10 Jul 2014

Foreshore law still prompts debate

1:29 pm on 10 July 2014

The Maori Party is celebrating its 10th anniversary with its leaders saying they're proud of its achievements, including scrapping the controversial 2004 Foreshore and Seabed Act.

But there's criticism of the legislation's replacement, which still leaves tangata whenua with the tough job of proving their customary title and rights to the takutai moana.

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Photo: PHOTO NZ

The Maori Party was officially recognised as a political entity 10 years ago and was born out of opposition by iwi over Labour's decision to introduce the 2004 Foreshore and Seabed Act.

Tariana Turia, who disagreed with the legislation, left Labour and helped create the Maori Party, says it has achieved its goal of reinstating Maori rights over the foreshore and seabed.

But a Treaty of Waitangi claims lawyer, Prue Kapua, said the Foreshore and Seabed Act should never have been passed in the first place, should have been repealed, and never been replaced with another act - the Marine Bill and Coastal Area Act.

"New Zealand still has a piece of legislation that does add restrictions, when in actual fact it should never have occurred.

"When we were then dealing with how Maori rights in the foreshore and seabed should be looked at, we should have been looking at something that was far more workable than what we had under the common law. We didn't do that."

Victoria University political scientist Maria Bargh said the Marine Bill and Coastal Area Act was not much of an improvement.

Ms Bargh said it made it very hard to prove Maori had customary title to an area and used it continually before 1840. She believes the level Maori must reach to prove customary title is unrealistic.

"There are aspects of the test for what Maori have to prove that are very similar under both Acts despite there being some changes.

"One of the things the Maori Party claims is that the onus, the responsibility, is now on the Crown to prove that it has acquired the foreshore and seabed, but really it's Maori that have to either bring a case to the High Court or put in an application - so really that burden of proof still rests on the shoulders of Maori, unfortunately."

A lawyer who acted for Ngati Porou when it undertook Foreshore and Seabed Negotiations and signed a Deed of Agreement with the Crown in 2008, believes the current Act is an improvement because it reintroduces the idea of customary title.

But Matanuku Mahuika said the part of the test requiring Maori to show they have continually used an area from before 1840 through to the present was difficult.

Mr Mahuika said another of the challenges with the 2009 Act is defining how coastal areas were used for navigation purposes.