Posted on 30-1-2004

Government policy gives Maori 'real power'

Maori holders of customary rights under the Government's foreshore policy will have real power over others, Solicitor-General Terence Arnold, QC, argued at a Waitangi Tribunal hearing yesterday.

Mr Arnold was trying to persuade sceptical lawyers acting for Maori groups that the policy gave power to customary rights holders including, in some circumstances, a veto over others' proposed activities.

"Those who have a customary right do have a right to stop activities that will have a significant impact on that customary right. That is a real power, a real ability."

But he acknowledged there would be a problem if Maori continued their apparent opposition to the plans.

Mr Arnold is the Crown's top legal adviser, but his comments are certain to delight the Opposition, which believes the Government has been underplaying the potency of the policy because it is nervous of a Pakeha backlash.

Under the policy Maori groups will be able to have the court recognise a traditional customary use right on a new type of "customary title" and have a say over other activities that might interfere with that right.

The most commonly discussed rights are removal of sand, shingle and hangi stones, launching waka, protecting burial sites and declaring rahui - no-go zones when, for example, a drowning has occurred.

The Government is still thrashing out the criteria that will need to be met before a group can gain customary title.

The law will declare the foreshore and seabed to be vested in "the public domain" with public access rights guaranteed.

The Waitangi Tribunal is trying to decide if the policy is consistent with the Treaty of Waitangi and will seek to complete its report by the end of next month, before legislation is presented to Parliament.

Mr Arnold said the policy "does accord real rights to those who hold customary titles and customary rights. They are not, with respect, simply in the position of any other person".

"If we assume there is no activity on the beach at all and we then have a declaration of customary rights, the customary rights holders take precedence in the sense that nobody can then get a resource consent which will interfere with the way those customary rights holders exercise their right."

When the resource consent for an activity in an existing consent comes to an end, "then the customary right holders' interests become paramount".

He also pointed out that amendments would be made to the Resource Management Act to ensure that before an allocation of any space was made, through zoning rules in plans or through individual permit applications, customary rights must be considered at the outset.

If an existing consent significantly impacted on the ability to exercise the customary right, redress could be negotiated.

And under existing Government policy there were no constraints on the type of redress, including the vesting of title in an iwi.

Judge Carrie Wainwright asked how it would be possible to run the process "if the apparent ill-will to the policy by Maori" continued.

Mr Arnold: "The hope is that people will participate because they will see real benefit. If people don't, then there is a problem ... It can't force people to participate."