Harry Clatworthy: Te Mata Law Barrister on the changes to the Marine and Coastal Area Act

A lawyer says people shouldn't fear Māori being given customary marine titles.  

The Government will tighten criteria so that groups will have to prove continuous and uninterrupted occupation since 1840.  

Te Mata Law barrister Harry Clatworthy says there are about 200 outstanding claims, and he expects around 50 to be particularly affected.  

He told Ryan Bridge concerns that Māori will close down beaches are a misunderstanding of what the titles actually grant.  

Clatworthy says they do grant the right to turn down private resource consents, but don't affect most other activities. 

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Episode Transcript

Speaker 1 (00:00):
We're back in the hot waters of the foreshore and
seabed debate. The government says it'll move ahead with changes
to the Marine and Coastal Areas Acts as part of
the coalition deal it has with New Zealand. First, we've
spoken about this before. It follows the Supreme Court ruling
which basically throughout the proposed changes in December last year.
Harry Clatworthy is a barrister at Tamata Law and represented

(00:22):
NATI to with his foreshore and seabed claim at the
High Court. And he's with me now, Hi, Harry, good going, yeah, good,
thank you. This is this is all about defining customary title,
isn't it. Can you just touch the chase with us?
What exactly is going on here?

Speaker 2 (00:40):
It is about defining customary title. Essentially, what the government
has done through his amendments is make it harder for
marty to have their customery title recognized through the courts.

Speaker 1 (00:50):
And they're going to make sure that that stays. It
stays that way, basically, aren't they.

Speaker 2 (00:56):
That's the plan. This new amendment will basically make the
test harder for marti groups, particularly marti groups who who
have areas of interest that are in high areas of
third party use, so Auckland Totonger areas with his development,
and there's a lot of third parties using their area.
They're basically trying to make it so they don't pass

(01:20):
the test to have customary title or customer rights awarded
in those areas.

Speaker 1 (01:24):
Because you had to prove that you had continuous and
exclusive use of an area since eighteen forty, basically didn't you.
That was what Key brought in, and so that courts
softened that slightly, which is what this government's got a
problem with.

Speaker 2 (01:41):
No, so that still has to be proved. So continuous
use and occupation without substantial interruption since eighteen forty, and
really what that actually means is, you know, a massive
legal gray area. Of course every group, there's of course

(02:04):
some interruption to the use of the ocean by any group.
What this new amendment has done is basically make it
easier for the Crown to prove substantial interruption. So there's
a lower bar for there to be substantial interruption, which
basically extinguishes the customary title.

Speaker 1 (02:21):
How many actual cases do you think we could be affected?
How many claims?

Speaker 2 (02:28):
It's hard to say. There's about two hundred claims out there,
and so far nearly all of them have been successful. However,
the areas in the really high developed parts of the
country are yet to go all the way through Farnga
days about halfway through, so I would say at least

(02:49):
at least fifty or more are going to be affected
by this, if not more. All of them will be affected,
and all apart from the seven that have already been confirmed,
so they'll be all right, but the rest of them
are to have to either be reheard or meet this
new and updated test. But that's hard to say before
we get some decisions from judges, because at the end
of the day, they're the one to interpret the law.

Speaker 1 (03:12):
Harry, what do you get if you can prove customer title?
What does that actually mean? Can you go and use
the foreshore and cbit and no one else uses it?
What does it mean?

Speaker 2 (03:20):
No? No, no, So look, at the end of the day,
as Mardi, we say, you don't get, you don't get
a whole hell of a lot. There's a big misconception
and a lot of public fear around Mary going to
stop people going to the beaches. They're going to, you know,
basically cut off that the ability of non MARDI to

(03:40):
use them Waner, which completely isn't true. There's all navigation
access and fishing is completely protected under MACA. Basically, what
groups have the ability to do is turn down resource
management consents. However, there's a big exception for accommodated activity,
which is pretty much everything except basically private resource consents

(04:05):
in the area. Malory had the ability to veto those.

Speaker 1 (04:08):
Fascinating Harry, thank you, Thank you for that. Appreciate you
coming on the show this morning. It's Harry Clatworthy, barrister
at Tamata Law.

Speaker 2 (04:15):
For more from Early Edition with Ryan Bridge.

Speaker 1 (04:17):
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