Former Attorney-General Condemns Changes to Marine Rights Law

The New Zealand government faces criticism following its decision to advance controversial changes to the Marine and Coastal Area (Takutai Moana) Act. Former Attorney-General and National Party MP Chris Finlayson has labelled the move as “foolish” and “extremely harmful” to race relations in the country. He argues that the proposed amendments would make it significantly more difficult for Māori to secure customary marine title.

The legislation aims to reinforce the original intent of the law, according to Prime Minister Christopher Luxon. He stated that these changes would create a better balance for all New Zealanders’ rights. The amendments would impose stricter criteria for determining whether customary rights can be granted. Under current regulations, customary title acknowledges exclusive Māori rights to portions of the foreshore and seabed, contingent on proving continuous and “exclusive” use of the area since 1840 without substantial interruption.

A ruling from the Court of Appeal in 2023 clarified that groups only needed to demonstrate control over an area to prevent others from using it, a position that the Supreme Court later overturned. Following this, the government paused any amendments to the law. However, on Tuesday, Treaty Negotiations Minister Paul Goldsmith remarked that the Cabinet felt the existing provisions still lacked the desired balance, indicating that the criteria for obtaining customary rights were insufficient.

Luxon, speaking from Papua New Guinea, reiterated this stance, asserting that the legislation should revert to its original intent for achieving the right balance. He mentioned, “We have looked at the Supreme Court decision pretty closely and think it’s quite broad,” suggesting that legislative changes would clarify the law’s purpose.

Finlayson strongly contests the government’s position, claiming that the Supreme Court had already articulated Parliament’s original intent in 2010. He stated, “These amendments do not restore the original intention of Parliament. They undermine them. Let there be no doubt about that at all.” Finlayson, who served as Attorney-General when the legislation was enacted in 2011, emphasized that the changes would dismantle the agreement reached between the National Party and the Māori Party in 2010.

He expressed concern that the government’s actions would harm race relations, stating, “Tangata whenua have a few wins in court, and it’s ripped away from them by the government, which changes goal posts 15 years later.” Finlayson conveyed his disappointment, describing it as “a very bad day for race relations in New Zealand.”

Opposition from the Labour Party has also surfaced, with Māori Crown-Relations spokesperson Peeni Henare asserting that the proposed changes would limit Māori’s ability to assert their rights in court. He noted, “In 2011, the National Party made much of their commitment to Māori ‘having their day in court’ and this proposed change takes that away again.” Henare added that the current legislation does not grant Māori ownership rights over public access to the foreshore and seabed.

The proposed amendments have already faced backlash from various iwi, including Ngāpuhi, who staged a walkout during an Iwi Chairs Forum meeting with the Prime Minister in protest. The Northland iwi Ngāti Wai expressed their refusal to accept what they perceive as the Crown exercising unwarranted authority.

Furthermore, the Waitangi Tribunal found in September 2022 that the proposed changes were characterized by a “blind adherence” to existing political commitments that disregarded Māori rights. The ongoing debates surrounding the Marine and Coastal Area Act reflect deeper tensions regarding land and resource rights in New Zealand, a critical issue for both Māori and the broader New Zealand community.