Ngai Tāmanuhiri, who also share Whareongaonga and Paritu as part of their rohe. This may pose issues for Council in relation to its statutory obligations.
For these reasons Council could oppose the application. A notice of appearance relating to this application is due to be lodged with the Wellington High Court by 30 September 2013, should the Council wish to join the proceedings.
That the Committee
1. receives the report
2. instructs Paul Beverley of Buddle Findlay Lawyers Wellington to lodge a Notice of Appearance with the High Court Wellington to oppose application CIV-2011-485-794 by Pauline Tangiora on behalf of Rongomaiwahine.
Keriana Wilcox-Taylor Hans van Kregten
Senior Planner (Policy) Group Manager Environment and Policy
Keywords: Rongomaiwahine, Marine & Coastal (Takutai Moana Act) 2011
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Background the Marine and Coastal (Takutai Moana) Act 2011 (“MACA”)
The purpose of the MACA is to restore and protect legitimate, customary interests and recognise the mana tuku iho exercised by iwi, hapū, and whānau as tangata whenua.
The MACA acknowledges Te Tiriti o Waitangi, which the Foreshore and Seabed Act did not.
Whānau, hapū or iwi groups have until March 2017 to seek Customary Marine Title. This can be done through specific negotiations with the Crown or through an application to the High Court. The latter is the course of action that Rongomaiwahine is currently undertaking.
Differences from Foreshore and Seabed Act 2004 (“FSSB”)
There are some differences between the MACA and FSSB. The MACA:
a. Acknowledges the Treaty of Waitangi;
b. Restores native title, which was extinguished under the FSSB; and
c. Limits the ability to obtain title through fulfilment of the statutory legal test.
The “Common Marine and Coastal Area”
The MACA creates a common space in the marine and coastal area called the “common marine and coastal area”. This was previously referred to as the “foreshore and seabed” under the FSSB. The MACA guarantees free public access in that area, but it does not affect private titles. The Crown does not own the common marine and coastal area, nor is it capable of being owned by anyone else (including iwi, hapū or whānau groups).
Protected Customary Rights
The MACA provides for the protection of “customary rights”. These are longstanding rights that continue to be exercised. The MACA protects these rights by affording them the status of mana tuku iho, which formalises existing best practice in coastal management and will allow iwi and hapū to take part in conservation processes in the area.
Customary rights are not territorial (and therefore the public cannot be excluded). This is because the recognition of customary rights relates primarily to an activity and not an area of marine and coastal space. Customary rights holders have to give written permission in relation to third party applications for resource consents for activities that will have an adverse impact (more than minor) on the customary activity.
Protected customary rights holders will be able to:
Continue to carry out activities without a resource consent;
Determine who within the ‘group’ can do so; and
Limit or suspend those activities.
While it is the consent authority who decides whether or not a resource consent can be granted, the consent authority cannot grant a resource consent if the activity will, or is likely to have, adverse effects that are more than minor on the protected customary right.
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In such a case, the protected customary right holder can give written approval for the activity to go ahead despite the adverse effects (Section 55).
Customary Marine Title
Under the MACA, Māori can apply for recognition of “customary marine title” for areas within which whānau, iwi or hapū have a longstanding and exclusive history of use and occupation. Customary marine titles will be subject to the right of public access and they cannot be sold.
Customary marine title is the “stronger” of the two forms of protections available under the MACA. Once granted, the holders of a customary marine title in specific parts of the common marine and coastal area will have:
the right to permit (or withhold permission for) activities requiring a resource consent in the area covered by the title (other than accommodated activities listed in the Act);
the right to permit (or withhold permission for) certain conservation processes (e.g. establishing a marine reserve);
the right to prepare a planning document setting out the objectives and policies for their customary marine title area which would be recognised and provided for by the relevant regional council in relation to resource management issues. A planning document can also extend outside a customary marine title area and must be taken into account in those areas. A planning document also has relevance for decisions made by local authorities under the Local Government Act 2002, the Historic Places Trust, conservation management strategies and, to a limited extent, fisheries management;
the ownership of non-nationalised minerals within the customary marine title area;
prima facie ownership of taonga tuturu (historical artefacts) found in the customary marine title area;
input into the New Zealand Coastal Policy Statement and applications for marine mammal watching permits; and
the ability to prohibit or restrict access to wāhi tapu within their customary marine title area.
Activities to which the permission right will not apply include:
some existing infrastructure work, maintenance and upgrades
scientific research or monitoring;
certain new infrastructure activities that are considered to be essential from a national or regional perspective and cannot practicably be constructed outside a customary marine title area; and
certain petroleum activities.
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Legal Test for Obtaining Customary Marine Title
To gain customary marine title, applicants will have to fulfil the statutory test of showing that they have exclusively used and occupied the area without substantial interruption since 1840. The “without substantial interruption” test has been altered slightly when compared to the FSSB. The MACA allows recognition of a right “whether it continues to be exercised in exactly the same way or a similar way, or evolves over time.”
This is an important change, as it allows applicant groups to show that the right has evolved or progressed since 1840. Importantly, there is no longer a need for the right to be exercised in precisely the same way as it was in 1840.
An applicant group can seek recognition of its rights either through:
a. notifying the Crown that the applicant group has an intention to seek an agreement with the Crown (i.e. through direct negotiations) e.g. Ngāti Porou; or
b. by filing an application for a recognition order with the High Court.
The notification or application must be presented or filed in Court no later than March 2017.
At present there are no others lodged with the Gisborne District.
Staff participated in a teleconference with policy staff from Hawke’s Bay Regional Council, who is also considering lodging a notice of appearance. We spoke with a solicitor from the Crown Law Office, Andrew Irwin, who is representing the Crown in this matter.
Key points from the discussion:
The information provided in the application and affidavit about the customary activities to be undertaken within the claim area is insufficient. The affidavit establishes Rongomaiwahine ‘tino rangatiratanga’ and customary rights over the area but does not say what those rights and resulting activities are. This makes it difficult to assess potential ‘adverse effects’ from these activities on the environment.
The area over which the applicant group are claiming is recognised as a statutory area under the Ngai Tāmanuhiri Claims Settlement Act 2012. A map of this area is attached as appendix 4. It is not clear what the implications to Council would be in carrying out its responsibilities in relation to the RMA, MACA and Ngai Tāmanuhiri Claims Settlement Act.
It is not clear what the northern boundary is for the Rongomaiwahine takutai moana area. The application states Whareongaonga/Paritu, the affidavit states Paritu. Clarification is required as the issues are substantially different if the boundary is at Paritu as opposed to Whareongaonga.
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Claim area within GDC boundary
Whareongaonga is on the northern boundary of the “Rongomaiwahine takutai moana
area”. Map 2A.27 from the Coastal Environment Plan for the Gisborne District indicates that
this area is a ‘Marine Area of Significant Conservation Value’ and an ‘Outstanding
Landscape’. These areas are treated as protection management areas.
The purpose of the Protection Management Area is to sustain the values that make these
sites special. Activities will be allowed in the sites of special value provided that there are no
adverse effects on the values of those sites.
The Protection Management Area encompasses all identified regionally significant sites of
special ecological, cultural, historic, scientific, scenic, and amenity value, including all the
areas of significant conservation value identified by the Minister of Conservation. This is why it
is imperative that Council know what customary activities are planned within the claim area.
Map 2A.27 o f the Coastal Environment Plan for the Gisborne District
There are no current resource consents or coastal permits within the claim area. Applicants
for resource consents within the application area will need to have regard to this application
in assessing any resource consent applications within this area until the end of the High Court
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Council represents the interests of all members of the Gisborne community. The Council has previously made comments about the issue of public access to the Ngati Porou Customary Marine Title enquiry. Those areas which since 1840 have been able to be legally or physically accessed by the general public may not meet the criterion that whanau, hapu and iwi groups have exclusively used and occupied the coastal marine area from 1840 to the present day. On those grounds, those areas should probably not be recognised as qualifying for customary marine title.
This is not a significant decision according to Council’s significance policy.
There will be financial implications by joining these proceedings. Some of these costs include a high court lodgement fee of approx $200, staff time and lawyers’ fees between $1,000 and $5,000. Hawke’s Bay Regional Council have offered their assistance by asking Council to join their process should they lodge a notice of appearance. This would reduce costs significantly from our end. HBRC have engaged Matt Conway from Simpson Grierson in Wellington for legal advice.
The immediate issue for council is filing for a notice of appearance with the High Court in time for the 30 September deadline. The in house Legal Officer is unable to lodge the Notice of Appearance on behalf of the Council as she is not a litigator. This is why Council must engage outside legal counsel to act on its behalf. She has recommended Paul Beverley from Buddle Findlay in Wellington. He specialises in this area of work and has previously advised the Crown on the MACA.
The recommendation is to oppose the application on the grounds that there is insufficient information on which to base a sound position.
Paul Beverley has since been approached and is preparing a draft notice of appearance. This is not available at the time of the drafting of this report.
The Chief Executive requested a meeting with Mrs Pauline Tangiora in relation to the application. This request has been deferred until mid-October, due to the legal proceedings currently being undertaken. Ngai Tāmanuhiri has also been advised by Council of this application.
Appendix 1: Copy of the Rongomaiwahine Application to the High Court and public notice.
Appendix 2: Affidavit of Pauline Tangiora.
Appendix 3: Map of the Rongomaiwahine Takutai Moana area within the GDC boundary.
Appendix 4: Map of the Ngai Tāmanuhiri Statutory Area
Appendix 5: Notice of Intention to Appear by Gisborne District Council